253. The representative of Australia said that ACTA was an important initiative to address growing international trade in counterfeit trademark and pirated copyright goods. Concerns raised during previous discussions in the Council and elsewhere that the enforcement provisions in ACTA could undermine the balance in the TRIPS Agreement were unwarranted. Participants to ACTA negotiations had worked hard to achieve a balanced agreement. The final text stroke a balance between use and protection of IP and affirmed, and built on, the balance and flexibilities in the TRIPS Agreement.
254. In particular, all TRIPS flexibilities were preserved because ACTA made specific reference, in Article 1, to not derogating from any obligation of a Party, with respect to any other Party, under existing agreements, including under the TRIPS Agreement. Furthermore, Article 2(3) of ACTA explicitly stated that the objectives and principles in Part 1 of the TRIPS Agreement, in particular its Articles 7 and 8, were applicable to ACTA. Article 7 addressed the balance in IP systems, i.e. the rights and obligations of producers and users, and Article 8 provided flexibilities for Members in formulating and amending legislation and regulations in the public interest. In addition, Article 6 of ACTA incorporated the standards in TRIPS Article 41 dealing with "enforcement obligations" and those in Article 46 dealing with "other remedies". Amongst other things, ACTA Article 6 required that (i) enforcement procedures be applied "in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse", (ii) procedures implementing the provisions of the chapter be "fair and equitable", (iii) Parties provide "for the rights of all participations subject to such procedures be appropriately protected", and (iv) Parties "take into account the need for proportionality between the seriousness of the infringement, the interests of third parties and the applicable measures, remedies and penalties". Therefore, the ACTA text explicitly preserved and affirmed the important balance and flexibilities contained in the TRIPS Agreement.
