[A2k] IP-Watch: European European Commission On ACTA: TRIPS Is Floor Not Ceiling

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is-floor-not-ceiling/


Intellectual Property Watch


European Commission On ACTA: TRIPS Is Floor Not Ceiling


By Monika Ermert <http://www.ip-watch.org/weblog/author/monika/>  for
Intellectual Property Watch

BRUSSELS - The Anti-Counterfeiting Trade Agreement is increasingly taking
shape, but differences are becoming clearer and internet issues and
intermediary liability appear to be giving negotiators some headaches. The
European Commission Directorate General Trade on Tuesday invited
stakeholders to a consultation meeting to share ideas on the much-debated
agreement.

Luc Devigne and Pedro Velasco Martins, negotiators for the Commission's
trade directorate, were very open in answering questions at the 21 April
event in Brussels about the reason for a plurilateral instead of a
multilateral agreement like the World Trade Organization and a review of its
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

"ACTA is very much about enforcement," said Devigne. "Speaking on
enforcement in WTO, not to talk about WIPO, is extremely difficult." WIPO is
the World Intellectual Property Organization.

Therefore, a group of countries started the ACTA negotiations and while it
would be difficult to have other countries jump on the rolling train right
now, the intention certainly was to get more members to the agreement. "The
more, the merrier," said Devigne.

The EU Commission is "committed to improve the international legal framework
for IP protection" and sees "ACTA as one way to reach that goal," Devigne
said. There was no intention to duplicate TRIPS. Rather, "we want to go
beyond it," he said, adding, "TRIPS is the floor, not the ceiling."

Devigne pointed to some difficulties the Commission has had in the
negotiations. "First of all, we do not agree with our partners who want to
exclude certain rights," he said. The Commission's standpoint is that "all
IP rights are equal."

Patents in particular - but also geographical indications - therefore should
be in scope of ACTA, but so far there is only consensus in any case to
exempt patents from criminal law sanctions. Commission officials also
explained that the US is heavily interested in getting "camcording" - the
recording of movies at the cinema by a camcorder - criminalised in ACTA. Yet
this approach, too, faces opposition by some partners, explained Martins.

A representative of the German Football League recommended to not limit the
band on camcording, because camcorders might be substituted by other devices
in months.

Waiting to Begin Again; Bond Breaking?

At the moment, the group is waiting for the US government to restart
negotiations after the change in administration. A date for the fifth round
expected to take place in Morocco still has to be decided, potentially in
May.

Meanwhile, two members of the group seem to have dropped out, Jordan and
United Arab Emirates do not longer figure as standing ACTA parties.

The challenge ahead is to get consensus on the section of the draft treaty
that deals with the internet. Other than the parts on civil law measures,
enforcement and border measures there is no draft paper so far, said the
Commission representatives.

"It is not that we want to hide something, we just don't have something to
show." Devigne also rejected all claims about a possibly secrecy in the
negotiations. "Quite on the contrary, for international trade negotiations
we normally do not have such a democracy exercise where everybody can raise
their concern," said Devigne. For this kind of negotiations the Commission
would normally only consult with member states.

But there are more papers not yet shared publicly during the consultation.
For example, there is a US non-paper by the US on internet and technology
provisions with questions for discussion. The EU in turn has commented on it
with an in-depth presentation of the current legal framework for IP
protection in the EU, listing measures from the E-Commerce Directive, the
Information Society Directive and the IP Enforcement Directive (IPRED). The
Commission did not intend to go beyond the common accord of the Union
(acquis communautaire), DG Trade experts said at the meeting.

On many issues, the EU Commission said it could rely on the EU accord, an
official said. It wants, for example, to "enrich the (ACTA) agreement with
our enforcement directive," the official said.

Despite these directives, enforcement on the internet and especially
criminal enforcement are difficult issues for the Commission because there
is no harmonised EU regulation. For this reason, member states represented
through the rotating EU presidency take the lead in negotiating the criminal
law aspects of ACTA.

The Commission should not allow the export of "internet blocking measures"
to ACTA, warned Michael Brandstetter from the Austrian Chamber of Commerce,
adding that a model like France's three strikes approach against IP
violations should be prevented from being mirrored in ACTA. The EU
Information Society Directive allowed member states to decide on blocking,
said Brandstetter. If made part of ACTA, national legislators might lose the
flexibility to regulate more liberally.

Anne-Catherine Lorraine from the Trans-Atlantic Consumer Dialogue told
Intellectual Property Watch that the transparency paper published by the
ACTA partners recently did not really help with regard to understand scope
and details of the agreement. She asked the Commission at the hearing if
there was a guarantee that legal generic drugs could be shipped without
interference by rights holders when the drugs are in transit. The Commission
has explicitly declared it wants to ensure access to legal generic drugs,
Devigne said.

There were numerous representatives of rights holders asking for tighter
liability rules including, for example, "landlords" of facilities rented to
IP infringing businesses. Several cases have shown that going against this
kind of third parties was successful, according to Richard Heath from
Unilever, chair of the International Trademark Association (INTA). Liability
for suppliers and shipping companies also should be considered, recommended
Rocky Rowe from the European Crop Protection Association (ECPA).

Karsten Hess from Deutsche Post said that it has about 10,000 people
checking customs and IP issues before goods are shipped. Hess wanted to know
from the Commission if it would pay for damage caused by any unjustifiable
injunction that blocks a whole container from going to transport.

The Commission was certainly not in the position to pay for storage of
seizure goods, replied Devigne. Customs cannot be held responsible, added
Martins, as it simply could not afford it.

An additional question that according to the Commission is still under
consideration is how ACTA would be enforced. Devigne said the mechanism
would certainly not be as "judicial" as WTO procedures.

Intellectual Property Watch

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