[A2k] This is a text format of the TACD Resolution on enforcement

[James Love]

Original pdf version: http://www.tacd.org, or http://bit.ly/XBxf

TACD DOC No. IP 09-09               June 18, 2009

Resolution on enforcement of copyright, trademarks, patents and other
intellectual property rights

Introduction

The enforcement of any particular intellectual property right, whether
copyright, trademark, patent or others, is a complex and important area
of public policy that touches on personal privacy, civil rights,
freedom, social and economic development, and plethora of other issues.

According to the WTO TRIPS Agreement, the enforcement of intellectual
property rights should be consistent with the promotion of technological
innovation and the transfer and dissemination of technology. The
policies should be to the mutual advantage of producers and users of
knowledge, in a manner conducive to social and economic welfare, and to
a balance of rights and obligations.1 Governments have responsibilities
in formulating or amending their laws and regulations to adopt measures
necessary to protect public health and nutrition, to promote the public
interest in sectors of vital importance to their socio-economic and
technological development, and to include appropriate measures that may
be needed to prevent the abuse of intellectual property rights by right
holders or the resort to practices which unreasonably restrain trade or
adversely affect the international transfer of technology.2

The European Union and the United States are engaged in extensive
efforts to shape global norms for the enforcement of copyright,
trademarks, patents and other intellectual property rights. These
discussions and norm setting activities are taking place in
multilateral, plurilateral and bilateral fora and through unilateral
actions. The proposals that are under consideration would in important
areas be significant departures from the norms of the World Trade
Organization (WTO) Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS).

While trademark, copyright, and patents are private rights that enable
the right holders to seek remedies for infringements through legal
proceedings, some initiatives create public responsibilities to monitor,
prevent and penalize infringing activities, creating burdens on state
resources. The extent to which this is appropriate will depend upon the
specific initiative, and the competing priorities regarding scarce
resources.3  This is a special concern in developing countries, where
the public enforcement of private intellectual property rights may not
be a high priority.

The members of the Trans Atlantic Consumer Dialogue (TACD) agree to the
following concerning the enforcement of intellectual property rights:

Recommendations

1.General Principles and Concerns

a. Transparency and Openness. Negotiations concerning norms for the
enforcement of intellectual property rights should be transparent.

    i.Governments should explain the rationale and evidence in support
of proposed policies, and invite public comment and questions regarding
both.

    ii.Governments should disclose the date and location of meetings,
the names of negotiators, and the rules of negotiations.

    iii.Documents that are distributed to all countries in a negotiation
should be public, and not withheld on grounds of secrecy.

    iv.Governments should disclose negotiation-relevant contacts and
communications with representatives of right owners and other
stakeholders.

    v.Consumers should be allowed to attend negotiations as accredited
observers.

b. Human Rights. The enforcement of intellectual property rights should
not undermine essential human rights, particularly as regards to:

    i.The freedom of thought, speech, or expression, or the right to
communicate,

    ii.The civil rights of individuals,

    iii.The rights to health, education and to freely participate in the
cultural life of the community, and

    iv.The enforcement of intellectual property rights should be
consistent with the 1986 UN Declaration on the Right to Development as a
human right.

c. Privacy

    i.National implementation of enforcement measures should be least
restrictive of consumer privacy.

    ii.An IP address is personally identifiable information subject to
legal protection.

    iii.Any monitoring of consumer activity should be undertaken in
accordance with the principle of proportionality.

d. Competition.

    i.Free movement of goods. Legitimate goods in transit should not be
subject to enforcement measures that are based upon territorial patent
rights or other inappropriate measures.

    ii.Anti-Competitive Practices. The enforcement of intellectual
property rights should not undermine competition or limit the ability of
governments to control or prevent anticompetitive practices.4

    iii.Exhaustion of Rights. Enforcement measures should not eliminate
the flexibility now available to countries under the WTO TRIPS Agreement
to protect consumers by policies that embrace the national, regional or
international exhaustion of intellectual property rights.

e. Consumer Protection. Enforcement measures should not undermine
appropriate measures to protect consumers.

    i.Unfair contracts. In recent years, publishers have sought to limit
consumer rights to use copyrighted works through non-negotiated
contacts. Enforcement rules should not automatically enforce such
contracts, when they are unfair or contrary to other public policy
concerns.

    ii.Interoperability. Many manufacturers or publishers attempt to
restrict the use of copyrighted works to particular devices, software
programs or services. Consumers want the right to modify, translate or
otherwise transform data or software to extend the functionality or
expand the choices for devices, software or services.

    iii.Defective products. Consumers should have the right to refunds
if digital goods area defective.

    iv.Excessive pricing. Governments should act to protect consumers in
cases of excessive pricing.

f. Access to Knowledge. Personal, social, and economic empowerment and
development depend in part upon access to knowledge. Measures to enforce
intellectual property rights should not themselves become barriers to
access to knowledge.

g. Preservation of culture and cultural diversity. The preservation of
culture requires overcoming technical and legal barriers to making
copies of works, adapting works to new formats, and preserving the
integrity and accessibility of works. Enforcement measures should
recognize the social value and importance of such activities.

