[Ip-health] WTO responds to concerns of the European Parliament on ACTA

Malini Aisola malini.aisola at keionline.org
Fri May 14 08:49:21 PDT 2010


WTO responds to concerns of the European Parliament on ACTA 

In a letter [1] dated 4 May 2010, the Director General of the World
Trade Organization (WTO), Pascal Lamy has responded to questions and
concerns of the European Parliament regarding the Anti Counterfeiting
Trade Agreement (ACTA). Several MEPs had written [2] to the WTO Director
General on April 15 requesting the "World Trade Organization (WTO) to
provide an expert assessment and analysis of the current provisions of
ACTA from your institutional viewpoint as one the two specialised
organisations entrusted with the issue of norm-setting in the field of
intellectual property rights and related issues." 

A similar request was made by the MEPs to the World Intellectual
Property Organization (WIPO), a response to which is still pending. 

The text of the WTO response follows:

        World Trade Organization
        Organisation Mondiale du Commerce
        Organizacion Mundial del Comercio 
        Jan Philipp Albrecht MEP
        Karima Delli MEP
        Carl Schlyter MEP
        Ska Keller MEP
        Judith Sargentini MEP
        Christian Engstrom MEP
        Sandrine Belier MEP
        Greens/EFA in the European Parliament
        Martin Glass, Chairperson, Council for TRIPS
        Anthony Taubman, Director, Intellectual Property Division, WTO
        Francis Gurry, Director General, WIPO
        04 May 2010
        Dear Sirs, 
        Thank you for your letter of April 15, 2010, drawing to my
        attention a Resolution of the European Parliament on
        Transparency and State of Play of the Anti Counterfeiting Trade
        Agreement (ACTA), and raising several questions about WTO
        intellectual property (IP) activities and ACTA. I note that a
        consolidated negotiating draft text of ACTA has since been
        publicly released, and is already the subject of active public
        Your letter covers a range of substantial legal, policy and
        institutional questions; for reasons I explain below, it will
        not be possible for me to address all of these in detail, but I
        am pleased to have the opportunity to inform you on the work and
        procedures of the WTO in the field of IP. 
        Let me deal, firstly, with some of the specific requests you
        have made. You will appreciate that I and the WTO Secretariat
        are in no position to provide authoritative comments on ACTA or
        its negotiating process. The WTO as such has no role in the ACTA
        negotiations, and has not been given any mandate to participate
        in any way. ACTA is being pursued by a subset of WTO Members who
        have elected to negotiating among themselves certain standards
        on the enforcement of IP beyond the agreed level set out in the
        WTO Agreement on Trade-Related Aspects of Intellectual Pmperty
        Rights (TRIPS). This is a matter between the negotiating
        parties. I would only note that this, in itself, is not
        precluded by TRIPS, which allows members to establish levels of
        protection more extensive than those it prescribes, provided
        they do not contravene the TRIPS Agreement (Article 1.1). 
        Similarly, we cannot provide any definitive analysis of the
        relationship of other legal instruments with WTO Agreements. In
        general, the clarification and resolution of legal issues within
        the WTO legal system are not undertaken by the WTO Secretariat
        itself. WTO agreements, including the TRIPS Agreement, can only
        be interpreted in an authoritative manner by WTO Members
        themselves - collectively through the competent WTO bodies - or
        by WTO dispute settlement bodies and the WTO Appellate Body.
        These well defined roles limit my capacity to offer a definitive
        answer to some of the specific questions you have raised
        relating to TRIPS norms and flexibilities.
        Equally, the WTO Secretariat, as such, cannot volunteer on its
        part to undertake an impact assessment on the relationship of
        ACTA with the TRIPS Agreement, nor to undertake a technical
        assessment of the need for new global norms and institutions as
        may be proposed under ACTA. As a Secretariat of an
        inter-governmental organisation, responsible to WTO Members, we
        are not mandated to undertake such work unless our Members
        direct us to. This is a basic institutional and legal matter
        concerning how the WTO functions as an organization, its
        established governance structures, and the legal and technical
        responsibilities of its different components. 
        Nonetheless, I am able to offer some general background on the
        TRIPS Agreement as it relates to IP enforcement, and the related
        work undertaken within the WTO on IP enforcement. Within the
        package of trade law agreements that constitute the WTO legal
        system, the TRIPS Agreement is the chief multilateral standard
        on measures for the enforcement of intellectual property. TRIPS
        builds upon the core multilateral conventions on IP administered
        by the World Intellectual Property Organization (WIPO). In line
        with a bilateral agreement between the organization, the WTO
        cooperates with WIPO on a range of practical capacity building
