By Monika Ermert for Intellectual Property Watch
Despite earlier statements by European negotiators that the planned Anti-Counterfeiting Trade Agreement (ACTA) would need time for fine-tuning, nations seem to accept a fast track movement now.

ACTA has been mentioned as an agenda item of the French presidency of the European Union (from July to January), the European Commission’s Trade Directorate General (DG Trade) prepared a public report about its consultation with stakeholders in June, and the European Parliament has included ACTA in a draft report on the “impact of counterfeiting on international trade.”

On Tuesday, Luc Chatel, secretary of state for consumer affairs and industry, and spokesman for the French government, explained that [pdf] the fight against piracy and counterfeiting is high on the agenda of the French presidency. Chatel said, “During her presidency, France will work hard to make progress in this fight by taking a global approach.”

France would aim to present, during the EU Council meeting on competition policies 25-26 September, an integrated concept including a new plan for border controls that would update the border regulation currently in effect.

In addition to creating an observatory against counterfeiting and better cooperation and information exchange among EU governments – using also the European Anti-Fraud Office, ACTA is indispensable to realising global cooperation and the enforcement of IP rights, Chatel said.

A DG Trade spokesperson told Intellectual Property Watch, “If you have the G8 leaders and the EU presidency behind it, then clearly there is a lot of dynamism.” The Commission is prepared to help move forward with the negotiations. DG Trade is preparing a public report on its consultation with stakeholders on 23 June attended by around one hundred participants from industry and civil society.

The European Parliament’s Committee on International Trade also is working on the issue. International Trade Committee Member Daniel Caspary, European People’s Party (EPP) member, told Intellectual Property Watch that he welcomes the approach of targeted global penal law sanctions.

“There are some questions with regard to civil rights,” he said. But the Commission, which has been mandated to negotiate for the EU by the Council of Ministers, promised to take care of this issue.

Draft Report sees ACTA as Pressure Tool

Caspary said he is expecting amendments seeking safeguards for fundamental civil rights to a draft Parliament “Report on the impact of counterfeiting on international trade” prepared by liberal MEP Gianluca Susta.

The report is clearly positive about ACTA and proposes that the full Parliament should call on the Commission “to continue its fight against counterfeiting and piracy in parallel with the multilateral negotiations, also by means of bilateral, regional and multilateral agreements” and also should call on the Commission and the member states “to make all appropriate efforts to achieve a swift and satisfactory conclusion to the ACTA agreement.”

The entry into force of ACTA, Susta said in the report, would be an “essential international benchmark” and could “ensure that counterfeiting is suppressed more effectively and provide an important tool for putting pressure on non-signatory third countries.” The draft report also welcomes the growing interest by WTO member countries in ACTA and would hope that the agreement could also be signed by China.

Caspary said it was clear to him that searches by border control authorities, for example in China, had to be backed by a judge’s decision. “Anything else is impossible,” he said, because otherwise one would open the gates for industrial espionage.

Caspary downplayed the fact that for an assessment of ACTA members of Parliament should at least have a look at the draft text. Other observers confirmed that during an update given to the Trade Committee by DG Trade officials there were requests for the document. But so far ACTA negotiations have been held behind closed doors.

The next meeting of negotiators is expected at the end of the month after a meeting planned for this week had to be postponed, sources said.

A Critical Assessment of EU Bilateral Trade Agreements

A more cautious approach in bilateral trade agreements with regard to fighting counterfeiting and piracy is recommended in a briefing paper requested by the International Trade Committee and prepared by Duncan Matthews of Queen Mary College, University of London.

Matthews asks in his summary that inclusion of IP enforcement in agreements had to be done on the basis of adequate evidence on the level of counterfeiting and piracy, recommends that the European Parliament should consider the need to balance flexibilities in the TRIPS agreement with the need for additional provisions in bilateral agreements and warns that “agreements that contain provisions on recourse to bilateral dispute settlement mechanisms risk weakening the multilateral dispute settlement system.” TRIPS refers to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights.

As IP rights are private rights, “the main responsibility for taking measures to protect and enforce intellectual property rights should lie with individual right holders,” said Matthews. He recommended establishing a parliamentary forum or an inter-parliamentary observatory to monitor and assess the impact of bilateral agreements in the fight against counterfeiting and piracy.

On ACTA, he notes concerns by observers that ACTA would “impose a narrow trade agenda at the expense of global cooperation and evidence-based policies, criminalising non-commercial copyright and trademark infringements, reinforcing digital rights management (DRM) technologies contrary to fair use principles in copyright law, and protecting internet service providers (ISPs) from liability for the actions of their subscribers.”

Matthews’ analysis might give some members of the EU Parliament second thoughts, yet so far it seems that Parliament will be kept outside of the negotiations. Parliament would be consulted, but as long as the Lisbon Treaty has not been signed there is no co-decision role for the Parliament on this, according to the DG Trade spokesman.

Representatives of several non-governmental organisations have begun digging into the question of whether this legal assessment is correct, given that there was no harmonisation with regard to penal law sanctions against IP violations in the European Union. This has been blocked so far by member states.

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