WIPO, WTO Requested To Advise On Anti-Counterfeiting Treaty

Several members of the European Parliament today sent letters to the directors general of the World Intellectual Property Organization and the World Trade Organization requesting technical assistance in the negotiation of an agreement that some are calling an attempt to circumvent global norms on intellectual property enforcement and related public interest flexibility.

“We are aware that this is an unconventional request but considering the circumstances, we would like” WIPO and the WTO “to provide an expert assessment and analysis of the current provisions of ACTA [the Anti-Counterfeiting Trade Agreement] from your institutional viewpoint as one of the two specialised organisations entrusted with the issue of norm-setting in the field of intellectual property rights and related issues,” the letters read.

They were signed by seven members of the European Parliament Greens/European Free Alliance party. Their full texts are available here: WIPO, WTO.

Meanwhile, in the United States, the chairman and ranking member of the House Foreign Affairs Committee sent a joint letter dated 15 April to US Trade Representative Ron Kirk in support of a quick conclusion to ACTA as a way to promote US jobs. The letter sent by Chairman Howard Berman, a Democrat from California whose constituents include Hollywood, and Ileana Ros-Lehtinen of Florida, supports USTR on transparency and its claim that the new agreement will not change US laws. The US Chamber of Commerce issued a statement in support of the House letter. Chamber statement available here.

Public concern about ACTA has persisted, fueled in part by several leaked texts in recent months that raised particular concerns about internet freedom in a post-ACTA world. But also frustrating to some stakeholders is the secrecy of a negotiation they have cause to fear will have wide-ranging impact on their lives. Some industry groups have called it necessary to stem the rising tide of digital piracy, while others have worried it will make them liable for their users’ actions.

The negotiation is “anti-democratic at its core: key industrial groups are trying to achieve in ACTA changes they couldn’t win in Congress and Parliaments,” Kevin Outterson, co-director of the Health Law Program at Boston University Law School, told Intellectual Property Watch. Outterson is faculty editor-in-chief at the American Journal of Law & Medicine, and editor-in-chief of the Journal of Law, Medicine & Ethics.

“Given the existence of TRIPS and WIPO, the drive to create ACTA in secret without adequate public consultation can only be seen as a naked attempt by IP-dependent industries to bypass existing global economic institutions to pursue a narrow agenda,” he added.

Citing a 10 March agreement of the European Parliament to be kept fully informed of a process it decried as nontransparent (IPW, Enforcement, 10 March 2010), the letters ask for information on WIPO/WTO norms for transparency to stakeholders and their current enforcement activities (and if there is need for new ones). They also ask for an assessment of the relationship of ACTA to current norms, including possible restrictions on ability to use certain knowledge goods and the likely effects on flexibilities within the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement intended to ease access to medicines.

“Asking WIPO to comment is a clever idea, but given that WIPO is funded by rights-holders, I would be surprised if WIPO really felt freedom to speak their mind on this,” Outterson said.

WIPO Director General Francis Gurry has typically said when asked in public that he has not read the agreement and indicates WIPO does not know a great deal about ACTA. At a press conference in October, he said, “naturally we prefer open, transparent international processes to arrive at conclusions that are of concern to the whole world” (IPW, WIPO, 22 October 2009).

The most recent ACTA negotiation is taking place behind closed doors this week in Wellington, New Zealand 12-16 April.

William New contributed to this article.

wackes seppi says

22/04/2010 at 3:40 pm

“We are aware that this is an unconventional request”, they write. Indeed! It is, to remain diplomatic, a questionable one too.

