[Ip-health] Bridges Weekly: Closed-Door Anti-Counterfeiting Talks Continue in Mexico

[Thiru Balasubramaniam]

http://ictsd.org/i/news/bridgesweekly/69708/

Bridges Weekly Trade News Digest =95 Volume 14 =95 Number 4 =95 3rd Februar=
y
2010

Closed-Door Anti-Counterfeiting Talks Continue in Mexico

Since mid-2008, a handful of mostly industrialised countries have been
negotiating a secretive treaty on the enforcement of intellectual
property rights, ostensibly aimed at fighting counterfeiting.

Participating governments, including the US, the EU, and Japan,*
agreed to shroud the Anti-Counterfeiting Trade Agreement talks in near-
total secrecy, more so even than is customary for international trade
negotiations. No draft agreement texts have been formally released, as
has become common at the WTO. The bulk of what has come to be known
about participants=92 detailed views and specific negotiating proposals
comes from a small number of leaks.

Despite this secrecy - or perhaps because of it - the prospective
accord is coming under fire from a wide range of observers, from
internet service providers to academics and digital rights activists.
They warn that the treaty, which goes well beyond dealing with
counterfeit physical goods, risks establishing stringent new standards
for copyright and intellectual property enforcement. These could
stifle information technology innovation, cause legitimate generic
drugs to be seized as counterfeits, raise internet access costs, and
potentially cause households to have internet access cut off following
three unproven allegations of illegal downloading for non-commercial
purposes.

Some developing country governments, meanwhile, are concerned that
they might one day face pressure to apply rules that they had no part
in negotiating.

During the most recent round of closed-door talks, from 26-29 January
in Guadalajara, Mexico, negotiators recognised some of these concerns.
=93Recalling their shared view of the importance of providing
opportunities for meaningful public input, the participants reaffirmed
their commitment to intensify their respective efforts to provide such
opportunities and collectively enhance transparency,=94 said the joint
statement released at the end of the meeting.

But the statement provided little detail about what was actually said
during the meeting, saying merely that discussions =93focused on civil
enforcement, border enforcement and enforcement of rights in the
digital environment=94 - about as much as could have been gleaned from
the sparse agenda released prior to the meeting. Even when contacted
directly, the Canadian trade ministry and the US trade
representative=92s office provided no more specific details about what
was said during the talks in Mexico.

More detail emerged in news reports from Sweden and New Zealand,
according to Michael Geist, a law professor at the University of
Ottawa who is an expert on internet and e-commerce issues. Writing on
his blog, he said that the internet chapter of the treaty is far from
settled. Multiple proposals remain on the table alongside one that
would criminalise some forms of personal, non-commercial copyright
infringement (such as illegally downloading a movie to watch at home),
with sanctions including fines and the possibility of jail time. There
were also signs that the Europeans were pushing for the extension of
ACTA beyond copyright and trademarks to also include patents, he said.

The statement from Guadalajara did say that the next negotiating round
would be in New Zealand in April, and that participants still aimed to
conclude an accord by the end of this year.

Fears for internet freedom

Internet providers and users are concerned about what might arise from
ACTA. Last November, EuroISPA, a group representing over 1700 European
internet service providers, said that the ACTA talks were considering
measures that were =93severe and wide-ranging including the possibility
of users being disconnected from the Internet.=94  Under some of the
proposals, it said, service providers would be required to implement
=91graduated response=92 - often called =91three strikes=92 - measures agai=
nst
customers suspected of illegal downloading, with monitoring and
sanctions culminating in disconnection.

=93Such heavy-handed measures would create a serious danger of
undermining and restricting the open innovative space that lies at the
very heart of the Internet=92s success,=94 said Malcolm Hutty, EuroISPA=92s
president. =93This agreement would have a negative impact on Internet
users without having an appreciable impact on fighting illicit use of
copyrighted material.=94

=93ACTA will compel internet service providers to filter and remove
content and services, turning them into private police and justice
auxiliaries. We cannot tolerate that restrictions to fundamental
rights and freedoms be imposed by private actors,=94 said J=E9r=E9mie
Zimmermann, a spokesperson for La Quadrature du Net, a French internet
freedom advocacy group.

