ACTA Negotiators Respond To Questions About ACTA; More Of The Same

from the you-won't-like-the-answers-though dept

Yesterday, we wrote about plans for some civil society groups to meet with ACTA negotiators with a list of 10 questions about ACTA and ACTA negotiations. Sean Flynn has now sent over a report from the meeting, as well as his quick transcription of the responses to the questions. First, his summary (with my emphasis on key points):

On June 28, 2010, at 7:30pm Swiss time, a group of civil society representatives met with 21 ACTA negotiators. The negotiators included representatives (21 in all) from the Switzerland, France, Australia, New Zealand, Singapore, Mexico, Japan, U.S., Morocco, Canada and Korea....

It was agreed that, reflecting civil society's objectives to represent and report back to the broader public, this meeting would be on the record. The following are notes taken by Sean Flynn, American University Washington College of Law's Program on Information Justice and Intellectual Property. These notes are direct quotes to the best of my note taking ability and memory. But others at the meeting may have more complete notes in some areas. Rohit Malpani of Oxfam and Sanya Smith of TWN were also taking notes.

The questions raised were given to the negotiators in advance and the answers were represented as those of the collective views of the negotiators rather than of an individual negotiator unless otherwise indicated. Unless otherwise indicated, the speaker is the chair of the Swiss Delegation who was appointed to speak for the group.

There are a couple news items here.

• First, there is an "emerging consensus" to take patents out of the border measure chapter, but not out of the rest of the agreement. Some parties appear to desire to take patents out of the whole text. The EU appears to be in favor of leaving patents in the civil chapter. The change appears to be a rather direct result of concerns raised by access to medicines advocates.
  
  There are still major concerns on access to medicines and free flow of goods in the border chapter. Negotiators seem committed to requiring in transit seizure and it is possible (although there seems some division) that it will include common trademark infringements and non-commercial scale copyright infringement, thus reaching far beyond TRIPS standards.
  
  
• There was an admission that countries may have to change their laws to comply with ACTA. That may not be real news, but I have not heard it admitted by a delegate before. But the EU continued to press that they will not change their laws.
  
  
• There seemed to be little desire to remove or narrow considerably the internet chapter. There was a desire by some delegates to ensure that DMCA-like protections are in the ACTA internet chapter. Several discussed (off line) the desire to combat "file sharing," even apparently when not done on a commercial scale.

I agree with Flynn that this is the first time I've heard any negotiator admit that this might change laws. We've heard negotiators from the US, EU and elsewhere all claim that this wouldn't change laws at home, but we hadn't found anyone willing to admit that it would change laws elsewhere. As for that last point, it's really disappointing that these negotiators still want to cram something totally unrelated to actual counterfeiting into this bill, and do so in such a ham-fisted manner that doesn't take into account important realities in the marketplace, but instead interprets the situation exactly as a small contingent of companies wants them to see the situation.

As for the full Q&A including both questions listed yesterday and some followups, Sean provides the following account, with my commentary in between:

Q: Will negotiators commit to continue releasing the text of the Agreement following completion of this week's negotiating round and subsequently until the completion (or abandonment) of negotiations?

A: This is a question that the delegation takes up at end of each round. This will be a question to be discussed and agreed by consensus.

On issue of public comments, this is a plurilateral process and each country will have to take that into account. It is not as if the ACTA group is a formal organization. For a plurilateral agreement, we have promoted a great deal of transparency already more than in other agreements.

Q. Wait. In other processes (e.g. anything done at WIPO or the example of the Doha declaration) civil society got access to text before and after each round. That has not been the case here. We received text once, after years of negotiations and close to what you declared to be the end point of the discussions.

A. Those are multilateral negotiations. This is a plurilateral negotiation. We do not have a secretariat to assist with such matters. This has been an extremely transparent process.

This is a huge cop-out of an answer. First of all, this hasn't been anywhere close to an "extremely transparent process." The whole thing has been totally secret other than bland content-less press releases. The full document was released once after nearly a year of public screaming about it and a huge slap down by nearly the entire EU Parliament. Claiming that there's some sort of different issue between plurilateral negotiations and multilateral ones is hiding behind semantics.

