ACTA
== Introduction
Behind closed doors the European Union, United States, Japan, Canada and some other states are negotiating the Anti-Counterfeiting Trade Agreement (ACTA). Initially, ACTA will be legislation for about a billion people. Negotiations take place behind closed doors. No drafts are published. ACTA will contain new far reaching rules for the enforcement of copyrights, trade mark rights, patents and other exclusive rights.
A secret legislative process is not acceptable in a democracy. We would like to quote the European Court of Justice: "Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights." (Turco case)
The inclusion of patents shows ACTA is not limited to counterfeiting. It is not only about fake Gucci handbags, highly complex patent cases are also included. ACTA could be characterized as a “War on Competition”. An example:
In some fields, like software development, patents create a legal minefield. Software is full of ideas, and unfortunately, full of patents. All software developers ignore software patents to some extent, simply because every single useful program you write infringes on several patents.
This situation is abused by patent trolls. They acquire patents at low cost, for instance by buying bankrupted companies. Their patents tend to have broad claims on trivial methods so that infringement is unavoidable. Then they extort entrepreneurs. And you can not retaliate against them. They do not produce anything, do not infringe themselves.
ACTA may give patent trolls these tools:
+ huge, deterrent damages
+ statutory damages
+ suspend the entry of goods
+ suspend the release of infringing goods for at least one year
+ destruction of goods
While software is essential in the modern world, more urgent is access to medicines. Health groups fear ACTA will limit access to essential medicines. See for instance:
http://www.essentialaction.org/access/index.php?/categories/18-Drug-Monopoly-Enforcement-Agenda
== Recommendations
On June 18 the Trans Atlantic Consumer Dialogue adopted a Resolution on enforcement of copyright, trademarks, patents and other intellectual property rights.
http://www.tacd-ip.org/blog/2009/06/18/tacd-issues-resolution-on-iprs-enforcement/
We support the section on ACTA, which reads:
""ACTA. The proposed Anti-Counterfeiting Trade Agreement (ACTA)
negotiation lacks transparency and legitimacy, and needs safeguards for
consumers.
i. There should be no further meetings on the Anti-Counterfeiting
Treaty until the EU and the US publish the full text of all
negotiating documents, and agree to additional transparency
measures, including the accreditation of consumers and/or their
representatives as observers.
ii. The term "counterfeit" should not be used to describe activities
relating to the mere infringement of copyrights or trademarks
where there is no intent to deceive or any likelihood of confusion
as to the authorized manufacturer, distributor or provider of the
service. Possible patent infringements should not be referred to as
counterfeits.
iii. EU and US negotiators have acknowledged that ACTA is
designed to be expanded to apply to developing countries.
Developing countries should therefore be allowed to participate in
the ACTA negotiation, as either as full parties or as observers.
iv. ACTA should not reduce the flexibilities regarding injunctions that
currently exist in Article 44.2 of the TRIPS.
v.ACTA should not require governments to impose inappropriate
damages on consumers. Damages should not be excessive. In
appropriate cases, governments should be able to tailor damages
to public purposes.
vi. ACTA should not foreclose the ability of governments to create
reasonable liability rules for the use of protected works or
inventions, such as to facilitate access to orphaned copyrighted
works, to address infringement of architectural plans for building
under construction, to allow governments to use or authorize uses
of patents, copyrights or other intellectual property rights (such as
28 USC 1498), or to facilitate access to biomedical inventions or
inventions necessary to implement standards involving complex
technologies.
vii. ACTA should not interfere with legitimate parallel trade, or goods
in transit. For example, legitimate medicines in transit should not
subject to enforcement of patent rights in countries where goods
are only in transit.
viii. ACTA should not incorporate enforcement measures against
individuals that undermine privacy, civil rights, or other human
rights.
ix. Patent infringement should not be subject to criminal penalties.
x. Customs officials should not be required to devote excessive
resources to the overzealous enforcement of possible intellectual
property violations, at the expense of other pressing needs, such
as those presenting other threats to public health and safety, or
constituting other more serious illegal activities.""
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For background information see:
http://action.ffii.org/acta
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European Union Trade Agreements
== Introduction
The Anti-Counterfeiting Trade Agreement (ACTA) is not the only trade agreement negotiated in secrecy. There are many more, containing new legislation as well. For example, the EU - South Korea Free Trade Agreement (FTA).
