英国留学生经济类课程作业指导：假冒协议的影响分析＂Anti-Counterfeiting Agreement＂ border measures impact analysis

Border measures are generally applicable to a national customs measures to protect intellectual property rights . It can be time to stop infringing goods from entering a country's import and export of goods circulation , is to protect the intellectual property rights of the " extremely effective administrative remedies ." " Convention on Trade-Related Aspects of Intellectual Property Rights " (TRIPS) provides for a member to border measures commonly used means of protecting intellectual property rights obligations , but its rules with the principles . Such multilateral rules have been developed through border measures can not meet the requirements of protection of intellectual property , therefore , in the " Anti-Counterfeiting Agreement " (ACTA) , the border protection of intellectual property to make a more detailed than the TRIPS provisions , highlighting the border measures to protect intellectual property functions. So, how these provisions compared to the TRIPS strengthened the protection of rights holders ? What impact will the new regulations ? Britain will encounter what impact , how to deal with ?
边界步伐是列国偏偏关广泛实用的一种掩护学问财产权的步伐。它能够实时阻遏侵权货物从产品进入口关键进入一国呆滞畛域，是掩护学问财产权的“极其无效的行政拯救援办法”。《与贸易相关的学问财产权条约》（TRIPS）固然规则了各成员广泛采纳边界步伐手腕掩护学问财产权的责任，然而其规定比拟准则性。

1 ACTA border measures to protect the holders of rights to strengthen

1.1 Scope Expansion border measures
1 ACTA边界步伐对于义务持有人掩护的强化
　　1.1 边界步伐实用范畴的扩展

First, in terms of types of mandatory applicable intellectual property , ACTA ratio TRIPS adds neighboring rights , rights of geographical indications , industrial designs and integrated circuit layout rights of the mandatory application .
首先，在强迫实用的学问财产权品种范围，ACTA比TRIPS增多了对于著述毗邻权、天文标记权、轻工业品表面设想权以及集成通路布图设想的强迫实用。

Secondly, both the applicable trademark and copyright , TRIPS only for trademark counterfeiting and piracy , while ACTA is targeted at all violations of these two intellectual property rights. On this basis , ACTA will judge whether it is infringing goods from the importing country in accordance with the law extend to the legal implementation of the country program . Program implementation and importing countries is different from some of the main transit of goods . Transit of goods refers to the customs transit or in the transit of goods . Although in this case the goods within the customs territory or transit through , but that does not mean the customs territory of circulation , it is often not considered transit country for importing countries , if the Customs in accordance with the laws of the country where the Customs transit intellectual property infringement cargo measures is based on the implementation of the country program rather than importing country laws .

Finally , ACTA border measures will be extended to imports from the TRIPS export . Often, because of regional intellectual property , customs measures to stop the use of the infringing products export "may be a difficult" . Demanded an understanding of a country's customs intellectual property rights in other countries the situation is in the country will undoubtedly increase the burden of its enforcement . ACTA is a breakthrough of the TRIPS concerns, requires States parties to enforce the implementation of customs measures on exports , which is the level of IPR enforcement required a large increase .

1.2 Waiver border measures can enjoy a narrower range of goods
ACTA will be a small piece of checked baggage items and border measures to expand imports from export . For a small piece of checked items , ACTA once again stressed the " small pieces should be checked in the commercial property into this section of the cargo contains applicable ." As for the small piece of checked items in the non-commercial attributes of goods , ACTA without any words .

1.3 Customs ex officio enforcement requirements increase
ACTA gives the customs act on its own power. TRIPS does not force members to provide customs authority to act ex officio . The ACTA is required for the import and export goods customs should be entitled to act ex officio , in transit or in other cases of suspected goods under customs control , customs may be entitled to act ex officio . Meanwhile , ACTA also increased the non-mandatory provision of information right holder the right to take the initiative . It is also convenient means of right holders .