Q: Are negotiators reviewing the text of the Agreement to ensure it is fully consistent with the WTO TRIPS Agreement? Will the WTO or other independent legal experts be asked to review the text of the Agreement to ensure it is legally consistent with WTO rules? Will you provide clear and objective information regarding the evidence base upon which ACTA is purportedly justified, as far as international law, access to medicines and Internet are concerned?

A: This is in the process of being negotiated. It is clear that parties are WTO members and they have rights and obligations under WTO. This does not change if they should join ACTA. There is dispute settlement possibility. If there is a question of compliance then another interested WTO member could invoke dispute settlement. With regard to the press release of the 8th round, the negotiators declared that the ACTA will be consistent with TRIPS and Doha.

On the question of the evidence base -- the ACTA countries are seriously concerned about the phenomena of growing counterfeiting and piracy. We will not cite one particular figure or study. Taken together the development cannot be denied. Whether it is about real or intellectual property it is the government's duty to provide effective enforcement. More effective enforcement standards are needed to address this phenomenon.

Incredible. No evidence is provided at all nor do they commit to providing any evidence. Instead, it's just "trust us, we know there's a problem." Ridiculous. Faith-based policy making which actually contradicts the evidence, which the negotiators refuse to look at. Shameful.

Q: Criminal sanctions are being negotiated, which imply the usage of police & judiciary systems, as proven by the presence among the negotiators of the EU Presidency. How can you justify any legitimacy for criminal sanctions (which highly impact fundamental freedoms) being negotiated outside of any democratic frame, in the secrecy of what is much more than a "trade agreement"?

A: I think here it is important to point out that the ACTA negotiations are no different than other inter party negotiations. If at the end the agreement should contain additional obligations for a party compared to a country's laws, implementation of the ACTA will necessitate that it will adjust its national legal situation. For most countries, simply the approval of ACTA is dependent on parliamentary approval. Thus we very much do believe that the democratic process is being complied with. And this process of consulting with stakeholders is evidence of that commitment.

This is the point mentioned in the summary about admitting that some countries will have to change their laws. But, again, the answer is extremely misleading. It pretends that, after ACTA is signed, sealed and delivered, various countries might then choose not to implement parts of it via the democratic process. This (very much on purpose) ignores what these negotiators know happens in these situations, which is that the industry supporters, who wrote the trade agreement, then go on a massive PR/government relations campaign declaring how this or that country is "not living up to its international obligations," and highlights how that country is falling behind and damaging this particular industry because it won't change its laws to meet those "international obligations." It happens all the time. It's not a truly democratic process at all, because the scales are weighted so heavily that it's nearly impossible for countries not to agree.

Q: What is the prevailing definition of a 'counterfeit' amongst negotiators? With respect to pharmaceuticals, is it the official position of negotiators that medicines which are suspected of patent infringement are counterfeit? If not, will you commit to ensure that the entirety of ACTA excludes patents from the scope of the agreement as the inclusion of patents is unrelated to the issue of counterfeit, and poses significant risks for access to medicines in developing countries?

A. The issue of definitions is still under negotiation. The only definition currently in the text is for counterfeit trademark goods, which reflects the TRIPS agreement.

As regard to risks to access to medicines in developing countries, which is a concern also raised in question 5: As far as border measures is concerned there is an emerging consensus that patents should not be included in border measures.

Q. The concern about patents is much broader. The April draft mentions patents in every section of the text, at least in brackets.

A. I can only say that there is an emerging consensus on patents being taken out of border measures.

Q: Should customs authorities be authorized to seize medicines in 'transit countries', even when the medicines do not infringe any laws in the producing or importing countries? Will you commit to ensure that any inclusion of ex officio action and/or in-transit seizures is optional and not mandatory for countries? If permitted, do negotiators maintain that customs officials in exporting, transit or importing countries are capable of determining whether medicines infringe patents or whether a pharmaceutical product is 'confusingly similar'? Should there be any anti-abuse provisions included?

