Scope Of Anti-Counterfeiting Agreement Again A Big Issue In Round Nine

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MUNICH – The staid little Swiss town of Lucerne this week sees round number nine of the negotiations for an Anti-Counterfeiting Trade Agreement (ACTA). While the 11 negotiating parties gather in the Palace Hotel, the Swiss Pirate Party together with their Pirate colleagues from Germany and Switzerland will organise a rally at the Lucerne train station.

But on the first day, the heads and vice-heads of the Pirate parties and a second group of 12 non-governmental organisations also will have short meetings respectively with the Swiss and presumably several other delegations, according to Jürg Herren of the Swiss Federal Institute of Intellectual Property. Media will not be allowed during these meetings.

“We hope that this will set another precedent for regular meetings of the negotiating parties with NGOs,” said Patrick Durisch, head of health issues for the Berne Declaration, a Swiss NGO working on North-South issues. While the national consultations are a good thing, he told Intellectual Property Watch, the NGOs want to participate more on the international level and also see draft text much more often. ACTA would in a very undemocratic way contribute to a climate of putting people under general suspicion while not solving the problem with fake or dangerous drugs, the Berne Declaration said in a press release.

Besides the Berne Declaration, Médecins Sans Frontières (Doctors without Borders), ACT UP Paris, Knowledge Ecology International, Oxfam, La Quadrature du Net, Third World Network, and also representatives of the Washington College of Law who recently published an Urgent ACTA Communique, will participate in the 1.5 hour exchange with some of the ACTA delegations on Monday. The Pirate Party leaders meet ACTA negotiators during a separate meeting Monday afternoon after a public ACTA rally.

“We will call for a stop of the negotiations,” said Denis Simonet, President of the Pirate Party Switzerland. “I think it is impossible to correct in three months (the length of time since the draft text was made public) a text that has been negotiated behind closed doors for years,” said Simonet. Despite the Swiss negotiation mandate that ACTA should not [corrected] oblige Switzerland to make any changes in their national laws – a promise that has been made by nearly all negotiating partners in public debates – his party was sceptical.

“The problem is that an international agreement on IP enforcement results in a loss of flexibility to make adjustments that we would like to see in existing law in the future,” said Simonet, pointing to the example of digital rights management protection. Border measures, seizures or criminal law measures against patent violations are also not acceptable, he said. His party will reserve the right to call for a referendum against a Swiss signature to ACTA. On Saturday, Pirate Party activists plan ACTA events in many German cities including Berlin, Hamburg and Munich, as well as in Luxembourg, Graz and Vienna.

Herren said the scope of ACTA, not the least with regard to patents, is still under discussion.

“Originally Switzerland wanted to keep the scope broad, corresponding to intellectual property rights in general,” he said. “But we acknowledge that some parties have big problems with this, therefore we changed our position. With regard to border measures, there is emerging consensus to exclude patents. If patents will be part of the ACTA legal framework in general is still under discussion.”

By excluding patents from ACTA, seizures of generic drugs might be eliminated, “a very valid and understandable concern,” Herren acknowledged, that ACTA negotiators had tried to resolve with their statement from the last round in Wellington, New Zealand, he said.

Yet not only NGOs, but also some developing countries, especially India, are wary about what ACTA might bring in this respect. During a recent meeting of the World Trade Organization Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), India warned that the agreement, which it said is circumventing multilateral negotiations, could constrain TRIPS flexibilities and negate benefits intended by the Doha Declaration on Public Health. Herren said there were no talks between the ACTA negotiator group and India on the issue at the moment. India had announced its intent to gather support of “like-minded countries” against ACTA and was joined in its critique by China at the TRIPS Council.

Also not relieved by promises of the ACTA negotiating parties were 90 experts gathered at the American University’s Washington Law College in Washington, DC, a week ago, where they passed an “Urgent ACTA Communique.” They will also bring this to Lucerne next week, questioning many of the statements of the negotiators.

