[Ip-health] IP-Watch: Speculation Persists On ACTA As First Official Meeting Concludes

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/wp-trackback.php?p=3D1082

5 June 2008
Speculation Persists On ACTA As First Official Meeting Concludes

Posted by William New @ 11:23 pm
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By Monika Ermert for Intellectual Property Watch
Government representatives from developed nations and strategic
developing nation partners met at the US mission in Geneva on 3-4 June
to discuss proposals for an Anti-Counterfeiting Trade Agreement (ACTA).

Parties at the negotiation included: Australia, Canada, the European
Union, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore,
Switzerland, United Arab Emirates and the United States.

ACTA=92s declared goal, according to a note released after the meeting
by the negotiators, is =93to provide a high-level international
framework that strengthens the global enforcement of intellectual
property rights.=94

According to a short press note released by the European Commission
directorate general for trade on 5 June, =93a number of topics were
discussed=94 at the Geneva meeting. =93The main focus of the discussion
was border measures, particularly how to deal with large-scale
intellectual property infringements, which can frequently involve
criminal elements and pose a threat to public health and safety.
Participants considered the discussions useful and are satisfied with
the progress to date.=94

A spokesperson of the European Commission confirmed that consultation
with different stakeholders had been on the agenda and would happen
over the coming month at the domestic level. Draft text proposals
still have not been published, the source said. Several parties
contacted pointed to confidentiality agreed on by the negotiating
partners. It was still early, they said.

Mathias Schaeli, head of legal services, International Trade Relations
at the Swiss Federal Institute of Intellectual Property (IPI), told
Intellectual Property Watch before the meeting that the criticism from
some non-governmental organisations was premature as draft texts were
not yet finalised.

=93ACTA=92s intention is to tackle the growing problem of large-scale
counterfeiting which is a problem for every citizen,=94 he said, adding
that ACTA therefore should not be rejected upfront. Critical comments
and contributions are welcome as soon as a text is on the table, he
underlined.

With no draft text available for comment from stakeholders or the
public, there is active speculation about the measures envisaged by
ACTA. The debate is fuelled by comments such as those of Google Senior
Copyright Counsel William Patry. Patry wrote on his blog that ISP
filtering according to information he obtained might be on the table
in the negotiation. The filtering of sites infringing third party
rights on the internet has been a much-contended topic in Europe, with
France still pushing for respective regulation.

David Fewer, staff counsel at the Canadian Internet Policy and Public
Interest Clinic (CIPIC), wrote to Intellectual Property Watch that the
concern about customer data transfers from internet service providers
to third parties stemmed from the consideration that the negotiators
already had procedures in place to obtain data.

=93All signatories already have judicial processes for obtaining such
data,=94 he said, =93thus the parties are likely looking to either
sidestep judicial processes or lower the safeguards inherent in such
judicial processes.=94

Essential Action, an advocacy group focussing on access to medicine,
warned in a statement to the Office of the United States Trade
Representative, that =93commercially interested parties sometimes cast
compulsory licensing for medicines - legal under national legislation
and World Trade Organization rules - as patent theft or =91piracy,=92 but
no one can argue these practices bear any resemblance to
counterfeiting.=94 At the same time, an agreement focused on patent,
copyright and trademark infringement was likely to overlook important
options to control counterfeiting, including by requiring companies to
disclose knowledge of counterfeit products.

In the note published today, the ACTA negotiating partners obviously
make an attempt to calm some concerns published in newspaper articles,
for example, possible iPod searches by border authorities. Contrary to
frequently asked questions published so far on ACTA the note speaks
more specifically about =93large-scale=94 infringements.

Yet criticism might not die down soon, as there is no information
about when and how stakeholders will be invited to comment and consult.

Negotiators, according to the note, =93will continue their substantive
work over the coming months in a focussed manner. They tentatively
scheduled their next meeting for mid-July, and expect to continue
discussions on border enforcement while also exploring other areas,
such as civil enforcement.=94

European Parliament Study Draws Some Critical Conclusions

A study commissioned and received in May by the European Parliament
also points to some problems with ACTA. The study prepared by
Professor Claudio Dordi of the University of Bocconi, Milan, found
that =93there is not =91enough evidence as to the extent or effects of
international trade in counterfeiting and pirated products.=94 There is,
in fact, =93a lack of reliable information and objective data as well as
of harmonised definitions that would allow a proper quantification of
the magnitude and impact of international trade in counterfeit and
pirated goods and an adequate assessment of the problems it poses,=94 it
said.

Dordi also is of the opinion that, =93while it is necessary that claims
on intellectual property rights infringement be based on substantial
evidence, the United States and the European Union are evaluating
intellectual property enforcement in developing countries against
levels of counterfeiting and piracy that are mainly based on estimated
losses that their industries claim to exist according to their own
surveys. The estimates of the levels of counterfeit and piracy are
imperfect and tend to exhibit an upward bias.=94

Dordi agrees with NGOs like Knowledge Ecology International and IP
Justice with regard to a certain =93vagueness=94 in definitions and forum
shopping. It was unclear from the use of the terms =91counterfeit=92 and
=91piracy=92 what the new treaty would actually cover, he wrote.

ACTA=92s nature as free-standing agreement constituted another =93forum
shift=94 in the international regime of intellectual property, he added.
=93One such shift took place in 1994 when discussion on IP moved from
the World Intellectual Property Organization (WIPO) to the WTO. The
current forum shift is now occurring from the WTO to bilateral
negotiations. While civil society and emerging developing countries
exercise pressures on the WTO to maintain or even lower TRIPs
standards, the United States and the European countries have found in
bilateralism a way to extend international IP protection.=94

A spokesman of the Canadian government had rejected the notion of
forum shopping in his answers to earlier questions from Intellectual
Property Watch. The ACTA approach of negotiations of only a few
partners, wrote Dordi, =93particularly penalizes developing countries as
they do not have equal input to the agreement text they could adhere
to.=94

With regard to the question of whether the ACTA in the end might
constitute a =93new WIPO=94 and =93a new layer of IPR standards,=94 Dordi
stated that =93the industrialised countries=92 approach to enforcement, in
sharp contrast to a public policy approach that takes into
consideration issues broader than industry interests in formulating
policy, is one of the major emerging challenges for national
intellectual property rights systems.=94

Monika Ermert may be reached at info@ip-watch.ch.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997