[Ip-health] IP/C/M/64: WTO minutes of 26-27 October 2010 TRIPS Council Session (discussion of ACTA)

Thirukumaran Balasubramaniam thiru at keionline.org
Sun Jun 12 14:14:21 PDT 2011


"(iii)	IP enforcement trends 

440.	The Chairman recalled that the delegations of India and Indonesia had indicated that they wished to raise under "Other Business" the issue of IP enforcement trends.

441.	The representative of India recalled that, at the Council's meeting in June 2010, China and India had requested the inclusion of an agenda item on "TRIPS-plus Enforcement Trends" to highlight the systemic implication of the multiple TRIPS-plus initiatives launched by a group of developed country Members.  The ensuing discussions had demonstrated that the concerns regarding TRIPS-plus enforcement were not those of China and India alone, but were echoed by a vast majority of developing countries, including LDCs.  He had requested for a discussion on "Enforcement Trends" under agenda item "Other Business" at this meeting due to continuing concerns on the issue of TRIPS-plus enforcement.  He would elaborate a number of systemic and specific concerns over the Anti-Counterfeiting Trade Agreement (ACTA) in particular and TRIPS-plus enforcement trends in general.  His delegation was not sure whether ACTA was in compliance with TRIPS, but would reserve its final position on this question until the text of ACTA was finalized.

442.	After years of negotiations in secrecy, the negotiating text of ACTA had been released due to the pressure of civil society, civil liberty groups and groups of parliamentarians.  The text of 2 October 2010 now available in the public domain contained several elements that had far reaching implications for Members not part of ACTA.  While patents had been removed from the section on "border measures", ACTA remained a plurilateral intellectual property enforcement agreement that was substantially broader than only trademarks and copyrights.  His delegation's concern over the proponents' ambivalence whether to include patents in the section on "civil enforcement", as well as in the overall scope of the agreement, was further aggravated by the fact that "in-transit" goods was otherwise included in the overall scope of the Agreement.  There was no general assurance that border measures shall not apply to goods "in-transit", in "customs transit" and in "transhipment".  Damages and injunctions, as well as provisions for seizures, forfeiture and destruction, continued to be applicable to certain patent infringements.  Trademarks and copyright were covered under border measures.  There remained provisions with significant implications for trade in legitimate generics, including those dealing with labelling which could affect the practice of parallel importation, as well as the importation of legitimate generics more generally.  Although border measures regarding patent-infringing goods, including those in transit, appeared to be excluded from the scope of the Agreement, there remained in ACTA provisions that could otherwise provide the basis for seizures of legitimate generic drug consignments.  His delegation noted with interest that European ACTA negotiators appeared to be suggesting that non-EU countries granted rights with respect to goods in transit that its own Court of Justice had expressly denied to EU customs authorities.

443.	He said that the civil enforcement section continued to include patents.  It encouraged significant damage awards, e.g., damages based on "suggested retail price" of goods;  valuation and lost profit presumptions in favor of right holders which represented an inflated damages basis.  That section also extended injunctions to third parties not directly accused of infringement and contained no time limitations for determinations or for notice to accused infringers.  The United States appeared to have proposed the exclusion of patents from the civil enforcement section.  India presumed this was because the US negotiators had recognized that the provisions of that section were inconsistent with the US patent law, and would adversely prejudge the outcome of patent reform legislation in its Congress. 

444.	With respect to systemic concerns he said that, first and foremost, ACTA completely bypassed existing multilateral processes, in particular those provided by the WTO and WIPO.  ACTA scaled up the minimum enforcement level enshrined in the TRIPS Agreement.  The floor and ceiling in the TRIPS Agreement conformed to a certain balance encapsulated in the objectives and principles of the TRIPS Agreement. The MFN provisions of the TRIPS Agreement meant that any TRIPS-plus protection secured by one trading partner in a regional or a plurilateral trade agreement was ipso facto applicable to imports from all WTO Members.  Therefore, ACTA would have a direct impact on exports, even of Members which were not involved in ACTA negotiations.  The trade restrictive effects of such scaling up was contrary to one of the main principles of the WTO rules based system, which was to liberalize trade.  While GATT and GATS provided for bilateral and multilateral derogations under Articles XXIV and V respectively, there was only a limited derogation from MFN in the TRIPS Agreement that did not apply to new agreements.  Members might therefore not be allowed to agree on higher enforcement levels since such levels would impinge on the rights and obligations of Members not party to the plurilateral negotiations.

