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New Zealand is participating in negotiations to develop an international treaty known as the Anti-Counterfeiting Trade Agreement (ACTA). The aim is to more effectively combat the increasingly prolific trade in counterfeit and pirated goods, through better enforcement mechanisms for intellectual property rights.
ACTA’s focus is on three areas:
• increasing international cooperation between enforcement agencies and right holders;
• establishing best practices for enforcement; and
• providing a more effective legal framework to combat counterfeiting and piracy.
Further detail is set out in the Summary of Key Elements under Discussion.
ACTA will not change existing standards: it is focussed on the effective enforcement of existing rights and obligations. ACTA will build upon and complement existing international legal frameworks for the protection and enforcement of intellectual property rights, including the World Trade Organisation (WTO) Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and those developed by the World Intellectual Property Organization (WIPO).
An OECD report (updated in November 2009) suggests that the trade in counterfeit and pirated goods has grown steadily over the period 2000-2007 and amounted to up to US$250 billion in 2007. The report estimates that the share of counterfeit and pirated goods in world trade has increased from 1.85% in 2000 to 1.95% in 2007. These figures do not include domestically produced and consumed products, or non-tangible pirated digital products.
In the year to June 2009, the New Zealand Customs Service seized over 270,000 counterfeit items, including clothing, footwear and electronic goods.
The trade in counterfeit products can have a significant value: for example, between October 2007 and March 2008 the New Zealand Customs Service intercepted close to 5,000 fake Ab King Pro exercise machines contained in 17 shipments. The machines could have fetched around NZ$1.5 million if sold for full price.
The available data only tells part of the story given the black market nature of counterfeiting and piracy.
Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States.
Informal discussions began in 2007 and the first negotiating round was held in June 2008. There have been six rounds of negotiations so far and the participants hope that an agreement can be concluded in 2010. Once an agreement has been reached, it is up to individual participants to decide whether and when to bring ACTA into force.
The New Zealand negotiating team has sought input from stakeholders throughout the negotiations, through a public consultation process and through meetings with a wide range of interested groups and individuals. Information about the progress of the negotiations has also been made available: agendas are published ahead of negotiating round and updates are provided at the end of each round. A summary of the issues under discussion has been published on the MED and MFAT websites.
We are keen to see as much transparency as possible in the negotiating process and have been active in ensuring this to date, within the bounds imposed by a process of this sort. However it is standard practice in trade negotiations for the actual text under debate to remain confidential to the participants. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. As this is a negotiation, we must respect the interests of all participants and work with them over the release of information about the negotiations.
The Government also sought the views of stakeholders through two rounds of formal public consultations to date and through meetings with stakeholders. Summaries of the submissions received during consultations are available on the MED website.
Further public consultations will be carried out as the negotiations progress. Details of the consultations will be on the MED and MFAT websites, which also have contact details for New Zealand’s negotiating team.
ACTA aims to deal with large-scale counterfeiting and piracy activities, which often can involve criminal elements and pose a threat to public health and safety. It is not designed to be intrusive and will not have an impact on consumers’ ability to purchase and use legitimate goods.
Because ACTA will not alter existing standards for the protection of intellectual property rights, it will not affect New Zealanders’ ability to access parallel-imported products.
ACTA will not interfere with the rights enshrined in, for example, the Privacy Act 1993 and the Bill of Rights Acts 1990, nor will enforcement agencies be provided with any additional surveillance powers under ACTA.
ACTA is being developed by a group of countries that have come together to work on ways to provide better protection and enforcement of intellectual property rights. However, counterfeiting and piracy is a growing global issue that has become a concern for all, in particular the adverse effects that such activities can have on a nation’s economy, as well as on the public health and safety of its population. Once it has been developed, ACTA will therefore be open to accession by others and will establish global mechanisms for addressing counterfeiting and piracy.
ACTA is not designed to replace the important work of multilateral organisations such as the WIPO, WTO, APEC, OECD and others. ACTA is consistent with the work being done in those contexts, and has a specific focus on an emerging issue: more effectively combating counterfeiting and piracy.
Only once the ACTA negotiations are concluded will the government decide whether or not to join the agreement (which is a treaty). This decision will be taken after further public consultation.
The text of the agreement, along with a National Interest Analysis assessing the benefits and costs of joining the Agreement, would then be submitted to Parliament and reviewed by a Parliamentary Select Committee. The Select Committee consideration of the agreement would provide a further opportunity for the public to make submissions, before Parliament makes a final decision whether to ratify the agreement.
ACTA will not change New Zealand’s ability to set its own standards for the protection of copyright and trade marks. What ACTA will do is establish a strong and modern legal framework for the enforcement of copyright and trade mark rights so that national law enforcement agencies, the judiciary, and copyright and trade marks owners have the most up-to-date tools necessary to effectively bring counterfeiters and pirates to justice. If New Zealand were to join ACTA, we would bring the ACTA’s international enforcement framework into effect for New Zealand by ensuring that our own laws are consistent with it.
The review of section 92A, which commenced in March 2009, is on a separate track from the ACTA negotiations. The review was not driven or led by the ACTA process.
The Minister of Commerce announced the outcome of the section 92A review on 16 December 2009 and new legislation to address illegal internet downloading of copyright material will be introduced in early 2010 and is expected to come into force later in the year. Further information about the section 92A review is available on the MED website.
The ACTA negotiations are not linked to any other trade negotiations with which New Zealand is currently involved. There is no suggestion that joining ACTA would become a prerequisite for New Zealand entering into any future bilateral or multilateral trade agreement.
