BRUSSELS – The Anti-Counterfeiting Trade Agreement is increasingly taking shape, but differences are becoming clearer and internet issues and intermediary liability appear to be giving negotiators some headaches. The European Commission Directorate General Trade on Tuesday invited stakeholders to a consultation meeting to share ideas on the much-debated agreement.

Luc Devigne and Pedro Velasco Martins, negotiators for the Commission’s trade directorate, were very open in answering questions at the 21 April event in Brussels about the reason for a plurilateral instead of a multilateral agreement like the World Trade Organization and a review of its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

“ACTA is very much about enforcement,” said Devigne. “Speaking on enforcement in WTO, not to talk about WIPO, is extremely difficult.” WIPO is the World Intellectual Property Organization.

Therefore, a group of countries started the ACTA negotiations and while it would be difficult to have other countries jump on the rolling train right now, the intention certainly was to get more members to the agreement. “The more, the merrier,” said Devigne.

The EU Commission is “committed to improve the international legal framework for IP protection” and sees “ACTA as one way to reach that goal,” Devigne said. There was no intention to duplicate TRIPS. Rather, “we want to go beyond it,” he said, adding, “TRIPS is the floor, not the ceiling.”

Devigne pointed to some difficulties the Commission has had in the negotiations. “First of all, we do not agree with our partners who want to exclude certain rights,” he said. The Commission’s standpoint is that “all IP rights are equal.”

Patents in particular – but also geographical indications – therefore should be in scope of ACTA, but so far there is only consensus in any case to exempt patents from criminal law sanctions. Commission officials also explained that the US is heavily interested in getting “camcording” – the recording of movies at the cinema by a camcorder – criminalised in ACTA. Yet this approach, too, faces opposition by some partners, explained Martins.

A representative of the German Football League recommended to not limit the band on camcording, because camcorders might be substituted by other devices in months.

Waiting to Begin Again; Bond Breaking?

At the moment, the group is waiting for the US government to restart negotiations after the change in administration. A date for the fifth round expected to take place in Morocco still has to be decided, potentially in May.

Meanwhile, two members of the group seem to have dropped out, Jordan and United Arab Emirates do not longer figure as standing ACTA parties.

The challenge ahead is to get consensus on the section of the draft treaty that deals with the internet. Other than the parts on civil law measures, enforcement and border measures there is no draft paper so far, said the Commission representatives.

“It is not that we want to hide something, we just don’t have something to show.” Devigne also rejected all claims about a possibly secrecy in the negotiations. “Quite on the contrary, for international trade negotiations we normally do not have such a democracy exercise where everybody can raise their concern,” said Devigne. For this kind of negotiations the Commission would normally only consult with member states.

But there are more papers not yet shared publicly during the consultation. For example, there is a US non-paper by the US on internet and technology provisions with questions for discussion. The EU in turn has commented on it with an in-depth presentation of the current legal framework for IP protection in the EU, listing measures from the E-Commerce Directive, the Information Society Directive and the IP Enforcement Directive (IPRED). The Commission did not intend to go beyond the common accord of the Union (acquis communautaire), DG Trade experts said at the meeting.

On many issues, the EU Commission said it could rely on the EU accord, an official said. It wants, for example, to “enrich the (ACTA) agreement with our enforcement directive,” the official said.

Despite these directives, enforcement on the internet and especially criminal enforcement are difficult issues for the Commission because there is no harmonised EU regulation. For this reason, member states represented through the rotating EU presidency take the lead in negotiating the criminal law aspects of ACTA.

The Commission should not allow the export of “internet blocking measures” to ACTA, warned Michael Brandstetter from the Austrian Chamber of Commerce, adding that a model like France’s three strikes approach against IP violations should be prevented from being mirrored in ACTA. The EU Information Society Directive allowed member states to decide on blocking, said Brandstetter. If made part of ACTA, national legislators might lose the flexibility to regulate more liberally.

Anne-Catherine Lorraine from the Trans-Atlantic Consumer Dialogue told Intellectual Property Watch that the transparency paper published by the ACTA partners recently did not help with regard to understanding the scope and details of the agreement. She asked the Commission at the hearing if there was a guarantee that legal generic drugs could be shipped without interference by rights holders when the drugs are in transit. The Commission has explicitly declared it wants to ensure access to legal generic drugs, Devigne said.

There were numerous representatives of rights holders asking for tighter liability rules including, for example, “landlords” of facilities rented to IP infringing businesses. Several cases have shown that going against these kind of third parties was successful, according to Richard Heath from Unilever, chair of the International Trademark Association (INTA). Liability for suppliers and shipping companies also should be considered, recommended Rocky Rowe from the European Crop Protection Association (ECPA).

Karsten Hess from Deutsche Post said that it has about 10,000 people checking customs and IP issues before goods are shipped. Hess wanted to know from the Commission if it would pay for damage caused by any unjustifiable injunction that blocks a whole container from going to transport.

The Commission was certainly not in the position to pay for storage of seizure goods, replied Devigne. Customs cannot be held responsible, added Martins, as it simply could not afford it.

An additional question that according to the Commission is still under consideration is how ACTA would be enforced. Devigne said the mechanism would certainly not be as “judicial” as WTO procedures.