Officially, the Chief Negotiators have backed off the prior commitment to end the TPP negotiation by October, but are still clinging to a goal to end the negotiation by the “end of the year.” But privately, none of the negotiators or stakeholders at this round would express any confidence that the intellectual property issues could be resolved by then. The issues still under contention are massive.

The intellectual property chapter has grown to over 80 pages of text – including all the bracketed suggestions and alternatives. Some negotiators describe it as the longest text currently under negotiation.

Many of the issues are completely blocked. There has not been any new negotiation text offered on the most controversial pharmaceutical provisions since the Melbourne round over a year ago. There is currently no mandate from many countries to negotiate (they only “consult” and “discuss”) the pharmaceutical reimbursement chapter. Barbara Weisel described the pharmaceutical issues as being in a “period of reflection,” and had no comment on when that period might end.

The recent spate of proposals for policy changes for US copyright law have caused a stir. The US is being asked how it can hold on to demands for parallel importation restrictions after the Kirtsaeng ruling, 70 year copyright terms after the Copyright Office proposed shifting them back to 50 years with formalities required for extensions, and strict restrictions on anti-circumvention liability exceptions when the Obama Administration and the Library of Congress have endorsed reforms that would violate the US proposal. Barbara Weisel stated that USTR is “doing what we can to work with Congress” to make sure that the TPP will not restrict policy options. But negotiators have said that there has been no visible movement on the USTR’s positions on Copyright issues, which will be negotiated this week.

And there is no plan to release any text to the public. This is stark contrast to the last to plurilateral agreements including countries in the region. The Free Trade Area for the Americas and the Anti-Counterfeiting Trade Agreement both released full texts of the negotiating document with brackets indicating text under consideration before the finalization of the texts. For ACTA, there were four publicly released texts between April 2010 and May 2011. For the TPP – none yet, despite the Chief Negotiators’ pronouncement of end of year finalization plans.

We find it troubling that, even as the Trans-Pacific Partnership (TPP) Free Trade Agreement enters its 16th major round of negotiations this March in Singapore, U.S. negotiators still refuse to inform the American public what they have been proposing in our names. Shielding not only proposals, but agreed-upon texts from public view until after negotiations have concluded and the pact is finalized is not consistent with democratic principles. In this regard, the TPP appears to be even less transparent than some past trade negotiations. For example, in 2001, the United States joined with 33 other countries in releasing draft text of the Free Trade Area of the Americans, and draft texts within the World Trade Organization are frequently made available.

Today after a short plenary session, the informal negotiations were scheduled to begin behind closed doors again. But WIPO decided to permit NGOs attending the negotiations to follow a live audio of the discussions, subject to a ban on the use of the Internet and related social media to report on the negotiations.

The ban specifically singled out "twitter, blogs, news reports, and email lists" and extends to social media in general.

I assume we will be permitted to report and comment in other ways that do not rely upon this audio feed, but people will be careful because there is now a threat to cut off that access if the the forbidden information starts showing up on the Internet, and it maybe difficult to persuade people that the audio feed was not the source. This means less information will be disseminated, including the reports from the relatively accessible negotiators, of which there are many who are willing to talk in the breaks. These bans on the use of social media are increasingly being sought by transparency averse negotiators, particularly when pursuing anti-consumer and anti-freedom policies.

Wyden said he would lift his hold in exchange for a Senate floor vote on an amendment requiring the government to account for how many times Americans’ communications have been accepted, and another amendment prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.

If that doesn’t go over, he’d lift the hold so the Senate could vote on brief extension of the act so his amendments and others could be fully debated next year.

“I’m willing to go along with a short-term extension as long as we have a chance in the early future, in 2013, to have a debate,” Wyden said.

In the past few days, a small number of media reports have characterized the United States as “threatening” to withdraw from the WCIT negotiations. These speculative reports are inaccurate and unhelpful to the Conference. The United States has made no such threat, and it remains fully committed to achieving a successful conclusion to the WCIT.

"What is so bad about the ITU?" Mr. McLaughlin asked in a speech to the New America Foundation in Washington on Nov. 29. "It's just simple things like the nature, structure, culture, values and processes of the ITU. They are all inimical to a free and open Internet, and they are all inconsistent with the nature of the technical infrastructure that now characterizes our communications networks." Voting rules let repressive governments "engage in horse trading that has nothing to do with the technical merits of the decisions under consideration."