Follow up question: You said that there is an emerging consensus to take patents out of border measures, but you did not comment on the broader question of applying transit measures to all trademark infringement was opposed to the more limited set of true criminal trademark counterfeiting. Nor did you address the question of whether there will be transit seizures authorized based on the law of the transit country rather than the law of the country of importation, as TRIPS Art. 52 requires.

A: We see trademarks and patents as different. We see justification to have trademark in the scope of border measures. This is the most common practice we are trying are trying to respond to. There is little justification for someone who chooses a mark that is confusingly similar, to the degree that it cannot be distinguished from the original mark.

Q. You seem to be confusing two standards in your answer. The standard that a mark cannot be distinguished from the original -- that it is identical or intended to be identical -- is a criminal counterfeit. But the concept of trademark infringement is much broader, at least in U.S. law. The question is whether you are applying the same border measure seizure standards to alleged counterfeits as to alleged confusingly similar trademark violations which are normally a civil matter and involves more complex legal and factual determinations. Do you understand the distinction we are making?

A: A mark that is confusingly similar is counterfeit.

(A from Susan Wilson, U.S.): Wait a minute. There are civil, criminal and administrative remedies for multiple kinds of trademark violations. But there are only criminal sanctions for counterfeiting -- using an identical label. The category of confusingly similar is only subject to civil remedies in most countries. There is a distinction there. Confusingly similar is not the counterfeit legal standard.

Q. Thank you. And the question is whether the confusingly similar standard of trademark infringement, as opposed to counterfeiting, is being included for consideration for in transit seizures of goods, ex officio [on the official's own instigation, without a complaint], based on a suspicion or prima facie evidence. That is the Amoxicillin case and it worries access to medicines advocates. Is that still on the table or is there an emerging consensus to remove that standard?

A: There is no emerging consensus. It is still on the table in the border chapter.

What a mess. It appears that the negotiators here don't even quite realize the extent of what they're negotiating and the potential impact of their negotiations. Having one negotiator claim that "a mark that is confusingly similar is counterfeit" is scary in its ignorance of what was being discussed.

Q: Could negotiators list out the relevant anti-abuse provisions in ACTA to ensure that rights holders do not use the Agreement to expand intellectual property protection for products, including medicines? ACTA currently contains no pro-consumer provisions and minimal protections for an alleged infringer, alongside maximum privileges and incentives for a right-holder to allege infringement (including extraordinarily limited liability for abuse of recourse measures). The enforcement provisions are universally mandatory while the protections are optional. There are virtually no references to exceptions and limitations, or to TRIPS flexibilities and safeguards. Do negotiators feel that sufficient balance has been achieved under the Agreement?

A: ACTA delegates would like to make clear that ACTA is not about substantive standards. It is not to expand existing rights. With regard to alleged infringers, the agreement may not directly address this issue. National law on the protection of consumers will apply to implementation at the national level.

ACTA delegates do consider that ACTA provides for exceptions. E.g. the de minimus provision has been proposed by some parties and is being considered.

With regard to maximum privileges to prohibit abuse, I can point to parts of the draft permitting rights holders to request customs authorities to assist with border measures and the authorities may ask for security before asking for assistance.

Here I'll let Flynn handle the commentary himself:

One consistent problem with the April draft is that is incorporates some but not all TRIPS protections from abuse, balancing provisions and proportionality requirements. The de minimus provision referred to is a direct quote from TRIPS. But in many other areas the agreement repeats or expands a TRIPS enforcement measure but omits any reference to the accompanying abuse protection or balancing feature in TRIPS. The Washington Communique notes, for example, that ACTA fails "to fully protect and incorporate key protections against abuse (e.g. Articles 41.1, 48.1, 48.2, 50.3, 53.1, 56), flexibilities to promote public interests (e.g. TRIPS Art. 44.2), requirements for the proportionality of enforcement measures (e.g. Arts. 46, 47), and provisions providing for balance between the interests of proprietors, consumers and the greater society (e.g. TRIPS Arts. 1, 7, 8, 40, 41.2, 41.5, 54, 55, 58)."

