[A2k] ACTA rises?

Ante Wessels ante at ffii.org
Tue Feb 5 05:45:13 PST 2013

ACTA rises?
with links

February 5, 2013
By Ante

Today EU trade commissioner Karel de Gucht travels to Washington
to discuss the possibilities to start negotiations on an EU – US
trade agreement. Some companies already dream of setting a gold
standard in areas such as intellectual property rights (IPR)
protection. That sounds like ACTA, the agreement overwhelmingly
voted down last July in the European Parliament. Will ACTA
return, should IPR be part of a Trans Atlantic “Free Trade”
Agreement (TAFTA)? Opinions go from in, out or optional. The
right answer is out, as with an IPR chapter, the EU and US will
violate their human rights obligations.

IPR in or out?

The June 2012 interim report of the EU-U.S. High Level Working
Group on Jobs and Growth said about inclusion of IPR in an EU –
US trade agreement: “Both sides agree that it would not be
feasible in negotiations to seek to reconcile across the board
differences in the IPR obligations that each typically includes
in its comprehensive trade agreements.” (pdf)

The EU and US then held consultations, Infojustice lists some
reactions regarding IPR. The National Association of
Manufacturers, National Foreign Trade Council and a Joint
comment by the Pharmaceutical manufacturers and Research
Association, and the European Federation of Pharmaceutical
Industries and Associations are in favor of including IPR in the
trade agreement. The European Generic Medicines Association and
the the (US) Generic Pharmaceutical Association recommend
keeping IPR out of the trade agreement.

In its submission, the National Foreign Trade Council mentions
“a comprehensive agreement or set of agreements”. A set of
agreements would be the right approach, as one yes or no vote on
a monolithic trade agreement does not seem compatible with

An optional IPR chapter?

Intellectual Property Watch yesterday reported the possibility
that an IPR chapter could be made optional: “Being part of a
larger, comprehensive package, special provisions in the IP
chapter might not be made a make-or-break issue for a TAFTA,
unlike in the debates about the Anti-Counterfeiting Trade

That, at first sight, may look reasonable. But it is important
to remember what Michael Geist wrote in his report on ACTA for
the European Parliament International Trade committee: “In an
attempt to resolve ongoing conflicts over several substantive
areas, the ACTA negotiators agreed to make many provisions
permissive rather than mandatory. Supporters frequently point to
the non-mandatory nature of several contentious provisions as
evidence that there is little reason for concern with the
substantive elements of ACTA. The permissive approach may be a
useful mechanism to achieve consensus, but it provides cold
comfort to those concerned with the long-term implications of
the agreement. The experience with other treaties indicates that
flexible, permissive language is gradually transformed into
mandatory, best-practice language.” (pdf)

IPR out

Access to knowledge and culture is a human right. As Peter Yu
wrote earlier, it is imperative that countries strike a more
appropriate balance between the protection and enforcement of
intellectual property rights and the commitments made in
international or regional human rights instruments.

An optional IPR chapter will point in the wrong direction. All
countries have an obligation to respect, protect and fulfil
human rights, and must desist from acts and omissions that
create a real risk of nullifying or impairing these rights. All
countries are obliged to create an enabling environment
conducive to the universal fulfilment of human rights. (See the
Maastricht Principles on Extraterritorial Obligations of States
in the area of Economic, Social and Cultural Rights, pdf)

With an IPR chapter, the EU and US will violate their human
rights obligations.

Earlier posts:
The era of monolithic trade agreements is over?
EU – US trade agreement will give a boost to expropriation

More information about the A2k mailing list