Do these provisions, or any others, in S. 3414 authorize the Executive Branch to enter into binding agreements with foreign governments for the purposes of establishing disciplines on cybersecurity? If so, under what circumstances would Congress need to consider such agreements and under what circumstances would you argue that Congress need not consider such agreements? If S. 3414 does not authorize the Executive Branch to enter into binding international agreements over cybersecurity without Congress' consideration of such an agreement, how do you square this view with your interpretation of the Pro IP Act of 2008?

“The U.S. Trade Representative has once again chosen to block Congress from observing negotiations for this vital trade agreement over which the House and Senate have fundamental constitutional responsibility.

“The TPP process should be transparent and open to oversight, not a secretive backroom negotiation. TPP agreements impact multiple sectors of the American economy--especially our ability to innovate and create new intellectual property, as well as preserve an open Internet.

“Congress has a constitutional duty to oversee trade negotiations and not simply act as a rubber stamp to deals about which they were kept in the dark. While I had hoped the TPP would permit me to observe this round of the negotiation process firsthand, our efforts to open TPP negotiations up to transparency will continue.”

The Federal Government would “closely examine” the High Court’s judgement in the long-running copyright infringement case won by ISP iiNet over film and TV studios this morning, Federal Attorney-General Nicola Roxon said this afternoon, as she noted that closed-door talks held by her department with industry on the matter would continue.

Here's a report by Sean Flynn, on the latest round of TPP negotiations, held recently in Australia:

Contrasting with apparent progress on some other chapters, which were declared “on track” by negotiators, the Trans-Pacific Partnership Agreement’s intellectual property chapter appears to have stalled in Melbourne. According to some sources, the 10 day negotiation yielded no meaningful progress on the intellectual property chapter. This is as some of the most controversial aspects of the U.S. proposal, including internet service liability and the “May 2007” access to medicines issues, came to the table.

What's new, though, is the growing general concern about TPP's impact on access to medicines, particularly the low-cost generics that are important for many countries in the Pacific region. KEI's Krista Cox wrote about this in her summary of the Melbourne meeting:

The afternoon session [of the TPP Stakeholder Forum] began with eight representatives of the generic pharmaceutical industry giving strong statements in opposition to the US "access window" text, opposing in particular the provisions related to patent term extensions, patent linkage, and exclusive rights over test data. These representatives noted that the US proposal would hinder access to affordable generic medicines

The Australian chief negotiator may think it is "common practice not to release texts during negotiations of free trade agreements", but that was before SOPA. A decade ago, sharing drafts and soliciting feedback from the general public would have been difficult. Today, it's easy. After SOPA, it's unacceptable not to.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

During the week, the Government of Japan hosted informal meetings with stakeholders, including representatives from non-governmental organizations (NGOs) and business leaders, and the participants in the ACTA negotiating round.

You can't book a plane trip if you don't when to book it for. It takes 15- 20 hours to fly to Japan from the east coast of the U.S. and you land a day after you take off. So U.S. groups that want to attend the meeting at the start of it -- you needed to buy your ticket when the announcement hit after 3pm yesterday and be on a plane now. If you want to go to the one hour civil society meeting, you need to leave by tomorrow. Those that have bought a ticket likely have one for next week -- when everyone thought the negotiation would be. So they will miss the civil society meeting.

Figuring out that the announcement of the date of the meeting was made yesterday was no easy feat. Two individuals (myself and Malini Aisola from KEI) inquiring with USTR yesterday about the meeting were first told that they had to contact the Japanese Embassy for information on the meeting. We were given the name of Mr. Kazuyuki Takimi, First Secretary, Economic Section, Embassy of Japan, Kazuyuki.Takimi@mofa.go.jp, 202-238-6729.

Mr. Takimi said he did not know when the meeting was going to be held because he had not spoken to "Tokyo" lately. He said he recalled it might be meeting on September 23, but could not confirm. He said he had no agenda and no knowledge of any civil society meeting opportunity.

If you want to laugh -- go to that site and try to find the agenda. It is not in any of the press releases on the top or bottom of the site. It is not the prominent link on the left for the agenda to the 5th Round -- that was in 1999. It is not in the upper right hand or left hand boxes where the recent announcements are. Still looking? It starts with the 372nd word in the background essay in the middle page.

"People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices."

"A number of countries feel [there is] an important area of public policy they are not able to address in a multilateral forum, and so have gone outside the multilateral framework to satisfy their desire for creating some form of 'international' cooperation," Gurry told Intellectual Property Watch in an interview last week. "That's the challenge, for us. And whether it concerns enforcement, ACTA, or any other area, that, on the whole, is a bad development for a multilateral agency, that member states start to do things outside."

