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    IPR Lists For Trans-Atlantic Trade Deal Still Growing; Risk Of Locking In Old IPR Regimes?

    Published on 15 May 2013 @ 11:58 pm

    By for Intellectual Property Watch

    Locking in Europe and the United States to “old” intellectual property regimes is the one “killer argument” against including an IP chapter in the upcoming Transatlantic Trade and Investment Partnership (TTIP), according to Bernd Hugenholtz, director of the Institute for Information Law (IViR) at the University of Brussels. Hugenholtz spoke at a workshop on “What Role for Intellectual Property Rights in the TTIP?,” organised by Marietje Schaake, member of the European Parliament for the Liberal Group. Questions also were raised during the meeting about the lack of transparency of free trade negotiations.

    Rupert Schlegelmilch, director of DG Trade at the European Commission, outlined the issues for what he said is not expected to be a comprehensive TTIP IP chapter. Both the US and the EU have a high level of IPR protection, even if the rules used differ. Therefore, there is no need for fixing things. “Our systems are not broken,” Schegelmilch said, and there was no intent to create new rules or to change the IPR systems “via an external impulse.”

    Instead, negotiators are looking for a “limited number of significant IPR issues interesting for both sides,” including the handling of trade secrets, questions of upstream systems of trademark and patent systems (databases and the like), cooperation and also enforcement. Schlegelmilch said that contrary to the embattled Anti-Counterfeiting Trade Agreement, no harmonisation of rules in enforcement are intended.

    Yet on both sides of the Atlantic lists are still being compiled, Schegelmilch said. “We are receiving ideas as we speak,” he said, also pointing to a dedicated stakeholder dialogue meeting by DG Trade next Friday. One issue which is well-known to be high on the EU list is better protection of the geographic indications. “We would want to see a little bit more engagement from our US friends, who are not very keen to work on the concept beyond what is in the WTO,” Schlegelmilch said.

    Opening lists for an IPR chapter means that more and more things might be put on the table, warned Hugenholtz. “You see on the American side the number of the IP issues is already expanding.” The high level of IPR protection in both jurisdictions is in fact an argument against an IP chapter in the TTIP, he said.

    Hugenholtz presented some of the differences between the two systems, namely in copyright or patenting software. But, he said, there is no indication of big trade barriers from the differences, especially as both parties had signed international treaties intended to facilitate trade. Given the differences, it also is doubtful that the parties could compromise.

    The most important argument of all, according to him, is the lock-in resulting from an agreement based on current standards. With both the US and the EU discussing changes to their copyright systems, reform is not a theoretical thing.

    “Reform is in the air,” Hugenholtz said. “If we lock in now, we will regret it, because we cannot easily roll back.” Schaake said that in a way the copyright system in the digital age in fact is broken and therefore reform is necessary.

    Finally, Hugenholtz also warned that including an IP chapter could be asking for trouble for the TTIP in general. “You can tell a hundred times that this is completely different from ACTA. But I am not sure the Internet community will hear that.”

    The lack of transparency, Joe McNamee, executive director, European Digital Rights (EDRi), was a tool to kill ACTA and certainly could be used against the TTIP in the same way. McNamee said he is looking forward to seeing DG Trade living up to promises of more consultation and transparency.

    Schlegelmilch promised it was not about an nontransparent backdoor deal and that transparency is important. Yet negotiations would be made more difficult if proposals were published immediately, and furthermore negotiating partners sometimes are opposed to publishing documents and this has to be respected.

    Yet without being able to read what was in an IP chapter, Michael Engström, Pirate Party member of Parliament, said it would be impossible to explain how the TTIP IP chapter is different from ACTA. Schaake reiterated her commitment to share information and broadly consult with interested public.

    Interest in the hearing in Brussels was considerable. Concerns raised by representatives from different NGOs touched on the the potential inclusion of limitations and exceptions in a potential IP chapter (James Love, Knowledge Ecology International) and the legal effects from small arbitration panels interpreting treaties in investor-state dispute settlement (Ante Wessels, Foundation for a Free Information Infrastructure).

    There were also warnings against giving up the protection of audiovisual content in the EU, challenged as protectionism on the panel by Hosuk Lee-Makiyama, director of the Brussels-based trade group European Centre for International Political Economy. Whether the EU will agree to have audiovisual content be a part of the agreement remains to be seen.

    Schlegelmilch said the TTIP will be difficult to negotiate, as it is “not just another FTA,” but rather a “game changer.”

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

     

    Comments

    1. The thorny issues of IPR | Western Cultural Affairs says:

      [...] http://www.ip-watch.org/2013/05/15/ipr-lists-for-ttip-still-growing-risk-of-locking-in-old-ipr-regim… [...]


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    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.

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