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ACTA's De Minimis Provision: Countering the iPod Searching Border Guard Fears

By Michael Geist

The leak of the full consolidated ACTA text will provide anyone interested in the treaty with plenty to work with for the next few weeks.  While several chapters have already been leaked and discussed (see posts on the Internet and Civil Enforcement chapters, the definitional chapter, the institutional arrangements chapter, and international coooperation chapter), the consolidated chapter provides a clear indication of how the negotiations have altered earlier proposals (see this post for links to the early leaks) as well as the first look at several other ACTA elements.

For example, last spring it was revealed that several countries had proposed including a de minimis provision to counter fears that the border measures chapter would lead to iPod searching border guards.  This leak shows there are four proposals on the table:


The E.U. version:

Where a traveler's personal baggage contains goods of a non-commercial nature within the limits of the duty-free allowance and there are no material indications to suggest the goods are part of commercial traffic, each Party may consider to leave such goods, or part of such goods, outside the scope of this section.]

Australia, Canada, New Zealand, and Singapore support alternative wording:

Where a traveler's personal baggage contains trademark goods or copyright materials of a non-commercial nature within the limits of the duty-free allowance {Aus: or where copyright materials or trademark goods are sent in small consignments} and there are no material indiciations to suggest the goods are part of commercial traffic, Parties may consider such goods to be outside the scope of this Agreement.]

Japan favours the following:

Where a Party excludes from the application of the provisions in this Section small quantities of goods of a non-commercial nature contained in traveler's personal luggage, the Party shall ensure that the quantitites of goods eligible for such exclusion shall be limited to the minimum allowed within its available resources.]

And Canada, New Zealand, and the U.S. would also support this approach:

Where a traveler's personal baggage contains goods of non-commerical nature in quantities reasonably attributable to the personal use of the traveler there are no material indications to suggest the goods are part of commercial traffic, each Party may consider that such goods are outside the scope of this section]

This is just for the personal search issue.  The consolidated version runs to 56 pages with dozens of issues still in square brackets that signal a lack of agreement.  More on the new issues - particularly the creation of an ACTA super-structure designed to rival WIPO - shortly.

Full post as published by Michael Geist on March 23, 2010 (boomark / email).