Speculation Persists On ACTA As First Official Meeting Concludes

By Monika Ermert for Intellectual Property Watch
Government representatives from developed nations and strategic developing nation partners met at the US mission in Geneva on 3-4 June to discuss proposals for an Anti-Counterfeiting Trade Agreement (ACTA).

Parties at the negotiation included: Australia, Canada, the European Union, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, United Arab Emirates and the United States.

ACTA’s declared goal, according to a note released after the meeting by the negotiators, is “to provide a high-level international framework that strengthens the global enforcement of intellectual property rights.”

According to a short press note released by the European Commission directorate general for trade on 5 June, “a number of topics were discussed” at the Geneva meeting. “The main focus of the discussion was border measures, particularly how to deal with large-scale intellectual property infringements, which can frequently involve criminal elements and pose a threat to public health and safety. Participants considered the discussions useful and are satisfied with the progress to date.”

A spokesperson of the European Commission confirmed that consultation with different stakeholders had been on the agenda and would happen over the coming month at the domestic level. Draft text proposals still have not been published, the source said. Several parties contacted pointed to confidentiality agreed on by the negotiating partners. It was still early, they said.

Mathias Schaeli, head of legal services, International Trade Relations at the Swiss Federal Institute of Intellectual Property (IPI), told Intellectual Property Watch before the meeting that the criticism from some non-governmental organisations was premature as draft texts were not yet finalised.

“ACTA’s intention is to tackle the growing problem of large-scale counterfeiting which is a problem for every citizen,” he said, adding that ACTA therefore should not be rejected upfront. Critical comments and contributions are welcome as soon as a text is on the table, he underlined.

With no draft text available for comment from stakeholders or the public, there is active speculation about the measures envisaged by ACTA. The debate is fuelled by comments such as those of Google Senior Copyright Counsel William Patry. Patry wrote on his blog that ISP filtering according to information he obtained might be on the table in the negotiation. The filtering of sites infringing third party rights on the internet has been a much-contended topic in Europe, with France still pushing for respective regulation.

David Fewer, staff counsel at the Canadian Internet Policy and Public Interest Clinic (CIPIC), wrote to Intellectual Property Watch that the concern about customer data transfers from internet service providers to third parties stemmed from the consideration that the negotiators already had procedures in place to obtain data.

“All signatories already have judicial processes for obtaining such data,” he said, “thus the parties are likely looking to either sidestep judicial processes or lower the safeguards inherent in such judicial processes.”

Essential Action, an advocacy group focussing on access to medicine, warned in a statement to the Office of the United States Trade Representative, that “commercially interested parties sometimes cast compulsory licensing for medicines – legal under national legislation and World Trade Organization rules – as patent theft or ‘piracy,’ but no one can argue these practices bear any resemblance to counterfeiting.” At the same time, an agreement focused on patent, copyright and trademark infringement was likely to overlook important options to control counterfeiting, including by requiring companies to disclose knowledge of counterfeit products.

In the note published today, the ACTA negotiating partners obviously make an attempt to calm some concerns published in newspaper articles, for example, possible iPod searches by border authorities. Contrary to frequently asked questions published so far on ACTA the note speaks more specifically about “large-scale” infringements.

Yet criticism might not die down soon, as there is no information about when and how stakeholders will be invited to comment and consult.

Negotiators, according to the note, “will continue their substantive work over the coming months in a focussed manner. They tentatively scheduled their next meeting for mid-July, and expect to continue discussions on border enforcement while also exploring other areas, such as civil enforcement.”

European Parliament Study Draws Some Critical Conclusions

A study commissioned and received in May by the European Parliament also points to some problems with ACTA [Editor’s Note: this study has been removed from Parliament circulation]. The study prepared by Professor Claudio Dordi of the University of Bocconi, Milan, found that “there is not ‘enough evidence as to the extent or effects of international trade in counterfeiting and pirated products.” There is, in fact, “a lack of reliable information and objective data as well as of harmonised definitions that would allow a proper quantification of the magnitude and impact of international trade in counterfeit and pirated goods and an adequate assessment of the problems it poses,” it said.

Dordi also is of the opinion that, “while it is necessary that claims on intellectual property rights infringement be based on substantial evidence, the United States and the European Union are evaluating intellectual property enforcement in developing countries against levels of counterfeiting and piracy that are mainly based on estimated losses that their industries claim to exist according to their own surveys. The estimates of the levels of counterfeit and piracy are imperfect and tend to exhibit an upward bias.”

Dordi agrees with NGOs like Knowledge Ecology International and IP Justice with regard to a certain “vagueness” in definitions and forum shopping. It was unclear from the use of the terms ‘counterfeit’ and ‘piracy’ what the new treaty would actually cover, he wrote.

ACTA’s nature as free-standing agreement constituted another “forum shift” in the international regime of intellectual property, he added. “One such shift took place in 1994 when discussion on IP moved from the World Intellectual Property Organization (WIPO) to the WTO. The current forum shift is now occurring from the WTO to bilateral negotiations. While civil society and emerging developing countries exercise pressures on the WTO to maintain or even lower TRIPs standards, the United States and the European countries have found in bilateralism a way to extend international IP protection.”

A spokesman of the Canadian government had rejected the notion of forum shopping in his answers to earlier questions from Intellectual Property Watch. The ACTA approach of negotiations of only a few partners, wrote Dordi, “particularly penalizes developing countries as they do not have equal input to the agreement text they could adhere to.”

With regard to the question of whether the ACTA in the end might constitute a “new WIPO” and “a new layer of IPR standards,” Dordi stated that “the industrialised countries’ approach to enforcement, in sharp contrast to a public policy approach that takes into consideration issues broader than industry interests in formulating policy, is one of the major emerging challenges for national intellectual property rights systems.”

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