The frustration it has caused is a consequence of practical issues not being addressed, he said, citing recent difficult discussions in the Standing Committee on Copyrights and Related Rights on increased access for visually impaired persons. "Can anyone not subscribe to that principle, as a general rule?" he asked, with visually impaired readers only obtaining access to about five percent of all published work in reasonable time.

"Can anyone stand up and say that they should not have more [access], that we should not do something about it?" It is such an obvious question, he said "but we are not getting an agreement" although the last meeting showed genuine involvement of member countries.

On June 28, 2010, at 7:30pm Swiss time, a group of civil society representatives met with 21 ACTA negotiators. The negotiators included representatives (21 in all) from the Switzerland, France, Australia, New Zealand, Singapore, Mexico, Japan, U.S., Morocco, Canada and Korea....

It was agreed that, reflecting civil society's objectives to represent and report back to the broader public, this meeting would be on the record. The following are notes taken by Sean Flynn, American University Washington College of Law's Program on Information Justice and Intellectual Property. These notes are direct quotes to the best of my note taking ability and memory. But others at the meeting may have more complete notes in some areas. Rohit Malpani of Oxfam and Sanya Smith of TWN were also taking notes.

The questions raised were given to the negotiators in advance and the answers were represented as those of the collective views of the negotiators rather than of an individual negotiator unless otherwise indicated. Unless otherwise indicated, the speaker is the chair of the Swiss Delegation who was appointed to speak for the group.

There are a couple news items here.

• First, there is an "emerging consensus" to take patents out of the border measure chapter, but not out of the rest of the agreement. Some parties appear to desire to take patents out of the whole text. The EU appears to be in favor of leaving patents in the civil chapter. The change appears to be a rather direct result of concerns raised by access to medicines advocates.
  
  There are still major concerns on access to medicines and free flow of goods in the border chapter. Negotiators seem committed to requiring in transit seizure and it is possible (although there seems some division) that it will include common trademark infringements and non-commercial scale copyright infringement, thus reaching far beyond TRIPS standards.
  
  
• There was an admission that countries may have to change their laws to comply with ACTA. That may not be real news, but I have not heard it admitted by a delegate before. But the EU continued to press that they will not change their laws.
  
  
• There seemed to be little desire to remove or narrow considerably the internet chapter. There was a desire by some delegates to ensure that DMCA-like protections are in the ACTA internet chapter. Several discussed (off line) the desire to combat "file sharing," even apparently when not done on a commercial scale.

Q: Will negotiators commit to continue releasing the text of the Agreement following completion of this week's negotiating round and subsequently until the completion (or abandonment) of negotiations?

A: This is a question that the delegation takes up at end of each round. This will be a question to be discussed and agreed by consensus.

On issue of public comments, this is a plurilateral process and each country will have to take that into account. It is not as if the ACTA group is a formal organization. For a plurilateral agreement, we have promoted a great deal of transparency already more than in other agreements.

Q. Wait. In other processes (e.g. anything done at WIPO or the example of the Doha declaration) civil society got access to text before and after each round. That has not been the case here. We received text once, after years of negotiations and close to what you declared to be the end point of the discussions.

A. Those are multilateral negotiations. This is a plurilateral negotiation. We do not have a secretariat to assist with such matters. This has been an extremely transparent process.

Q: Are negotiators reviewing the text of the Agreement to ensure it is fully consistent with the WTO TRIPS Agreement? Will the WTO or other independent legal experts be asked to review the text of the Agreement to ensure it is legally consistent with WTO rules? Will you provide clear and objective information regarding the evidence base upon which ACTA is purportedly justified, as far as international law, access to medicines and Internet are concerned?

A: This is in the process of being negotiated. It is clear that parties are WTO members and they have rights and obligations under WTO. This does not change if they should join ACTA. There is dispute settlement possibility. If there is a question of compliance then another interested WTO member could invoke dispute settlement. With regard to the press release of the 8th round, the negotiators declared that the ACTA will be consistent with TRIPS and Doha.

On the question of the evidence base -- the ACTA countries are seriously concerned about the phenomena of growing counterfeiting and piracy. We will not cite one particular figure or study. Taken together the development cannot be denied. Whether it is about real or intellectual property it is the government's duty to provide effective enforcement. More effective enforcement standards are needed to address this phenomenon.