445.	He said that while Article 1.1 of ACTA recognized that parties would not derogate from obligations under existing agreements, including the TRIPS Agreement, there was no explicit obligation regarding GATT provisions.  India had raised the issue of a violation of GATT Articles V and X in the request for consultations regarding the drug seizure issue.  TRIPS-plus enforcement initiatives in general and ACTA in particular could lead to serious trade distortions by creating barriers to legitimate trade in contravention of Article 41 of the TRIPS Agreement.  Given that ACTA members accounted for about 70% of world trade, ACTA provisions could undermine trade liberalization at a time when there were already several threats to the multilateral trading system in the form of trade protectionist measures in the wake of the economic crisis and simmering currency issues.  He said that ACTA negotiators had decided among themselves to overturn the decision of the WTO dispute settlement panel in the recent China-IPRs case by reinterpreting the phrase "commercial scale" with respect to wilful trademark counterfeiting and copyright piracy so as to refer to any activity carried out for a direct or indirect economic or commercial advantage.  This was startling in light of the WTO panel's contrary decision that the term "scale" referred to a level or magnitude of an activity, and it highlighted the risk posed to WTO law by turning enforcement matters over to small groups of plurilateral negotiators operating outside the WTO legal framework.  

446.	He said that ACTA would substantially increase customs authorities' ex officio activity in enforcing intellectual property rights, meaning that the public would be paying more for enforcement of intellectual property rights of originator pharmaceutical industries.  The draft ACTA limited the protection otherwise available to accused infringers under the TRIPS Agreement by potentially lowering knowledge thresholds, limiting due process requirements, e.g., requirements to act within particular time frames, limiting evidentiary requirements, and by not specifying the type of authority empowered to make critical decisions.  This shift to summary administrative action might curtail the rights of accused infringers to defend themselves against claims of patent infringement, or of ordinary trademark or copyright infringement which represented a substantial departure from the enforcement concept under the TRIPS Agreement.  His delegation was also concerned about the setting up of a plurilateral intellectual property enforcement body outside the purview of either WIPO or the WTO, which might undermine the role of the multilateral organizations.  

447.	He said that ACTA contained substantial sections on enforcement in the digital environment.  While the TRIPS Agreement belonged to the pre-digital era, this subject matter was being addressed in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.  His delegation had a direct stake in this issue due to its large and growing software and entertainment industry and it was his view that the best way to act was through existing multilateral processes.  Although ACTA related only to procedure and did not touch on substantive intellectual property law, it was no secret that TRIPS-plus substantive commitments were being actively pursued through RTAs and other means.  Substantive provisions such as limiting the grounds for compulsory licences, data exclusivity, and patent linkage figured in several US FTAs with developing countries.  Therefore, ACTA was part of the multipronged efforts to make substantive and procedural changes in intellectual property law.  

448.	His delegation was concerned that enforcement was seen as divorced from other obligations in the TRIPS Agreement.  Articles 7 and 8 of the TRIPS Agreement bore out a balance of rights and obligations by referring to transfer of technology, socio-economic development, promotion of innovation and access to knowledge.  Enforcement provisions of ACTA could potentially disturb this balance.  While the preamble of ACTA made reference to the Doha Declaration on the TRIPS Agreement and Public Health, the provisions in ACTA pointed to the opposite direction.  The UN Special Rapporteur on the right to health at an event organized by the UN Human Rights Commission on 11 October 2010 had given concrete examples of TRIPS-plus measures highlighting the adverse impact of such measures on access to medicines for one-third of humanity. 

449.	While India was committed to dealing with intellectual property enforcement issues in line with its TRIPS obligations, it did not view the introduction of intrusive intellectual property enforcement rules in international trade as a reasonable or realistic response.  Agreements such as ACTA had the potential to upset the balance of rights and obligations of the TRIPS Agreement. They could also undermine multilateral decisions such as the Doha Declaration on the TRIPS Agreement and Public Health in the WTO and the Development Agenda in WIPO.  Any enforcement response, if required, had to emerge from a multilateral and transparent process, as was available in the WTO TRIPS Council, and should conform to the objectives and principles of the TRIPS Agreement and the balance of rights and obligations enshrined in the TRIPS Agreement.  As goods and services of developing countries were becoming competitive with those of developed country producers, TRIPS plus measures, like ACTA, sought to introduce a new set of non-tariff barriers to trade that could hinder developing country exporters, and it was his delegation's view that the WTO could not remain oblivious to such developments.  

