[A2k] SUNS: US academic exposes IP maximalists' TRIPS-Plus Plus agenda

[Sangeeta]

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According to a recent senior academic proponents of a "maximalist agenda" on
intellectual property have launched a major, almost surreptitious, campaign
to increase IP protection and enforcement far beyond the standards set in
the WTO, in ways that are "TRIPS-Plus-Plus",  and they are  making use of
trade agreements, plurilateral government initiatives and programmes in
international agencies to push their agenda to set or enforce higher IP
standards, using the three concepts of "counterfeiting", "piracy" and
"enforcement".

Below is a news report on the paper which was first published in SUNS #6499
dated 19 June 2008.

The full paper is available at
http://www.twnside.org.sg/title2/intellectual_property/development.research/
SusanSellfinalversion.pdf


Trade: US academic exposes IP maximalists' TRIPS-Plus-Plus agenda
Published in SUNS #6499 dated 19 June 2008


Geneva, 18 Jun (Sangeeta Shashikant) -- Proponents of a "maximalist agenda"
on intellectual property have launched a major, almost surreptitious,
campaign to increase IP protection and enforcement far beyond the standards
set in the WTO, in ways that are "TRIPS-Plus-Plus", according to a recent
paper by a senior academic.

The proponents, mainly global business firms and governments in OECD
countries, are making use of trade agreements, plurilateral government
initiatives and programmes in international agencies to push their agenda to
set or enforce higher IP standards, using the three concepts of
"counterfeiting", "piracy" and "enforcement".

Part of their aim is to counter recent setbacks in raising standards at the
multilateral level, and to counter public campaigns such as the "access to
knowledge" movement, says the paper entitled "The Global IP Upward Ratchet,
Anti-Counterfeiting and Piracy Enforcement Efforts: The State of Play."

The paper is authored by Susan Sell, Director of the Institute for Global
and International Studies and Professor of Political Science and
International Affairs at George Washington University in the United States.
She is also the author of a well-known book on the origins of the WTO's
TRIPS agreement.

According to the paper, the IP anti-counterfeiting and enforcement agenda
involves hundreds of OECD based global business firms and their foreign
subsidiaries, as well as initiatives and programmes such as the
Anti-Counterfeiting Trade Agreement (ACTA); Interpol's Standards to be
Employed by Customs for Uniform Rights Enforcement (SECURE); the US Chamber
of Commerce's (USCC) "Coalition against Counterfeiting and Piracy
Intellectual Property Enforcement Initiatives: Campaign to Protect America";
the Security and Prosperity Partnership of North America (SPP); WHO's
"International Medicinal Products Anti-Counterfeit Taskforce" (IMPACT);
WIPO's Advisory Committee on Enforcement (ACE) discussions; bilateral and
regional free trade agreements, investment treaties and Economic Partnership
Agreements.

These new anti-counterfeiting and enforcement initiatives are the latest
mechanisms to achieve the goals of what Sell calls the "IP maximalists",
which is to "ratchet up" IP protection and enforcement worldwide, beyond the
TRIPS Agreement.

The paper discusses the "strategic forum shifting" by OECD countries and
arenas pushing the IP enforcement agenda. It also outlines industry's goals
and strategies while discussing some of the challenges that the IP
enforcement agenda poses including how the enforcement agenda conceals
"far-reaching substantive goals that directly endanger the goals of access
to knowledge (A2K)". The paper also offers preliminary suggestions for
responding to the enforcement agenda.

According to Sell, advocates of a maximalist IP agenda have since the 1980s
shifted forums both horizontally and vertically in order to achieve their
goals.

She gives the example of how US first shifted horizontally from WIPO to the
GATT in the mid-1980s when it sought to leverage its large market (i. e.
market access) to induce developing countries to adopt minimum standards of
IP protection culminating in the TRIPS Agreement.

The US and EU have also shifted forums vertically by pursuing bilateral and
regional trade agreements mandating IP protection standards beyond TRIPS.
This way, Sell adds, the EU and US can bypass multilateral debates and
pressure individual countries and/or weaker regional partners to adopt
TRIPS-Plus IP standards.

Industry, according to Sell, has been relentless in pursuing its IP agenda,
circumventing developing country and NGO opposition and favoring
non-transparent forums of "like-minded" actors.

