The global upsurge of popular opposition to the Anti-Counterfeiting Agreement (ACTA), particularly evident across Europe in the last month, has pushed the governments of Bulgaria, Cyprus, the Czech Republic, Estonia, Germany, Latvia, and the Netherlands, Poland to reconsider their ratification of the controversial treaty. In this context, the following intervention delivered by the European Union in defense of ACTA on Tuesday, 28 February 2012 at discussions at the WTO Council for TRIPS on IP Enforcement Trends may be of interest to those monitoring the ACTA process, particularly in the European context.
Agenda item N – IP enforcement trends
In the European Union our strengths are not cheap labour or abundant supplies of oil or gas, diamonds or gold. Our strengths are inside our heads – in our creativity, our capacity to innovate and our commitment to quality.
But if businesses based on creativity are to function, they require the protection and enforcement of intellectual property rights.
The most conservative estimates of the size of the global counterfeiting and piracy industry put it at 200 billion € a year. But that estimate excludes all internet piracy and any counterfeiting and piracy where the product is sold in the country where it was produced.
In Europe we have a comprehensive system to protect intellectual property. We have outlined the rights that can be protected and the means to enforce them. We have implemented that programme in the 27 Member States together with national enforcement authorities.
When we elaborated our IPR protection system, we have also chosen to safeguard the rights of citizens to free speech, data protection and access to information as well as the rights of Internet service providers and other intermediaries who deal with protected goods. These two goals are compatible and even mutually supportive.
IPR enforcement in Europe is evolving, to become increasingly effective. We are currently reviewing our customs enforcement legislation, which already results in annual detentions of more than one hundred million fake objects.
There are also plans to revisit the civil enforcement legislation in the coming years. At the same time, we have created a European Observatory on the protection of IPR, whose primary goal is to obtain factual and accurate information that is so necessary to better substantiate new policy measures and to optimise resources.
But it is not only in the area of enforcement that we are working. The Commission is preparing initiatives to make digital content more accessible to citizens. For instance, there is work in progress on a pan-European license for music; easier licensing for so-called “orphan works”; and the creation of online digital libraries.
These initiatives seek to give consumers and users better access to cultural content while allowing for new business models to thrive.
Another important tool to ensure a more efficient international level of IP enforcement is ACTA.
ACTA is an enforcement treaty. That means it does not cover the details of what is legal and what is illegal. But it does address procedures for ensuring that what is illegal can be redressed. It deals with civil, criminal and border enforcement. It sets out some basic principles for internet enforcement. And it encourages international cooperation on enforcement between 38 countries.
ACTA simply means that companies and individuals who wish to protect their ideas so as to defend their livelihoods will find it easier to do so in the 38 countries that have signed the treaty.
ACTA is an agreement between a limited number of countries.
But it is a significant first step. It establishes a nucleus of countries that are committed to the highest standards of intellectual property rights enforcement. A nucleus that will grow. The World Trade Organisation had a different name, a weaker structure and only nine members when it started out in 1948. After Russia’s accession later this year, nearly all world trade will be bound by its rules.
We would have liked to have negotiated this agreement at a global level. That was not possible. But the countries who have joined us in this agreement will soon begin to see the benefits of good enforcement, in terms of investment and in terms of innovation.
The OECD has found that in developing countries an increase of 1% in the strength of patent rights is associated with an increase of 1.7% in foreign direct investment flows.
When those kinds of changes are seen to happen more countries will join ACTA. The nucleus will begin to expand. And we will have a tool that creates a strong and ever broader foundation for future growth and for future quality jobs.
Let me give you two examples of misconceptions about ACTA.
1) There are no provisions in ACTA that could directly or indirectly affect the legitimate trade in generic medicines or, more broadly, global public health.
On the contrary, ACTA contains unequivocal language safeguarding access to health and expressly refers to the Doha Declaration on intellectual property and public health.
ACTA, like the TRIPS, also excludes patents from criminal and border measures. The text of ACTA is publicly available to all since April 2010, and has already been made public during the negotiations.
ACTA was not negotiated as a secret: As the US mentioned, the text was available during the negotiations. The European Commission organised four stakeholder conferences on ACTA which were open to all – citizens, industry, NGOs and press.
Furthermore the team of negotiators have invited, met and extensively debriefed NGOs, academia and representatives from political parties during the last four rounds of negotiations. These meetings took place on side events during the negotiation sessions.