By Tove Iren S. Gerhardsen
At a counterfeit and piracy meeting in Geneva, Japan reintroduced its proposal for an international legal framework on enforcement of intellectual property rights, and the European Union made clear its plans to step up IP requirements including enforcement measures in its future free trade agreements.

The 30-31 January Third Global Congress on Combating Counterfeiting and Piracy was hosted by the World Intellectual Property Organization (WIPO), and organised in cooperation with the World Customs Organization and Interpol, among others.

Hisamitsu Arai, senior intellectual property analyst and former secretary general of the Intellectual Property Strategy Headquarters in Japan, presented Japan’s proposal for a draft international treaty on non-proliferation of counterfeit and pirated goods, emphasising the need for the development of such a treaty.

The same idea was presented at the second congress of this kind, held in Lyon, France in 2005 (IPW, Enforcement, 17 November 2005).

The treaty would focus on three areas: the manufacturing stage, distribution stage (prohibiting export and transhipment), and the consumption stage, involving consumer education and awareness building, Arai said, adding that an international organisation could perhaps be in charge of it.

He said that Japan had presented the necessity of such a treaty at the Group of Eight meetings in Gleneagles, Scotland (2005) and Saint Petersburg (2006), and would “most likely” do the same at the G8 meeting in Heiligendamm, Germany in June this year. As Arai is no longer working for the government, his successor would be involved with this, he said.

In parallel with the G8 process, Arai said there had been bilateral as well as group talks on the issue, and that Japan would “continue to play a leading role in early implementation” of such a treaty. He said that the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “is not enough,” particularly as it does not stop the “outflow” of pirated goods.

Arai told Intellectual Property Watch that “most” participants at the congress he had talked to supported the treaty and “nobody is against it.” But he said there were some arguments as to the content of such a treaty.

Some participants speaking at this week’s meeting agreed with the need for stronger measures beyond the current TRIPS standards. Mauro Masi, professor and chief of cabinet of the deputy prime minister and minister of foreign affairs in Italy, said that although WIPO and WTO “deeply engage” member states on this issue, “we need to go further.”

Masi said that the TRIPS agreement only lays out “minimal” standards, and for enforcement it is necessary to seriously consider improving TRIPS. He said enforcement should have an adequate legal framework.

Guy Sebban, secretary general of the International Chamber of Commerce, told Intellectual Property Watch that he supports the Japanese treaty idea, which would be legally binding. It is “a great idea, but not well known,” he said, adding that there was a need to raise awareness about the treaty. He said the private sector and governments had to work together also at the international level.

US Casts Doubt on Enforcement Treaty Idea

Chris Israel, international intellectual property rights enforcement coordinator, United States Department of Commerce, told Intellectual Property Watch that everyone wants stronger enforcement, but he doubted an international treaty like that proposed by Japan would be in place by the next congress.

Israel said it is “a very big idea” and very “ambitious,” and it would require a lot of input from many parties in order to develop such a framework. In the short term, he said, one could take elements of the plan and work on those, which the United States does with a number of partners.

EU Steps Up Enforcement

A European Commission official at the meeting echoed the statement by Peter Mandelson in his speech on the “Global Europe” plan on 13 November last year, highlighting EU’s plans to step up enforcement measures in its bilateral free trade agreements.

Luc Pierre Devigne, head of the intellectual property unit at the European Commission Trade Directorate, said that in terms of enforcement, the EU had announced in October 2006 that it wants to focus on China, Russia, Turkey, Ukraine, Chile, Korea, ASEAN (Association of Southeast Asian Nations) and Mercosur.

He said that in terms of bilateral cooperation, the European Union wants to make partners aware of the problems with counterfeit and piracy, which would “backfire” on developing countries by undermining investments as well as their own development.

As for bilateral free trade negotiations, Devigne said that, “I can tell you that IP will be [an] extremely high” priority, especially effective enforcement. He said that in a number of trade deals, the EU is planning to go “even beyond minimum standards of TRIPS.”

Another EU official confirmed to Intellectual Property Watch that this is indeed the EU’s stand on IP and free trade agreements (FTAs). He said that in the past, the EU has indicated in bilateral agreements that parties should commit to “international standards,” such as WIPO treaties, which had been the EU’s approach even before the creation of the WTO in 1996.

But now the EU is planning a more detailed IP chapter in its FTAs, he said, adding that in form, not in content, it would be closer to the “US-type” with “detailed things” listed, he said. He said the protection of design rights, enforcement as well as geographical indications (brand names deriving from geographical origins) were of high importance to the EU and would most likely be included in the agreements.

He said, however, that as issues of development are important to Europe, these IP chapters would not contain anything that would “remotely touch” on issues such as access to medicines, in terms of putting limitations on flexibilities such as those highlighted in the Doha [Development] Agenda and the current round of WTO talks, started at a WTO ministerial in 2001.

But the official could not rule out that the FTAs could contain some data protection requirements for medical test data, as the EU may have concern about abuses in certain instances. He said Europe has more than eight years of protection for such test data.

Mandelson has said he wants to complete some of the FTAs by the end of this year, the official said. At the moment, the EU is working on FTAs with Korea, ASEAN, India, Central America, and the Andean Community among others, he said.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.