Lunch with the ACTA negotiators, August 17, 2010

On Tuesday, August 17, 2010, USTR organized a lunch between ACTA negotiators and civil society NGOs. There was not much notice. We received our invite to the lunch last Thursday. Representatives from KEI, Public Citizen, Oxfam, Public Knowledge and the American University program on intellectual property attended the event.

On Thursday, USTR will host a separate lunch with lobbyists from various industry groups. These two lunch events are one element of USTR’s response to pressures to open up the negotiations. The format was quite informal. There were no speeches or opportunities for anyone to address the entire room. There was a buffet lunch, and several tables with about six chairs each, and people just picked a table to eat lunch and talk to negotiators.

The August ACTA negotiation was at one time billed as a small meeting involving only a few countries, largely trying to resolve important differences between the US and EU. But the meeting had evolved into a full blown negotiation with all of the negotiating member states present.

The European Union was represented by the Commission and the Belgium Presidency, and about half the members of the EU were also represented by national delegations, mostly from the “older” or more northern members of the EU.

I spent most of my time talking to the United States, Japan, Australia, Singapore and the United States about the text in the agreement concerning the possibility of statutory exceptions on remedies — the main substantive topic that KEI has addressed since the beginning of the ACTA negotiations. Several countries in the ACTA negotiations have some areas where statutes limit the availability of injunctions, set special standards for damages, or eliminate the possibility of destroying infringing goods. KEI has on several occasions written about these issues, particularly in the context of areas such as orphaned copyrighted works, infringements of architectural plans, the introduction of generic biologic drugs, or infringing semi conductor designs.

There is a proposal by New Zealand and Canada to permit statutory exceptions to the availability of injunctions — a proposal that has inexplicably been opposed by the U.S., the EU and some other ACTA parties. An earlier proposal by Canada to allow statutory limits on damages was earlier rejected by delegates.

The TRIPS actually requires limits on injunctions and damages for certain infringements of semi-conductor designs, and several countries have other restrictions in national laws. The United States in particular has a large number of areas where a judge does not have the power to issue an injunctions, or damages are limited, including for example, provisions recently enacted in the U.S. health care reform bill, for cases involving undisclosed patents on biologic drugs. The US Congress is also considering limits on injunctions and damages in connection with solutions to the problem of orphaned copyrighted works. And, European countries have a number of statutory limits on the destruction of infringing goods. . (See discussion of ACTA provisions on injunctions, damages and other remedies).

The U.S. negotiators at the ACTA meeting have, over the past year or so, been remarkably indifferent to the fact that the US positon in the negotiation runs counter to about a dozen U.S. statutes where remedies are now limited by statute, contrary to the plain language of the ACTA text advanced by the U.S. government.

At the lunch meeting the U.S. negotiators explained the reason for this — they said it was obvious that regardless of what the ACTA provisions say, the U.S. can ignore the provisions in cases where there are statutory exceptions. “It is not necessary to say that in the ACTA text” I was told. “It’s obvious.”

At the lunch there was discussion among the Australian, Japan, US and Singapore negotiators over this issue. Some delegates pointed out that the U.S. had spent a lot of time talking about the fact that this was an executive agreement, and therefore “could not” change U.S. law. Therefore, they argued, it was understood that ACTA would grandfather in any inconsistency between U.S. law and ACTA. People were not so sure how this worked for other countries in the negotiations — including those where the ACTA provisions would clearly require changes in national laws, if taken seriously. Some delegates indicated that it was hard to understand what ACTA meant, at this point, given the many brackets in the text, and a lack of understanding about how the “general” and “high level” provisions of the ACTA would apply to a country’s actual laws. Other delegates said the issue of exceptions to ACTA obligations, while important, had not really been addressed in the negotiations.

A number of delegates denied that the ACTA would limit exceptions to remedies to a three step test. This is an important point, as exceptions to the injunction remedies in the TRIPS are now not subject to the three step test.

At one point I had a discussion with a US negotiator about a provision that the U.S. had proposed in the ACTA text to address the cases where injunctions were not available against the government, when compensation is provided for unauthorized use of intellectual property rights. (Paragraph 4 on page 5 of the July 1, 2010 text). Even this provision, which is not yet accepted, does not address the situation in U.S. law regarding uses by state governments, which are not subject to damages under U.S. law, following recent US Supreme Court decisions (See Florida Prepaid Postsecondary Ed. Expensebd. V. College Savings Bank, and commentary such as by Eugene Volokh, or Matthew Paik).

Some members of the US delegation apparently do understand that many provisions in the ACTA do not track U.S. law. It just isn’t clear that they care, or are able to do much about it, given the pressure to come up with a “hard line” agreement on enforcement.

Another issue that was discussed was text proposed by Australia, Canada, New Zealand and Singapore regarding safeguards of the public interest, on page 3 of the July 2, 2010 text. These three paragraphs (Article 1.X, para 1-3), are opposed by Japan, US, Korea and Mexico, despite the fact that the paragraphs are based upon existing language in the WTO TRIPS agreement. I pressed Japan and the US to explain why they would oppose language protecting the right to control anticompetitive practices, in the ACTA.

On the issue of transparency, the US delegation was not very transparent about its views on transparency — or at least the official government position. Some country negotiators did admit that there were benefits in making the agreement transparent – such as to dispel false rumors about the content, to enhance the legitimacy of the negotiation, and to allow a broader community of experts to analyze the consequences of the proposed text. The U.S. seemed to be the country least in favor of transparency — and the one that had given ACTA the greatest level of political visibility — with President Obama having discussed ACTA on more than one occasion.

On a personal note, the atmosphere was very cordial, and the NGOs attending the meeting were generally appreciative of the opportunity to meet with the negotiators. The next session will probably take place in Japan the week of September 27. Opportunities to meet with negotiators, if any, will likely be organized by the host country.

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