Trust A Missing Ingredient In Global IP Enforcement Policy

When it comes to intellectual property rights enforcement, developed country rights owners and their governments continue to puzzle over how to get the rest of the world’s economies to drink from the trough now that they have brought them there. One approach that may regain interest is combining the all-out war on piracy with efforts to build greater trust in the enforcement system.

Many developing countries have in recent years added or toughened laws on IP protection and enforcement. But rich-country rightsholders say problems of piracy and counterfeiting continue to rise and their governments are taking matters to the next level by leading the negotiation of an Anti-Counterfeiting Trade Agreement (ACTA) outside of multilateral channels.

Discussions of enforcement at the 14-15 April annual Fordham University conference on IP law and policy, which had few if any developing country participants, appeared to show the need for greater trust between developed and developing countries. The prevailing view was that Northern customs officers generally will make reasonable decisions in choosing which shipments to hold on suspicion of counterfeiting, and Northern courts will give a fair opinion on the complexities of the cases. Mistakes will be few and unintentional. Meanwhile, the developed nations lack trust that developing country customs officers and courts will behave similarly.

But a topic that did not come up much if at all at the conference was the recent seizures of legitimate generic pharmaceuticals passing through the Netherlands from India to South America. These seizures, made on request of developed country brand-name drugmakers, could be said to work directly against the kind of trust Northern officials and industry for which say they may be relied upon.

A panellist raised concern about a requirement that ex oficio powers that could be used to detain parallel imports or grey market products be given to customs officials, as it might lead to abuse of the system by competitors.  This is better left to the judiciary, it was argued.

Developed nation governments have moved in recent years from more passive to more active roles on IP enforcement, though they still work closely with business as it is seen as having more resources to put to the problem.

With ACTA, developed countries are seeking to move quickly to agreement – though the change in US leadership has at least temporarily delayed progress a bit. Only after signing a deal would they like to try to add more countries to the agreement, but the agreement will be voluntary. The negotiation involves the countries that represent the majority of global trade. Some are pushing to move the talks back into the multilateral context where the interests of all sides can be considered.

An outstanding issue in the ACTA talks is the limitation on the European Commission’s jurisdiction in criminal matters and law enforcement, which are left to the national level.

Concerned parties have painted the ACTA negatively, citing a lack of transparency and lack of trust that the public interest is being sufficiently taken into account. An academic showed that in some parts of the world, far from “respect for IP” as is being touted by the World Intellectual Property Organization and others, there is strong resistance to IP, and the belief that IP is tied to globalisation, or even responsible for repressing developing societies.

There also are concerns in developed countries. For instance, one concern has been that the resulting agreement might permit customs officials to examine the contents of a traveller’s iPod and take action if pirated content is found there. An EU source in Cambridge denied the agreement would have such a provision, but an advocate countered that the details might reveal that in fact a “de minimis” approach was taken, stating, for example, that if more than 10 unauthorised songs are found on the iPod, then it is confiscated.

Supporters of ACTA are trying to convince sceptics that they are providing as much information as they can about the process and that it will not exceed domestic laws. But according to some, most IP industries have representatives who are allowed to view and provide input on the draft treaty texts, while few or no public interest advocates have the same privilege. The starting point for the ACTA was the language of the US bilateral agreements, such as US-South Korea accord, sources said.

One reason the developed-country focus has moved to enforcement is that in many countries, including the biggest source of counterfeiting, China, developed-country industry considers the laws to be largely in place to address the problem, but enforcement is needed.

One US lobbyist said a document of best practices on counterfeiting was produced in 2002 in the WIPO Advisory Committee on Enforcement (ACE), which has no negotiating authority. The document has not been acted upon perhaps because it could look to some like the basis for normative discussions, the lobbyist said.

This attention to best practices appears to be closely reflected in a recent US government recommendation to the WIPO Program and Budget Committee, which is working this year to draft WIPO’s plan for the coming two years and beyond. The US submission expresses hope that the members in the ACE “develop best practices, guidelines and/or joint recommendations that reflect the most effective IP enforcement practices.”

It remains to be seen whether developing countries will trust that this is a good faith proposal, if it comes up.