SUBSCRIBE TODAY!
Subscribing entitles a reader to complete stories on all topics released as they happen, special features, confidential documents and access to the complete, searchable story archive online back to 2004.
IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

Inside Views

Submit ideas to info [at] ip-watch [dot] ch!

We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

Ten Questions About Internet Governance

On April 23 in Sao Paulo, Brazil, the “Global Multistakeholder Meeting on the Future of Internet Governance,” also known as “NETmundial” in an allusion to the global football event that will occur later in that country, will be convened. Juan Alfonso Fernández González of the Cuban Communications Ministry and a veteran of the UN internet governance meetings, raises 10 questions that need to be answered at NETmundial.


Latest Comments
  • Justice Roberts seems to think that adjusting ones... »
  • These obscured negotiations appear to this reader ... »

  • For IPW Subscribers

    A directory of IP delegates in Geneva. Read more>

    A guide to Geneva-based public health and intellectual property organisations. Read More >


    Monthly Reporter

    The Intellectual Property Watch Monthly Reporter, published from 2004 to January 2011, is a 16-page monthly selection of the most important, updated stories and features, plus the People and News Briefs columns.

    The Intellectual Property Watch Monthly Reporter is available in an online archive on the IP-Watch website, available for IP-Watch Subscribers.

    Access the Monthly Reporter Archive >

    Inside Views
    Inside Views: Trading’s End: Is ACTA The Leading Edge Of A Protectionist Wave?

    Published on 6 May 2011 @ 2:48 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    By Frederick M. Abbott, Edward Ball Eminent Scholar Professor of International Law at Florida State University College of Law

    It is instructive to watch the difference between what government policymakers say and what they do.

    The Doha Development Round was launched in 2001 with the promise of trade liberalization for the promotion of development. The DDR is in its extended death throes. Yet, during the timeframe of the DDR, a group of G8-plus countries has managed to negotiate the virtual antithesis of trade liberalization in the form of the plurilateral Anti-Counterfeiting Trade Agreement (ACTA). The ACTA is designed to establish a set of nontransparent trade barriers, all the more remarkable having come out of largely liberal democratic governments.

    As has been widely noted, the initial drafts of the ACTA represented a “wish list” of the IP-dependent major industrial companies in the G8 for strong IP enforcement measures, having a tenuous connection to traditional concepts of protection against counterfeiting and piracy. Draft proposals would have mandated extending border measures to patents, including to in-transit goods; mandated rules regarding injunction and damages inconsistent with US law; extended intermediary liability to parties not within court jurisdiction; awarded attorney’s fees to prevailing parties; imposed liability on internet service providers to monitor networks for copyright infringement; and so on.

    Once the early texts were made publicly available through “leaks” and demands of the European Parliament, there was a forceful pushback by European parliamentarians, NGOs and a number of developing country governments in the TRIPS Council. It became clear that the European Parliament would not approve the wish list of the major industrial companies; that USTR could not preempt the prerogative of the US Congress to legislate on patents; that legitimizing the seizure of generic medicines in transit would not be tolerated by the international community.

    What the Japanese government termed “ACTA-lite” emerged. While indeed some of the most draconian trade restrictions were removed in the “final” text, a substantial number of very troublesome provisions remain. The 3 December 2010 text would establish civil damages standards untied to market-based injury; extend the scope of mandatory border measures in an ambiguous way (though excluding patents and regulatory data protection); authorize seizure of goods in transit (outside patents and regulatory data), and; require disclosure of information that may threaten legitimate commercial activities.

    Probably the most problematic provisions mandate that customs authorities be enabled to act ex officio to seize “suspect goods” at the border, without definition of the basis for suspicion, and without mandating that a determination be made regarding the offense the suspect goods allegedly commit. Determinations as to whether goods infringe an intellectual property right are optional (i.e., competent authorities “may determine”). Goods may be held indefinitely. The 3 December 2010 text appears to criminalize activities traditionally undertaken by parallel importers of medicines through its labeling provisions. The criminal provisions effectively overrule the holding of the WTO dispute settlement panel in the China-Enforcement case regarding interpretation of “commercial scale”.

    The ACTA conveniently does not include provisions comparable to those of the TRIPS Agreement that provide protection to accused infringers, such as time limits for preliminary injunctions during which right holders must act to initiate cases on the merits, and the right to be heard in cases initially acted upon inaudita altera parte. The ACTA negotiating countries have sought to justify the “nonappearance” of protective provisions on grounds that the Parties will maintain their obligations under the TRIPS Agreement. In a strict sense, that may be correct, but it should be recalled that the TRIPS Agreement is not directly effective in the law of the European Union or the United States, and private parties do not have the right to directly challenge the consistency of national IP law with the TRIPS Agreement before the courts. It would be up to a WTO Member to bring a claim of TRIPS-inconsistency based on ACTA-Party national law in WTO dispute settlement.

