[Ip-health] IP-Watch: Embattled ACTA Negotiations Next Week In Geneva; US Sees Signing This Year
Thiru Balasubramaniam
thiru@keionline.org
Fri May 30 08:39:01 2008
http://www.ip-watch.org/weblog/wp-trackback.php?p=3D1071
<SNIP>
Formal negotiations on an Anti-Counterfeiting Trade Agreement (ACTA)
are expected to commence next week in Geneva, according to a European
Commission official, even as a leaked United States trade office paper
is drawing criticism of the proposed pact.
<SNIP>
A US trade official put negotiations within this year. =93The United
States will strive to complete the agreement before the end of 2008,=94
the official said. Like the Commission official, the US official said
he did not expect signing at the G8, adding, =93The G8 and ACTA are
separate and distinct.=94
But intellectual property is again on the preliminary agenda of the G8
summit in Japan and if signing in 2008 is intended it might come up in
some of the bilateral talks between the ACTA negotiating partners who
are in attendance. G8 members include: Canada, France, Germany, Italy,
Japan, UK, US and Russia.
<SNIP>
Knowledge Ecology International (KEI), in an earlier statement filed
to USTR, warned against a lack in differentiation and clearness of
core terms, like counterfeiting, infringement or piracy. =93Is Microsoft
a =93pirate=94 for insisting on the right to continue to infringe the z4
patents in order to use an infringing DRM technology to protect
Microsoft software itself from infringement by unauthorised uses?=94 KEI
asked in its statement.
=93Is the International Trade Commission endorsing piracy by refusing to
prevent the importation of all mobile phones that use infringing
semiconductor chips?=94 or =93Is Abbott Laboratories a =93pirate=94 for
seeking a compulsory license for its infringing use of patents on a
Hepatitis C virus genotyping test kit?=94
Users of social networking tools MySpace, Facebook or Youtube might be
searched at borders because of extensive evidence of unauthorised use
of content on these platforms, as could USTR officials who had copies
and shared copyrighted articles about counterfeit products, KEI
asserted.
IP Justice heavily criticised the attempt to keep developing countries
out of the negotiations. =93After the multilateral treaty=92s scope and
priorities are negotiated by the few countries invited to participate
in the early discussions, ACTA=92s text will be =91locked=92 and other
countries who are later =91invited=92 to sign on to the pact will not be
able to re-negotiate its one-sided terms,=94 IP Justice stated. Signing
on to ACTA is said to be =93voluntary=94 but seen as difficult to refuse
after the negotiation is completed.
Petra Buhr of IP Justice suggested the World Intellectual Property
Organisation or the World Trade Organisation as international fora for
negotiations on IP issues. But the US trade official said, =93We feel
that the approach of a free-standing agreement is an appropriate way
to pursue this project among interested countries. We support the
important work of WTO and WIPO related to IPR enforcement.=94
------
30 May 2008
Embattled ACTA Negotiations Next Week In Geneva; US Sees Signing This
Year
Posted by William New @ 1:06 pm
Link This Article Leave a Comment Print
By Monika Ermert for Intellectual Property Watch
Formal negotiations on an Anti-Counterfeiting Trade Agreement (ACTA)
are expected to commence next week in Geneva, according to a European
Commission official, even as a leaked United States trade office paper
is drawing criticism of the proposed pact.
The publication of a US Trade Representative=92s office discussion paper
on ACTA leaked last week on Wikileaks has spurred criticism of the new
agreement proposed by the US, Japan, European Union and Switzerland
and discussed behind closed doors so far.
ACTA is intended as =93a new standard of intellectual property
enforcement to combat the high levels of trade in counterfeit and
pirated goods worldwide,=94 according to information made available by
the Australian Department of Foreign Affairs and Trade (DFAT), another
partner in the negotiations. Several nongovernmental organisations
have warned against a trend of =93forum shopping=94 for global IP
enforcement.