The UK government has estimated the cost to internet providers of
implementing and maintaining a monitoring and =91graduated response=92
system to be in the hundreds of millions of pounds over ten years,
Geist recently wrote in the Toronto Star. These costs would be passed
on to consumers, and could put smaller providers out of business. The
law professor noted that three-strikes schemes mooted by national
governments in New Zealand, the UK, and France have met with public
opposition and legal obstacles.

More transparency concerns being voiced

The extent to which these fears are justified simply cannot be
determined because of the secrecy of the talks, Geist told Bridges.

=93Mounting concern=94 about ACTA had led to increased calls for
transparency, even from participating governments such as New Zealand,
Australia, Canada, and some European countries, Geist said. But
breaking secrecy would require unanimity, he noted.

Last month, David Lammy, UK junior business minister, said that while
he was =93sympathetic to the view that ACTA negotiations should be more
transparent,=94 he was not in a position to agree to demands from
Members of Parliament that the draft texts be placed in the House of
Commons library =93without the agreement of all our ACTA negotiating
partners.=94

Governments participating in the ACTA negotiations have insisted that
commitments arising from the treaty will fit within their domestic
laws. But it is implausible that meaningful changes in policy would
not result for the treaty, Geist noted. =93It can=92t be the case that
nothing would change for anybody - or else what=92s the point?=94

Even some ACTA supporters, generally from rights-holding sectors such
as the music and movie industries, have suggested that they would
welcome some more transparency about the process.

=93We=92d like to learn more, we want to find out what=92s in it too,=94 sa=
id
Mark Esper, executive vice president of the US Chamber of Commerce=92s
intellectual property centre and a strong proponent of ACTA. He has
called for Congressional committees to be better briefed about the
ACTA process.  But he told Bridges that =93we don=92t want the issue of
transparency eclipsing an agreement that could be very useful=94 in
terms of US business and workers.

=93We=92ve been told by USTR that it [ACTA] raises standards on
counterfeiting, which is killing our economy, killing the European
economy,=94 he told Bridges. =93Everything we=92ve heard and read is
favourable,=94 he said, adding that thanks to a USTR process for sharing
information about ACTA under the condition of non-disclosure, several
treaty opponents had seen more details than he had.

Esper said that he didn=92t think that it was necessary or desirable for
the issues being dealt with in the ACTA talks to be addressed at the
multilateral World Intellectual Property Organization. =93It=92s important
to start with a smaller group of like minded partners to raise the
bar=85 get movement=94 on copyright enforcement.

Raised bars negotiated among a small group of countries is precisely
what has some other countries concerned. Morocco and Mexico are the
only relatively poor nations participating in the ACTA negotiations;
the countries traditionally associated with counterfeiting are not.

=93Of course we have concerns about ACTA,=94 said a trade diplomat from a
large developing country that is not participating in the
negotiations. =93It is hard to imagine that this will stop among the
countries that are at the table.=94

The official, who was speaking under condition of anonymity, said that
at some point, non-signatories would likely face pressure to adopt
ACTA-type rules. This could be as part of bilateral trade
negotiations. Alternatively, ACTA rules could come to be seen as
international best practice.

The source noted that the leaks from the ACTA process have sounded
=93TRIPS-plus-plus-plus=94 - in other words, that the proposed rules go
well beyond what exists in the WTO agreement on trade-related aspects
of intellectual property rights. The official argued that it was
inappropriate for these issues to be negotiated outside a multilateral
forum, given the likely pressure to extend their reach in the future.
=93We didn=92t negotiate these rules, we didn=92t accept [them] as general
rules.=94

*The Guadalajara meeting was attended by representatives from
Australia, Canada, the EU (represented by the Commission, member
states, and Spain, which currently holds the rotating presidency),
Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland,
and the US.

ICTSD reporting.

------------------------------------------------------------


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


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