    The ACTA would establish a new institutional framework outside the WTO, WIPO and other multilateral institutions concerned with IP, trade and related subject matter. Transition provisions allow signatory non-Party countries to participate in decision-making regarding rules and procedures. This rather unusual approach to institution-building makes an assumption that some decision-makers will not have been authorized by their legislatures to join the agreement. The process of future accession to the ACTA may require additional concessions on IP.

    There are some strange aspects to the ACTA negotiations. The EU Trade Commissioner, Karel de Gucht, told the European Parliament that inclusion of protection for geographical indications within the scope of the ACTA was essential to achieving EU objectives. Yet the final text on border measures includes only an ambiguous formulation regarding “not discriminating unjustifiably between intellectual property rights”. One imagines that USTR and the EU Trade Commissioner interpret this formulation differently, and it is perplexing that the EU could have surrendered its principal ambition.

    Perhaps the most baffling aspect of the exercise is the announcement by USTR that it will not seek congressional approval of the ACTA. The US Constitution expressly grants Congress the power to regulate commerce with foreign nations. That express grant distinguishes regulation of international trade from the general allocation of treaty making powers under the Constitution. Moreover, Congress is expressly granted the power to make laws regarding patents and copyrights. It is difficult to identify an area of international agreement-making that more directly entails a constitutional requirement of congressional approval than the ACTA.

    USTR has taken the position that the ACTA will require no changes to US law. Therefore, in USTR’s view, congressional approval is not required. This argument ignores that the ACTA regulates commerce with foreign nations, whether or not it requires changes to existing domestic law. Beyond that, however, does US law presently grant customs authorities a broad power to seize undefined “suspect goods” at the border as the ACTA requires?

    There is an assumption underlying the entire G8 ACTA negotiating effort that extensive and largely unregulated IP border measures protection will benefit G8 industry as multinational companies are able to erect market-entry barriers based on IP. This may be a shortsighted perspective. Chinese enterprises are becoming quite adept at registering IP, and foreseeably enterprises based in other emerging economy countries will be following suit. Should these countries join the ACTA, their customs authorities must be empowered to seize “suspect goods” at their borders. Is it possible that these customs authorities will not be so favorably disposed to US and European imports?

    One wonders what the G8 negotiators were thinking about as they negotiated the ACTA. The agreement seems designed to confer extensive authority on customs to seize and hold goods as they enter and/or pass through borders. It is the virtual antithesis to opening markets to international trade. We see the difference between the rhetoric of Doha and the reality: stalling on trade liberalization while erecting new nontransparent trade barriers. Mystifying.


    Frederick Abbott is Edward Ball Eminent Scholar Professor of International Law at Florida State University College of Law. He has served as expert consultant for numerous international and regional organizations, governments and non-governmental organizations, mainly in the fields of trade, intellectual property, public health and sustainable development. Professor Abbott regularly serves as panelist for the WIPO Arbitration and Mediation Center. He serves as Rapporteur for the Committee on International Trade Law of the International Law Association and is on the editorial board of the Journal of International Economic Law (Oxford). Professor Abbott has authored many books and articles in the fields of international economic law, international intellectual property rights law, public health and international law. Publications and cv are available at http://frederickabbott.com.

     

    Comments

    1. ACTA Still Open To Interpretation, Legal Experts Say; Transparency Fight Ongoing | Intellectual Property Watch says:

      [...] interpretation. Expert Frederick Abbott said last week in an Intellectual Property Watch piece (IPW, Inside Views, 6 May 2011): “The apparent decision by the USTR not to submit it for congressional approval is very odd” [...]

    2. New “Final” ACTA Text Published, Open For Signature | Intellectual Property Watch says:

      [...] Legal questions about the agreement are persisting in several countries (IPW, European Policy, 12 March 2011). Its effect on the multilateral trading system also has been scrutinised (IPW, Inside Views, 6 May 2011). [...]

    3. Trade And Access To Medicines: Things The WTO Should Consider | Intellectual Property Watch says:

      [...] Agreement or ACTA, (negotiated by, among others, the US, EU, Australia, Canada and Japan) that lacks measures to seriously tackle the quality problems posed by substandard [...]

    4. A Flawed ‘Bad Medicine’ Campaign – Health Affairs Blog says:

      [...] medicines compounds criticism that ACTA facilitates “closed doors” decision making that threatens the import of pharmaceutical products and allows customs authorities to seize generic medicines on simple allegations of [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
    Your IP address is 120.37.232.88