Japan Proposes New IP Enforcement Treaty

Lyon, France–Japan has proposed an international treaty to combat worldwide counterfeiting and piracy, complementing the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The proposal came at a 14-15 November conference near Interpol headquarters in Lyon, France, where the TRIPS agreement was characterised by some participants as a minimal pact lacking sufficient “teeth” for the enforcement of intellectual property rights.

While the TRIPS agreement focuses on imports of pirated products, the proposed treaty, dubbed the Treaty on Non-Proliferation of Counterfeits and Pirated Goods, would focus on the import, export and transshipment of illegal goods, said Hisamitsu Arai, secretary general of the intellectual property strategy headquarters cabinet secretariat in Tokyo.

Arai presented the treaty at the second “Global Congress on Combating Counterfeiting and Piracy,” and asked participants to support the idea. “Let us fight together,” Arai said.

Arai told Intellectual Property Watch that he had chosen this forum as Japan foresees that Interpol or the World Customs Organisation (WCO), two of the conference organisers, could be in charge of the treaty.

Arai said that this was not a unique treaty in terms of going beyond import only. “We are number four,” he said, referring to the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Montreal Protocol on Substances that Deplete the Ozone Layer (green house gases), and the Basel Convention to combat hazardous industrial waste. The new treaty would be “based on the successful model of other treaties,” Arai said.

He said that the treaty would introduce legal obligations to ensure countermeasures against piracy were taken at the borders of the exporting countries. It would also aim to deter counterfeits and pirated goods on the Internet, Arai said.

Japan has also outlined the implementation procedures for its proposal. Enforcement agencies would co-operate and share “process of measures” data, meaning their respective processes of seizures, confiscation and destruction and removal of manufacturing equipment.

Reports would be published on progress on customs seizures, arrests and criminal procedures, Arai said, adding that the treaty would enable the internal legal system to “confiscate proceeds of intellectual property crimes” and “extradite criminals of IP crimes.”

Early Reaction Mixed

Many of the participants said it was too early to comment on the potential of the treaty proposed by Japan, while others questioned it. Lawrence S. P. Wong, deputy commissioner of Hong Kong Customs and Excise Department, told Intellectual Property Watch that they already do everything that is proposed in the treaty. He said that “action is much more important” than words.

Another developing country delegate supported the Japanese proposal, saying it would “give more teeth” to the fight against counterfeits and piracy. He said there are customs problems with the TRIPS agreement as rights holders are given little time to react upon seizure of fake goods, and said that it should be revised.

A Brazilian lawyer said he supports an international treaty for counterfeits but that it should be regulated by the WTO.

Michel Danet, secretary general of the WCO, predicted there would be a major problem launching an international counterfeit treaty as neither the WTO, nor the United Nations, nor the Organisation for Economic Cooperation and Development would be the preferred forum.

Need For TRIPS Renegotiation Debated

The new treaty was discussed in the context of the TRIPS agreement, which was criticised for being inefficient. In the opening plenary, Danet said that TRIPS was “totally useless” and he urged governments to review whether it needed to be re-negotiated.

Rita Hayes, deputy director general of the World Intellectual Property Organisation (WIPO), said it was up to the governments to make sure that the agreements were working through enforcement.

Later, however, Danet told Intellectual Property Watch that he had not meant to over-simplify the TRIPS issue, but noted that TRIPS was not the right tool for fighting the overall problem of counterfeits. It was a “minimum agreement” and not sufficient as it only focused on import.

Guy Sebban, secretary general of the International Chamber of Commerce (ICC), said that the ICC members did not want to restart the TRIPS agreement negotiations from scratch but fully supported the argument that the WTO instrument is not strong enough. A “better legal framework” with enforcement measures complementing TRIPS is needed, he said.

US Cool To Japanese Proposal

Arai said that the Japanese treaty idea had first been introduced at the Group of Eight industrialized nations meeting earlier this year by Japanese Prime Minister Junichiro Koizumi, but that this was the first official presentation.

Chris Israel, coordinator for international intellectual property enforcement in the US Department of Commerce, said in an interview that Japan had met with the United States a number of times, including twice in September, to discuss the treaty, and it was his understanding that Japan had been discussing it with the European Union as well.

“We applaud the energy that Japan brings to this issue,” Israel said. However, the United States is more focused on implementation of anti-counterfeiting measures “right now,” targeting “action and results,” Israel said.

Why Japan?

Arai said that this idea came from Japan as the country is “very neutral about counterfeits,” in terms of the interests of the industry versus the consumers. He also noted that while TRIPS focuses on producers, this treaty would act in the interest of consumers of the world who are dying from counterfeit medicines. “I am interested in the safety and security of consumers,” Arai said.

Doug Clark, partner of the international law firm Lovells in Shanghai, said that “Japan has become obsessed with IP in the last three to four years,” noting that this was because it had become a more sophisticated economy. It does not only rely solely on manufacturing, but also on intellectual property, he said.

The conference in Lyon was organised by the WCO, Interpol, WIPO, Global Business Leaders Alliance Against Counterfeiting, the International Trademark Association and the ICC.