1.4 rightholders complete the application process
First , ACTA requires the applicant to provide information more reasonable. ACTA does not require the applicant to provide " sufficient detail about the product description ," only required to provide " reasonable expectation within the scope of their knowledge , sufficient information ." Meanwhile , ACTA on the " request for information shall not unreasonably deter recourse to procedures ." These two requirements are the rights holder to obtain application easier.
Secondly , ACTA expanded the rights holder may apply for a range of goods . According to ACTA Article 17 ( 2 ) , if a State party to the adoption or maintenance of transit or in other cases of suspected goods under customs control procedures , the Parties may confer rights holders apply for suspension of release or detention customs territory includes a variety of transport and customs anywhere within the territory of all the rights of the suspect goods . This breakthrough , while not mandatory, but reflects the ACTA strict enforcement of intellectual property protection features and value orientation .

1.5 more conducive to the rights of holders of the system of guarantees
Submitted by the applicant in the form of guarantees in respect , ACTA new bond (bond) forms of collateral , is ACTA request of the holder of rights to further relax. Meanwhile , ACTA also provides for more stringent conditions for defendants released on bail . TRIPS Article 53 of the goods for the industrial design provides detailed released on bail conditions , so that it meets certain procedural circumstances, there may be released on bail . However , ACTA almost completely negates the possibility of release on bail - "In addition to exceptional circumstances or pursuant to a judicial decision " will be allowed on bail . This is yet another tilt right holders .

1.6 pairs of right-holders more favorable remedies
First , ACTA in the destruction of infringing goods should be disposed of as the main way to change the TRIPS for infringing goods destroyed or excluded from the commercial channels in parallel disposition . Destruction of infringing goods so completely eliminated from the material morphology than excluded from the commercial channels on the rights of the holders of relief more thorough. Secondly , ACTA regard to counterfeit trademark goods, deal with more stringent. TRIPS Article 59 not only requires the infringing goods "in accordance with the state of re- exports intact , or with different customs procedures to deal with the goods ." The ACTA Article 20 requires "In addition to exceptional cases , simply removing illegally affixed trademarks insufficient to allow the release of the goods into the channels of commerce ." " Removal of illegal affixed trademark" compared to " intact " is a more substantial changes , visible ACTA on the release of counterfeit trademark goods into the channels of commerce more demanding . Finally , ACTA infringing goods increased after the award , the competent authority may carry out administrative penalties against infringers provisions . This is more to crack down on infringement of intellectual property rights holders better maintenance.

1.7 Customs permission to expand the disclosure of information
ACTA may disclose the information from the time and scope of mandatory expanded three aspects of the customs authority to disclose the information . First , TRIPS provisions infringing goods have been ruled only after information disclosure ; ACTA provides that except in infringing goods have been seized or award after disclosure of information , but also provides for the discovery phase and rulings can also disclose the information . Secondly , ACTA will TRIPS non-coercive to the right holder the obligation to disclose information to a mandatory award of infringement has been seized or information after the disclosure obligations. Finally, the scope , in addition to outside the discovery phase , ACTA provides for disclosure include, but are not limited to, the provisions of the TRIPS consignor , the importer and the consignee 's name and address and the number of the goods in question . Learn more relevant information for the right holder to stop the infringement is of course beneficial.

1.8 Other provisions conducive to the right holder
ACTA also adds unreasonable costs on border measures on border measures to prevent the provisions invoked to protect the rights of holders of border measures to properly invoked .

The above analysis can be seen , ACTA through the strengthening of border measures applicable greatly enhance the protection of the rights holders , but only its right to protect the interests of the right holder 's hand . On the other hand , ACTA also because of the people and other stakeholders import relief program indirectly highlight the lack of rights holders to protect the interests of strengthening . First , ACTA is not included in TRIPS importer after the suspension of the release of the goods was notified of the right to take the first defendant in the relief measures and judicial proceedings to obtain the right to review and import of goods and the owner of the right to compensation . This has resulted in the lack of due process ACTA itself , make the program the right balance between the two sides . Although the short term , the current ACTA signatories are members of the WTO , these unused reservations still exist in national law , the parties but for the future as a non- WTO member ACTA , ACTA 's border measures legislation may have a negative examples. Secondly , the existing remedies under domestic law, there is also difficult to balance ACTA new rights and the rights of holders of public authority intervention, and other interested parties to make importer corresponding procedures relief blank .

