Questions For ACTA Negotiators

from the wonder-if-they'll-answer-any-of-them dept

Sean Flynn from the Program on Information Justice and Intellectual Property at American University, sent over the list of questions that he and a group of others concerned about ACTA are planning to ask the ACTA negotiators today in a meeting in Switzerland, where the latest round of ACTA negotiations are under way. The meeting is set to take place at 7pm Swiss time, which should be about 10am this morning California time. I have no idea how many of these questions will get asked or answered -- or if it will make any difference, but I figured that some of you might be interested in reading the questions:
  1. 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?
  2. 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?
  3. 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"?
  4. 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?
  5. 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?
  6. 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?
  7. 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?
  8. 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
  9. 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?
  10. 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?
This is a pretty good list of questions if you're trying to understand just what is wrong with ACTA so far. Separately, Sean also included the presentation that he's giving in Switzerland about concerns over how ACTA will impact generic (legal) drugs in transit:

Filed Under: acta, questions, sean flynn, switzerland

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  1. identicon
    Anonymous Coward, 28 Jun 2010 @ 10:25am

    Re: Re:

    no greater good as in the overall well being and advancement of mankind.

    we could end up spending much of our time and effort to advance the people the further behind forward very slightly, often against their beliefs, customs, religeons, and so on, working incredibly hard and spending untold resources to inch them forward against their wills. or we can spend them same time and effort to move forward knowledge, information, and science with the goal that in the long run, all of this will filter down to every corner of the world.

    it is my standard opinion. if patent medicines go generic in 20 years, and time and effort spent on research gets us there 20 years sooner, does not all of society profit from the discovery in time anyway? it is wonderful to be able to provide patent medicines to the entire world, but at the same time, perhaps simple things like getting fed or combating diseases that were eradicated many years ago in the rest of the world is the more noble goal.

    there is a point where the socialist nature of attempting to make everyone in the world equal at all times goes against the nature of human progress.

    the greater good comes when people are more respectful of the rights of others. when they stop thinking about "me" and start thinking about the implications of their actions. sadly, piracy (and the internet) has taught so many people to be concerned with their own needs and meeting them without concern for others. that cannot continue forever, it too is the nature of progress.

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