[A2k] ACTA article from IP-Watch

[Robin Gross]

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Business, Governments See Momentum For ACTA, But EU Snags

By Liza Porteus Viana for Intellectual Property Watch


NEW YORK - Business leaders and some global government officials on
Monday urged ratification of a global anti-counterfeiting treaty and
proposed a series of new strategies aimed at curbing pirated goods
they say not only harm developed and developing countries' economies,
but their citizens' health as well.

Meanwhile, European Union participation in the negotiations has come
into question, and nongovernmental critics have raised concerns about
the need for a treaty and the inclusiveness of the negotiations.

"Our future relies on innovation, creation, brands and unfortunately,
all of those are very easy to theft," said Jean-Rene Fourtou,
chairman of the supervisory board of Vivendi and co-chair of the
International Chamber of Commerce's Business Action to Stop
Counterfeiting and Piracy (BASCAP). He added that the security,
social and economic issues associated with rampant theft is "like a
cancer."

Fourtou and other CEOs and corporate executives of BASCAP met Monday
in New York City with US Trade Representative Susan Schwab, World
Intellectual Property Organization Deputy Director General Michael
Keplinger and World Customs Organisation (WCO) Secretary General
Michel Danet, among others. BASCAP's Global Leadership Group tackled
topics such as how to get Group of 8 countries to make more progress
on shutting down counterfeit markets, working with the WCO to stop
the flow of counterfeit goods across borders and forthcoming consumer
awareness and education campaigns that will spell out the dangers of
fake and pirated goods.

BASCAP will work with WIPO to seek out other government partnerships
on the education campaign, which they say is critical to relaying to
consumers the message that buying counterfeit goods harms the
economy, local manufacturers and creators of such goods, and poses
serious safety and health concerns.

"We need to more effectively translate these hard-hitting facts" to
work toward a "fake-free world," Keplinger said during a press
conference after the meeting.

Officials also urged Schwab to move quickly toward completing the
Anti-Counterfeiting Trade Agreement (ACTA), which the United States,
European Union and other key trading partners announced last October.
Schwab, who attended the morning business meeting but not the press
conference afterward, told attendees that she is hopeful negotiations
can be completed this year. The language of the draft agreement is
expected early this year.

"We think it's absolutely necessary to work toward that while there's
so much momentum behind this issue," said Alan Drewsen, executive
director of the International Trademark Association. He also said
Schwab vowed that whatever new administration enters the White House
in November, there will be the "same level of commitment to the
protection of intellectual property" and pursuing ACTA.

Kevin Havelock, president of Unilever United States, said Schwab
"made quite a commitment of her own energy" to pushing ACTA through
this year.

But a main sticking point, several officials told Intellectual
Property Watch, is that the EU has not settled issues surrounding its
negotiating authority as one unit yet. "There's a major problem in
the European Union," Keplinger told Intellectual Property Watch.
"That is the open issue," added Drewsen. "We're told progress is
being made." Some sources have said the EU has a question of
competency versus the national governments in this area.

Seeking to Include Developing Countries

One ACTA message relayed to government officials from business was
that it is fine to have the US, EU, and Japan involved in the
negotiations, but it also is imperative to have other less developed
countries involved as well. Also discussed were objectives the group
could take to further education and various country initiatives that
vary by country and culture. The World Customs Organization gave a
presentation on challenges it faces interdicting fake goods.

"Today we consider this an industry that kills employment,
productivity, progress and people," Danet said in French. "There is
no single product that has not been pirated today ... the consumers
are the pirates and also the victims."

Officials also said the finger cannot just be pointed at China as the
main culprit, although the fact remains that 80 percent of
counterfeit goods seized in Europe alone come from China. Russia,
Ukraine, Turkey, Nigeria and Vietnam also are sources, they said. The
problem in holding China accountable, Danet said, is that Beijing may
sign onto various agreements but it is hard to know whether they
actually are implemented by the country's various regional leaders
who remain fairly independent.

Bob Wright, vice chairman of General Electric US and a co-chairman of
BASCAP, said the hope is that ACTA will be "fill-in-the-blanks for
lots of things that are not as thought out or as well drawn having to
do with counterfeiting or piracy" in current international agreements.

Industry Recommendations

The ICC and INTA also on Monday presented a paper to Schwab,
outlining their ACTA recommendations. The paper will be distributed
to leaders of the EU, Japan, Korea, Mexico and other governments.

Intellectual Property Watch obtained a copy of those recommendations,
which include avoiding compromises that will limit the scope and
effectiveness of the final agreement, having governments warn
consumers about the harms of counterfeit products and providing clear
guidance and deliver tangible results in topics such as:

requiring that each party designate a chief intellectual property
enforcement officer to oversee coordination of relevant government
officials and agencies and allocate resources
ensuring that criminal penalties reflect the magnitude of the crime
disrupting the flow of counterfeit goods through free trade zones and
other transhipment sites by giving local customers and enforcement
authorities power to inspect all shipments and seize infringing goods
developing global "minimum standards" in adjudicating counterfeiting
and piracy cases
addressing the growing problem of the sale of counterfeit goods on
the Internet
treating counterfeiting and piracy as a transnational crime if
activity crosses borders.
USTR is seeking public comment on ACTA via the Federal Register.
Comments must be submitted by March 21 to be considered.

Critics Raise Doubts on Narrow ACTA Process

But some ACTA critics say that is not enough, and that developing
countries and civil society groups not part of the inter-governmental
discussions are at a disadvantage from the outset.

"These talks have all been going on between a select handful of
countries that will basically decide what the parameters of the
agreement will be and the concerns of developing countries, the
concerns of civil societies, won't be included in the final text,"
said Robin Gross, executive director of the civil liberties
organisation IP Justice.

Gross also is concerned that ACTA will result in increased data-
sharing between governments - which could pose privacy concerns - as
well as increased use of public resources that would be put toward
trying to remedy a problem hurting "a very small number of companies"
and would fund what she called "propaganda campaigns" to discourage.

She said there is no need to reinvent anti-counterfeiting laws, when
many countries have already signed onto the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS), which, among
other things, establishes minimum levels of protection that each
government has to give to the intellectual property of World Trade
Organization members. Pro-ACTA officials say the new agreement would
set a new, higher benchmark for enforcement that countries can join
voluntarily.

Undermining Trust in Company Brands

BASCAP officials maintain that the problem is very real - and
potentially deadly, emphasising that it is about more than illegal
copies of CDs and DVDs being sold on streets.

For example, as of December 2007, Pfizer - which has implemented a
programme to identify and disrupt the major manufacturers and
distributors of counterfeit Pfizer goods - confirmed the presence of
counterfeit medicines under its name in at least 75 countries. Fake
versions of seven Pfizer products had been detected in legitimate
supply chains (e.g., pharmacies) in at least 25 countries - and not
just developing nations with weak regulatory systems.

"Counterfeit pharmaceuticals are truly a global problem for which we
need global solutions," said Andreas Fibig, Pfizer's senior vice
president of US pharmaceutical operations. "And as long as it remains
a 'low risk-high reward' activity, it will continue to attract
opportunists, organised crime and terrorists."

Liza Porteus Viana may be reached at info@ip-watch.ch.





IP JUSTICE
Robin Gross, Executive Director
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