Alleged Leaked TTIP Report Reveals Differences, Convergence On IP Issues 03/05/2016 by William New, Intellectual Property Watch 2 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)This week’s high-profile alleged leak of recent report on the Transatlantic Trade and Investment Partnership (TTIP) negotiation between Europe and the United States sent a shockwave through policy circles. Below, Intellectual Property Watch highlights some of the IP-related elements in the report. The leaked documents from Greenpeace are available here. The report alleges to summarise progress made in a late February round of talks held in Brussels. Negotiators completed another round last week in New York. The leak appears to include a number of draft chapters from the negotiations (not including intellectual property). Intellectual property-related analysis is found in document 16, Tactical State of Play of the TTIP Negotiations, dated March 2016. This is apparently an EU memo on the negotiations. USTR Reaction The USTR spokeperson issued a quick statement on the alleged leaks, seeking to put a positive spin on the negotiations: “While the United States does not comment on that validity of alleged leaks, the interpretations being given to these texts appear to be misleading at best and flat out wrong at worst. From the outset of trade negotiations with the EU, we have been clear that our goal is for T-TIP to promote economic growth, boost jobs, increase public participation and transparency in regulatory processes, and reflect our shared transatlantic values. U.S. negotiating objectives are based on extensive consultations with businesses, labor unions, environmental organizations, academics, the U.S Congress, state and local governments, and the public. T-TIP will preserve, not undermine, our strong consumer, health, environmental standards, and position the U.S. and the EU to work together to push standards higher around the world. We look forward to having a fact-based discussion about what T-TIP seeks and does not seek to achieve.” The European Union also issued a reaction to the leak. EU Trade Commissioner Cecilia Malmstroem said in a 2 May blog post: The documents “reflect each side’s negotiating position, nothing else. And it shouldn’t come as a surprise that there are areas where the EU and the US have different views.” Malmstroem defended EU positions, and said, “And no, the EU industry does not have greater access to EU negotiating positions than other stakeholders.” “It begs to be said, again and again: No EU trade agreement will ever lower our level of protection of consumers, or food safety, or of the environment. Trade agreements will not change our laws on GMOs, or how to produce safe beef, or how to protect the environment,” she added. Highlights from the Leaked Text, Document 16 (State of Play): Intellectual Property Rights, Including Geographical Indications On IPRs, the text showed some differences on how to approach the issue, for instance pointing to slow progress in the US Congress on patent reform against “trolls”, and on copyright areas of interest to the EU (broadcasting rights, public performance and resale rights). The report states (p. 20): “A positive feature of the twelfth round of IP discussions was the US submission, for the first time, of some texts on relatively consensual areas (international treaties and general provisions). However, the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement). When confronted with the EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders and has very limited chances of being accepted, the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its “model” creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA. Additional details on the content of the future section on cooperation which the US intends to table very soon: It should broadly capture the level of cooperation that already exists, in particular through the work of the Transatlantic IPR Working Group, i.e., it should cover cooperation in relation to third countries; international organizations; customs matters; voluntary stakeholder initiatives, technical assistance and capacity building, support to SMEs (including websites), etc. Institutionally, it would be important to put in place an IPR Committee ensuring transparency in its activities and inclusion of a wider range of stakeholders. One negative element of note is that certain US legislative projects in areas that are very important for EU right holders appear not to be making progress in Congress. This is the case in particular for the draft laws on patent reform (addressing the problem of patent trolls) and on the copyright sectors identified as offensive interests by the EU (broadcasting rights, public performance and resale rights). As regards geographical indicators, discussions focused on the preparation of an intersessional discussion prior to the next round.” Pharmaceuticals On pharmaceuticals (p. 12), the two sides are discussing audits of European countries, among other things. In addition, the text says: “The FDA did not show interest on working on generics (EU proposal submitted in December 2015), arguing a lack of resources to examine the proposal but undertook to provide feedback by the next round. Considerations that scientific work should be excluded from TTIP were also put forward. However, the EU insisted on the need to work under TTIP to promote regulatory and scientific collaboration in areas such as biosimilars, generics and pediatrics. On the exchange of confidential trade secret information, there is agreement that this is an important matter but there is not yet agreement on what instrument to use. The FDA favors a document to be signed by each MS, the Commission and the European Medicines Agency. In accordance with this approach, the FDA has proposed a template that is under legal analysis. The Commission favors using TTIP as a legal basis for the exchange of confidential and trade secret information.” Wine Europe has long