* This text was reproduced and reformatted from the text available at the International Chamber of Commerce (visited Mar. 30, 2011) http://www.iccwbo.org/uploadedFiles/BASCAP/Pages/ACTA%20final.pdf.

1 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994), available at http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm [hereinafter TRIPS Agreement].

2 Organization for Economic Cooperation and Development, The Economic Impact of Counterfeiting and Piracy (2008)Google Scholar.

3 TRIPS Agreement, supra note 1, art. 51.

4 WIPO Copyright Treaty arts. 11-12, adopted Dec. 20, 1996, 36 I.L.M. 65 (1997), available at http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.

5 Other negotiating states included Australia, Canada, the European Union (EU) and its Member States, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, and Switzerland.

6 Anti-Counterfeiting Trade Agreement, Dec. 3, 2010, available at http://www.ustr.gov/webfm_send/2417.

7 Panel Report, China–Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R (Jan. 6, 2009) (adopted Mar. 20, 2009)Google Scholar.

8 Eur. Parl. Res. on the Transparency & State of Play of the ACTA Negotiations, Eur. Parl. Doc. P7_TA(2010)0058 (Mar. 10, 2010), available at http://www.europarl.europea.eu/.

9 For comments on the first public draft, see Aaron, X. Fellmeth, The Anti-Counterfeiting Trade Agreement in the Public Eye , ASIL Insights (June 24, 2010)Google Scholar, available at http://www.asil.org/insights100624.cfm.

10 Anti-Counterfeiting Trade Agreement, Public Predecisional/Deliberative Draft art. 2.14 (Apr. 2010) [hereinafter Public Predecisional/Deliberative Draft].

11 Fellmeth, supra note 9.

12 Public Predecisional/Deliberative Draft, supra note 10, art. 2.18.

13 Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 331 U.N.T.S. 217, available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.

14 European Commission, The Anti-Counterfeiting Trade Agreement (ACTA): Fact Sheet (Nov. 2008)Google Scholar, at 2, available at http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_140836.11.08.pdf.

1 For greater certainty, the Parties acknowledge that free zonemeans a part of the territory of a Party where any goods introduced are generally regarded, insofar as import duties and taxes are concerned, as being outside the customs territory.

2 A Party may exclude patents and protection of undisclosed information from the scope of this Section.

3 The presumptions referred to in subparagraph 3(b) may include a presumption that the amount of damages is: (i) the quantity of the goods infringing the right holder’s intellectual property right in question and actually assigned to third persons, multiplied by the amount of profit per unit of goods which would have been sold by the right holder if there had not been the act of infringement; or (ii) a reasonable royalty; or (iii) a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property right in question.

4 Where a Party has dismantled substantially all controls over movement of goods across its border with another Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border.

5 It is understood that there shall be no obligation to apply the procedures set forth in this Section to goods put on the market in another country by or with the consent of the right holder.

6 The Parties agree that patents and protection of undisclosed information do not fall within the scope of this Section.

7 The requirement to provide for such applications is subject to the obligations to provide procedures referred to in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures).

8 For the purposes of this Article, daysmeans business days.

9 Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to importation and exportation of counterfeit trademark goods or pirated copyright goods by providing for distribution, sale or offer for sale of such goods on a commercial scale as unlawful activities subject to criminal penalties.

10 A Party may comply with its obligation relating to importation of labels or packaging through its measures concerning distribution.

11 A Party may comply with its obligations under this paragraph by providing for criminal procedures and penalties to be applied to attempts to commit a trademark offence.

12 It is understood that there is no obligation for a Party to provide for the possibility of imprisonment and monetary fines to be imposed in parallel.

13 For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the legitimate interests of right holder.

14 For the purposes of this Article, technological measuresmeans any technology, device, or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works, performances, or phonograms, which are not authorized by authors, performers or producers of phonograms, as provided for by a Party’s law. Without prejudice to the scope of copyright or related rights contained in a Party’s law, technological measures shall be deemed effective where the use of protected works, performances, or phonograms is controlled by authors, performers or producers of phonograms through the application of a relevant access control or protection process, such as encryption or scrambling, or a copy control mechanism, which achieves the objective of protection.

15 In implementing paragraphs 5 and 6, no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise contravene its measures implementing these paragraphs.

16 For the purposes of this Article, rights management informationmeans:

• information that identifies the work, the performance, or the phonogram; the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogram;

• information about the terms and conditions of use of the work, performance, or phonogram; or

• any numbers or codes that represent the information described in (a) and (b) above;

when any of these items of information is attached to a copy of a work, performance, or phonogram, or appears in connection with the communication or making available of a work, performance, or phonogram to the public.

17 Australia, the Republic of Austria, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the European Union, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, the Republic of Hungary, Ireland, the Italian Republic, Japan, the Republic of Korea, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the United Mexican States, the Kingdom of Morocco, the Kingdom of the Netherlands, New Zealand, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Singapore, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.