450.	In conclusion, he reiterated India's unwavering commitment to the TRIPS Agreement, including dealing with counterfeiting and piracy.  To find an effective and enduring solution to the problem, Members needed to step back from a purely mercantilist approach and needed to avoid exaggerating the issue of counterfeiting and piracy in view of the lack of empirical data.  Even the US Government Accountability Office (GAO) had recently raised serious questions concerning the data that had been relied on by proponents of ACTA to support their efforts.  Members needed to work collectively to create respect for intellectual property and to reduce economic incentives for counterfeiting and piracy by judicious pricing of intellectual property products and working collectively towards realizing the objectives of the TRIPS Agreement. 

451.	The representative of Brazil said that, according to press releases circulated in the first week of October 2010, the negotiating process of ACTA had virtually been concluded.  A few points still remained open but these points would not prevent a final agreement from being reached, according to the statements released by authorities from the countries participating in the ACTA negotiations.  He shared the concerns expressed by other Members on the possible negative impact of ACTA, and said that ACTA might affect the balance of rights and obligations embodied in the international intellectual property system between rights holders and users of protected goods and services.  Brazil favoured multilateralism and multilateral solutions in legitimate multilateral fora, such as the WTO and WIPO, whose deliberations were not only open to more than 150 member countries, but were also conducted in as transparent a way as possible, including also representatives from civil society and NGOs.  ACTA proposed only one remedy against counterfeiting and piracy, and that remedy was repression.  Repression was necessary, but was not enough to combat a problem that resulted from the interplay of factors that were found in different economic and social realities.  As victims of piracy and counterfeiting, Brazil knew from direct experience that repression alone was not a substitute for a much-needed integrated approach to dealing with this complex problem.  He said that certain provisions in the ACTA draft text of 6 October might be interpreted as creating the seeds of a new international unit or organization.  Chapter 4 contained elements of international cooperation and capacity building that were not restricted to ACTA members, but extended to other international organizations, including the private sector and prospective member countries.  Chapter 5 created a secretariat for ACTA.   Chapter 6 foresaw that any WTO Member country would be allowed to negotiate its "terms of accession" and become a party to ACTA.  Taken together, chapters 4, 5 and 6 contained the necessary ingredients that might convert ACTA into a truly international organization dealing with the enforcement of intellectual property rights, whose impact on WIPO and the WTO, especially on capacity building and technical assistance, was unpredictable at this stage.

452.	The representative of Argentina said that she shared the concerns expressed by Brazil, India and China that ACTA could upset the balance enshrined in the TRIPS Agreement and erode its flexibilities.

453.	The representative of Indonesia said that his delegation supported the agenda item on "IPR Enforcement Trends" in the TRIPS Council, discussion of which was timely and necessary given the latest developments in IPR enforcement trends in the global trade context.  He said that although it was argued that the ACTA initiative was solely plurilateral in nature and therefore did not require interventions by non-parties, this initiative had the potential to undermine existing global rules, and in particular the TRIPS Agreement.  The ACTA initiative had failed to keep within the TRIPS standards and thus undermined the safeguards provided by the TRIPS Agreement.  

454.	He said that the most problematic part of ACTA was the chapter on "Legal Framework for Enforcement of Intellectual Property Rights".  The issues regarding civil enforcement, border measures, criminal enforcement and internet provisions all had intrinsic problems, and therefore merited further clarification.  The need to illustrate the negative impact on Members who were not parties to the agreement was a case in point.  The concerns outlined above were not just held by WTO Members.  In July 2010, a number of international civil society groups had formulated the Berkeley Declaration on Intellectual Property Enforcement and Access to Medicines, which expressed a deep concern on the ACTA initiative and called for its termination on the basis of its weak substance on legal enforcement practices as well as its exclusive processes.  The Declaration also demanded rejection of developing and least-developed countries involvement in the ACTA initiative, citing concerns about the negative impact on access to generic medicines.  He urged WTO Members to refrain from supporting this TRIPS-plus initiative as it could create a new type of non-tariff barrier, particularly for developing and least-developed country Members.  Implementing the TRIPS Agreement, let alone the process of gaining benefits from it, was already a challenge for some Members.  He hoped that WTO Members would first aim to establish a more balanced intellectual property system which was beneficial to developing and least-developed country Members.  Poor countries were still striving for equal and fair implementation of the intellectual property system and for ways to ensure that intellectual property would assist in their economic development, which was a sine-qua-non for WTO Members in order to proceed further.

