ACTA negotiations concluded…or maybe not?

The Anti-Counterfeiting Trade Agreement (ACTA) negotiations were concluded in Japan on October 2, after 11 round of the negotiations.

The Anti-Counterfeiting Trade Agreement (ACTA) began in Geneva two years ago. It is a plurilateral trade agreement aimed at establishing international standards on intellectual property rights so as to  assist those that are part of the agreement to fight against counterfighting and piracy.

It will include:

– state-of-the-art provisions on the enforcement of intellectual property rights (including provisions on civil, criminal, and border enforcement measures)

– cooperation mechanisms among ACTA Parties and

– establishment of best practices for effective Intellectual Property Rights enforcement.

The reason why ACTA has not been negotiated under the framework of the World Intellectual Property Organisation (WIPO) is related to the impossibility to find an agreement between all the members of WIPO. The last round of negotiations included: Mexico, Australia, Canada, the European Union (represented by the European Commission), Spain, an unnamed EU member state, Japan, Korea, Morocco, New Zealand, Singapore, Switzerland and the United States.

Acta has raised several criticisms (see previous post in this blog) concerning both its content and the secretative approach with which negotiations were held as the  consolidated text of 2nd October shows:

The scope

An unresolved issue refers to the  scope of the agreement, for instance, in relation to border measures (see italics underlined part).

“ARTICLE 2.X: SCOPE OF THE BORDER MEASURES

In providing, as appropriate, and consistent with a Party’s domestic system of IPR protection and without prejudice to the requirements of the TRIPS Agreement, for effective border enforcement of intellectual property rights, a Party should do so in a manner that does not discriminate unreasonably between intellectual property rights and that avoids the creation of barriers to legitimate trade.

(…)

ARTICLE 2.X: BORDER MEASURES

1.

Each Party shall provide procedures for import and export shipments:

(a)            by which customs authorities may act upon their own initiative, to suspend the release of suspect goods; and

(b)            where appropriate by which right holders may request the competent authorities to suspend the release of suspect goods.

where appropriate,

2. situations where the goods are under Customs control:

Each Party may provide procedures for suspect goods in transit or in other

(a)            by which customs authorities may act upon their own initiative, to suspend the release of, or to detain, suspect goods; and

(b)            where appropriate, by which right holders may request the competent authorities to suspend the release of, or to detain, suspect goods.”

The inclusion of patents in enforcement measures at the border is one of the main concerns of civil society. This is particularly worrisome when it comes to public health border-enforcement measures related to patents within the European Union, which resulted in several stopped shipments of legitimate generic medicines in 2008. Although there are,provisions in the ACTA text addressing goods in transit within the border measures section, parties are still engaged in consultations on this issue.

Another controversial aspect is in the first paragraph under border measures,which refers to the product names associated with a particular place or characteristics. The compromise texts sets out a “certain principle” that signatories to ACTA must respect when putting into place enforcement mechanisms, but leaves open flexibilities for each member’s individual implementation. While some parties wants to include GIs, others think that ACTA should focus on issues of trademarks, counterfeiting and piracy.

On criminal enforcement, private acts of infringement will be excluded. Third-party liability has been removed from “Section 5: Enforcement of Intellectual Property Rights in the Digital Environment”. In this respect, third-party liability was a concern for internet freedom advocates . Several discussions surrounded the issue of the “three- strikes” legislation, which however is not included in the text.

Despite these aspects, technological protection measures remain in the digital section:

“Section 5: Enforcement of Intellectual Property Rights in the Digital Environment

ARTICLE 2.18: ENFORCEMENT IN THE DIGITAL ENVIRONMENT

1.            Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of intellectual property rights infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

2.            Each Party’s enforcement procedures shall apply to infringement of at least trademark and copyright or related rights over digital networks, including the unlawful use of means of widespread distribution for infringing purposes . These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity,

including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.13

3.            Each Party shall endeavor to promote cooperative efforts within the business community to effectively address at least trademark and copyright or related rights infringement while preserving legitimate competition and consistent with each Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

4.            Each Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of infringement of at least trademark and copyrights or related rights and where such information is being sought for the purpose of protecting or enforcing at least the right holder’s trademark and copyright or related rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”

It is unclear what the procedure will be for resolving final outstanding issues (the one in italics, underlined and bold)..

The European Parliament has repeatedly reported the danger of having an anti-counterfeiting laws that endanger citizens’ fundamental freedoms (see Resolution of the European Parliament). Once MEPs learned that negotiations on the controversial agreement ended without their consent in Tokyo on Saturday (2 October), they called on the Commission to explain the matter at the earliest.

Besides the content of the agreement, the European Parliament has also criticised the Commission for not keeping it informed during the negotiations and for having denied access to ACTA documents.

For all these reasons Members of the European Parliament have asked the Commission to halt ACTA and have warned they will not give the agreement their approval, replicating the SWIFT case which took place at the beginning of the year.

While waiting for the next developments,  another post will therefore focus on the relation between governance and transparency.

LB

(to be continued)

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