An international agreement on intellectual property rights enforcement now under negotiation in Lucerne, Switzerland runs the risk of ushering in a new and undemocratic precedent for international policymaking that could have long-term damaging effects on critical public policy issues, non-negotiating government representatives and civil society advocates said this week.

The Anti-Counterfeiting Trade Agreement, they said, could have a chilling effect on access to medications, including the potential to criminalise makers of active pharmaceutical ingredients who are critical to the generics industry, and could cause serious problems for internet freedom.

The 28 June event in Geneva was cosponsored by Knowledge Ecology International and IQsensato.

More worrying, they added, is that while currently an initiative of a few countries, its ultimate aim seems to be to become universal. The negotiating process seems to follow on the heels of the trend of countries shopping for easy fora through which to push the same increasing intellectual property enforcement agenda. Denied enforcement actions in places such as the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), the World Customs Organization and elsewhere, these countries are now creating their own forum under ACTA.

This platform can then be used to foist burdensome enforcement strategies on the rest of the world through bilateral and regional agreements. If such a strategy is allowed to succeed, they argue, it could have follow-on effects far outside the intellectual property sphere.

While it is probably too late to stop, the ACTA could be saved if its real targets act, said Michael Geist, a professor at the University of Ottawa and a staunch critic of the ACTA process to date.

At the “end of the day, ACTA is about Brazil, India” and other emerging economies, Geist said. If those countries “who are the targets [and] who have for too long sat on the sidelines and said they weren’t part of the process … are willing to stand up and be more aggressive,” then ACTA could be turned into something that would not risk upsetting a balanced IP regime.

ACTA’s ninth negotiating session is taking place in this week in Lucerne, Switzerland.

Negotiators in Lucerne on Monday met with nongovernmental organisations and later the Pirate Party. For one and a half hours the Berne Declaration and several other nongovernmental organisations presented their concerns to the delegations of Australia, Canada, European Union, Japan, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States who are negotiating the agreement.

From Forum Shopping to Forum Creation

ACTA is only a piece of the story in the long conflict between developing and developed countries over IP issues, Zhao Hong of the mission of China, speaking in her personal capacity and not on behalf of the Chinese government, told Monday’s NGO event in Geneva. China and India at the last meeting of the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council (IPW, 3 June 2010, WTO/TRIPS).

There were attempts at norm-setting on enforcement measures made within the WTO and WIPO where members refused, said Viviana Muñoz Tellez of the South Centre, also speaking on her own behalf.

Free trade agreements were a way to circumvent that refusal, she said. And once ACTA is in place, “what we’re likely to see is ACTA being pushed on developing countries … through the route of FTAs,” said Muñoz. There will be more bilateral agreements that will include reference to ACTA or its parts, in the same way that current FTAs often reference the TRIPS agreement, but call for reduced flexibilities or transition periods, she predicted.

But ACTA represents a significant threat that extends well beyond just the IP enforcement issues, said Geist. The move to create an institutional structure around the agreement with oversight structure that those not currently party to could later be pressured to join creates a series of threats down the line to initiatives such as the Development Agenda at WIPO, he said.

“If you see enforcement as a key goal and you can achieve it outside of WIPO you have very little incentive to negotiate in good faith,” Geist said.

If ACTA is successful, the message is that creating a “coalition of the willing” outside the UN institutions (which bring some kind of transparency) is “why bother” with the UN institutions if a plurilateral process can achieve better successes faster and then be held out as part of the price of admission to later trade deals, said Geist.

ACTA, Internet, Public Health

There are also concerns with the text of the agreement.

The internet enforcement chapter risks being “WIPO-plus,” said Geist – seeking to “roll back the clock” on standards that in the mid-1990s WIPO rejected in order to reach consensus with two major agreements over behaviour online. Proposed text in ACTA on injunctions risks limiting critical flexibilities in current international laws that allow for balance between the interests of rights holders and the interests of the public and of industries who depend on certain technologies, said James Love, president of Knowledge Ecology International.

The concept of intermediary liability – in which internet service providers could be held responsible for the activities of their users – is of great concern to internet service providers and those concerned with freedom online, said several speakers.

Intermediary liability also may be of concern to active pharmaceutical ingredient makers whose products may be used downstream in counterfeit or infringing drugs, said James Love, director of KEI. Uncertainty about liability for intellectual property infringements down the line may deter manufacturers of legitimate chemicals from selling to legitimate generic drug manufacturers, Love said later.

Proposed ACTA customs provisions too are problematic, said Argentinian academic Carlos Correa. Some would allow “customs authorities to act upon their initiative in suspending goods suspected of infringing an IP right” – including patent rights, which are difficult to tell by sight – and could create barriers to trade in products even if protected neither in the country of import or export, he said. This can encourage abuses by rights holders, and has already created concern among generic medicine producers in India and Brazil and Ecuador, who have an ongoing discussion at the WTO dispute settlement body over a European customs law that does the same thing.

ACTA Negotiators Meet NGOs

“We were told that there was a growing consensus that patents would be taken out of border measures at least, but we still see potential problems for the trade in generic drugs as long as seizures might be based on confusingly similar marks,” said Patrick Durisch from the Berne Declaration, speaking to the ACTA negotiators.

One other major change that would be a problem according to Durisch was that not only the law of the import country, but also the law of the transit country would become applicable with ACTA.

“For us the meeting felt a little bit like a tribunal,” said Stephan Urbach, ACTA coordinator of the Pirate Party Germany, after a meeting of the Pirate Party representatives from Switzerland, Austria and Germany with the ACTA negotiators. Their critique about the lack of transparency of the negotiations so far was rejected vehemently by the lead EU negotiator who said that “everything” had been published. The three Pirate parties presented the ACTA negotiators with a Stop-ACTA petition signed by 4,400 people from all over the world. Urbach said he hoped in the future that the anti-ACTA movement would unite.

Yet there are ACTA critics who think changes might save the agreement. A new draft version of ACTA that would do was just presented for example by several US library associations, the Center for Democracy and Technology, Public Knowledge and several industry and consumer associations. They propose to focus ACTA much more on counterfeiting, include limitations and exemptions and re-write the internet chapter.