2.Evidence and Analysis. Public policy on the enforcement of
intellectual property rights should be informed by creditable evidence,
transparent and realistic assumptions and objective peer reviewed
analysis. Multiple approaches to addressing the legitimate concerns of
right owners and consumers should be considered.

a.  Statistics on counterfeiting and or infringement must be objective,
accurate, and presented in the appropriate context.

b. Statistics on counterfeit and substandard medicines should not be
combined when this misleads policy makers about the extent of either
problem. The solutions to counterfeit and substandard products are often
quite different.

c. Estimates of losses from infringements of intellectual property
rights should be based upon realistic demand and usage parameters.

d. Governments should collect and analyze statistics on the relationship
between infringement and affordability of products.

e. Counterfeiting is one part of broader public health concerns
regarding drug quality. Addressing the problem of counterfeiting will
not eliminate the range of public health concerns  about drug quality.
Governments should evaluate whether or not improving drug registration
frameworks of quality, safety and efficacy regulation and its
enforcement and/or policies that facilitate access to quality assured
medicines and their rational use is a more cost effective solution than
policies that are excessively focused on intellectual property
enforcement measures.

f. Confusion in terminology should be avoided and not encouraged.
'Countfeit=E2=80=99 should not be used as a generic term to designate all
infringements, or to indicate the lack of quality of certain products.
Policy makers should not allow public health terminology to be
appropriated by intellectual property rights holders, in order to use
public health terms and concerns to defend their own interests in areas
where the terms confuse and mislead policy makers and the public.

3.Specific Concerns. In light on these general principles and concerns,
TACD offers the following specific recommendations:

a.  Enforcement of Internet Related Intellectual Property Rights.

    i.The EU and US should implement the recommendations set out in the
TACD July 2008 Resolution on the Role of Internet Service Providers
(ISPs) in Mediating Online Content and Communications (TACD Doc No. IP
06-08).

     ii.Digital Rights Management (DRM) schemes and Technological
Protection Measures (TPMs) can and often do harm consumers directly and
indirectly. The legal protection of DRM and TPMs should be limited, and
subject to safeguards.

     iii.Hypertext linking to protected works on the Internet should not
be subject to criminal sanctions.

     iv.Any proposals for online enforcement of IPRs, such as monitoring
the use of digital content, should be accompanied by a review of
alternative systems of remuneration for creative communities, in order
to foster the development of innovative business models and, more
broadly, the development of the digital economy.

    v.Governments should take due account of the distinction between the
intentional or unintentional character of acts, and between the
commercial or non-commercial nature of infringement. Criminal provisions
must be limited to cases of commercial infringement with direct
motivation of financial gains, excluding acts carried out by those
acting in good faith.

     vi.For any online enforcement efforts, careful assessment on the
sanction and the crime targeted should be conducted, pursuant to the
principles of effectiveness and of dissuasiveness.

     vii.Governments should not cut off access to communications systems
or the Internet as a sanction for infringement of copyrighted works.

b.  ACTA. The proposed Anti-Counterfeiting Trade Agreement (ACTA)
negotiation lacks transparency and legitimacy, and needs safeguards for
consumers.

     i.There should be no further meetings on the Anti-Counterfeiting
Treaty until the EU and the US publish the full text of all negotiating
documents, and agree to additional transparency measures, including the
accreditation of consumers and/or their representatives  as observers.

     ii.The term "counterfeit" should not be used to describe activities
relating to the mere infringement of copyrights or trademarks where
there is no intent to deceive or any likelihood of confusion as to the
authorized manufacturer, distributor or provider of the service.
Possible patent infringements should not be referred to as counterfeits.

     iii.EU and US negotiators have acknowledged that ACTA is designed
to be expanded to apply to developing countries. Developing countries
should therefore be allowed to participate in the ACTA negotiation, as
either as full parties or as observers.

     iv.ACTA should not reduce the flexibilities regarding injunctions
that currently exist in Article 44.2 of the TRIPS.

     v.ACTA should not require governments to impose inappropriate
damages on consumers. Damages should not be excessive. In appropriate
cases, governments should be able to tailor damages to public purposes.

     vi.ACTA should not foreclose the ability of governments to create
reasonable liability rules for the use of protected works or inventions,
such as to facilitate access to orphaned copyrighted works, to address
infringement of architectural plans for building under construction, to
allow governments to use or authorize uses of patents, copyrights or
other intellectual property rights (such as 28 USC 1498), or to
facilitate access to biomedical inventions or inventions necessary to
implement standards involving complex technologies.

     vii.ACTA should not interfere with legitimate parallel trade, or
goods in transit. For example, legitimate medicines in transit should
not subject to enforcement of patent rights in countries where goods are
only in transit.

     viii.ACTA should not incorporate enforcement measures against
individuals that undermine privacy, civil rights, or other human rights.

     ix.Patent infringement should not be subject to criminal
penalties.

     x.Customs officials should not be required to devote excessive
resources to the overzealous enforcement of possible intellectual
property violations, at the expense of other pressing needs, such as
those presenting other threats to public health and safety, or
constituting other more serious illegal activities.


FOOTNOTES:

fn/1 See, for example, Article 7 of the TRIPS.

fn/2 See Article 8 of the TRIPS, and paragraph 4 of the 2001 Doha
Declaration on TRIPS and Public Health.

fn/3 See TRIPS Part III, Enforcement Of Intellectual Property Rights.
Section 1: General Obligations. Article 41.5. "It is understood that
this Part does not create any obligation to put in place a judicial
system for the enforcement of intellectual property rights distinct from
that for the enforcement of law in general, nor does it affect the
capacity of Members to enforce their law in general. Nothing in this
Part creates any obligation with respect to the distribution of
resources as between enforcement of intellectual property rights and the
enforcement of law in general."

fn/4 See Article 8 and 40 of the TRIPS Agreement.
--
James Love, Director, Knowledge Ecology International
http://www.keionline.org | mailto:james.love at keionline.org
Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.=
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