SpicyIP is vehemently opposed to any move that flouts principles of transparency in such a heinous manner. This treaty is being negotiated behind closed doors by a handful of trade representatives from the US, EU etc. It has no developing country representation and a recent post by the famous Canadian cyberlaw academic and activist, Micheal Geist suggests that the negotiators are bound by a non-disclosure obligation–for fear that details on the treaty would leak out and stall execution of the said treaty! Also, see this interesting letter that Prof Geist has written to the Canadian government.
For further details on this treaty (whatever little is known of it), we encourage you to subscribe to two very useful email listserves run by Knowledge Ecology International (KEI), a pro consumer/public IP organisation headed by one of the most persuasive voices in global IP debates today, Jamie Love. For the A2K and IP-health listserves, please see here. Also, see Jamie’s article on this treaty in the Huffington Post, where notes that:
“This “patriot act” for intellectual property “crimes” may be one of the late legacies of the Bush Administration. It would be nice to have more transparency about such a far reaching and important global trade agreement. Particularly since the current negotiation strategy seems to be to present the Congress with a fully negotiated text for an up or down vote, before there has been any debate of the actual provisions of the agreement, or consideration of alternative approaches, including those that have fewer negative impacts on privacy, due process or consumer rights.
There are undoubtedly reasons for such tight secrecy and the use of thought-stopping terms like “anti-counterfeiting” to name this agreement. But they are undoubtedly the wrong reasons for the public. They are signals that the treaty would face opposition if more was known and understood about its substantive provisions.”
In some ways, this complete lack of transparency that we are seeing with the ACTA negotiations marks a transition in IP policy making, with pro-industry/trade groups now extremely wary of NGO’s and civil society.
One suspects that the complete lack of transparency in relation to the Bayh Dole style bill in India also stems from such a fear of civil society activism. We urge our readers to collectively oppose such secretive processes that flout principles of transparency and do serious damage to public participation and discussion around IP issues.
Hi Shamnad,
There is something else on IP enforcement that I would like to bring to your notice. And this time it may have direct relevance to developing countries, including India, as they are parties to the negotiation.
Currently, negotiations at the World Customs Organization (WCO) are heading towards an approval of certain custom measures called “Provisional Standards Employed by Customs for Uniform Rights Enforcement (SECURE)”.
Some have raised concerns that such measures, though voluntary, are beyond TRIPS requirement. Since TRIPS leaves implementation aspects to member countries, there are concerns that SECURE may impede them. I haven’t come across any serious legal analysis on how far they are “TRIPS Plus” indeed!(see, for e.g. standard II which is in relation to the effect of relevant international agreement). I think it would be a tough call to see any such strong analysis coming along soon since we haven’t seen any opportunity for the DSB to come out, at least on certain aspects, with something useful to clear the haze on IP enforcement issues (but yea, waiting for Beijing IP enforcement consensus to be out 🙂
Actually, custom measures on IP is not something new that is being discussed. They do have some model laws. It has caught eye of IP circles only recently due to the clandestine nature in which it is being discussed. More importantly, private stakeholders have direct access to negotiations. Not that they must not have a say, but only to highlight the possible lopsided fallout on negotiations due to “industry capture”. The draft of WCO SECURE is available here:
http://www.wcoomd.org/files/1.%20Public%20files/PDFandDocuments/Enforcement/SECURE_E.pdf
There is also a working draft that incorporates draft changes that some developing countries have suggested (on file with me).
However, the broad criticisms pertain to:
– SECURE, though voluntary, may be tied up with future BITs and PTA/RTAs. So something that is purely voluntary now may be bluntly tied up with investment treaties. So it would be in good interest of developing countries to engage their IP and trade officials to see that their genuine concerns are addressed at an early stage.
– I have personally heard from diplomats that, unlike the WIPO, the WCO is not an open organisation when it comes to accommodating civil society participation and critical perspectives. I have even known that one developing country (not India/china) was asked to leave the session for persisting that there must be a strong debate on such issues as they fear that it may go beyond TRIPS. There is no such thing as soft consensus approach at the WCO that we have often seen here in Geneva.
– The developing member country officials are usually from the CUSTOMS department who have least clue on what standards for implementation of IP enforcement they are agreeing to. This again highlights the need for developing country ministries (esp. India) to sit together and chalk out some good strategies and scenarios.
– Some say that such negotiations are strategies by developed countries to move the enforcement discussions from Geneva to Brussels and push it through the “back door”.
– I personally think that there is a need for better clarity on how abuse of border measures can can be avoided, or on having a good limitations and exceptions provision.
Recent discussions at G8 level have focussed on IP enforcement. Well, rights are meant to be enforced, but standards that pertain them must be subject to transparency and open debate.
So much for now. Will keep you updated.
Cheers,
Yogi
Dear Yogi,
Thanks again for the wonderful insights and comments on the WCO and the one sided negotiations. Why don’t you do a guest post for us on this issue? It would be of terrific value for our readers.
Thanks,
Shamnad