First, seven Green/EFA MEPs (including Swedish Pirate Party member Christian Engström) ask the WTO, usually despised by the Greens, for help. Second, they request nothing less than “an evidence-based impact assessment of ACTA and its ramifications for consumers in relation to privacy, civil rights, human rights, and access to medicines and information”, including a “technical assessment of the need for new global norms and institutions as proposed under ACTA bearing in mind the enforcement measures already being undertaken”. Third, they ask WIPO to produce the same thing, including views on the relations between the (as yet to be concluded) ACTA and the TRIPs Agreement, which is not in its courtyard. Fourth, they base their request on leaked documents which, by reason of their nature, have no official existence (in addition, the leaking and the possession of those documents are penally actionable). Fifth, they could not ignore that those documents, assuming an international organisation could validly use them in official dealings, are hardly exploitable, being in particular full of brackets. Sixth, they should have known that they were effectively expecting two secretariats whose primary interlocutors are governments to contradict those very governments. It is ironical in this respect that the European Parliament criticised the European Commission for disregarding the prerogatives of the European Parliament, and that members of the latter intrude into the area of competence of the Commission. Seventh, they should have realised that some of the specific questions asked reflect an intellectual immaturity and a desire to score points rather than common sense and genuine concern.

I should stop my list here to maintain a parallelism with the seven capital sins. However, one can only be surprised that the seven MEPs placed their requests at a time when they knew that the parties to the negotiation were about to make a text, reflecting the latest state of their deliberations, publicly available. Unless, of course, one has categorised this letter as a coup to attract media attention.

But this unavoidably raises the question: a coup by whom? It is striking that the Greens/EFA website does not refer to the letters (nor does in particular Christian Engström, who on the other hand commented on the official release of the draft ACTA text as early as 16 April, noon time), and that the IPWatch piece refers to pages from Erik Josefsson’s website that are not accessible to the lay internet user.

This also raises the question of IPWatch’s editorial policy. Why did this letters get a front-page article and why was the release of the draft ACTA text relegated to the IP Burble?

Comments

wackes seppi says

22/04/2010 at 3:40 pm

“We are aware that this is an unconventional request”, they write. Indeed! It is, to remain diplomatic, a questionable one too.

First, seven Green/EFA MEPs (including Swedish Pirate Party member Christian Engström) ask the WTO, usually despised by the Greens, for help. Second, they request nothing less than “an evidence-based impact assessment of ACTA and its ramifications for consumers in relation to privacy, civil rights, human rights, and access to medicines and information”, including a “technical assessment of the need for new global norms and institutions as proposed under ACTA bearing in mind the enforcement measures already being undertaken”. Third, they ask WIPO to produce the same thing, including views on the relations between the (as yet to be concluded) ACTA and the TRIPs Agreement, which is not in its courtyard. Fourth, they base their request on leaked documents which, by reason of their nature, have no official existence (in addition, the leaking and the possession of those documents are penally actionable). Fifth, they could not ignore that those documents, assuming an international organisation could validly use them in official dealings, are hardly exploitable, being in particular full of brackets. Sixth, they should have known that they were effectively expecting two secretariats whose primary interlocutors are governments to contradict those very governments. It is ironical in this respect that the European Parliament criticised the European Commission for disregarding the prerogatives of the European Parliament, and that members of the latter intrude into the area of competence of the Commission. Seventh, they should have realised that some of the specific questions asked reflect an intellectual immaturity and a desire to score points rather than common sense and genuine concern.

I should stop my list here to maintain a parallelism with the seven capital sins. However, one can only be surprised that the seven MEPs placed their requests at a time when they knew that the parties to the negotiation were about to make a text, reflecting the latest state of their deliberations, publicly available. Unless, of course, one has categorised this letter as a coup to attract media attention.

But this unavoidably raises the question: a coup by whom? It is striking that the Greens/EFA website does not refer to the letters (nor does in particular Christian Engström, who on the other hand commented on the official release of the draft ACTA text as early as 16 April, noon time), and that the IPWatch piece refers to pages from Erik Josefsson’s website that are not accessible to the lay internet user.

This also raises the question of IPWatch’s editorial policy. Why did this letters get a front-page article and why was the release of the draft ACTA text relegated to the IP Burble?

William New says

22/04/2010 at 3:57 pm

On the editorial question, the letters got a story because it was of interest that it involved two leading Geneva international organisations that we cover closely. As to what goes in the IP Burble, those are not necessarily less relevant stories, it is a place for us to notify readers quickly of an important new development. You should expect our story on the ACTA text soon to follow. –William New, Editor

WIPO, WTO Requested To Advise On Anti-Counterfeiting Treaty

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