2 ACTA impact of new regulations

ACTA is now in effect stage waiting ratification by signatory States . If ACTA into force , its provisions will become the basis for the State party's legislation ; if it will not be effective , will also provide examples of each State party's legislation . The ACTA provide intellectual property "effective adequate protection " tendencies are inevitable trend towards liberalization of international trade in conflict , the specific point of view , I believe , ACTA will be from the following two aspects affect international trade liberalization.

2.1 Trade Facilitation minimize
Trade facilitation generally refers to streamline procedures , coordination of laws, regulations and other methods to remove or reduce resource barriers to cross-border flows and configuration , to improve the operational efficiency of the global supply chain , in order to achieve free and open global trade process . Customs measures as important legal international trade procedures , trade facilitation is a key link in the process . ACTA Border Protection expansion of the scope and easier to get the right holder to suspend the release of the program will enable Customs facilitation measures to minimize , is not conducive to trade facilitation and development of international trade .
The scope of protection from the border point of view, first of all , ACTA infringing features of new objects are difficult to detect the object , which border enforcement , the " logistics of time highly concentrated , according to ...... ...... difficult border authorities ' prima facie ' or presented by the external characteristics of the goods to quickly determine ...... have a higher degree of difficulty determining infringement form "feature do not match , which will increase the difficulty of enforcement , reducing the efficiency of law enforcement , is not conducive to facilitate customs clearance and trade facilitation . Secondly , ACTA requires States parties to control the export of infringing goods , and can be of infringing goods in transit regulatory requirements will intensify Parties customs enforcement difficulties , increased cost, and to some extent caused by customs barriers , border enforcement and national aims clearance facilitation rather defeats the purpose of trade liberalization .

In addition , ACTA in the application of the suspension of all aspects of the rights given to the holder for maximum convenience , making easier to suspend the release of goods . This would make the flow of goods in international trade efficiency , which is not conducive to free and open international trade .

2.2 new international legal trade barriers appear
ACTA disclosure of information on the customs authority to expand course conducive to right holders to defend their rights , to help law enforcement authorities , but in the discovery phase and the ruling infringing goods whether the goods infringing the process, not the qualitative goods , if the ruling is not final goods are infringement and into commercial circulation , so during this period will result in the disclosure of information the disclosure of trade secrets goods to imported goods , the owner and other interested parties losses. If this procedure is an abuse of government , you can right-holders to disclose relevant domestic goods imported information that is legal means to combat his country goods , manufacturing barriers to legitimate trade .

3 ACTA impact on the UK

3.1 Britain joined the possibility of ACTA
ACTA 's goal is to maximize the protection of intellectual property rights. And this goal is necessarily a high enforcement costs and the weakening of the interests of intellectual property for the price. I believe that this interest demands the British stage match. British stage "A lot of industry is still in the stage of primitive accumulation of intellectual property ," overly stringent intellectual property protection will stifle rather than promote innovation , and thus join ACTA, accept the stricter enforcement measures currently not conducive to the development of the British independent intellectual property rights . Therefore , I believe that the UK should join ACTA.

3.2 ACTA affect UK
However , even if Britain does not join ACTA, Britain will join its trading partners in foreign trade affected by them .
First, the United Kingdom as an international community of counterfeiting and piracy trade 's largest country, goods will face more of the suspension case . According to Organization for Economic Cooperation and Development (OECD) 2009 November statistics , English is the international trade in counterfeit and pirated community 's largest country, which is also the biggest counterfeit and pirated goods "suspect country ." British goods can be bound to suspend the release of the new fields and links encounter suspend the release of the new application .

Secondly, the British new barriers to international trade could become the object of normal trade setbacks . British trade in counterfeiting and piracy as the largest country , and its cargo information will also be faced with frequent disclosure of commercial secrets and commercial interests have little protection . Relevant countries may use information disclosed this means, the present disclosure without infringing goods to their competitors , thereby combating British goods in the domestic market dominance.