ACTA Negotiators Vow To Mesh With National-Level Rights; Withhold New Text

IP Watch
There was progress during the ninth round of negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) this week in Lucerne, negotiators said over the last day, and in their final press communiqué they made promises that “ACTA will not interfere with a signatory’s ability to respect fundamental rights and liberties,” it would be consistent with World Trade Organization agreements and certainly “not hinder the cross-border transit of legitimate generic medicine.”

But negotiators could not agree to allow the interested public or experts to check how these promises would be phrased, as no new draft ACTA text was released at the meeting’s conclusion yesterday. The final press communiqué is available here.

“We are regretting this,” Jürg Herren, head of legal services, general law in the Division of Legal & International Affairs of the Swiss Federal Institute of Intellectual Property, said after the meeting, seconded by the EU delegation head Luc Devigne. “We were strongly in favour of publishing it,” said Devigne.

Yet one delegation had blocked consensus on this, the two Europeans said. As the group had agreed to proceed on consensus, the negotiators all are bound by this, they said. The next meeting of ACTA will take place in the United States, for some a signal that the US is interested in getting ACTA finished quickly.

Some negotiators said they saw a real acceleration during the last round in Wellington and this Lucerne meeting, and some optimists had expected to come close to the end of the negotiation during the Swiss round. Yamamoto Shinpei, director for intellectual property in the Multilateral Trade System Department of the Japanese Ministry of Economy, Trade and Industry, said finalising ACTA by the end of this year was realistic. While there was still a lot of bracketed text, some sections had been straightened out.

“There is a consensus that patents should not be covered in the border measures and the criminal enforcement section,” said Devigne. While some countries would be satisfied to limit ACTA to counterfeiting and copyright piracy, the EU’s position was to keep patents in there.

The scope issue will only be settled at the very end, said Herren. The inclusion of geographical indications or not is “a deal-breaker,” said Jorge Amigo, director general of the Mexican Institute of Industrial Property (IMPI). Mexico, like Switzerland and the EU, favour the inclusion of geographical indications against the Anglo-American countries. In Mexico, there was even a discussion to adapt the existing legislation on appellation of origin to the geographical indications approach, said Amigo.

Questioned for real steps forward in the still heavily bracketed text, Herren said: “We for example cleared the part on damages a lot.” The chapter now has the various systematic legal approaches covered in a much less complicated manner, he said. For a country like Switzerland, he added, pre-established instead of licence-cost based damages were out of the question. So despite more clarity, all national versions are still in the text, according to information from the negotiators.

Critics like Knowledge Ecology International have warned especially against an upward harmonisation towards high damages. But when asked if the Swiss with the licence-oriented damage-structure were not afraid of an upward spiral once higher damages were an option in ACTA, Herren said: “Such legislative changes could happen outside of ACTA, too.”

This might as well be true for three-strikes internet cut-offs for repeated copyright infringement and additional liability – they become only optional in ACTA and they already happen outside ACTA just now. Japan, independent from ACTA, has been discussing the introduction of the Digital Millennium Copyright Act analogue legislation on technological protection measures. These measures also are part of the ACTA.

ACTA could be used as a reference framework for tightening the measures, critics like Canadian law professor Michael Geist have warned for some time now. European telecommunications operators expressed the same concern recently for their business. “The draft ACTA provisions aim for a minimum set of obligations. A party may implement in its domestic law more extensive protection and enforcement of intellectual property rights,” the telecom operators said in their press release. “Hence, a final ACTA-agreement will not lead to fewer demands for additional measures on national levels, but rather would act as a base for further obligations on ISPs.”

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