Q: Criminal sanctions are being negotiated, which imply the usage of police & judiciary systems, as proven by the presence among the negotiators of the EU Presidency. How can you justify any legitimacy for criminal sanctions (which highly impact fundamental freedoms) being negotiated outside of any democratic frame, in the secrecy of what is much more than a "trade agreement"?

A: I think here it is important to point out that the ACTA negotiations are no different than other inter party negotiations. If at the end the agreement should contain additional obligations for a party compared to a country's laws, implementation of the ACTA will necessitate that it will adjust its national legal situation. For most countries, simply the approval of ACTA is dependent on parliamentary approval. Thus we very much do believe that the democratic process is being complied with. And this process of consulting with stakeholders is evidence of that commitment.

Q: What is the prevailing definition of a 'counterfeit' amongst negotiators? With respect to pharmaceuticals, is it the official position of negotiators that medicines which are suspected of patent infringement are counterfeit? If not, will you commit to ensure that the entirety of ACTA excludes patents from the scope of the agreement as the inclusion of patents is unrelated to the issue of counterfeit, and poses significant risks for access to medicines in developing countries?

A. The issue of definitions is still under negotiation. The only definition currently in the text is for counterfeit trademark goods, which reflects the TRIPS agreement.

As regard to risks to access to medicines in developing countries, which is a concern also raised in question 5: As far as border measures is concerned there is an emerging consensus that patents should not be included in border measures.

Q. The concern about patents is much broader. The April draft mentions patents in every section of the text, at least in brackets.

A. I can only say that there is an emerging consensus on patents being taken out of border measures.

Q: Should customs authorities be authorized to seize medicines in 'transit countries', even when the medicines do not infringe any laws in the producing or importing countries? Will you commit to ensure that any inclusion of ex officio action and/or in-transit seizures is optional and not mandatory for countries? If permitted, do negotiators maintain that customs officials in exporting, transit or importing countries are capable of determining whether medicines infringe patents or whether a pharmaceutical product is 'confusingly similar'? Should there be any anti-abuse provisions included?

Follow up question: You said that there is an emerging consensus to take patents out of border measures, but you did not comment on the broader question of applying transit measures to all trademark infringement was opposed to the more limited set of true criminal trademark counterfeiting. Nor did you address the question of whether there will be transit seizures authorized based on the law of the transit country rather than the law of the country of importation, as TRIPS Art. 52 requires.

A: We see trademarks and patents as different. We see justification to have trademark in the scope of border measures. This is the most common practice we are trying are trying to respond to. There is little justification for someone who chooses a mark that is confusingly similar, to the degree that it cannot be distinguished from the original mark.

Q. You seem to be confusing two standards in your answer. The standard that a mark cannot be distinguished from the original -- that it is identical or intended to be identical -- is a criminal counterfeit. But the concept of trademark infringement is much broader, at least in U.S. law. The question is whether you are applying the same border measure seizure standards to alleged counterfeits as to alleged confusingly similar trademark violations which are normally a civil matter and involves more complex legal and factual determinations. Do you understand the distinction we are making?

A: A mark that is confusingly similar is counterfeit.

(A from Susan Wilson, U.S.): Wait a minute. There are civil, criminal and administrative remedies for multiple kinds of trademark violations. But there are only criminal sanctions for counterfeiting -- using an identical label. The category of confusingly similar is only subject to civil remedies in most countries. There is a distinction there. Confusingly similar is not the counterfeit legal standard.

Q. Thank you. And the question is whether the confusingly similar standard of trademark infringement, as opposed to counterfeiting, is being included for consideration for in transit seizures of goods, ex officio [on the official's own instigation, without a complaint], based on a suspicion or prima facie evidence. That is the Amoxicillin case and it worries access to medicines advocates. Is that still on the table or is there an emerging consensus to remove that standard?

A: There is no emerging consensus. It is still on the table in the border chapter.

Q: Could negotiators list out the relevant anti-abuse provisions in ACTA to ensure that rights holders do not use the Agreement to expand intellectual property protection for products, including medicines? ACTA currently contains no pro-consumer provisions and minimal protections for an alleged infringer, alongside maximum privileges and incentives for a right-holder to allege infringement (including extraordinarily limited liability for abuse of recourse measures). The enforcement provisions are universally mandatory while the protections are optional. There are virtually no references to exceptions and limitations, or to TRIPS flexibilities and safeguards. Do negotiators feel that sufficient balance has been achieved under the Agreement?

