[At-Large] Europe May Put ACTA Back On Faster Track

[Jeffrey A. Williams]

All,

FYI:

[ Picked text/plain from multipart/alternative ]
http://www.ip-watch.org/weblog/index.php?p=1152

Intellectual Property Watch
16 July 2008
Europe May Put ACTA Back On Faster Track

By Monika Ermert for Intellectual Property Watch

Despite earlier statements by European negotiators that the planned
Anti-Counterfeiting Trade Agreement (ACTA) would need time for fine-
tuning, nations seem to accept a fast track movement now.

ACTA has been mentioned as an agenda item of the French presidency of
the European Union (from July to January), the European Commission’s
Trade Directorate General (DG Trade) prepared a public report about
its consultation with stakeholders in June, and the European
Parliament has included ACTA in a draft report on the “impact of
counterfeiting on international trade.”

On Tuesday, Luc Chatel, secretary of state for consumer affairs and
industry, and spokesman for the French government, explained that
[pdf] the fight against piracy and counterfeiting is high on the
agenda of the French presidency. Chatel said, “During her presidency,
France will work hard to make progress in this fight by taking a
global approach.”

France would aim to present, during the EU Council meeting on
competition policies 25-26 September, an integrated concept including
a new plan for border controls that would update the border regulation
currently in effect.

In addition to creating an observatory against counterfeiting and
better cooperation and information exchange among EU governments -
using also the European Anti-Fraud Office, ACTA is indispensable to
realising global cooperation and the enforcement of IP rights, Chatel
said.

A DG Trade spokesperson told Intellectual Property Watch, “If you have
the G8 leaders and the EU presidency behind it, then clearly there is
a lot of dynamism.” The Commission is prepared to help move forward
with the negotiations. DG Trade is preparing a public report on its
consultation with stakeholders on 23 June attended by around one
hundred participants from industry and civil society.

The European Parliament’s Committee on International Trade also is
working on the issue. International Trade Committee Member Daniel
Caspary, European People’s Party (EPP) member, told Intellectual
Property Watch that he welcomes the approach of targeted global penal
law sanctions.

“There are some questions with regard to civil rights,” he said. But
the Commission, which has been mandated to negotiate for the EU by the
Council of Ministers, promised to take care of this issue.

Draft Report sees ACTA as Pressure Tool

Caspary said he is expecting amendments seeking safeguards for
fundamental civil rights to a draft Parliament “Report on the impact
of counterfeiting on international trade” prepared by liberal MEP
Gianluca Susta.

The report is clearly positive about ACTA and proposes that the full
Parliament should call on the Commission “to continue its fight
against counterfeiting and piracy in parallel with the multilateral
negotiations, also by means of bilateral, regional and multilateral
agreements” and also should call on the Commission and the member
states “to make all appropriate efforts to achieve a swift and
satisfactory conclusion to the ACTA agreement.”

The entry into force of ACTA, Susta said in the report, would be an
“essential international benchmark” and could “ensure that
counterfeiting is suppressed more effectively and provide an important
tool for putting pressure on non-signatory third countries.” The draft
report also welcomes the growing interest by WTO member countries in
ACTA and would hope that the agreement could also be signed by China.

Caspary said it was clear to him that searches by border control
authorities, for example in China, had to be backed by a judge’s
decision. “Anything else is impossible,” he said, because otherwise
one would open the gates for industrial espionage.

Caspary downplayed the fact that for an assessment of ACTA members of
Parliament should at least have a look at the draft text. Other
observers confirmed that during an update given to the Trade Committee
by DG Trade officials there were requests for the document. But so far
ACTA negotiations have been held behind closed doors.

The next meeting of negotiators is expected at the end of the month
after a meeting planned for this week had to be postponed, sources said.

A Critical Assessment of EU Bilateral Trade Agreements

A more cautious approach in bilateral trade agreements with regard to
fighting counterfeiting and piracy is recommended in a briefing paper
requested by the International Trade Committee and prepared by Duncan
Matthews of Queen Mary College, University of London.

Matthews asks in his summary that inclusion of IP enforcement in
agreements had to be done on the basis of adequate evidence on the
level of counterfeiting and piracy, recommends that the European
Parliament should consider the “need to balance flexibilities in the
TRIPS agreement with the need for additional provisions in bilateral
agreements and warns that “agreements that contain provisions on
recourse to bilateral dispute settlement mechanisms risk weakening the
multilateral dispute settlement system.” TRIPS refers to the World
Trade Organization Agreement on Trade-Related Aspects of Intellectual
Property Rights.

As IP rights are private rights, “the main responsibility for taking
measures to protect and enforce intellectual property rights should
lie with individual right holders,” said Matthews. He recommended
establishing a parliamentary forum or an inter-parliamentary
observatory to monitor and assess the impact of bilateral agreements
in the fight against counterfeiting and piracy.

On ACTA, he notes concerns by observers that ACTA would “impose a
narrow trade agenda at the expense of global cooperation and evidence-
based policies, criminalising non-commercial copyright and trademark
infringements, reinforcing digital rights management (DRM)
technologies contrary to fair use principles in copyright law, and
protecting internet service providers (ISPs) from liability for the
actions of their subscribers.”

Matthews’ analysis might give some members of the EU Parliament second
thoughts, yet so far it seems that Parliament will be kept outside of
the negotiations. Parliament would be consulted, but as long as the
Lisbon Treaty has not been signed there is no co-decision role for the
Parliament on this, according to the DG Trade spokesman.

Representatives of several non-governmental organisations have begun
digging into the question of whether this legal assessment is correct,
given that there was no harmonisation with regard to penal law
sanctions against IP violations in the European Union. This has been
blocked so far by member states.

Monika Ermert may be reached at info at ip-watch.ch.

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