According to DFAT, which has been more open than other governments on
the issue, proposals made in leaked paper date back to November 2007,
with minor updates from 4 February. The idea of an international IP
enforcement agreement has been around for some time, writes DFAT, and
been discussed at the Global Congress on Combating Counterfeiting
(GCCC) 2007 and 2008 and been pushed by Japan at the 2005 Gleneagles
Group of 8 Summit. A signing of ACTA at the G8 in Japan in July is out
of the question, said the EU official. =93This is a rumour,=94 he said.
IP on the G8 Agenda, But ACTA Targeted for Year=92s End
No further details on next week=92s negotiation were available at press
time (but will be added as they become available).
Given that no draft ACTA text beyond the discussion paper has been
presented signing in July would have been ambitious, say experts. But
given that for negotiating partner the European Union the finalised
text needs not only a =93yes=94 of the Commission, but, said the
Commission official, also of the Council, it seems close to
impossible, at least for some EU negotiating partners.
=93We have a mandate for negotiation=94 since 14 April, the Commission
official said. Yet for final approval the so-called Article 133
committee of the European Council and the Council itself would have a
final say. =93Negotiations will involve the Commission, EU member states
and especially the presidency,=94 he said. The EU presidency will change
hands from Slovenia to France on 1 July.
A US trade official put negotiations within this year. =93The United
States will strive to complete the agreement before the end of 2008,=94
the official said. Like the Commission official, the US official said
he did not expect signing at the G8, adding, =93The G8 and ACTA are
separate and distinct.=94
But intellectual property is again on the preliminary agenda of the G8
summit in Japan and if signing in 2008 is intended it might come up in
some of the bilateral talks between the ACTA negotiating partners who
are in attendance. G8 members include: Canada, France, Germany, Italy,
Japan, UK, US and Russia.
Cooperation, Enforcement, Legal Framework
The discussion paper published on Wikileaks leaves a lot of details
unanswered. It includes international cooperation measures,
enforcement measures and legal framework as the main provision
categories for ACTA.
International cooperation among enforcement agencies, including joint
actions, exchange of information between national authorities and
capacity building and technical assistance in improving enforcement
are the major points for the =93cooperation=94 category.
Mentioned enforcement practices to be harmonised include: formal or
informal public/private advisory groups; specialised IP expertise in
law enforcement agencies; the sharing of information on enforcement
actions with international colleagues and the public; and the
establishment of coordination bodies to facilitate joint actions are
mentioned.
For the legal framework, criminal and civil law enforcement is
envisaged, as are far-reaching border measures like ex-officio
authority for customs authorities to suspend import, export and trans-
shipment of suspected IPR-infringing goods, possibilities for rights-
holders to initiate border blocks for =93suspicious=94 goods, and =93the
authority to impose deterrent penalties.=94
Special provisions were put forward in the discussion paper for
internet distribution and information technology. The discussion paper
recommends a legal regime that includes safeguards for ISPs from
liability on the one hand, and cooperation of ISPs with right holders
on the other hand. Data about the identity of alleged infringers, for
example, should be handed over on =93effective notification=94 of =93a
claimed infringement.=94 Also, remedies against circumvention of
technological protection measures used by copyright owners and the
trafficking of such circumvention devices are recommended.
Finally, oversight to resolve implementation issues by a committee of
ACTA parties is proposed.
Negotiating partners are tight-lipped on the details of the
provisions. On the question of what kind of oversight body might be
finally chosen, USTR answered: =93We are still studying appropriate
mechanisms for ongoing cooperation internally and discussing the issue
with the other ACTA participants.=94 It is unclear from the available
information if there is a more detailed draft proposal. According to
USTR, =93the text for the agreement is being developed.=94
Criticism from NGOs
Canadian law expert David Fewer, staff counsel at the University of
Ottawa=92s Canadian Internet Policy and Public Interest Clinic, told the
Ottawa Citizen that the discussion paper was very close to a potential
Christmas wish-list by Hollywood companies.