455.	The representative of South Africa said that Members' enforcement obligations of intellectual property rights were outlined in Article 41 of the TRIPS Agreement, which stated that Members shall ensure that enforcement procedures as specified in this part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.  These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.  South Africa had enacted its Counterfeit Goods Act in 1997, which was in line with the minimum standards required by TRIPS.  

456.	He said that the standards required in ACTA lay far above these minimum standards.  While the TRIPS Agreement required criminal enforcement provisions only for wilful trademark and copyright infringement on a commercial scale, ACTA expanded the definition of commercial scale to potentially incriminate the non-commercial use of allegedly infringing goods or services.  He said that ACTA contained a proposal to define "commercial scale" to include activities that had no direct or indirect motivation of financial gain.  ACTA also extended criminal enforcement measures to cases of wilful use of labels or packaging to which a mark had been applied that was identical to a registered trademark or which could not be distinguished from a trademark in its essential aspects.  This could also apply to legitimate business without any intent of deceiving consumers.  For instance, labels of generic medicines were made similar to branded medicines and used the same words for giving information about active ingredients, warnings and indications.  

457.	ACTA required parties to empower their judicial authorities to issue injunctions against an infringer of any intellectual property rights.  However, it did not make an exception from injunctive relief for cases of innocent infringement by a person who acquired or ordered the protected subject matter prior to knowing or having reasonable grounds to know that they were involved in the infringement.  This was an important exception to injunctive relief for intellectual property infringement that was available under Article 44.1 of the TRIPS Agreement.  Thus, by signing on to ACTA, a country would not be able to use this exception provided for in the TRIPS Agreement.  Not only did ACTA undermine the exceptions to injunctions that were permitted under the TRIPS Agreement, it also expanded the scope of injunctive relief beyond the TRIPS Agreement to intermediaries.  Under ACTA, Parties must ensure that right holders could apply for injunctions against infringing intermediaries whose services were used by a third party to infringe an intellectual property.  The word "intermediaries" was not defined and could be applied to a broad spectrum of intermediaries involved in providing an intellectual property protected service, or in producing or distributing intellectual property protected goods.  This could apply to generic drug producers and suppliers, internet service providers (ISPs), libraries, universities and schools.  

458.	He said that ACTA expanded the scope of damages that might be awarded in civil enforcement proceedings, such as injunctions, to innocent infringers.  This undermined the exceptions available for innocent acts of infringement under Article 45.1 of the TRIPS Agreement.  ACTA also stated that in determining the amount of damages for intellectual property infringement, judicial authorities shall consider "any legitimate measure of value submitted by the right holder, which might include lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price, or the profits of the infringer that are attributable to the infringement".  Another crucial departure from the TRIPS Agreement was that, in the ACTA section on civil enforcement, there was no provision on indemnification of the defendant against abuse of the enforcement proceedings as available under Article 48 of the TRIPS Agreement.  Hence, while ACTA expanded the scope of enforcement proceedings that might be used by the right holder, it provided no safeguard indemnifying the defendant against abuse of such proceedings.  Rather, innocent infringers and third parties were brought within the ambit of enforcement actions.

459.	The representative of China said that excessive or unreasonably high standards for intellectual property protection could unfairly increase monopolistic profits of right holders, eating into the consumer surplus and further broadening the gap between the rich and the poor in the world.  Article 7 of the TRIPS Agreement stressed the importance of a balance between right holders and users, and Article 8 emphasized the prevention of intellectual property abuses and unreasonable obstacles to trade and technology transfer.  The TRIPS Agreement also provided for special and differential treatment and other flexibilities for developing countries.  As ACTA did not have any multilateral WTO mandate, any negative spill-over effects of ACTA on WTO Members which were, in their majority, not party to ACTA would not only be subject to review in various WTO councils and committees, but also subject to the WTO dispute settlement mechanism and possible counter measures in accordance with the DSU, the TRIPS Agreement, GATT, GATS, and other WTO Agreements.  It was therefore worth examining the consistency and compatibility between ACTA and the WTO legal framework; whether it encroached on rights and flexibilities or added to obligations of WTO Members, especially in the light of G20 and APEC leaders' continuous call on the prevention of new trade protectionist measures.  In this connection, WTO Members' concerns over the poor record on the transparency of the ACTA negotiations were pertinent. 