She asserts that IP-based firms, with the support of their governments, wish
to go far beyond TRIPS in IP enforcement with the main goals of documenting
and explaining the value of IP; ensuring strong government support for IP in
the US; rallying allied nations and organizations to defend IP; and
attempting to punish or blame governments that are considered weak in IP
enforcement.

According to Sell, advocates of the IP enforcement agenda have engaged in a
shrill public relations campaign characterized by "strategic obfuscation"
and an intentionally misleading message, to frighten people into accepting
their agenda. The fear-mongering ranges from tales of exploding cell phones,
toxic counterfeit drugs, to unsubstantiated allegations of organized crime
and even terrorist involvement, Sell adds.

She gives the example of how in April 2008, the US Attorney General Michael
Mukasey asserted that terrorists sell pirated software to fund their
operations simply to frighten people into backing a PRO-IP law (the
Prioritizing Resources and Organization for Intellectual Property Act) in
Congress, which would, among other things, create the post of a copyright
enforcement czar to coordinate IP protection efforts. No evidence was
presented for this claim, she added.

IP enforcement agenda advocates have also promoted two sensationalist books,
Illicit: How Smugglers, Traffickers, as Copycats are Hijacking the Global
Economy, and Knockoff: the Deadly Trade in Counterfeit Goods.

She states that the International Chamber of Commerce (ICC) funded a public
broadcast of a program based on Illicit, which equates counterfeiting with
human smuggling, drug smuggling, small arms trafficking, and black market
trade in nuclear materials while Knockoff appears to be entirely based on
information from ACTA advocates: the International Trademark Agency; the
International Intellectual Property Institute; the International
Anti-Counterfeiting Coalition; the Association Against Counterfeiting and
Piracy; and the Anti-Counterfeiting Group.

She refers to a paper by Kevin Outterson and Ryan Smith titled "Counterfeit
Drugs: the Good, the Bad and the Ugly" (in the Journal of Science and
Technology) which concludes that the evidence for counterfeit drugs is
anecdotal rather than empirical and that the only comprehensive collection
point for global data on counterfeiting is the Pharmaceutical Security
Institute - a trade organization created by the security directors of 14
global drug companies - that does not make its data available to the public.

That paper pointed out that "the terms fake or counterfeit have included a
wide range of drug products, from those resulting in criminal acts of
homicide, to placebos, to safe and effective drugs from Canada."

Sell says that by casting a wide rhetorical net, global pharmaceutical
companies hope to curtail drug importation from Canada, parallel
importation, and the TRIPS-compliant use of compulsory licenses - three
important avenues for increasing access to essential medicines.

IP enforcement agenda advocates are constructing a big tent that includes
all types of intellectual property: trademarks, patents, copyrights, despite
the very real differences between all the types of intellectual property,
added Sell.

The big tent approach to "counterfeiting" and "piracy" is designed to
capture behaviour that is legal, allowing proponents to construct a
multi-pronged attack on the A2K and development agendas and undo developing
countries' abilities to issue compulsory licenses.

The paper described an initiative by the US Chamber of Commerce Coalition
against Counterfeiting called "Campaign to Protect America" as laying the
groundwork for all of the other efforts. Sell outlines seven goals of the
Campaign.

The first goal is to improve coordination of US federal government IP
enforcement resources. The initiative intends to designate a chief IP
enforcement officer ("IP czar") within the White House (which awaits a
Senate vote) and to raise anti-counterfeiting and anti-piracy
responsibilities to senior levels at the Department of Justice and
Department of Homeland Security.

In 2004, the White House initiated its "Strategy Targeting Organized Piracy"
(STOP) focussing on inter-agency coordination, and established the "National
Intellectual Property Enforcement Council" which includes the US Coordinator
for International IP Enforcement and high-level officers from the
Departments of Commerce, Homeland Security, Justice, State, and USTR. The US
Copyright Office serves as an advisor to the Council.

The second goal is to focus on border protection against counterfeiting and
piracy, which involves expanding information-sharing capabilities,
developing databases to flag suspect shipments, fund more agents and
training programs, giving customs and border protection agents more legal
authority to audit and assess fines for importers, exporters, or other
parties that materially facilitate the unlawful entry of counterfeit and
pirated goods into the US.

Sell argues that this raises important questions because what constitutes a
"counterfeit" or "pirated" product varies from jurisdiction to jurisdiction.
This involves complex legal issues that Customs officers are neither trained
nor authorized to adjudicate.