Knowledge Ecology International (KEI), in an earlier statement filed
to USTR, warned against a lack in differentiation and clearness of
core terms, like counterfeiting, infringement or piracy. =93Is Microsoft
a =93pirate=94 for insisting on the right to continue to infringe the z4
patents in order to use an infringing DRM technology to protect
Microsoft software itself from infringement by unauthorised uses?=94 KEI
asked in its statement.
=93Is the International Trade Commission endorsing piracy by refusing to
prevent the importation of all mobile phones that use infringing
semiconductor chips?=94 or =93Is Abbott Laboratories a =93pirate=94 for
seeking a compulsory license for its infringing use of patents on a
Hepatitis C virus genotyping test kit?=94
Users of social networking tools MySpace, Facebook or Youtube might be
searched at borders because of extensive evidence of unauthorised use
of content on these platforms, as could USTR officials who had copies
and shared copyrighted articles about counterfeit products, KEI
asserted.
IP Justice heavily criticised the attempt to keep developing countries
out of the negotiations. =93After the multilateral treaty=92s scope and
priorities are negotiated by the few countries invited to participate
in the early discussions, ACTA=92s text will be =91locked=92 and other
countries who are later =91invited=92 to sign on to the pact will not be
able to re-negotiate its one-sided terms,=94 IP Justice stated. Signing
on to ACTA is said to be =93voluntary=94 but seen as difficult to refuse
after the negotiation is completed.
Petra Buhr of IP Justice suggested the World Intellectual Property
Organisation or the World Trade Organisation as international fora for
negotiations on IP issues. But the US trade official said, =93We feel
that the approach of a free-standing agreement is an appropriate way
to pursue this project among interested countries. We support the
important work of WTO and WIPO related to IPR enforcement.=94
Lack of Transparency
Despite the lack of legal details for the various ACTA provisions,
critics, IP law researchers and some politicians concur that there is
a lack of transparency in the process.
=93In my opinion it is not acceptable that international agreements are
negotiated behind closed doors while Parliament is working on
legislation on the very same issue in a co-decision procedure,=94 said
Eva Lichtenberger, Green Party member of the European Parliament. =93It
is contradictory to European rules to prejudice EU legislation in that
way,=94 she said, =93and it does not serve our democratic process.=94
Lichtenberger just won a decision by the president of the EU
parliament with regard to a provision to exclude parallel imports from
criminal sanctions in a directive on =93Criminal measures aimed at
ensuring the enforcement of intellectual property rights.=94
The EU Parliament has not been informed about the negotiations so far
and although the new Lisbon Treaty strengthens Parliament=92s role,
under the status quo they might in the end only be =93consulted=94 on a
finalised ACTA.
Questions in Europe
Some questions are arising on the negotiation of ACTA in Europe. The
EU enforcement directive called IPRED 2 is a follow up to civil rights
measures against IPR infringement and piracy in the already passed IP
Enforcement Directive (IPRED). Taken together, these EU directives
cover very much the same ground on IPR enforcement as ACTA will.
IP law experts in Europe say they do not know how ACTA would reconcile
European data protection standards with perhaps tougher provision for
searches in ACTA.
=93The EU Commission as a general rule strives towards keeping bilateral
or plurilateral treaty negotiations in line with norms existing on the
EU level,=94 the German Ministry of Justice said in response to
questions from Intellectual Property Watch. =93Standards for criminal
law sanctions are not in place at the EU level,=94 it said.
As IPRED 2 was delayed by questions of institutional competency and by
changes in competency, the Lisbon Treaty of the Union still did not
fix the content of Europe=92s criminal law sanctions regulation against
IP infringement and piracy. =93The question of possible overlaps
therefore is not applicable here,=94 it said.
The German government supports the ACTA negotiations, the ministry
said. As Germany already has high protection standards for IP, from
the German point of view, timing is not as critical as the elaboration
of sound regulations for ACTA.
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