The 90 academics, practitioners and public interest organisations from six continents gathered for the Washington meeting claim that ACTA will interfere with citizens’ fundamental liberties, that it is not consistent with the TRIPS agreement, that it will increase border searches, and also will encourage “graduated response” approaches – disconnections of people from the internet. Herren said the experts’ comments certainly were valid, yet some allegations went over the top, like “interference with citizens’ fundamental rights.”

For the Lucerne round, Switzerland expects to come close to a finalisation of the civil enforcement and border measures chapters. James Love from KEI wrote to Intellectual Property Watch that the very issues KEI would focus on in their intervention Monday are related to the civil enforcement measures. KEI has warned all along against what the organisation sees as much stricter provisions than foreseen in TRIPS. Some ACTA provisions, according to KEI’s detailed analysis, would be inconsistent with existing US legislation.

Questions on Internet Chapter

The more difficult part from the point of the view of the host country for the ninth round is the internet chapter. It was the one chapter where Switzerland itself had some issues, said Herren. A ban of a “three-strike” option for cutting alleged infringers off from the internet from the text was not possible, he said, because some countries already were implementing such a system. The Swiss negotiators themselves had some concerns with regard to other graduated response systems. Leaving the whole internet chapter out obviously would solve some questions, but does not seem an option as some parties think it is a core part and the first time that enforcement in the digital arena is dealt with on the international level.

Europe’s internet infrastructure providers also have detected draft provisions that would violate existing EU legislation. In a joint statement of the European associations of fixed and mobile telecoms operators, European internet service providers, cable companies and digital media organisations two weeks ago they warned that ACTA was in conflict with the mere-conduit principle of the EU E-Commerce directive “by subordinating the safe-harbour exception to other policy goals.” Also, the “proposed obligation on online providers to reveal the identity of their subscribers directly to right holders violates the existing EU data protection obligations,” the industry organisations said.

Meanwhile, the International Trademark Association (INTA) and the International Chamber of Commerce’s (ICC) Business Action to Stop Counterfeiting and Piracy (BASCAP) submitted joint recommendations and comments on the ACTA text. The industry groups recommended maintaining the “original, narrow scope of ACTA to trademark counterfeiting and copyright piracy for ACTA’s effective implementation in different countries.” Currently, they said, “the scope of draft text of the agreement includes a wide range of intellectual property rights, which risks diluting the focus and overall strength of the trade agreement.”

In addition, they argued for giving express authority to customs authorities to “seize goods in transit that are suspected of being counterfeit and pirated whatever their final destination.” And they seek the removal of the de minimis provision aimed at excluding small quantities of counterfeits of non-commercial nature contained in personal luggage or in small consignments from customs seizures. “We believe making an explicit exception that permits travelers to bring in goods for personal use sends a wrong message to consumers that buying counterfeits is accepted by the government,” they said.

Let the Horse-Trading Begin?

To predict a timeline for ACTA seems impossible at this moment. Negotiating parties say that they target the end of the year – possibly to finish before what an ACTA expert at the closely monitoring European Parliament calls a “crisis for ACTA” further develops.

“I expect there will be closure of some of the substantive provisions,” said Kimberlee Weatherall, senior lecturer in the TC Beirne School of Law, University of Queensland, and an adjunct research fellow with the Australian Centre for Intellectual Property in Agriculture, who analysed possible changes ACTA would bring [pdf] for Australian law.

Since April, Weatherall said, there have been ongoing negotiations. But the discussions on scope – including the debate over whether to exclude patents completely and also the question if geographical indications (products named for places) should be in – might be difficult to solve.

How many more regular and interim meetings – like a recent one in Geneva – are necessary – is unknown. There likely will be a couple more rounds, Weatherall said, because the institutional parts like setting up the permanent ACTA secretariat had not been discussed a lot.

But at this point, she said, “I think the various parties understand well each others’ positions on the substantive material and will likely have either come up with text they can all live with, or are going to have to start horse trading.”

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

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