made a priority of protecting the geographical indications (products named based on locations and particular characteristics, such as Bordeaux wine). The text shows a rift has emerged on this issue. “Following the consolidation of the four textual elements (EU and US proposals for Chapter: EU proposal on wine and spirits; US proposal on spirits), a first review led to the identification of elements where further convergence seems possible (cooperation, committee on agriculture), and others where positions are far apart (export competition, wine).” … “On wine, the EU recalled that TTIP must include comprehensive disciplines on wine and spirits based on the incorporation of the existing bilateral agreements, and eliminate the possibility for US producers to use the 17 EU wine names (so-called “semi-generics”) listed in Annex II of the 2006 Wine Agreement. The US reiterated its opposition to the incorporation of wine rules in TTIP and to the EU request on semi-generics. The EU expressed strong concerns and will follow up at political level. The EU presented its counterproposal for the annex on labeling provisions on spirits, based on the joint position of the EU and US industries. The two sides will now work on a consolidated text based on the EU and US proposals. The two sides reviewed specific non-tariff issues. On some of them, specific steps were identified to work toward appropriate solutions and ensure follow up. On others, such as dairy import assessment or support of small beer and wine producers, the US is still questioning the significance of the issues for the EU industry.” E-Commerce “Discussions on e-commerce covered all proposals except for the provisions on data flows and computing facilities. There was good progress on understanding each other’s proposals and on exploring potential possibilities for compromise. With regard to non-discrimination of digital products, the US emphasized that they are very interested in this concept irrespective of the coverage of audio-visual services. They signaled some openness to refer to a more neutral term (digital content instead of digital products) and to exclude audio-visual services from this provision. Positive discussions also took place on the EU proposals on e-trust services and e-authentication and on the prohibition of prior authorization requirements for online services.” Standards There are several sections on the issue of standard-setting (p. 16). Encryption The text states (p. 16): “The EU and the US continued to discuss conformity assessment principles for ICT products that use cryptography. The discussion was based on the TPP text, which the US linked to the World Semiconductor Council (WSC) principles. The EU noted the sensitivities of Member States, which are competent in this area and which would not like to see its right to regulate curtailed in a security-related area. The EU went on to present a set of questions, derived from previous contacts with Member States. As the US was not ready to provide a reply on the spot, the EU will be sending the set of follow up questions in written form. Given the complexity of the subject, both sides agreed on the need to further deepen the issue on both policy and technical aspects before the next TTIP round.” Civil Society Concerns Nongovernmental organisations said the leak showed significant problems with the direction of the negotiations. For instance, a threat was perceived to digital civil liberties. “The leaks show an ideological drive towards deregulation and law enforcement by private companies,” Joe McNamee, executive director of European Digital Rights (EDRi), said in a statement. “This would sweep away key European success stories such as open and competitive telecommunications markets and a legal framework based on transparency and the rule of law.” EDRi analysed two of the leaked TTIP documents, the Telecommunications Chapter and the Tactical State of Play. The group raised concern about encryption, and also about the intellectual property chapter, stating: “Concerning so-called “Intellectual Property” (IP), the negotiators seem to take lobbyists’ wish list very seriously. According to the leaked report, “[w]hen confronted with EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders” (which would apparently not include citizens) “and has very limited chances of being accepted”, the US seemed to be prepared to depart from the model of the TPP. Among the proposals the US is thinking of tabling, it includes privatised enforcement measures, that EDRi has been criticising since its inception because they bypass the rule of law and lead to arbitrary corporate decision-making without accountability (cf. “voluntary stakeholder initiatives”). As with ACTA, the US is strongly supportive of “voluntary initiatives” as US-based global giants already impose US copyright law on a global level. The EU (as shown by the recent leak of the Communication on Platforms) supports this approach. In the leaks analysed by EDRi, there is no single mention of the public, NGOs or civil society in general.” In providing the leak, Greenpeace Netherlands stated: “Greenpeace Netherlands has released secret TTIP negotiation documents. We have done so to provide much needed transparency and trigger an informed debate on the treaty. This treaty is threatening to have far reaching implications for the environment and the lives of more than 800 million citizens in the EU and US. Whether you care about environmental issues, animal welfare, labour rights or internet privacy, you should be concerned about what is in these leaked documents. They underline the strong objections civil society and millions of people around the world have voiced: TTIP is about a huge transfer of power from people to big business.” Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related William New may be reached at email@example.com."Alleged Leaked TTIP Report Reveals Differences, Convergence On IP Issues" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.