        activities and the management of collections of legal texts, and
        these activities include both technical assistance and
        management of legal texts relating to IP enforcement.
        In the field of enforcement, TRIPS provides for measures at the
        national level which seek to balance the legitimate interests of
        IP right holders in ensuring effective enforcement of rights,
        with other legitimate interests. In brief compass, the TRIPS
        standards provide for enforcement procedures that are fair and
        equitable, and permit effective action and expeditious remedies.
        They require that enforcement measures be procedurally sound,
        with safeguards for the interests of right holders together with
        safeguards against barriers to legitimate trade and abuse of
        enforcement measures. TRIPS also identifies the need for
        international cooperation on IP enforcement, and establishes a
        network of contact points to facilitate this cooperation.
        The TRIPS Agreement also provides for transparency mechanisms,
        including a requirement for the publication of laws,
        regulations, judicial and administrative rulings, and
        intergovernmental agreements relating to the subject matter of
        TRIPS. WTO Members are also obliged to notify their relevant
        laws and regulations to a WTO body, the TRIPS Council, which
        reviews national systems, through a peer review process
        involving all WTO Members. In the field of enforcement, this
        process has led to a detailed review of the IP enforcement
        measures of over 120 WTO Members. 
        This transparency and review process included the development a
        checklist of issues on enforcement (IP/C/5), an exercise
        launched by a Decision of the Council on 21 November 1995, which
        has yielded extensive information on the enforcement mechanisms
        of some 100 WTO Members. This mechanism serves not only as a
        means of promoting transparency and dialogue about national
        enforcement systems, but also as a means of objectively
        surveying the range of policy and legal choices on taken by a
        wide cross section of countries within the general framework
        established by TRIPS.This material - the notifications of laws,
        checklists on enforcement systems, and full reports of
        discussions by WTO Members concerning enforcement - is all
        publicly available on the WTO website.
        This extensive review of national enforcement measures has been
        the principal work of the WTO on enforcement of IP undertaken
        since the TRIPS Agreement came into effect in 1995. The WTO is
        not undertaking any norm-setting activity or negotiations
        directly relating to enforcement of IP, and none is currently
        foreseen. At successive meetings between 2005 and 2007, several
        proposals were tabled for the TRIPS Council to take up the
        question of enforcement (such as those of the European Union:
        see, for instance, WTO documents IP/C/W/448, 468 and 471). The
        Council did not reach any decision on these proposals. Most
        recently, several Members raised in the TRIPS Council the
        question of enforcement measures affecting pharmaceutical
        products in transit through the European Union.
        The full minutes of the TRIPS Council, which are posted on the
        WTO website for public access, give a complete account of the
        discussions of that body touching on enforcement issues,
        including discussion of the proposals tabled by WTO Members and
        the most recent discussion of the transit question. Brief
        references can also be found in successive WTO Annual Reports.
        Finally, you have mentioned certain institutional questions. We
        are not aware of any firm proposals that would entail a specific
        role for the WTO in the context of the conclusion or
        implementation of ACTA or any other similar instrument, and have
        not been approached to undertake such a role. In any event, any
        such role could not be assumed by the WTO without a decision by
        its entire Membership. Once again, any specific analysis on our
        part of possible institutional linkages would need to follow a
        direct request on the part of our Members.
        I do appreciate that this response does not fully cover all the
        questions of interest to you, but I trust that it helps to
        clarify the nature and the role of the WTO, including the
        limitations we work within as a Secretariat, that it may
        facilitate discussion of the issues you have raised. I do
        welcome the willingness you have expressed to engage ill further
        dialogue on these issues, and thank you again for drawing our
        attention to the recent deliberations of the European
        Parliament. I myself and my colleagues in the WTO Intellectual
        Property Division (Director of the Division, Mr. Antony Taubman
        (antony.taubman at wto.org [3]) would be pleased to assist you with
        access to any of the documentation I have mentioned in this
        letter, and any further queries you may have in this regard in
        the interest of full transparency.
        Yours sincerely,
        Pascal Lamy
[3] mailto:antony.taubman at wto.org

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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