460.	The representative of the United States said that his delegation and others had been interested in discussing the issue of intellectual property enforcement in the TRIPS Council for many years.  Counterfeiting and piracy continued to negatively impact states and companies, and increasingly affected the everyday life of citizens.  He said that, besides the often-copied luxury goods and blockbuster movies, counterfeiters and pirates were now taking liberties with common household articles – everything from home appliances to toothpaste.  From the perspective of public and consumer health and safety, the appearance of counterfeit medicines and items, such as counterfeit spare parts for cars, buses, and planes posed a threat that could not be ignored.  

461.	He said that the 11th and final round of the negotiations of ACTA had been held in Tokyo from 23 September to 2 October 2010.  Thereafter, negotiators had released the almost final draft text that included the highest standards for enforcement of intellectual property rights ever achieved in an agreement with such broad and widespread participation.  The current text was available on the USTR website, as well as the websites of the other negotiating partners.  There were still a small number of outstanding issues that participants were working to resolve expeditiously with a view to finalizing the text of the agreement as quickly as possible.  The draft agreement would undergo final legal review and be released to the public again before the participants sign it.  Each signatory would then pursue its relevant procedures for approval and the agreement would enter into force after six signatories deposited their acceptance of ACTA.  The diverse participants in the negotiations were Australia, Canada, the European Union represented by the European Commission and the EU Presidency (Belgium) and the EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States.  ACTA included provisions allowing other WTO Members to apply for accession after a specified period.  He welcomed all Members who were interested in enhancing IPR enforcement to consider joining the agreement, and also welcomed the opportunity to discuss that possibility with any Member that was interested in enhancing enforcement of IPRs.

462.	He said that the goal of ACTA was to establish a state-of-the-art international framework that provided a model for effectively combating the global proliferation of commercial-scale counterfeiting and piracy in the 21st century.  The state-of-the-art framework called for police and border officials to have authority and tools to effectively address large scale infringements such as cargo containers loaded with counterfeit goods to protect the public and preserve markets for distributors of legitimate goods.  These tools would include not only strong laws on the books, but also a network of similarly trained specialized enforcement authorities.  The agreement also included innovative provisions to deepen international cooperation and to promote strong enforcement practices.  

463.	He highlighted a few of the key accomplishments of ACTA.  First, ACTA would generally enable authorities responsible for enforcing criminal laws to act on their own initiative ("ex officio") in context of piracy and counterfeiting cases, rather than waiting for a complaint.  This fixed a gap in existing standards that had sometimes left police and prosecutors powerless to take action against counterfeiters and pirates without a complaint from a right holder.  Second, ACTA would clarify existing international requirements for the availability of criminal penalties when piracy or counterfeiting was carried out for commercial advantage.  Companies that benefited from using pirated products, such as pirated software products, would be exposed to criminal penalties.  This would help deter those companies from stealing copyrighted or trademarked products and using those products to make themselves more competitive.  Third, ACTA would establish new obligations on criminal seizure and destruction of fake goods, seizure of the equipment and materials used in their manufacture, and seizure of the criminal proceeds from piracy and counterfeiting offenses.  This ensured that police and prosecutors would have state-of-the-art tools to crack down on counterfeiters and pirates, and to take away both ill-gotten gains and the tools of illicit trade.  Fourth, ACTA would clarify existing international requirements to protect against circumvention of digital security technologies (such as passwords or encryption).  This protected the ability of legitimate online content providers to create innovative business models for securely distributing movies, games, software, music, and other content to customers.  Fifth, ACTA would require parties to address copyright piracy on digital networks, while preserving principles such as freedom of expression, fair process, and privacy.  ACTA would be the first agreement of its kind to include an obligation to address the scourge of piracy over digital networks, and to do so in a way that respects fundamental values, such as freedom of expression, fair process, and privacy.  Sixth, ACTA would enhance the international framework for civil enforcement provisions dealing with issues such as damages, provisional measures, recovery of costs and attorneys' fees, and destruction of infringing goods.  Private parties would have access to effective civil systems that cracked down on counterfeiters and pirates, and would be able to obtain court orders to stop illegal activity, and to secure meaningful damages to remedy violations of their rights.  ACTA would also be the first agreement of its kind to promote several key best practices that contributed to effective enforcement of intellectual property rights.  He looked forward to continuing discussion on this important issue in the TRIPS Council.  

