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• Chapter 2

• Intellectual Property Policy

• Enforcement

• Anti-Counterfeiting

• Invitation for Further Submissions
• Media Statement by Participants, 12 June 09
• Summary of Further Submissions
• Summary of Key Elements
• Summary of Key Elements
• Fact sheet
• anti-counterfeiting
• Summary of Submissions Received About ACTA
• ACTA: FAQ
• ACTA Negotiations

Section 1: Civil Enforcement

Civil enforcement refers to providing courts or other competent authorities with the authority to order/take specific actions when it is established that a party has violated intellectual property laws, and the rules on when and how to use those powers. The issues under discussion in this section include:

• scope of the section – which intellectual property rights would be covered by the provisions of this section;
• the definition of adequate damages and the question of how to determine the amount of damages, particularly when a right holder encounters difficulties in calculating the exact amount of damage it has incurred;
• the authority of the judicial authorities to order injunctions which require that a party desist from an infringement;
• remedies, including the destruction of goods that have been found to be infringing an intellectual property right and under what conditions and to what extent materials and implements that have been used in the manufacture or creation should be destroyed or disposed of outside the channels of commerce;
• provisional measures, such as the authority for judicial authorities or other competent authorities to order, in some circumstances, the seizure of goods, materials or documentary evidence without necessarily hearing both parties; and
• the reimbursement of reasonable legal fees and costs.

Section 2: Border Measures

Border measures refer to actions that customs and other competent authorities would be authorized to take to prevent goods that infringe intellectual property rights from crossing borders. The term also describes the procedures that must accompany these actions. Elements under discussion in this section include:

• scope of the section – which intellectual property rights will be covered, and whether border measures should only apply to importations or should equally apply to the export and the transit of goods;
• a de minimis exception that could permit travelers to bring in goods for personal use;
• procedures for right holders to request customs authorities to suspend the entry of goods suspected to infringe intellectual property rights at the border;
• authority for customs to initiate such suspension ex officio (on their own initiative, without a request from the rights holder);
• procedures for competent authorities to determine whether the suspended goods infringe intellectual property rights;
• measures to ensure that infringing goods are not released into free circulation without the right holder's permission, and possible exceptions;
• the forfeiture and destruction of goods that have been determined to infringe intellectual property rights, and possible exceptions;
• responsibility for storage and destruction fees;
• capacity of competent authorities to require right holders to provide a reasonable security or equivalent assurance sufficient to protect the defendant and to prevent abuse, and
• authority to disclose key information about infringing shipments to right holders.

Section 3: Criminal Enforcement

This section relates to the cases for which Parties should provide for criminal procedures and penalties. Issues being discussed under this heading include:

• clarifying the scale of infringement necessary to qualify for criminal sanctions in cases of trademark counterfeiting and copyright and related rights piracy;
• clarifying scope of criminal penalties;
• in which cases the relevant authorities should be empowered to take action against infringers on their own initiative (ex officio, i.e. without complaint by right holders) with respect to infringing activities;
• the authority to order searches and/or seizure of goods suspected of infringing intellectual property rights, materials and implements used in the infringement, documentary evidence, and assets derived from or obtained through the infringing activity;
• the authority of judicial authorities to order the forfeiture and destruction of the infringing goods;
• the authority of judicial authorities to order the forfeiture of the assets derived from or obtained, directly or indirectly, through the infringing activity;
• the authority of judicial authorities to order forfeiture and/or destruction of materials and implements that have been used in the production of the infringing goods;
• criminal procedures and penalties in cases of camcording motion pictures or other audiovisual works; and
• criminal procedures and penalties in cases of trafficking of counterfeit labels.

Section 4: Intellectual Property Rights Enforcement in the Digital Environment

This section of the agreement is intended to address some of the special challenges that new technologies pose for enforcement of intellectual property rights, such as the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the Internet. No draft proposal has been tabled yet, as discussions are still focused on gathering information on the different national legal regimes to develop a common understanding on how to deal best with these issues.