In an earlier article, I had referred to negotiations regarding
the proposed Anti-Counterfeiting Trade Agreement
("ACTA"). At that time, there were
reported concerns that it would introduce additional reporting
obligations on intermediaries such as freight forwarders, customs
brokers and transport companies as well as additional costs for
holding and destruction of goods alleged to be in breach of a
party's intellectual property. Another concern was a view
that the negotiations had been conducted with some level of secrecy
and that certain interest groups may have been manipulating the
outcomes to preserve their interests at the expense of others.
Following an extensive series of negotiations involving 37
countries, it was announced on 16 November 2010 that negotiations
had been concluded on the form of the ACTA. While
Australia's adoption of the ACTA is subject to final legal
review, further review by the Joint Standing Committee on Treaties
and final Parliamentary endorsement, it seems fair to assume that
Australia will enter into and support the ACTA.
For current purposes, there are a number of items which warrant
consideration arising out of the adoption of the ACTA.
The ACTA represents a set of commitments to protect
intellectual property which are in excess of those which arise
under the WTO TRIPS Agreement and those contained in other
The Department of Foreign Affairs and Trade ("DFAT")
did actively seek submissions and conducted consultation with
industry during the course of ACTA negotiations. The CBFCA made a
variety of submissions to DFAT and attended consultations
specifically addressing the concerns of the freight forwarding and
customs broking industries and related transport providers to
ensure that they did not face additional levels of regulation or
cost. This gave grounds to DFAT to resist efforts by other
countries to include additional provisions which would adversely
affect the rights of intermediaries, whether in Australia or
According to press releases by DFAT and the Australian
Government, the ACTA will not require any changes to Australian law
and regulation. However, representatives of the Australian
Government have indicated that there will be increased attention to
export and transhipment goods in relation to intellectual property
protection. The aim is to stop infringing goods entering the
intended import market.
Even though the ACTA does not require any changes to Australian
regulatory environment, Australia still pursued the adoption of the
ACTA on the grounds that it would act as an
"aspirational" benchmark for other contracting countries
to provide additional levels of intellectual property protection.
Such additional levels of protection would benefit Australian
exporters and holders of intellectual property rights. As a result,
there are likely to be changes to intellectual property regulation
in other contracting parties (including such countries as New
Zealand and Canada), which will include additional means to protect
intellectual property on goods as they pass through borders. As a
result, those involved in international air cargo need to pay
careful attention to changes to intellectual property law elsewhere
in the world.
Knowledge of the changes elsewhere in the world will not, in
itself, be enough. Those in industry need to ensure that they
comply with those requirements in other countries. In addition,
parties will need to review their terms and conditions to ensure
that they impose obligations on customers to provide the
information which will be required overseas for the reporting of
the movement of goods. In addition, the terms and conditions will
also need to augment existing indemnities to ensure that
international air cargo operators are adequately protected against
costs and liabilities which arise from enhanced intellectual
property enforcement here and overseas.
One recent outcome has been confirmation by the Australian
Customs and Border Protection Service
("Customs") that those parties handling
the carriage of goods the subject to action by the holders of
intellectual property rights can now seek to recover costs
associated with their involvement. For these purposes, parties
should consider forwarding an invoice to Customs who can then seek
to recover those costs from the holders of the intellectual
property rights who instigated the action in the first
Authors note: Please note that this article is based on an
earlier commentary originally published in AirCargo Asia Pacific
Magazine. It has been revised and published here with the kind
consent of Air Cargo Magazine.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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