464.	The representative of Japan said that enforcement was an important part of effective protection of intellectual property rights.  According to Article 1 of the TRIPS Agreement, Members were free to implement in their law more extensive protection than was required by the Agreement so long as such implementation was consistent with the obligations of the WTO agreements including the TRIPS Agreement.  Each Member should decide what kind of IP enforcement system was appropriate for its own territory.   Members were also free to negotiate and conclude bilateral or plurilateral agreements as long as these were consistent with its WTO obligations.  ACTA was consistent with these obligations and would be implemented in such a manner as to avoid the creation of barriers to legitimate trade.  It was therefore not appropriate to criticize ACTA as such, as it was a useful tool to combat counterfeiting and piracy in order to protect legitimate trade without creating barriers for it.  Members already implemented so-called "TRIPS plus" measures, such as border measures for infringing goods destined for exportation, which showed that it was not appropriate to criticize "TRIPS-plus" measures in general.  

465.	The representative of Canada said that the conclusion of the ACTA negotiation represented an important initiative undertaken by like-minded countries to achieve progress on enhancing intellectual property enforcement.  The purpose was to more effectively combat the growing and internationally recognized problems of large-scale trademark counterfeiting and copyright piracy.  Numerous statistics existed, including from the OECD, demonstrating the growth of this illegal activity which undermined legitimate trade, threatened sustainable development of the global economy, and in some cases posed a risk to public health and safety.  

466.	He said that ACTA was consistent with the TRIPS Agreement.  It clearly stated that it would not derogate from any obligation found in the TRIPS Agreement, and that the objectives and principles of the TRIPS Agreement applied mutatis mutandis to ACTA.  Nor did ACTA create or alter rights relating to the protection of intellectual property rights.   Rather it set new standards for the enforcement of existing intellectual property rights which were complementary to those provided in the TRIPS Agreement.  ACTA was in line with what countries already did on enforcement, such as setting a minimum threshold for criminal enforcement of wilful counterfeiting and piracy.  ACTA would not hinder the cross-border transit of legitimate generic medicines, and it was intended to be implemented consistently with the Doha Declaration on TRIPS and Public Health.  ACTA had been negotiated with a view to be inclusive and attract accessions from other countries.  It was designed to be cooperative and mutually beneficial by facilitating information exchange, such as statistical data or best practices, as well as capacity building and technical assistance, where appropriate.  In encouraging higher standards, there was no intention to exclude any country from joining this effort to combat counterfeiting and piracy.

467.	The representative of Australia welcomed the opportunity to discuss enforcement of intellectual property within the TRIPS Council and looked forward to continuing constructive discussions on this topic within this group.  She also welcomed the substantive conclusion of ACTA negotiations.  ACTA was an important initiative to counter the very large and growing international trade in counterfeit and pirated material.  The conclusion of ACTA negotiations sent a positive signal on the outlook for cooperation at the multilateral level on the trade and intellectual property agendas.  She said that her delegation believed that ACTA complemented existing intellectual property enforcement standards, including the TRIPS Agreement.  

468.	The draft ACTA text showed that ACTA negotiating parties had worked hard to achieve a balanced agreement.  ACTA captured important elements of the balance struck in the TRIPS Agreement, for example including the objectives and principles in Articles 7 and 8 and the standards in Articles 41 and 46 of the TRIPS Agreement.  ACTA was not meant to replace any institution, but to complement the work on intellectual property enforcement already being undertaken in numerous organizations, including the WTO.  The preamble of ACTA stated parties' desire for ACTA to operate in a manner mutually supportive of international enforcement work and cooperation conducted within relevant international organizations.  ACTA had been negotiated with a view to attracting a broad membership and Australia welcomed the interest of other WTO Members in the initiative.  Australia would also welcome further opportunities for dialogue on ACTA and its contribution to the global intellectual property enforcement agenda.  

469.	The representative of European Union said that his delegation had a clear preference for dealing with enforcement within the WTO or WIPO.  The European Union had attempted to initiate a debate on intellectual property enforcement in the Council several years ago, as this issue affected both developed and developing country Members.  However, several Members had refused to engage and had objected to any discussion on IP enforcement in the TRIPS Council.  Faced with this refusal to engage, the European Union and others who had shared the same concerns had had to pursue such discussions outside this forum.  

