JIPLP: ACTA

Showing posts with label ACTA. Show all posts

Of ACTA, the CJEU and copyright enforcement

"Copyright enforcement in the digital age: a post-ACTA view on the balancing of fundamental rights" is the title of another IP article published in one of JIPLP's sister journals. Written by Irina Baraliuc, Sari Depreeuw and Serge Gutwirth (all of the Vrije Universiteit Brussel, Belgium), this article is to be published in the Spring 2013 issue of the International Journal of Law and Information Technology (IJLIT). According to its abstract:

"The ratification process of the Anti-Counterfeiting Trade Agreement (ACTA) in the European Union has raised many (academic and non-academic) questions on various aspects of the enforcement of intellectual property rights (IPR), one of them being the relation between copyright enforcement and the fundamental rights of (alleged) infringers.

In this article, we analyse this relation in the context of the existing European framework, with particular attention for the pertinent decisions of the Court of Justice of the European Union (CJEU). We then assess whether the measures proposed in ACTA upset the balance set by the CJEU. While the rejection of ACTA by the European Parliament seems to relieve the most imminent threats, the review of the IPR Enforcement directive and other Commission initiatives, including bilateral agreements, should keep the discussion alive".

ACTA: first suggestions received

Following Friday's request for assistance from readers regarding those issues within the Anti-Counterfeiting Trade Agreement (ACTA) which most require serious treatment in the form of analysis in JIPLP (see "ACTA: the search for the key issues", here), this weblog has already received some helpful suggestion:

"Border enforcement

• If Customs can act on its own without a court order and without rights holders information, how can a port inspector possibly determine what is counterfeit versus a parallel import?

• Many importers cannot afford to fight a Customs determination of infringement for low value shipments. Is administering civil fines for infringing goods which is oftentimes an undefined quality appropriate?

• If Customs can act on its own without a court order and without rights holder information, won't some IP necessarily be granted more "free" border enforcement? In other words, won't a Customs official be more likely to recognize a counterfeit version of a famous mark and not one of a not so famous mark? How can Customs officials possibly know of all trademarks that are actually registered without checking all of the marks on all the goods on all of the shipments in order to provide non discriminatory treatment at the border -- and this won't happen as a result of limited resources and the need not to add to entry delays?"

"Enforcement in Digital Environment

• How can governments orders ISPs to turn over subscriber information to an unrelated rights holder upon an allegation of infringement? Why is this not protected business information? Does the ISP own this information so that it has the right to give it away?

• How can privacy be protected in a digital environment with so much prejudice in favor of rights holders? Who owns information related to commercial transactions involving two or more parties both of whom may be unrelated to the rights holder or the ISP and who has the right to disclose that information?"

The weblog thanks Lauren V. Perez (LVP Solutions) for these bullets and looks forward to receiving more from other readers.

ACTA: the search for key issues

The Attack ACTA movement
reflects some of the strong
feeling generated by it. JIPLP
is not looking for polemics
and policy debates, however,
but for legal issues and practical
problems that arise from them

The publication of the 11th round text of the Anti-Counterfeiting Trade Agreement (ACTA) on 2 October raised fresh interest in this controversial proposed measure. While it is still premature for JIPLP to be commissioning definitive articles on how different aspects of ACTA will affect IP owners, infringers, border authorities, public sector administrators and legal practitioners, it's not too early to size up the contents of ACTA so that the issues of most significance can be more clearly identified.

Accordingly this weblog invites readers to pick a topic within ACTA and fillet it for matters of critical concern, which can be listed on the blog so that authors can be found for them when the time comes. ACTA -- which is not very long (the full text runs to just 24 sides of well-spaced A4) -- can be divided as follows:

Initial provisions and general definitions
Civil enforcement
Border measures
Criminal enforcement
Enforcement of Intellectual Property Rights in the Digital Environment
Enforcement practices
International cooperation
Institutional arrangements

If you'd like to take responsibility for identifying topics under one of the listed headings, please email me here with the subject line "ACTA topics". A reminder: I'm not looking for an article, just for lists (and perhaps just bullet-points) of things which people working in the field of IP enforcement would want to be thinking about.

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About this weblog

The principal contents of this weblog are drawn from the Current Intelligence features which are published monthly in JIPLP.

Current Intelligence articles are designed to analyse recent key cases, legislation and topical matters. Normally they are of between 500 and 1,500 words (though in exceptional cases a greater word length may be agreed with the Editors).

The selected Current Intelligence articles are now posted on this weblog to enable readers to engage with them, posting comments if they so choose. All comments are moderated, which means that they will not appear immediately upon their being posted.

About the Journal

JIPLP is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.

The journal is specifically designed for IP lawyers, patent attorneys and trade mark attorneys both in private practice and working in industry. It also aims to be an essential source of reference for academics specialising in IP, members of the judiciary, officials in IP registries and regulatory bodies, and institutional libraries. Subject-matter covered is chosen for its practical relevance and international interest.

Instructions for authors here
Free sample issue here
Subscription details here

... and authors in search of an article

JIPLP is often approached by prospective authors who would like to write something, but who would appreciate guidance regarding subject-matter, style and so forth. Here are a few pointers:

* Ask yourself what is it that you'd like to read in the journal, since that is handy rule of thumb which probably reflects the interests of your colleagues and your competitors;

* IP law and practice is very much a 'here and now' activity for JIPLP subscribers. The history of a right may be inherently interesting, or even sometimes relevant to the resolution of a specific issue, but would you expect a reader to look for it in JIPLP?

* Recycled Masters' dissertations and university essays make poor articles and are often difficult to convert from a piece that is designed to display erudition and research ability into an article that addresses lawyers, businesses and decision-makers. It's usually easier to start afresh by working out who your readers are and what you want to tell them.

* Please comply with the authors' instructions and note the journal's preferred length for articles. Most authors like to publish long ones, but subscribers tend to prefer reading shorter ones.