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Consultation Paper on Governance

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Consultation Paper on Governance MEMORANDUM To All IFRRO Members From General Counsel Re Anti-Counterfeiting Trade Agreement (ACTA) Negotiations Date 05 March 2010 Negotiations on an Anti-Counterfeiting Trade Agreement (ACTA) have been ongoing behind closed doors over the past two years. The talks, in which the US, the EU, Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates are involved, are intended to establish agreed standards for the enforcement of intellectual property rights that address today’s challenges. The 8th round of the negotiations is scheduled to take place in Wellington, New Zealand on 12-16 April 2010. Further discussions should be monitored, as far as possible, closely. The European Commission’s Directorate General for Trade (DG Trade) is organising a meeting on 22 March 2010 to inform and consult interested parties about the negotiation of a plurilateral ACTA. Aims of the ACTA negotiations According to the European Commission’s summary of the key elements under discussion in the on-going ACTA negotiations1, jointly issued by the ACTA negotiating partners, the ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy; more specifically: by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights and strengthening relevant enforcement measures. The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens. ACTA builds on existing international rules in the area of intellectual property, in particular on the TRIPS Agreement, and is intended to address a number of enforcement issues where participants have identified that an international legal framework does not exist or needs to be strengthened.2 Countries involved in the ACTA negotiations ACTA talks have been going on since two years between the US, the EU, Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates. 1 http://trade.ec.europa.eu/doclib/docs/2009/november/tradoc_145271.pdf (page 2) 2 In a Commission Q&A document it is stated that the EU fully supports the important work of G8, WTO and WIPO, but that the “membership and priorities simply are not the most conducive to this kind of path breaking project” (http://trade.ec.europa.eu/doclib/docs/2009/january/tradoc_142040.pdf, page 3). 1 Confidentiality of the ACTA negotiations So far, the talks, which are supposed to be finalised by the end of 2010, have been held under strict confidentiality (even though some documents have leaked to the public). Many stakeholders have shown their interest in receiving further information and have requested that the draft text should be disclosed. The parties have argued that it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation.3 After the latest round in Mexico, the participants issued only a bland communiqué saying, among other things, that: “The discussions at the meeting were productive and focused on civil enforcement, border enforcement and enforcement of rights in the digital environment. Recalling their shared view of the importance of providing opportunities for meaningful public input, the participants reaffirmed their commitment to intensify their respective efforts to provide such opportunities and collectively enhance transparency.” 4 Draft structure of the ACTA agreement The draft structure of the agreement has been provided on the European Commission’s website, including a few further details5: 1. Chapter one: initial provisions and definitions 2. Chapter two: legal framework for enforcement of intellectual property rights i. Civil enforcement ii. Border measures iii. Criminal enforcement iv. Intellectual property rights enforcement in the digital environment6 3. Chapter three: international cooperation 4. Chapter four: enforcement practices 5. Chapter five: institutional arrangements 6. Chapter six: final provisions The European Commission has also drafted a factsheet, updated in November 2008.7 The European Commission’s viewpoint European Commission officials involved in negotiating ACTA on behalf of the EU insist that the text being discussed does not contradict existing EU laws, claiming that the EU does not want to make a “three strikes” rule obligatory through the ACTA treaty. The preparedness to regulate enforcement issues more than previously has also been addressed by Commissioner for DG Internal Market, Michel Barnier, during his hearing vis-à-vis the European Parliament on 13 January 2010, when he stated that he 3 http://trade.ec.europa.eu/doclib/docs/2009/november/tradoc_145271.pdf (page 1) 4 http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/7-negotiation-7- negociation.aspx 5 http://trade.ec.europa.eu/doclib/docs/2009/november/tradoc_145271.pdf (pages 2-6) 6 http://ec.europa.eu/trade/creating-opportunities/trade-topics/intellectual-property/anti-counterfeiting/ 7 See also http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_140836.11.08.pdf. 2 would like to engage in talks on the proposed plurilateral ACTA in order to combine efforts against counterfeiting and piracy. The European Commission’s DG Trade is organising a meeting on 22 March 2010 to inform and consult interested parties about the negotiations regarding ACTA. The European Parliament’s viewpoint The European Parliament is preparing to assume its newly increased role in ACTA negotiations with several requests to the EU Commission underway. In its Resolution of 9 February 2010 on a Framework Agreement with the Commission8, Parliament demands immediate and full information at every stage of negotiations on international agreements, in particular on trade matters and other negotiations involving the consent procedure, to give full effect to Article 218 TFEU. Parliament has on various occasions called on the European Commission and Council to ensure the widest possible access to ACTA documents, notably in its reports of 18 December 2008 (Susta Report9) and 11 March 2009 (Cashman Report10). According to the new Lisbon Treaty, Parliament has to agree to ACTA. However, the Parliament will not have full co-legislative powers over ACTA, as it would for draft EU legislation on IPR enforcement. Instead, it will only be able to approve or reject what has been agreed. In the Q&A document prepared by the European Commission11, it is highlighted that ACTA will not go further than the current Community acquis on IPR enforcement, which does not limit fundamental rights and freedoms or civil liberties, such as the protection of personal data.12 Swedish Pirate Party MEP Christian Engström asked whether the cut-offs are still part of the EU acquis. Apart from that, German Liberal Democrat MEP Alexander Alvaro’s request is pending before the Commission. Alvaro asked why issues other than counterfeiting were addressed at all, and why – if substantive changes of IP law were intended – this was not discussed at the WIPO, and what the benefit of an agreement would be that would bring no changed responsibilities to the negotiating partners.13 Against this background, the Parliament (Committee on Internal Trade) held a hearing on ACTA on 23 February 201014, albeit without any clear answers from the European Commission’s side15. Also, on 9 March 2010, the European Parliament will hold a debate, which may be closed with a resolution, on oral questions16 to the Commission on the ACTA.17 8 http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2009- 0009&language=EN 9 http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008- 0634&language=EN, paragraphs 14 and 28 10 http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009- 0114&language=EN , paragraph 26 11 http://trade.ec.europa.eu/doclib/docs/2009/january/tradoc_142040.pdf 12 http://trade.ec.europa.eu/doclib/docs/2009/january/tradoc_142040.pdf (page 1) 13 http://www.ip-watch.org/weblog/2010/02/18/acta-negotiators-maximal-protection-proposals- unlikely-in-final-text/. 14 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+COMPARL+INTA-OJ- 20100223-1+01+DOC+XML+V0//EN&language=FR 15 http://www.iptegrity.com/index.php?option=com_content&task=view&id=472&Itemid=9 16 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+OQ+O-2010- 0026+0+DOC+XML+V0//EN&language=EN 17 http://www.europarl.europa.eu/oeil/file.jsp?id=5843502&language=en&mailer=true 3 Leaks from the negotiations on ACTA In a series of leaks of confidential information from the negotiations, the parties are, reportedly, also drawing up rules designed to go ahead against copyright abuse on the Internet, in part by making ISPs liable for illegal content, according to a copy of a part of the confidential draft agreement seen by IDG News Service18. According to this information, to avoid being sued, the ISP would have to prove that it took action to prevent the copyright abuse. In a footnote19, the draft text gives an example of the sort of policy ISPs would need to adopt to avoid being sued by content owners: “An example of such a policy is providing for the termination
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