470.	He said that all WTO Members were confronted with the development of trade in IPR infringing goods, which was reflected in an OECD study carried out in 2008.  Intellectual property infringement was a threat to legitimate trade and consumers everywhere, and undermined the sustainable development of the world economy.  ACTA was the beginning of a response to this problem.  ACTA would build upon the existing international framework to more effectively combat counterfeiting activities with a special focus on co-operation among ACTA partners to address the cross-border dimension of trade in IPR infringing products;  best practices among law enforcement agencies;  and establishment of a legal framework of enforcement measures.  Such an agreement was fully in line with the TRIPS Agreement which stated in its Article 1 that "Members may, but shall not be obliged to, implement in their law more extensive protection than is required by the TRIPS Agreement".  Nothing in the TRIPS Agreement prevented Members to go beyond the TRIPS Agreement as long as they complied with their existing obligations.  In fact, in the last 15 years many WTO Members, including the European Union, had done so in their domestic law in full compliance with the TRIPS Agreement.  ACTA, as a catalogue of best practices, put together some of these provisions.  Moreover, ACTA did not create barriers to legitimate trade.  On the contrary, in combating trade in infringing products, ACTA promoted legitimate trade.  

471.	He said that the benefits of ACTA would not be limited to right holders based in ACTA countries, and all right holders would benefit from a comprehensive, efficient and balanced international framework to combat IPR infringements.  ACTA also contained all guarantees regarding respect of fundamental rights such as privacy, freedom of expression and data protection.  As regards medicines, he reiterated the EU commitment to promoting access to medicines in developing countries.  ACTA did not contain any provisions that could directly or indirectly threaten the legitimate trade in generic medicines or, more broadly, global public health.  The ACTA text contained unequivocal language safeguarding access to health consistently with the Doha Declaration on the TRIPS Agreement and Public Health.  Furthermore, ACTA would not hinder the cross-border transit of generic medicines.  In any event, patents would not be covered by border enforcement provisions.  ACTA would not conflict with the WTO dispute settlement mechanism, nor would it create a parallel system.  The issue of commercial scale, which was not defined by the TRIPS Agreement, had to be defined in each country by law and/or jurisprudence.  On this matter, ACTA simply reflected the common understanding among its parties regarding the definition they had established since the TRIPS Agreement had been signed.  The ACTA definition was fully compatible with the TRIPS Agreement and with the panel's decision.  In conclusion, he said that ACTA would help combat more effectively infringing activities among ACTA partners and also hoped that other countries would see the advantages and join as well.  

472.	The representative of Bolivarian Republic of Venezuela said that, given the importance of this issue, the Council should take a decision on whether this discussion should still fall under the agenda item "Other Business".

473.	The representative of Mexico said that Mexico had suffered from counterfeiting and piracy in its new economic sectors such as clothing, tobacco, medical drugs, music, books etc.  A study carried out by the OECD had pointed out that piracy and transport of counterfeiting per year amounted to more than US$205 billion, which had seriously affected developing countries.  As a developing country, Mexico had done its best to combat these illegal practices.  As one of the most open countries to foreign investment and to global trade, Mexico had signed 11 free trade agreements with more than 40 countries, such as the free trade agreements with Canada and the United States (North American Free Trade Agreement), the free trade agreement with the European Union, and the economic complementarity agreement with Japan.  Mexico was a party to ACTA because it was important to have effective border measures to combat counterfeiting and piracy.  The rules and regulations set up in ACTA would ensure better protection of intellectual property rights in ACTA members and would help to establish a homogeneous system for transporters.  At the national level, counterfeiting and piracy would be combatted in an efficient manner. 

474.	The representative of Egypt supported the request made by India and Indonesia for the addition of this item to the agenda.  He said that his delegation regarded the TRIPS Agreement as the international legally binding text on intellectual property enforcement and was therefore concerned about the increasing number of instances relating to TRIPS-plus intellectual property enforcement that negatively affected the flexibilities enshrined in the TRIPS Agreement.  As a result of these TRIPS-plus enforcement trends, there was an erosion of policy space in key public policy areas, including but not limited to public health, food security, and access to knowledge.  These trends had occurred in a manner that distorted and ran counter to the TRIPS Agreement, and were symptomatic of a broader push to instill enforcement provisions globally that were opposed to developing country interests.  These recent trends that were manifest in multilateral, plurilateral and bilateral settings and arrangements were part of a systematic attempt to instill more stringent enforcement norms globally.  

