OBJECTIVE OF THE ANTI COUNTERFEITING TRADE AGREEMENT.

It is intended to provide for enforcement of in tellectual property rights which are important in sustaining economic growth across all industries and globally,also owing to the fact that counterfeit and pirated goods as well as of services that distribute infringing materials undermines legitimate trade and sustainable development of the world economy causing financial loss to right holders and legitimate

businesses,including infringement taking place in the digital environment in terms of copy right related rights. To do this the acta intends to combat such proliferation by enhancing international cooperation (international enforcement )and, trips plus provisions to provideeffective and appropriate means to compliment the trips agreement. Indoing all this undertakes to be subject to measures that dont become barriers to legitimate trade,recognizes the principles of Doha Declaration on trips agreement and public health adopted on 14th nov 2001 at wto ministerial coference. MEASURES OF ENFORCEMENT UNDER THE ANTI COUNTERFEITING TRADE AGREEMENT. Civil enforcement measures, these include injunctions issued by judicial authorities with authority against parties or third parties to desist from infringement by preventing goods from entering channels of commerce. This is in line with our copy rights act (section 45.1, trademarks and the trips agreement under article 44) except for the concept of injunctions against third parties which will be criticized in next chapter. Damages are the other form of civil measures. Where there are reasonable grounds that the Infringer knew he was engaged in an infringing activity. The infringer will have to pay the right holder his profits (infringers profits) that he got from infringement. The acta therefore allows the right holder to presume those profits that are to be the amount of damages this is in line with section 45.3 of copy right act except for the concept of the right holder presuming profits as will be criticized in next chapter.

Upon a justified request of the right holder the judicial authorities may order the infringer or alledged infringer to provide the right holder with information(people involved in infringement, means of production or other channels of distribution of the infringing or allegedly infringing goods and services) for the purpose of collecting evidence as provided for in its applicable laws. Our copyright and trademarks act are silent on this. Provisional measure under article 12 shall be undertaken inaudita altera parte where delay is likely to be caused resulting in irreparable harm to right holder (interms of evidence being destroyed). This is not provided for in our copy right act and the trade marks act of Uganda. In particular the concept of right holder providing any reasonably available evidence to satisfy themselves with sufficient degree of certainity that the applicant is being infringed without giving the other party(alledged) a right to be heard. Security cant waive ones right under the constitution.1 Border measures, shall also be adopted or maintained with respect to import and export shipments which will involve customs authorities acting on their own initiative or request of right holder to suspend release of suspect goods where there is primafacie an infringement of the right holders righ2t. The most controversial of this is the fact that simple infringement of a trade mark shall also lead to destruction of the goods yet removal and taking it back to channels of commerce cant affect the right holder3. This is silent according to our acts. Criminal Enforcement Criminal measures where there is willful trade mark counterfeiting or copy right related rights piracy on commercial scale(direct or indirect)4. These measures go on to cover wilful importation and domestic use in course of trade hence going beyond our

1 2

Aticle 12.4 acta. Article 17. In line with section 56 of our copy right act section 56. 3 Article 20(2) of the acta 4 Aricle 23(2)

copy right section 15(1) (a) which protects private use of intellectual property protected goods as fair use and trade marks act as wil be critised in next chapter. The acta also provides for seizure, fortfeiture and destruction of suspected counterfeit trademark goods or pirated copy right goods and any goods and related materials and impliments used in the commission of alledged offence and assets derived from directly or indirectly through the alledged infringing activity. These alleged infringing item shall not be described with greater detail than necessary to identify them for the purpose of seizure and this will be my point of criticism which is contrary section 56 of the copyrights act which requires sufficiently detailed description of the goods to make them readily recognizable by customs authorities Our copyright act provides for seizure too under section 56 . The criminal and civil measures above shall also apply to infringement in the digital environment. Implications of the anti counterfeit bill on Ugandan law setting Negative implications The world faces major challenges eg access to medicine ,diffusion of green technology needed to fight climate change ,and balanced internet governance while flexibility is essential to solve these major issues. The acta codifies draconian measures,while the trips (acta predecessor) still hampers fair trade even in life saving generic prices so these draconian measures will be examined in this chapter. The acta agreement contains injunctions in civil cases, with an injunction a competitor can force a company to withdraw from the market, while infringement is unavoidable . the most cntoversial is the use of injunctions against third parties this could go as far as acting against third parties who arenot intermediaries e.g suppliers of rawmaterials and software. This may impact access to medicine and the ict sector. The interlocutory injunctions interms of provisional measures are particularly damaging on start ups . these provisional measures have a lower threshold of evidence. This in effect lowers the burden of proof necessary to carry out enforcement measures against suspected infringement. And as the costs of a subsequent court case are often

high for start ups,the interlocutory injunction will often be a definitive judgement terminating the start ups market entry. The acta provisional measures contain effective measures inadita altera parte ,against a party or third party to prevent an infringement of any intellectual right from occurring. Before infringement is proven, provisional measures allows allows actions to interrupt or suspend competition. Suspicion of infringement is enough to invoke these measures . the potentential of abuse of these provisional measures against start ups is high, as all provisional measuers can be implemented without the other party having been heard5. Acta contains damages provisions that over-deter lawful conduct by encouraging unfair modes of determination of damages. The acta allows the right holder to presume the infringer profits in determination of damages, yet it is ageneral principle o damages that the ; (a)the injury suffered must be recognized by law as warranting redress . (b) the injury must be actually suffered/sustained by the individual. However the aspect of presuming damage makes the calculation go beyond actual damages therefore making the provisions on damages prone to abuse against a competitor in trade. Acta also contains border measuers. One of the most serious threats to access to medicines comes fronm the raising the trips requirements for border seizures of

suspected products. These border measuers where some of the most controversial aspects of the acta interms of; (a) Lowering the minimum standards for procedural rights and evidence before seizures. This implicates international norms and eoropean humanrights norms governing fair trial and unlawful deprivation of ones property.. (b) The aspect of third parties being made liable , for example third parties that supply goods or services to infringers to supplies of commodities by made liable for infringement.

Seizure and destruction of goods. The ACTA states that except in exceptional circumstances all intellectual property infringing goods must be destroyed without compensation. This is a dramatic expansion of the trips agreement requirement for destruction of goods. This could mean that except in exceptional circumstances a medicine or good found to have aminor trade mark infringement on a label can be destroyed rather relabeled and resold. ACTA also expands the criminal seizures from being seizure for proven violations of criminal law to seizure for suspected violations. This expansion may have the impact of leading to more unwarranted seizures of legitimate medicines Criminal measures. The acta under article 23(2) statesthat criminal procedures and penalties are to be applied in cases of willful importation and domestic use, in the course of trade and on commercial scale of labels or packaging . the most controversial part in the provision is the aspect of condemning domestic use which seems to be in contradiction of our copy rights act section 15(1a) which allows personal use as a fair use and therefore not detrimental to legitimate trade