== EU - South Korea FTA
On 15 October 2009 the European Union and South Korea initialed (signed with initials) their Free Trade Agreement. At that moment the text was still secret. The Commission stated: "The initialling of the FTA signifies the closing of negotiations with a stable legal text, which the European Commission will formally present to EU Member States in early 2010. Following signature of the agreement by the EU Presidency and the Commission, the FTA will be presented to be approved by the European Parliament. Entry into force of the agreement would then be expected in the second half of 2010."
New legislation is packaged with a trade agreement, supposed to bring huge trade benefits. Governments of the EU member states already agree with the text. How influential can national parliaments still be? It will be an uphill battle to remove disproportional and flawed legislation.
According to the Commission, the FTA has to be approved by the European Parliament (which is not always the case). EU legislation is made by Commission, Parliament and Council. This new legislation is just made by the Commission and Council, with Parliament expected to vote yes, or else to take the blame for a failed trade agreement.
A few days after initialing, the trade agreement was published. The trade agreement contains a chapter on "intellectual property" rights. The provisions of this chapter go further than the TRIPS Agreement. Enforcement provisions do not make a distinction between fraudulent imitation and infringements that occur during normal business activities. Honest, decent people running reputable businesses risk huge deterrent damages and destruction of goods, carried out at their expense. Patent trolls will by enabled to have software seized at the border. Further scrutiny is needed, for instance to assess the FTA's impact on access to medicine.
Public and parliamentary scrutiny is needed at a much earlier moment.
== Competence
The EU is not fully competent to conclude FTAs. The Member States of the Union have vetoes on aspects.
i. The Member States have vetoes on criminal measures. But that is not all. Art 133.6 of the Treaty establishing the European Union (TEC):
ii. "(..) In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States."
The FTA will have an effect on cultural, audiovisual, educational, social and human health services. Common accord is needed and the FTA has to be concluded jointly by the Community and the Member States.
iii. Non-commercial acts by civilians do not fall within TITLE IX Common Commercial Policy (the Community lacks competence), nor do they fall within "commercial aspects of intellectual property" (TEC 133.5, unanimity in the Council is needed and Parliament has to be consulted, TEC 133.7).
== Recommendations
I. On June 18 the Trans Atlantic Consumer Dialogue adopted a Resolution on enforcement of copyright, trademarks, patents and other intellectual property rights.
http://www.tacd-ip.org/blog/2009/06/18/tacd-issues-resolution-on-iprs-enforcement/
We support the section on transparency and openness, which reads:
"Transparency and Openness. Negotiations concerning norms for the
enforcement of intellectual property rights should be transparent.
i. Governments should explain the rationale and evidence in support
of proposed policies, and invite public comment and questions
regarding both.
ii. Governments should disclose the date and location of meetings,
the names of negotiators, and the rules of negotiations.
iii. Documents that are distributed to all countries in a negotiation
should be public, and not withheld on grounds of secrecy.
iv. Governments should disclose negotiation-relevant contacts and
communications with representatives of right owners and other
stakeholders.
v. Consumers should be allowed to attend negotiations as accredited
observers."
II. On July 22, 2009, eight public interest, consumer and public health organizations wrote to the United States Trade Representative (USTR), recommending the USTR and other federal agencies reduce secrecy and increase transparency in negotiations that involve global norms for knowledge governance.
http://keionline.org/content/view/246/1
As far as possible, these recommendations should be implemented in the EU as well.
III. The European Union is presently rewriting Regulation No 1049/2001, the EU's access to documents regulation. This should be done in such a way it guarantees transparency in negotiations that involve global norms for knowledge governance.
== Links
Commission documents:
http://ec.europa.eu/trade/issues/bilateral/countries/korea/index_en.htm
http://ec.europa.eu/trade/issues/bilateral/countries/korea/pr151009_en.htm
FTA Draft text:
http://ec.europa.eu/trade/issues/bilateral/countries/korea/pr191009_en.htm
Council documents:
http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=Free+Trade+Agreement+with+Korea&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=&dd_DATE_REUNION=
For more information on competence issues see:
http://action.ffii.org/acta