A: ACTA delegates would like to make clear that ACTA is not about substantive standards. It is not to expand existing rights. With regard to alleged infringers, the agreement may not directly address this issue. National law on the protection of consumers will apply to implementation at the national level.

ACTA delegates do consider that ACTA provides for exceptions. E.g. the de minimus provision has been proposed by some parties and is being considered.

With regard to maximum privileges to prohibit abuse, I can point to parts of the draft permitting rights holders to request customs authorities to assist with border measures and the authorities may ask for security before asking for assistance.

One consistent problem with the April draft is that is incorporates some but not all TRIPS protections from abuse, balancing provisions and proportionality requirements. The de minimus provision referred to is a direct quote from TRIPS. But in many other areas the agreement repeats or expands a TRIPS enforcement measure but omits any reference to the accompanying abuse protection or balancing feature in TRIPS. The Washington Communique notes, for example, that ACTA fails "to fully protect and incorporate key protections against abuse (e.g. Articles 41.1, 48.1, 48.2, 50.3, 53.1, 56), flexibilities to promote public interests (e.g. TRIPS Art. 44.2), requirements for the proportionality of enforcement measures (e.g. Arts. 46, 47), and provisions providing for balance between the interests of proprietors, consumers and the greater society (e.g. TRIPS Arts. 1, 7, 8, 40, 41.2, 41.5, 54, 55, 58)."

Q: Are negotiators aware that the Agreement could create third party liability for suppliers of active pharmaceutical ingredients whose materials may be used in mislabeled products without their knowledge? What are the reasons for holding suppliers of active pharmaceutical ingredients unknowingly liable for mislabeled products?

A: Liability is still under negotiations. Under national laws, liability depends on knowledge and fault. These national standards will still apply in this context.

Q: ACTA can become a very strict text should certain proposals be followed, not leaving much room to maneuver for its application. Are contracting parties foreseeing to include in the agreement exceptions to preserve the public interest or flexibilities allowing for adaptation to different national realities? Will you remove institutional measures in which ACTA Member countries attempt to export heightened TRIPS-plus IP protections to other countries, and in particular developing countries

A: All the parties are negotiating to enter this agreement in an autonomous, voluntary manner. ACTA parties see that the agreement they would like to fashion will leave parties free to implement as they see fit in their national system.

Q: How do you guarantee that policies required to benefit from liability safe harbour for Internet service/access providers won't have the effect to force them to restrict fundamental freedoms -- such as freedom of expression and communication, privacy, and the right to a fair trial -- turning them, via contractual policies, into private copyright police/justice?

A: It is important to recall that ACTA parties have expressed concern about fundamental rights after Wellington. We are aware of the importance of this matter and we have made clear . . . It is clear that ACTA parties are bound by human rights declarations and their own constitutions. ACTA will obviously have to comply with those norms.

Q. but you think encouraging companies to take down expression is respecting rights? This is how you make enforcement comply with freedom of expression?

A. from French delegate: You think in EU we live in a totalitarian state? Is France a dictatorship? Have you no rights in France?

Q. That is not my question.

A. I am telling you it will comply with EU law. Are you saying EU does not comply with fundamental freedoms?

Q. It is companies that collect the information. You are encouraging the companies to use that information in ways that, if done by the state, would violate fundamental privacy protections. Is that promoting fundamental rights?

A (French): Is France a totalitarian state? Is it?

Q: No, that is not what I am saying. Ok, fine. You have addressed the issue. Lets move on.

Q: There have been no open hearings or other engagements with civil society since the text was released. Will you commit for the establishment of consistent mechanisms for the ongoing engagement of civil society? More generally, how are you going to fix the process to encourage greater public deliberation on the record, with access to text, and in a meaningful setting? And how are you going to fix all of the specific concerns raised in the previous questions and in all the critics upon ACTA made until now?

A: This is the responsibility of each ACTA country itself. This is underway. It is happening according to the rules and practices of each member. It is a country choice.

• There is still no agreement on the ISP safe harbour provisions.
• Major disagreements in the criminal chapter include the definition of "commercial scale" (the U.S. wants it defined, the EU wants it left to national judges) and the inclusion of an anti-camcording provision.
• Disagreements on the civil enforcement chapter includes damages and scope.

They get very uncomfortable when asked about the possible use of the legitimacy of Acta in authoritarian countries.

They have no answer to concrete questions on the "innovation chill" that could be caused in many businesses by introducing criminal sanctions and other enforcement measures.

No social or economic impact studies seem to be undertaken in the EU on Acta.