[Ip-health] IP Watch: Civil Society Fights For Participation As ACTA Counter To WIPO Rises

Judit Rius Sanjuan judit.rius at keionline.org
Fri Sep 24 08:29:05 PDT 2010

Civil Society Fights For Participation As ACTA Counter To WIPO Rises
By Kaitlin Mara

Source http://www.ip-watch.org/weblog/2010/09/24/civil-society-fights-for-participation-as-acta-counterpoint-to-wipo-rises/?utm_source=post&utm_medium=email&utm_campaign=alerts

Intellectual Property Watch
24 September 2010

A new rival to the World Intellectual Property Organization is being created away from the tempering effect of public scrutiny, which could result in limits on the free movement of knowledge or products subject to IP rights, a civil society representative said yesterday.

This secrecy has allowed Anti-Counterfeiting Trade Agreement (ACTA) negotiators to misrepresent the contents of the draft text, and prevented the transparency necessary to ensure that the agreement is not detrimental to the public interest, James Love, director of consumer advocacy group Knowledge Ecology International (KEI), told journalists at a 23 September press conference.

Leaked draft documents and the resultant public outcry around certain worrisome provisions – provisions that critics say threaten public health and access to knowledge, such as ex officio enforcement of IP rights by customs officials – have already resulted in some changes to the text. But efforts to maintain secrecy continue, he said.

The latest round of ACTA negotiations is currently taking place in Japan from 23 September to 1 October. It is meant to be the final round of negotiations. The agenda of the meeting is available here (via Michael Geist). The latest draft copy of the text obtained by KEI is available here [pdf].

In an unusual move for international trade negotiations, there are no scheduled press briefings and was no clear contact person for the press covering the ACTA negotiations, which involves nearly 40 countries. International press agencies have formally complained about the absence of information about the large-scale negotiations, including through a letter from the Association of Correspondents Accredited to the UN in Geneva (ACANU) after being shut out of a round of talks that took place in Lucerne, Switzerland in June. Meanwhile, most press rely on leaked copies of the draft text and indirect reports on progress. Meetings earlier this month in Washington, DC also were closed.

In a potential breakthrough at presstime, Intellectual Property Watch had a brief email exchange with Yoshihiro Takeda of the Ministry of Foreign Affairs Intellectual Property Affairs Division, who said they would call at some point in the ongoing talks.

US ‘Weak Narrative’ Might Push ACTA Through

Determined to reach an agreement before mid-term congressional elections in November, the United States may end up caving to demands of the European Union on certain issues, Love said. For example, the United States has now taken the position that they want patents out of ACTA, a change from their stance in January, Love said. This is because of mounting criticism and also inconsistency with United States law, he added. But the European Union still wants patents in the treaty, Love said.

The Obama administration has a “weak narrative” on what they are doing to protect American jobs, and IP has been linked by industry to boosting the economy. “The US is very focussed on having a photo op after Japan so they can tell the voters they are protecting their jobs,” said Love.

And an issue of geographical indications, or product names associated with a particular place and characteristics, may not be the deal-breaker some anti-ACTA activists have been hoping for, Love said.

EU negotiators have said geographical indications must be a part of the agreement, but the US has not been keen to include them. However, it does not appear ACTA will deal with the underlying recognition of a GI right, only the enforcement right once a GI is already recognised, Love said. So the United States can find language that will allow the EU to have a victory on the GI front without actually changing anything, he said.

The Trouble with Transparency

Ideologically driven people in the ACTA negotiations are there to represent copyright owners and people worried about piracy, said Love. Despite being considered top-secret by the US government, the text is shared between all negotiators and hundreds of approved industry representatives. Who it is really being kept from is critics of the agreement, public health groups and the general public, journalists, and academics, he said.

Even when NGOs have managed to secure a meeting with ACTA negotiators, they have often been at short notice and off the record. The US Trade Representative refused on record meetings, and would often announce one 72 hours before the meeting.

This week, email exchanges between the Japanese Ministry of Foreign Affairs and KEI, the European Green Party, and an American University law professor – revealed a similar tendency.

Sean Flynn, associate director of the Program on Information Justice and Intellectual Property at American University Washington College of Law, said in a blog post that he was told on 21 September that there would be a meeting held at noon on 24 September. The dates of the negotiation itself were only revealed publicly on the late afternoon of 20 September, he added.

It is “hard to conclude other than that the negotiators of the Anti-Counterfeiting Trade Agreement … do not want meaningful civil society input into the negotiation of the agreement,” Flynn said.

Malini Aisola of KEI, Flynn, and several European Green Party members of Parliament sent emails to Takeda asking that there be a meeting later in the negotiation to allow civil society groups time to get there and to meet with high-level negotiators arriving next week.

“ACTA negotiating parties share the intention to promote transparency and we are to discuss any ways to promote the transparency of ACTA negotiations,” Takada answered the European Greens, but added for “practical organisational considerations” there could not be a later meeting.

Continuing Content Worries

Meanwhile, public interest groups have concerns that they believe could be addressed without contention if their views could get to negotiators.

“I think ACTA was set up because human rights groups and civil society had become much more active” at other multilateral fora, said Love, adding that, if agreed, ACTA would actually result in the creation of a rival body to WIPO, set up to do technical assistance, and have the power to amend the agreement.

Several areas still continue to worry civil society observers of the ACTA negotiations. One is the possibility of including patents in general enforcement measures, or – less likely – as part of border measures, Love said. Patent enforcement at the border is a worry because similar European regulations caused delays in shipments of generic medicines.

“Numerous times we’ve had people tell us the access to medicines problem is solved because patents are out [of the agreement], and it’s just not true,” Love said.

In the most recent version of the text, intellectual property is defined as “all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the [World Trade Organization] Agreement on Trade-Related Aspects of Intellectual Property Rights.”

These sections of TRIPS encompass not only copyright and trademarks, but also geographical indications, industrial designs, patents (including plant breeders rights), layout-designs of circuits, and protection of undisclosed information. So while “patents” may not appear in the text, they are implicated each time “intellectual property” is mentioned.

There are also 18 places where the words “at least” are used in the draft ACTA agreement, said Love, which he said could allow ACTA-plus provisions to be asked for in bilateral and regional agreements.

William New contributed to this report.

Judit Rius Sanjuan
Knowledge Ecology International (KEI)
NYC Phone: 212 222 5180
Washington DC Phone: 202 332 2670

More information about the Ip-health mailing list