475.	He said that these trends risked to ultimately upsetting the balance of rights and obligations in the TRIPS Agreement as they increasingly led to the creation of barriers to legitimate trade and to instances of abuse.  At the multilateral level, the attempt to introduce TRIPS-plus enforcement trends in intergovernmental organizations, such as the World Customs Organization and the World Health Organization, could run counter to the 2001 Doha Declaration on the TRIPS Agreement and Public Health.  At the plurilateral level, initiatives such as the draft ACTA, focusing squarely on TRIPS-plus enforcement measures had raised a number of concerns.  Fundamentally, there was a lack of transparency and clarity in the process, even for some of the parties involved in the negotiations and their legislatures.  More substantively, there were serious discords between the provisions of the draft ACTA text and the TRIPS Agreement.  For example, ACTA provisions exceeded TRIPS levels and extended border measures beyond exports of goods that violated trademark or copyright and related rights.  At the bilateral level, initiatives, including some economic partnership agreements (EPAs) and free trade agreements, ran counter to the idea that enforcement of IPRs should not create barriers to legitimate trade or instances of abuse, including damage to fundamental public policy priorities such as access to medicines.  These were all worrisome developments that undermined the balance of the international intellectual property system with serious negative impact on development.

476.	The representative of Ecuador said that many countries had launched initiatives of enforcement of intellectual property which had led to developing countries having TRIPS-plus obligations.  Some tried to develop intellectual property enforcement measures not only in the WTO, but also in other fora, such as SECURE at the World Customs Organization and ACTA.  Combating piracy and counterfeiting was a legitimate objective, but rules and actions should be developed in a transparent and democratic manner.  The provisions being proposed in ACTA favoured intellectual property right holders and limited the legitimate rights of consumers and the public.  While the draft ACTA stated that accession was voluntary, there was a danger that the TRIPS-plus provisions would be transferred to developing countries through bilateral and regional free trade agreements.  

477.	He said that WIPO had agreed to establish a development agenda, recommendation 45 of which said that "WIPO should consider the enforcing of intellectual property rights from the perspective of the greatest general interest of society and the objectives of encouraging development".  These principles should guide the framework for enforcement of IPRs.  Developing countries should also be pro-active in dealing with the enforcement issue and other issues of interest to them, especially biopiracy.  Addressing biopiracy was an overdue demand of developing countries rich in biodiversity.  It was unacceptable that while the issues of misappropriation of genetic resources and associated traditional knowledge were inadequately addressed at the international level, some countries sought to increase intellectual property enforcement.  While the definition of biopiracy had not yet been agreed at the international level, this concept was used in the discussion of protection of biological resources against their illegal exploitation.  The biopiracy issue was as legitimate as the issue of counterfeiting and piracy.  IPR enforcement was not an end in itself, but should be understood in the context of the right to development, which could not be compromised.  Discussions should therefore take place in a transparent and democratic manner, in proper fora and within the context of development.

478.	The Chairman said that, given the lateness of the hour, the delegations that had requested the floor could choose to submit their statements to the Secretariat in writing to be included in the record of the meeting.

479.	The following statements were submitted to the Secretariat in writing:

Chinese Taipei

480.	My delegation believes that all Members appreciate the importance of protecting intellectual property rights in the world trade system.  My delegation has always paid close attention to worldwide developments on IPR protection, including the Anti-Counterfeiting Trade Agreement (ACTA).  It seems that many uncertainties and questions in previous version of ACTA have already been clarified in the final version as well as many wordings which had caused great concerns have been softened or diluted.  My delegation wishes to stress that subjects such as the allocation of administrative resources, cost and benefit analysis, free trade market access, and the influence on consumers and traders, should all take into consideration the time when intellectual property rights protection comes into force.  My delegation shall continue to look carefully at this issue to see how it develops.


481.	Colleagues from other ACTA negotiating parties have covered a lot of ground in terms of the substantive aspects of the agreement.  I will thus focus my comments on the value that Singapore sees in participating in the ACTA process:

•	With global trade increasingly driven by innovation, Singapore sees importance in encouraging greater cooperation in protecting intellectual property rights (or IPRs) more effectively.  

•	In this regard, Singapore had entered into the ACTA negotiations on the premise that a robust IPR regime strengthens our economy and is essential to encourage innovation, creativity and the growth of industry and commerce. 
•	As a small country, with strong interests in international trade, Singapore places great importance on a multilateral rules-based system.  In this regard, a key priority for us was to ensure that the enforcement measures in ACTA are consistent with existing international IP agreements and do not create new barriers to trade.  

•	We see the ACTA as strengthening cooperation to better protect the interests of consumers and industries alike.  We believe that ACTA will complement and strengthen the role of the multilateral institutions and their processes as it represents an extension of the intent of existing frameworks.

482.	The Council took note of the statements made. "


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)

thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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