[Ip-health] Lunch with the ACTA negotiators, August 17, 2010

Malini Aisola malini.aisola at keionline.org
Wed Aug 18 10:46:19 PDT 2010

Source URL: http://keionline.org/node/915 

Lunch with the ACTA negotiators, August 17, 2010

By James Love

Today USTR organized a lunch between ACTA negotiators and civil society
NGOs. There was not much notice. We received our invite to the lunch
last Thursday. Representatives from KEI, Public Citizen, Oxfam, Public
Knowledge and the American University program on intellectual property
attended the event. 

On Thursday, USTR has organized a separate lunch with lobbyists from
various industry groups. These two lunch events are one element of
USTR's response to pressures to open up the negotiations. The format was
quite informal. There were no speeches or opportunities for anyone to
address the entire room. There was a buffet lunch, and several tables
with about six chairs each, and people just picked a table to eat lunch
and talk to negotiators. 

The August ACTA negotiation was at one time billed as a small meeting
involving only a few countries, largely trying to resolve important
differences between the US and EU. But the meeting had evolved into a
full blown negotiation with all of the negotiating member states

The European Union was represented by the Commission and the Belgium
Presidency, an about half the members of the EU were also represented by
national delegations, mostly from the "older" or more northern members
of the EU.

I spent most of my time talking to the United States, Japan, Australia,
Singapore and the United States about the text in the agreement
concerning the possibility of statutory exceptions on remedies -- the
main substantive topic that KEI has addressed since the beginning of the
ACTA negotiations. Several countries in the ACTA negotiations have some
areas where statutes limit the availability of injunctions, set special
standards for damages, or eliminate the possibility of destroying
infringing goods. KEI was on several occasions written about these
issues, particularly in the context of areas such as orphaned
copyrighted works, infringements of architectural plans, the
introduction of generic biologic drugs, or infringing semi conductor

There is a proposal by New Zealand and Canada to permit statutory
exceptions to the availability of injunctions -- a proposal that has
inexplicitly been opposed by the U.S., the EU and some other ACTA
parties. An earlier proposal by Canada to allow statuatory limits on
damages was earlier rejected by delegates.

The TRIPS actually requires limits on injunctions and damages for
certain infringements of semi-conductor designs, and several countries
have other restrictions in national laws. The United States in
particular has a large number of areas where a judge does not have the
power to issue an injunctions, or damages are limited, including for
example, provisions recently enacted in the U.S. health care reform
bill, for cases involving undisclosed patents on biologic drugs. The US
Congress is also considering limits on injunctions and damages in
connection with solutions to the problem of orphaned copyrighted works.
And, European countries have a number of statutory limits on the
destruction of infringing goods. . (See discussion of ACTA provisions on
injunctions [1], damages [2] and other remedies [3]).

The U.S. negotiators at the ACTA meeting have, over the past year or so,
been remarkably indifferent to the fact that the US positon in the
negotiation runs counter to about a dozen U.S. statutes where remedicies
are now limited by statute, contrary to the plain language of the ACTA
text advanced by the U.S. government. 

At the lunch meeting the U.S. negotiators explained the reason for this
-- they said it was obvious that regardless of what the ACTA provisions
say, the U.S. can ignore the provisions in cases where there are
statutory exceptions. "It is not necessary to say that in the ACTA text"
I was told. "It's obvious." 

At the lunch there was discussion among the Australian, Japan, US and
Singapore negotiators over this issue. Some delegates pointed out that
the U.S. had spent a lot of time talking about the fact that this was an
executive agreement, and therefore "could not" change U.S. law.
Therefore, they argued, it was understood that ACTA would grandfather in
any inconsistency between U.S. law and ACTA. People were not so sure how
this worked for other countries in the negotiations -- including those
where the ACTA provisions would clearly require changes in national
laws, if taken seriously. Some delegates indicated that it was hard to
understand what ACTA meant, at this point, given the many brackets in
the text, and a lack of understanding about how the "general" and "high
level" provisions of the ACTA would apply to a country's actual laws.
Other delegates said the issue of exceptions to ACTA obligations, while
important, had not really been addressed in the negotiations. 

A number of delegates denied that the ACTA would limit exceptions to
remedies to a three step test. This is an important point, as exceptions
to the injunction remedies in the TRIPS are now not subject to the three
step test. 

At one point I had a discussion with a US negotiator about a provision
that the U.S. had proposed in the ACTA text to address the cases where
injunctions were not available against the government, when compensation
is provided for unauthorized use of intellectual property rights.
(Paragraph 4 on page 5 of the July 1, 2010 text). Even this provision,
which is not yet accepted, does not address the situation in U.S. law
regarding uses by state governments, which are not subject to damages
under U.S. law, following recent US Supreme Court decisions (See Florida
Prepaid Postsecondary Ed. Expensebd. V. College Savings Bank [4], and
commentary such as by Eugene Volokh [5], or Matthew Paik [6]).

Some members of the US delegation apparently do understand that many
provisions in the ACTA do not track U.S. law. It just isn't clear that
they care, or are able to do much about it, given the pressure to come
up with a "hard line" agreement on enforcement. 

On the issue of transparency, the US delegation was not very transparent
about its views on transparency -- or at least the official government
position. Some country negotiators did admit that there were benefits in
making the agreement transparent - such as to dispel false rumors about
the content, to enhance the legitimacy of the negotiation, and to allow
a broader community of experts to analysis the consequences of the
proposed text. The U.S. seemed to be the country least in favor of
transparency -- and the one that had given ACTA the greatest level of
political visibility -- with President Obama having discussed ACTA on
more than one occasion. 

On a personal note, the atmosphere was very cordial, and the NGOs
attending the meeting were generally appreciative of the opportunity to
meet with the negotiators. The next session will probably take place in
Japan the week of September 27. Opportunities to meet with negotiators,
if any, will likely be organized by the host country.

[1] http://www.keionline.org/node/887
[2] http://www.keionline.org/node/888
[3] http://www.keionline.org/node/890
[4] http://www.law.cornell.edu/supct/html/98-531.ZS.html
[5] http://www.law.ucla.edu/volokh/sovimm.htm

Malini Aisola
Knowledge Ecology International
1621 Connecticut Avenue NW, Suite 500, Washington DC 20009
malini.aisola at keionline.org|Tel: +1.202.332.2670|Fax: +1.202.332.2673

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