No, ACTA will not lead to any change in the law in Switzerland. Switzerland has effective instruments for enforcement and - since the most recent revision of the IP laws on 1 July 2008 - they are the most modern in international comparison. The provisions in ACTA are compatible with current Swiss law, which goes beyond ACTA in many areas.
This corresponds to the directives of the Federal Council Mandate of 30 May 2008.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contains provisions for law enforcement. Nevertheless, since the entry into force of TRIPS more than 15 years ago, counterfeiting and piracy have steadily increased and have since assumed dramatic proportions worldwide. The aim of ACTA, therefore, is to confront this problem, which is why this agreement purposefully goes beyond the standard set out in TRIPS in a number of specific areas. The most important areas are:
- Civil enforcement: the possibility for the right holder to choose an alternative to the strict proof-of-loss method for calculating damages (e.g. an appropriate licence fee such as has been recognised in Swiss law for a long time).
- Border measures: not only imports but also exports are covered by ACTA (as provided for by intellectual property (IP) laws in Switzerland since 1 July 2008).
- Criminal enforcement: appropriate but deterrent penalties in cases of wilful infringement of trademarks, copyright or related rights as well as ex officio enforcement in serious cases (any wilful infringement of an IP right is already punishable in Switzerland).
- Internet: clarification of the protection of effective technological measures and of electronic rights management information as recently laid down in the WIPO Internet Treaties, as well as clarification that preparatory acts such as the sale of circumvention tools should be proceeded against. (Such acts are forbidden since 1 July 2008 in Switzerland).
In addition, the Agreement promotes international cooperation between the contracting parties to combat counterfeiting and piracy and offers theses states a forum for a corresponding exchange of information and best practices.
Enforcement measures are important and correct. However, national law and international agreements, such as ACTA, should not overstep the goal, but rather find a fair balance among the diverse interests. ACTA explicitly and repeatedly upholds these in the agreement and obliges the contracting states to ensure this balance and the balance of interests as well as the fundamental rights of free speech, respect for the private sphere and data protection (on this, see paragraph 6 of the Preamble and Articles 4.1(a), 6.2 and 6.3 as well as 27.2 of the agreement).
So-called "may" clauses are common in international agreements. They allow member states room for maneuvering and deciding whether they want to implement the intensions in the provisions at national level or not. These often reflect a compromise among diverging positions. A "may" clause, however, cannot become compulsory without having the agreement amended. Such an amendment, in turn, cannot take place without the agreement of all of the ACTA signatories, which would mean a reiteration of the necessary relevant procedures at national level. In Switzerland, in accord with the federal constitution, that would mean going through the approval procedures with political authorities and institutions.
"May" clauses imply flexibility, however, they don't present any 'weak spots' which can be later transformed into compulsory regulations simply through lobbying on the part of contracting members.
The negotiating parties have repeatedly emphasised that the Agreement does not hinder the cross-border traffic of legal generic medicines. In order to emphasise this, the text of the Agreement explicitly excludes patents from border measures as well as from criminal law measures. In the preamble of ACTA, the contracting parties also expressly recognise the principles of TRIPS and Public Health adopted on 14 November 2001 by the Ministerial Conference in Doha.
No. ACTA does not contain any obligations for custom authorities to search travellers’ personal luggage for MP3 players, counterfeit products or the like. On the contrary, the Agreement expressly allows parties to exclude non-commercial activities by private individuals from the scope of border measures.
ACTA is compatible with Swiss law with regard to the internet and therefore does not require any change. The general obligation of the contracting parties to also enforce the law with regard to the internet, including respecting everyone's fundamental rights, is a matter of course for Switzerland and is already today part of our legal system. The implementation of the protection of technological measures and electronic rights management information is orientated towards applicable law in the EU and in Switzerland and therefore do not require any amendment. The right holder's right to information from an Internet Service Provider is ultimately a discretionary provision. It is therefore left to the contracting parties to decide if they want to implement this provision in their domestic law.
No, ACTA does not provide for such an obligation. The text of the Agreement allows contracting parties to provide their competent authority with the authority to enjoin Internet Service Providers to disclose the identity of subscribers, whose account was presumably used for infringement. However, this provision is simply a discretionary provision. It is therefore left to the contracting parties to decide whether or not they want to implement this provision in their domestic law.
ACTA only obliges the parties to ensure that copyright is also enforced in cases of online infringements. How far this right will go in individual cases, which exceptions and limitations exist and which actions a right holder can prohibit, are expressly excluded from the Agreement's scope. The provisions of substantive law are therefore left to the domestic law of the contracting parties. Activities that have been legal in Switzerland up until now (e.g. the downloading of copyright protected content for private use) will therefore remain legal in future.
ACTA leaves the procedural-related rights and procedural guarantees, as provided for by domestic civil and criminal procedural laws, intact. In the general obligations at the beginning of the Agreement, it is expressly stated that every procedure should be appropriate and fair and that the rights of all participants to the proceedings are to be protected. In addition, ACTA also contains some specific provisions for the protection of individuals who have been accused of infringing an IP right. Contracting parties shall ensure that the competent authority can enjoin an applicant requesting provisional measures to provide a security. In addition, the applicant can be obligated to provide compensation for damages if provisional measures are revoked or if they lapse due to reasons for which the applicant is responsible.
Effective enforcement of IP rights in cases of infringement is an important counterpart to the protection of such rights. In this respect, enforcement provisions - particularly those necessary to efficiently combat counterfeiting and piracy - have their legitimate place in free trade agreements in all sections concerning the protection of intellectual property. This does not mean, however, that Switzerland will now make it a prerequisite that future negotiating partners join ACTA – or adopt its principles – during free trade agreement negotiations. A free trade agreement is an independent agreement, the content of which is the result of negotiations mutually agreed upon. Switzerland does not want to impose something on its negotiating partners – nor is it in the position to do so. Existing free trade agreements may also only be changed/supplemented by mutual consent.
Furthermore, it is to be reminded that ACTA does not go beyond current Swiss legislation so that ACTA will not imply any change with regard to Switzerland's foreign trade position in free trade agreement negotiations.
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"
Conference on intellectual property law – industrial data sharing, 7 June 2022
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