The first afternoon panel at the Global Congress Combating Counterfeiting and Piracy was moderated by Simon Crompton, editor of the British publication Managing IP. He opened by noting that ACTA has been criticized both for having been negotiated in a way that lacked transparency, and for being watered down in the end.

Koji Yonetani from the Japanese Ministry of Foreign Affairs gave a presentation titled “Government initiatives and international cooperation in fighting against counterfeiting and piracy.”  He started by pointing out that the world’s economy is changing – developing and transitional economies received more than half of total world FDI for the first time in 2010. The changing international economy promotes technology transfer and entails business development utilizing technologies and brands.  In this globalized economy, effective IPR enforcement is an “international public good” because the proliferation of counterfeiting and piracy harms businesses, consumers, tax collections, and the predictable business environment needed to drive further investment.  Therefore, governments have a common interest in fighting counterfeiting and piracy, and they need more effective tools to do this well.  ACTA provides many such tools.  For instance:

  • Judicial authorities can issue orders to prevent infringing goods from entering into channels of commerce
  • Customs authorities may act upon their own initiative
  • Criminal procedures and penalties are made available with respect to labels and packaging
  • Civil and criminal enforcement procedures apply to infringement over digital networks

Yonetani emphasized that ACTA will not make substantive changes to IP.  The next step for international IP enforcement will be for the ACTA countries to sign and implement the agreement, and to enter into discussions with non-signatory countries that are interested in joining.

Marianna Moglia, Project Administrator of the EU-China IPR2 Project described the this project, which is a four-year, formalized system of cooperation between the EU and China on IP enforcement.  The EU provides technical assistance on IP enforcement through the program, and the two exchange information for use by customs and law enforcement.  Protection of IPRs are common goals of EU and China, and IPR2 is an instrument to implement specific actions and activities, based on common objectives.  The project is constantly reviewed through consultation with right holders. When discussing IP in China, we should consider that the concept of IPR is relatively new in China.

Jorge Amigo Castañeda, Director General of Mexico’s National Office of Intellectual Property (IMPI), presented on ACTA, which he said is “not an intellectual property agreement.”  It is an enforcement agreement in which countries will share and adopt best practices for enforcing IP.  He addressed concerns that ACTA could affect access to generic medicines, or could restrict access to the internet, by saying that there’s nothing in the agreement text about either of these things.

He noted that Morocco and Mexico are the only two developing countries in ACTA.  The reason Mexico joined was that piracy threatens the IP system, tech transfer, investment, future innovation, and more. Mexico trades with many countries, and needs protections for its exporters. The effects of counterfeiting and piracy in Mexico are serious – 480,000 lost jobs; $1 billion loss of industrial revenue; $125 million lost VAT revenue; $327 million in income tax revenue (2009 data).

The next steps for ratification in Mexico will be for ACTA to be signed by the president and reviewed, then enacted by the legislature.  Senators who read some of the earlier leaked documents share some of the concerns raised by critics of ACTA, but when they read the text, Castañeda believes that their concerns will disappear.  For instance, there are concerns that ACTA will block access to medicines, and that ISPs will be forced to go after the private rights of their clients.  Studying ACTA will dispel all of these untrue things that are floating around about ACTA.

Chandni Raina, Director of India’s Ministry of Commerce & Industry Department of Industrial Policy and Promotion spoke next.  She believes that ACTA should be placed in the context of TRIPS, which established minimum standards for IP, but did so in a flexible way that allowed countries with different backgrounds to implement the agreement in sensible ways.  TRIPS did not try to micromanage.  It left policy space for countries to develop their IP regimes within their national frameworks.   This was a very important aspect of TRIPS, because developing countries did not have the same standards same as rich countries during the implementation phase.  TRIPS also included safeguards for developing countries like Article 7, which protects technology transfer and public health.

ACTA is very different from TRIPS.  Unlike TRIPS, it was negotiated through a very opaque process.  The negotiations were secret, and were not open to countries outside the closed group.  While TRIPS covers the entire field of intellectual property (including tech transfer, development, etc.), ACTA only covers enforcement.  It is as if enforcement is an end in itself, not the innovation that IP is meant to support.

ACTA creates specific requirements for the authorities, much than the flexible frameworks established by TRIPS.  And the safeguards in ACTA are much weaker than those in TRIPS.  An IP owner that suspects a shipment contains infringing goods can have imports seized without going to court.  The importer does not even need to be informed. Where is the balance?