She adds that border protection goals include eliminating the existing
"personal use" exemption and outlawing importation of any quantity of
counterfeit or pirated products including via mail or courier service, which
could then impact the fair use doctrine, or allowances for infringements for
non- commercial purposes.

The third goal is to strengthen law enforcement capacities to crack down on
"intellectual property theft" by increasing funding for law enforcement (US
Attorneys' Offices, FBI, training for state and local law enforcement),
enhancing penalties for counterfeiters who cause bodily injury or death, and
increasing coordination between law enforcement and industry.

The fourth goal is to coordinate with law enforcement and customs officials
across borders and abroad. Activities include training and technical
assistance to train governments in IP enforcement, establish IP attaches at
US embassies, and increase funding for IP Law Enforcement Coordinators
internationally. The US Trade Representative and industry are together to
devise and coordinate priorities for technical assistance. The initiative
also endorses the use of the Generalized System of Preferences (GSP) and
regional trade preference programs to encourage enforcement of IP rights.

The fifth goal is to establish a pilot program for judges to handle
counterfeiting and piracy cases, and institute treble damages against
complicit activity related to counterfeiting.

The sixth goal is to create and administer a nation-wide consumer awareness
campaign revealing the harms caused by counterfeiting and piracy (including
the use of advertisements for television, radio, print, and the Internet).
Also planned is the directing of funding agencies to favor those campuses
that have the most stringent anti-piracy practices.

Sell's paper also describes the various fora in which IP enforcement is
being discussed and the actors involved in each of the fora.

In the World Intellectual Property Organisation (WIPO), an "Advisory
Committee on Enforcement" (ACE) was established in 2002. This Committee is
industry dominated, and has devoted its efforts to discussing strengthening
enforcement and problems that rights holders face in third countries. Sell
says that ACE has not devoted attention to public interest considerations or
rights holders' obligations.

The World Health Organization's initiative on enforcement through the
"International Medicinal Products Anti-Counterfeit Taskforce (IMPACT)" is
supported by the International Federation of Pharmaceutical Associations
(IFPMA) which represents the interests of multinational pharmaceutical
companies. Other members include representatives of WIPO, OECD, WTO, WCO and
Interpol. Government participation is voluntary.

IMPACT tends to be industry-dominated and tends to blur distinctions between
parallel trade, compulsory licenses, and generics, the paper adds.

At the WTO, developed countries are pressing to make enforcement a permanent
part of the TRIPS Council agenda, while the industry is very involved in
monitoring the WTO accession process, says the paper.

G8 countries also opened negotiations at the Brussels-based World Customs
Organisation (WCO) to establish customs enforcement standards. Sell
describes WCO is a congenial forum for IP right holders because there they
are on equal footing with governments. Discussions at the WCO have not been
transparent and consumer groups have not been able to participate.

The paper adds that the WCO's provisional Standards to be Employed by
Customs for Uniform Rights Enforcement (SECURE) dramatically expands the
scope and level of enforcement protections beyond TRIPS, leading some
commentators to refer to these as "Trips-Plus-Plus" standards.

The paper describes SECURE as Trips-Plus-Plus because it extends the scope
from import to export, transit, warehouses, transshipment, free zones, and
export processing zones; extends protection from trademark and copyright to
all other types of IP rights; removes the obligations of rights holders to
provide adequate evidence that there is prima facie an infringement to
initiate a procedure; requires governments to designate a single authority
as a contact point for Customs; gives Customs administrations the legal
authority to impose deterrent penalties against entities knowingly involved
in the export or import of goods which violate any IPR laws (and not just
for trademark counterfeiting and copyright piracy). Brazil has been an
outspoken critic of these measures, the paper adds.

At the Working Group's 3rd meeting on SECURE the WCO Secretariat announced
that consultations on SECURE had been completed and it was looking to adopt
SECURE at its June 2008 meeting. WCO works with WIPO, Interpol, OECD, the
European Commission, WHO, and the Council of Europe to coordinate its
activities.

Interpol is another body that has become involved in IP enforcement.
President and CEO of the US Chamber of Commerce (USCC) Thomas Donahue has
actively supported an expanded role for Interpol through lobbying
governments, and targeting "hotbeds" of piracy such as China, India, and
Russia, the paper adds.

