An Analysis Of "Anti-Counterfeiting Trade Agreement": Standard Changing And Regime Shifting

Intellectual property right brings economic benefits to the right holders, and is animportant strength to promote the development of a country’s economic. However, theinfringement of intellectual property rights takes place frequently, especially thespread of counterfeit and piracy activities on a global scale, growing detract from theefficiency of domestic legislation on the protection of intellectual property rights. Inorder to maintain its competitive advantage in the global economy, the intellectualproperty rights exporting countries, primarily developed countries, actively promotethe establishment of the international regime for the protection of intellectual property.From the establishment of “Paris Convention on the Protection of Industrial Property”to the establishment of the World Intellectual Property Organization (WIPO), from theconclusion of “Agreement on Trade-related Aspects of Intellectual Property Right”(TRIPS agreement) to the emergence of numerous bilateral “Free Trade Agreements”(FTA), we can see developed countries’ active figure. The formulation ofAnti-Counterfeiting Trade Agreement (ACTA) is the latest progress of developedcountries in promoting in the international legislation for the protection of intellectualproperty.In this paper, the analysis and evaluation on the ACTA, titled “An analysis of“Anti-Counterfeiting Trade Agreement”: Standard Change and Regime Controversy”,is divided into six chapters.The first chapter is the introduction, which takes the development process of theinternational protection of intellectual property rights as the clue, and present theacademic problems contained in ACTA in a broad academic background. Onreviewing the research status at home and abroad, this chapter founds theinsufficiency in studies on this issue, and points out the research significance,contribution and innovation of this article.The second chapter expounds the regime vicissitude process of the internationalprotection of intellectual property rights. The territoriality of intellectual property rights which is limited to national territory as well as its importance as the nationaldevelopment strategy, has given rise to international intellectual property rightsprotection system. The transition from the “United International Bureaux for theProtection of Intellectual Property”(BIRPI) to WIPO marks the rise of themultilateral system for the protection of intellectual property; the transformation fromWIPO to WTO/TRIPS represents the joint of the international intellectual propertyprotection and the multilateral trading system. With the bottleneck of internationalprotection of intellectual property rights in multilateral trading system appearedgradually, the international system of the protection of intellectual property alsochanges from bilateral to multilateral. Developed countries’ pushing the TRIPS-plusstandard in Free Trade Agreement (FTA), shows them try to eliminate the predicamentfor the multilateral system for the protection of intellectual property. In this process,the “special301” clause in the United States appeared as a representative ofunilateralism. In the On-and-off system of multilateral and bilateral, plurilateralsystem with its unique advantage opens up the “third way” in the internationalprotection of intellectual property rights. As a contingent in this “third way”, ACTAmake the regime controversy of international protection of intellectual property rightsdispute more complicated.The third chapter has carried on the deep insight to the establishment procedureof ACTA. The establishment procedure of ACTA significantly affected by its chosenplurilateral system, in order to exclude the social public from the talks, ACTA takessecret negotiations. This approach strongly questioned by the public, and eventuallyleads ACTA failed by EU in its approval process. Although negotiators stressed thenecessity of secret negotiations, but these explanations obviously cannot beestablished, it is “policy laundering” strategy that negotiators want to escape thereview by domestic democratic process. In order to get rid of the restrain ofdeveloping countries, ACTA takes “country club” form in negotiating members.ACTA “closed-door legislation” damaged the legitimacy of the deal, affected thenormal order of international trade, infringed the interests of developing countries anddestroyed the balance of the multilateral system.The fourth chapter parses the content of ACTA. ACTA contains forty-five articlesand six chapters, mainly provides legal framework for the enforcement of intellectualproperty rights, law enforcement practice, international cooperation, and institutionalarrangements, etc. In the specific provisions, ACTA civil enforcement, border measures and criminal enforcement measures, etc., comprehensive develops therelevant provisions of TRIPS agreement, ACTA digital environmental enforcementmeasures inherits and breaks the Internet Convention. The legitimacy of the ACTAunder TRIPS agreement although can get a basic acknowledge, but ACTA’s pursuit ofTRIPS-plus runs counter to its purpose of anti-counterfeiting and anti-piracy,promoting the enforcement capacity in developing countries as well as closecooperation with developed countries is the only way to effectively preventcounterfeiting and piracy., The “issue separating” strategy hidden behind ACTA’spursuit of TRIPS-plus standard. The implementation of this strategy destroyedinterests balance between producers and users of knowledge, increased the burden ofACTA members, even threat to the autonomy of a country’s legislation.The fifth chapter is the ACTA’s “resurrection” and “upgrade”. ACTA’s situationin EU may lead to ACTA will not take effect, but does not mean that ACTA cannotinfluence the legislative process of the international protection of intellectual propertyrights through indirect ways. Proposed “Canada-EU Comprehensive Economic andTrade Agreement”(CETA) uses the enforcement of intellectual property rights relatedspecification in ACTA for reference, which makes the ACTA in CETA “resurrect” inan all-round way. The Trans-Pacific Partnership Agreement (TPP) inherits andtranscends the normative content of ACTA, which make the TPP “upgrade” ACTA inthe form of “ACTA2.0”. The ACTA’s radiation and penetration to CETA and TPPshows that its potential impact on the future international intellectual propertylegislation is absolutely cannot be ignored.The sixth chapter is the essence and effects of ACTA, as well as developingcountries’ coping strategies. ACTA legislation is the inevitable result of the “regimeshifting”, interest group in developed countries actively promoting the internationalstandards for the protection of intellectual property, is the political momentum of the“regime shifting”, the result of “regime shifting” is the regim of multilateral bilateraland plurilateral stacked with each other, eventually formed the pattern of “regimecomplex”, which make the “vertical and horizontal alliance” by ACTA.ACTA’s“vertical and horizontal alliance” weakened the public health rights of citizens indeveloping countries, violated the “flexibility” of TRIPS agreement for developingcountries, caused further “fragmentation” of international intellectual property system.In the post ACTA era, developing countries should take active coping strategies, adhere to multilateralism, focus on capacity building, emphasizes the promotingcompetition and maintain the public domain.