Onwards:

Q: Are negotiators aware that the Agreement could create third party liability for suppliers of active pharmaceutical ingredients whose materials may be used in mislabeled products without their knowledge? What are the reasons for holding suppliers of active pharmaceutical ingredients unknowingly liable for mislabeled products?

A: Liability is still under negotiations. Under national laws, liability depends on knowledge and fault. These national standards will still apply in this context.

Q: ACTA can become a very strict text should certain proposals be followed, not leaving much room to maneuver for its application. Are contracting parties foreseeing to include in the agreement exceptions to preserve the public interest or flexibilities allowing for adaptation to different national realities? Will you remove institutional measures in which ACTA Member countries attempt to export heightened TRIPS-plus IP protections to other countries, and in particular developing countries

A: All the parties are negotiating to enter this agreement in an autonomous, voluntary manner. ACTA parties see that the agreement they would like to fashion will leave parties free to implement as they see fit in their national system.

Again avoiding the actual reality on the ground. One of the problems that we've noted with the ACTA text is that while it "leaves parties free to implement as they see fit," it has some pretty severe restrictions on how free they really are to implement things. So, for example, while it doesn't technically mandate three strikes, it makes it clear that a three strikes regime would meet ACTA's requirements... and provides no other alternatives. So you're free to implement however you want, but the only way you can assure you're in compliance is to implement it the way they want you to. To paraphrase Henry Ford, the negotiators are saying: "You can implement it however you want, so long as it's the way we want you to."

Q: How do you guarantee that policies required to benefit from liability safe harbour for Internet service/access providers won't have the effect to force them to restrict fundamental freedoms -- such as freedom of expression and communication, privacy, and the right to a fair trial -- turning them, via contractual policies, into private copyright police/justice?

A: It is important to recall that ACTA parties have expressed concern about fundamental rights after Wellington. We are aware of the importance of this matter and we have made clear . . . It is clear that ACTA parties are bound by human rights declarations and their own constitutions. ACTA will obviously have to comply with those norms.

Q. but you think encouraging companies to take down expression is respecting rights? This is how you make enforcement comply with freedom of expression?

A. from French delegate: You think in EU we live in a totalitarian state? Is France a dictatorship? Have you no rights in France?

Q. That is not my question.

A. I am telling you it will comply with EU law. Are you saying EU does not comply with fundamental freedoms?

Q. It is companies that collect the information. You are encouraging the companies to use that information in ways that, if done by the state, would violate fundamental privacy protections. Is that promoting fundamental rights?

A (French): Is France a totalitarian state? Is it?

Q: No, that is not what I am saying. Ok, fine. You have addressed the issue. Lets move on.

Wow. The French delegate seems a bit touchy on that topic, huh? The question was not claiming that France or the EU was a totalitarian state at all. Just how do they ensure free expression when the text of the agreement seems to very much go against that by encouraging companies to filter or block certain forms of speech aggressively. Bizarre that rather than answer the question the delegates responded with such a strange attack on the questioner.

Q: There have been no open hearings or other engagements with civil society since the text was released. Will you commit for the establishment of consistent mechanisms for the ongoing engagement of civil society? More generally, how are you going to fix the process to encourage greater public deliberation on the record, with access to text, and in a meaningful setting? And how are you going to fix all of the specific concerns raised in the previous questions and in all the critics upon ACTA made until now?

A: This is the responsibility of each ACTA country itself. This is underway. It is happening according to the rules and practices of each member. It is a country choice.

Another cop-out answer. Rather than admitting how secret and closed off the negotiations have been, the negotiators are just passing the blame, by saying it's not their issue to actually engage representatives from civil rights groups and civil societies. Besides, the response is again off-base. If the whole point of meeting with these groups is to understand the concerns of them and their constituents, it should be the negotiators who are seeking out such meetings. Once again, this response makes it clear that the negotiators' marching orders are not to come up with the best solution for each of the societies and countries they represent, but of a very narrow group of special interests. This is no surprise, but the answer basically confirms that they know this. Very sad.

Filed Under: acta, copyright, counterfeiting, negotiations, patents, transparency