In 2006, Interpol entered into partnership with the USCC to develop a
database on IP crime to facilitate information sharing, which it presented
in 2008 to the G8's IP Experts Group meeting in Japan as a "best practice"
for all countries to adopt. Critics of the database have raised privacy
concerns, the paper states.

Other activities of the Interpol that the paper mentions include conducting
an IP crime training program, (introduced in 2007) and working with the
Business Software Alliance, the Entertainment Software Association, the
International Federation of the Phonographic Industry (IFPI), and the Motion
Picture Association (MPA) to build internet anti-piracy capacity.

The Anti-Counterfeiting Trade Agreement (ACTA), a proposed plurilateral
trade agreement (expected to be concluded this year) being negotiated by US,
Japan, Switzerland, Australia, New Zealand, South Korea, Canada, Mexico and
the European Commission to set high IP enforcement standards, is another
initiative discussed by Sell's paper.

A central feature of ACTA's approach is to enlist the public sector in
enforcing private rights, meaning that taxpayers' dollars would be used to
protect private profits. says Sell, adding that ACTA will authorize border
guards and customs agents to search and confiscate laptops, iPods, and cell
phones for infringing content.

Under the agreement, Customs officials will have the authority to take
action against suspected infringers even without complaints from rights
holders, to shut down production plants "on suspicion" of counterfeit
production, and require Internet Service Providers to police and control
their systems for infringing content. ACTA proponents claim that the treaty
will help developing countries with "capacity building" in enforcement.

Sell asserts that ACTA will create an additional international IP governance
layer atop an already remarkably complex and increasingly incoherent IP
regime and that its "one-size fits all policy" will reduce policy space for
developing countries to design appropriate policies for their economic
development.

Sell further argues that the opportunity costs of switching scarce resources
for border enforcement of IP "crimes" is huge and there are more pressing
problems for law enforcement in developing countries than ensuring profits
for OECD-based firms.

Other concerns mentioned are further tilting the balance in favour of IP
rights holders, privacy issues arising over extensive data sharing and
possible wire tapping, presuming suspects to be guilty, and undermining due
process of law.

In APEC the US has also been advocating an "Anti-Counterfeiting Piracy
Initiative". APEC has adopted a number of US proposals including five model
guidelines on reducing trade in counterfeiting and pirate goods.

Industry-supportive "think tanks" such as the International Intellectual
Property Institute, the Institute for Policy Innovation, the Stockholm
Network, and the Center for Innovation and Economic Change have been
producing studies for the cause of ratcheting up IP standards and
enforcement, says Sell.

The Security and Prosperity Partnership (SPP) of North America is another
White House-led initiative among NAFTA signatories (the US, Canada, and
Mexico) "to increase security and to enhance prosperity" which under a
competitiveness rubric aims to enhance IP enforcement and crack down on
counterfeit and pirated goods.

According to Sell, SPP is an ongoing dialogue rather than a formal agreement
and is focused on increasing private sector engagement in the process to
help North America's competitive position in the global economy, and its
targets are the export processing zones in particular in Mexico.

She adds that one of the IP maximalists' objectives is to build a virtual IP
network, through an NGO, capable of influencing leading European political
parties and non-business think tanks in favor of government support for IP -
in Germany, Austria, Switzerland, France, Italy, Scandinavia, and the UK.

The paper presents several ideas for dealing with the enforcement agenda:

* Define terms such as trademark, counterfeiting and copyright piracy quite
explicitly to distinguish between and create different sets of rules for
counterfeited goods, pirated goods, grey goods, parallel imports, generic
goods, and goods produced under TRIPS-compliant compulsory licenses.

* Highlight the hypocrisy of the campaign, especially the narrative that
counterfeits cause injury.

* Conduct more evidence-based empirical analysis, to counter outlandish
claims advanced in support of the enforcement agenda. Many IP enforcement
agenda advocates rely on just one economist, who continues to produce
reports that echo the ACTA lobbyists' narrative. Sell gives the example of
Steve Siwek who provides figures for IIPA (Institute for Policy Innovation),
RIAA, and MPAA and who helped formulate methodology for WIPO to calculate
the copyright industries' role in all economies.

* Emphasize that "enforcement" should not be a one-sided concept, i. e. it
should not only mean enforcing IP holders' rights, but also enforcing
balance, exceptions and limitations, fair use, civil rights, privacy rights,
and antitrust (or competition policy). +




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