Officials Seek to Ease Fears of Privacy Violations under ACTA

7 July 2010

Although controversy continues to dog a potential multi-country agreement on strengthening intellectual property enforcement, government negotiators made progress towards an accord during talks in Lucerne, Switzerland last week, and reaffirmed their commitment to work to conclude a deal as soon as possible in 2010.

The prospective "Anti-Counterfeiting Trade Agreement" has attracted controversy for a wide range of reasons, going well beyond the secrecy surrounding the talks. Critics charge that the terms being negotiated go well beyond what is necessary to target counterfeiting, and would create new intellectual property protections that surpass existing multilateral rules and upset the carefully constructed balance in the WTO's agreement on intellectual property. They worry that an ACTA deal could threaten internet freedom, access to technology, and the availability of affordable medicine in poor countries.

They also fear that the mostly developed countries negotiating the treaty will then try to foist their terms upon developing countries that have not been part of the negotiations.

Participating governments, which include Australia, Canada, the EU, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US, are taking increasing pains to respond to these concerns. To that end, on the first day of the negotiations, ACTA negotiators exchanged views with representatives of civil society at meetings hosted by the Swiss government.

The parties to the talks stress the importance of ACTA in establishing an international framework for their efforts to more effectively combat the proliferation of counterfeiting and piracy, which undermines legitimate trade.

Following the 28 June - 1 July talks in Lucerne, the participating governments issued a joint statement emphasising that while ACTA sought to establish "effective enforcement standards for existing intellectual property rights," it was "not intended to include new intellectual property rights or to enlarge or diminish existing intellectual property rights."

"ACTA will be consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Declaration on TRIPS and Public Health," it continued, referring to two multilateral instruments that specify flexibilities in the protection of intellectual property that can be used for the legal production and export of cheap generic versions of patented drugs.

"ACTA will not interfere with a signatory's ability to respect fundamental rights and liberties," the statement added.

But digital rights activists and public health advocates will have to take the governments at their word for the moment: no draft text was released after the meetings in Lucerne. Intellectual Property Watch, a reporting service, quoted Swiss and European officials as saying that one delegation had blocked consensus on making the text public.

Participating governments said that negotiators made progress towards agreement on a number of areas including general obligations, civil enforcement, border measures, criminal enforcement, enforcement measures in the digital environment, international cooperation and institutional arrangements.

Based on an earlier draft of the treaty, an international group of academics, lawyers, and public interest organisations that met last month at American University in Washington concluded that governments' claims of consistency with basic freedoms and existing multilateral rules did not hold water.

"Negotiators claim ACTA will not interfere with citizens' fundamental rights and liberties; it will," the group said. "They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not. They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will. And they claim that ACTA does not require ‘graduated response' disconnections of people from the internet; however, the agreement strongly encourages such policies."

For instance, potential ACTA provisions would encourage online service providers to police the activities of internet users, by making access to "safe harbours" that would shield them from penalty conditional on meeting monitoring requirements. Moreover, these surveillance requirements, including the possibility for rights holders to obtain internet users' identities, would happen without adequate oversight or due process, the group concluded. Customs authorities would be authorised to seize goods in transit on the suspicion that they are counterfeit, even when they do not infringe any laws of the producing or importing countries. This could include legal, non-counterfeit, generic drugs being shipped from one country to another. And the manufacturers of active pharmaceutical ingredients whose materials are used in mislabelled products without their knowledge could face legal liability - a disincentive from doing business.

Seizures of generic drugs in transit have been in the spotlight over the past year. India and Brazil recently initiated WTO dispute proceedings against the EU after several batches of medicines en route between the two countries were temporarily held by border officials in European ports. The medicines in question did not have patent protection in either developing country; they were, however, patent protected in the EU.

In general, the expert group faulted the draft ACTA text for upsetting the balance of international intellectual property law by introducing highly specific rights and remedies for rights holders without setting out related exceptions, limitations, and process safeguards for users.

It is possible that some of these concerns have been addressed in Lucerne. According to the statement released after the meeting, "participants reiterated that ACTA will not hinder the cross-border transit of legitimate generic medicines, and reaffirmed that patents will not be covered in the Section on Border Measures." It also stressed that ACTA would not oblige border authorities to search travellers' baggage or their personal electronic devices such as computers or iPods for infringing materials such as improperly procured MP3s or movies.

Nevertheless, it is clear that the countries participating in the ACTA negotiations are seeking to agree on issues that could not be agreed in multilateral negotiations because they were too divisive.

Michael Geist, a law professor at the University of Ottawa who is an expert on internet and e-commerce issues, said ACTA seeks to secure agreement on issues that WIPO members rejected in the 1990s, when negotiating agreements collectively known as the WIPO internet treaties.

Speaking in Geneva on 28 June at a meeting on ACTA organised by Knowledge Ecology International and IQsensato, two civil society groups that work on intellectual property issues, Geist noted that several proposals in the ACTA text were "WIPO-plus." They set out very specific prescriptions for the legal remedies that countries should provide to rights holders, say, to counter attempts to get around technological measures that protect works by limiting access to them. In contrast, the WIPO internet treaties left individual governments significant latitude to implement remedies in a manner they deemed fit.

ACTA, therefore, could have long term implications for countries' flexibilities in implementing WIPO treaties, he said.

At the same meeting, negotiators from developing countries not part of the ACTA negotiations argued that ACTA could conflict with the TRIPS agreement, narrow countries' ability to use TRIPS flexibilities, and overburden the limited capacity of government customs authorities. They fear that developing countries will come under pressure to apply more restrictive ACTA-type standards in the future.

In the WTO's TRIPS council, several developing countries have raised similar concerns. Countries participating in the ACTA negotiations, on the other hand, insist that TRIPS is a minimum standard, and that ACTA, as an independent initiative, does not interfere with the WTO's intellectual property rules.

The next round of ACTA negotiations will be hosted by the United States.

ICTSD reporting; "ACTA Negotiators Vow To Mesh With National-Level Rights; Withhold New Text," INTELLECTUAL PROPERTY WATCH, 2 July 2010.

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