USTR demands for hyper-secrecy in the Trans Atlantic Trade and Investment Partnership (TTIP) continue to be a major block to continuing negotiations. The current issue under discussion is access to US proposals by EU member states — which are of course themselves sovereign countries. The member states are demanding access to the text of proposals that would constrain their domestic law making, as they ave had in all other EU trade agreements (e.g. the recent EU-Canada FTA). But Inside US Trade (2/28/2014) reports that USTR Froman has offered only that “he might be able to allow the European Commission to share the U.S. negotiating documents it receives if they were accessible only in a secure reading room.”
[Working paper] The secretive 2011 Anti-Counterfeiting Trade Agreement – known in short by the catchy acronym ACTA – is a controversial trade pact designed to provide for stronger enforcement of intellectual property rights. The preamble to the treaty reads like pulp fiction – it raises moral panics about piracy, counterfeiting, organised crime, and border security. The agreement contains provisions on civil remedies and criminal offences; copyright law and trademark law; the regulation of the digital environment; and border measures. Memorably, Susan Sell called the international treaty a TRIPS Double-Plus Agreement, because its obligations far exceed those of the World Trade Organization’s TRIPS Agreement 1994, and TRIPS-Plus Agreements, such as the Australia-United States Free Trade Agreement 2004. ACTA lacks the language of other international intellectual property agreements, which emphasise the need to balance the protection of intellectual property owners with the wider public interest in access to medicines, human development, and transfer of knowledge and technology.
Researchers, scholars and policy specialists from over 40 countries drafted and endorsed a declaration of Fundamental Public Interest Principles for International Intellectual Property Negotiations that are starkly at odds with some trade agreement negotiations.
The Principles were adopted at the Third Global Congress on Intellectual Property and the Public Interest which met in Cape Town, South Africa December 7-13, 2013. The principles are strongly critical of the process and presumed substance of the negotiation of intellectual property provisions in the ongoing Trans Pacific Partnership (TPP) and US-EU Transatlantic Trade and Investment Partnership (TTIP).
In the midst of the controversy surrounding the release of a Trans Pacific Partnership Agreement (TPP) negotiating text on intellectual property by Wikileaks yesterday, over 80 law professors of intellectual property law and related disciplines have written to President Obama, Members of Congress and the United States Trade Representative calling for the creation of a public process to vet the TPP’S intellectual property proposals.
The letter specifically notes that “even in light of yesterday’s release by WikiLeaks,” public debate on the agreement’s proposals “beyond speculation would be impossible since there has not been any official release of text.”
[La Quadrature du Net, Link, (CC-BY)] After more than four years of secret negotiations, the text of the Canada-Europe trade agreement, CETA, reached agreement in principle during a meeting between José Barroso, the President of the European Commission, and Stefen Harper, the Canadian Prime Minister. While waiting for evidence to ensure that CETA does not contain measures endangering our freedoms online, citizens and MEPs should be ready to reject this trade agreement.
Ante Wessells, FFII, Link (CC-BY-SA)
The EU and Singapore initialed and published the text of the EU-Singapore Free Trade Agreement (EUSFTA). The text contains the much criticized retail price damages, known from the Anti-Counterfeiting Trade Agreement (ACTA), the treaty the European Parliament rejected last year. On top of the retail price damages the judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits. This heightens the already very high damages.
Yesterday it was announced that negotiators had reached “miracle” conclusion for a new international treaty for the visually impaired. This agreement was reached under conditions of unprecedented (although not always perfect) transparency and public participation. And according to initial stakeholder opinions voiced from across the spectrum – the end outcome is nearly universally considered to be “balanced” – a key objective of modern intellectual property policy. The process and substantive outcome lies in sharp contrast to the conditions of intense secrecy that surrounded the last multilateral agreement on IP to be concluded – the much maligned Anti-counterfeiting Trade Agreement (ACTA) , as well as the most important one currently ongoing – the Trans Pacific Partnership (TPP). (See generally Jeremy Malcolm, Public Interest Representation in Global IP Policy Institutions). And thus it is an appropriate time to question what international IP negotiators in the TPP and elsewhere should learn from the success of WIPO and the failure of ACTA.
The central point of this submission is that the TTIP negotiation should exclude intellectual property issues. It should exclude IP issues because the US trade policy lacks IP proposals that have the kind of broad-based support necessary to be adopted in a trade negotiation of this kind – i.e. one that is ultimately multilateral, requiring consent by a wide range of diverse countries. This is the prime lesson that should be drawn from the failure of the Anti-Counterfeiting Trade Agreement (ACTA), and the Free Trade Area of the Americas before it, as well as from the current deadlock in the Trans-Pacific Partnership negotiation. It is the prime lesson of the mounting evidence that our bilateral commitments do not contain sufficient flexibility to accommodate current proposals to amend our own intellectual property laws. US trade policy on intellectual property needs to be rethought. In the mean time, there should be a moratorium on any new efforts to negotiate IP commitments in trade forums that are not fully open, transparent and accommodating of the full range of inputs necessary to produce good policy.
[La Quadrature du Net (CC-BY-SA)(Link)] In a plenary vote, the European Parliament just adopted a mandate to the European Commission explicitly allowing it to “include strong protection of intellectual property rights (IPR)” in the proposed EU-US trade agreement negotiations, the “Trans-Atlantic Free Trade Agreement” (TAFTA), also know as “Transatlantic Trade and Investment Partnership” (TTIP).
Last month, the U.S. Trade Representative’s Trade Policy Report raised some eyebrows when it scolded Canada for not meeting its ACTA “obligations,” despite the fact that the Agreement is not in effect. (See for instance, Michael Geist’s blog quoting the report). The Trade Policy Report also noted that the U.S. is “working with Japan and other negotiating parties to bring the ACTA into force.”
Today USTR published another one of its annual reports, the National Trade Estimate (NTE) Report on Foreign Trade Barriers, which continues to discuss ACTA as a trade agreement that is moving forward.
Today, the U.S. Trade Representative posted the 2013 Trade Policy Agenda and 2012 Trade Policy Report. The report covers trade negotiations existing trade agreements, and enforcement activities for all sectors.
At first glance, one strange item stands out: the U.S. “encourages” Canada “to meet its Anti-Counterfeiting Trade Agreement obligations by providing its customs officials with ex officio authority to stop the transit of counterfeit and pirated goods throughout its territory.” (p.140) ACTA Obligations?