Proponents of ACTA say it is not a substantive agreement, but the ACTA text says a good is infringed in the country where the right will be invoked – will the right holder be able to forum shop?  ACTA covers IP for goods in transit – so how can you say medicines will not be affected?  Though patents have been removed from the border measures section, medicines are covered by other IP rights as well, and the ACTA text says that the agreement covers the rights descried in TRIPS sections 1-7.  That’s everything.  Substantively, you’re going TRIPS-plus.

The government of India is not opposed to IP rights.  We’ve met our TRIPS obligations, and our implementation laws are often TRIPS-Plus, including provisions in the Copyright Act and Patents Act.  We have a copyright enforcement board that monitors copyright in the country, and we have IPR police units in each of India’s 28 state police departments.    There has been a calibrated progression in policy and enforcement n India.  We just signed Madrid Protocol for trademarks, and we have criminal punishments with prison sentences for counterfeiting.

India’s position on plurilateral processes such as ACTA is [taken verbatim from Chandni’s slide]:

  • Weakens and dilutes the multilateral process
  • Enforcement levels cannot be raised beyond the TRIPS in such a non inclusive and unilateral manner
  • Asymmetric approach
  • Enhanced enforcement will lead to trade distortions and efficiency loss.  It has a cost to governments

Countries that account for 70% of trade are creating a new international norm for IP enforcement and they will want to apply it to the rest of the world (for instance, in future trade agreements with non-ACTA countries).  The ACTA countries are using their position of power to change the way non-participants do business.

The Q&A started with Crompton asking Castañeda and Yonetani to respond to Chandni’s assertion that the closed plurilateral process used to negotiate ACTA will harm things in the future.

Castañeda  said that TRIPS is a set of minimum, not maximum intellectual property rules, and that it was negotiated many years ago. ACTA is only about counterfeiting and piracy – it doesn’t affect any other rights. He also disagreed that ACTA will put pressure on nonmember countries, which all have the sovereignty to do whatever they want. If a country doesn’t want to join, fine.

Chandni  replied that the  impact of ACTA will be multilateral, not plurilateral, because it discusses multilateral commerce.  She thinks that the claim of non-substantive provisions is debatable.

Chandni also replied that ACTA says countries can enact even higher levels of IP protection than required by ACTA, and there’s no mention of TRIPS – this indicates a slow and steady movement for high levels of IP enforcement.  Finally, the secrecy of the negotiations has not helped to allay the fears of critics.

Yonetani asserted that TRIPS and ACTA are totally different types of frameworks.  ACTA is not against TRIPS, but it builds upon it. All ACTA members will remain bound by TRIPS, including Article 1, which states that “Members shall not be obliged” to adopt TRIPS-Plus intellectual property rules. Of course, WTO members are free to implement TRIPS-Plus rules, and countries in ACTA want to improve enforcement by adopting TRIPS-Plus measures on the enforcement of intellectual property.  One safeguard in ACTA is Article 1, which says that nothing in the agreement will undo anything in TRIPS.  All the nonparticipating countries are sovereign countries and can do what they want.

Castañeda  said there was a practical need to keep the text secret while the negotiations were ongoing.  We had a text full of brackets – US brackets, EU brackets, etc.   In Mexico, we’d never agree to publish a text showing bracketed Mexican negotiating positions.

The floor was opened for questions and Pedro Velasco Martins – an EU trade negotiator – made a comment, saying that the term  “developing countries” as Chandni was using it is overly broad.  It includes relatively advanced countries with big industries, and even space programs, but it also includes Caribbean countries and LDCs.

Martins said that the criticism of the secrecy surrounding ACTA is an “irritating cliché.”  The first text was made public in April, so there was little secrecy.  The EU is currently negotiating a trade agreement with India, and that’s not really transparent either.  It is normal for negotiations to be conducted behind closed doors, but when they are done, everything is made public.

Martins went on to say that many years before ACTA negotiations began, the EU went to the TRIPS council and tried to talk about best practices for IP enforcement.  India blocked it from the agenda several times.  When this happened in the multilateral forum, we went our own way with others who were of a similar mindset.

Finally, Martins wanted to emphasize that there’s nothing that will bock generic medicines in ACTA.  The issue is “catchy,” but it is not true.