ACTA Negotiators Don't Seem To Know Or Care About What They're Negotiating
from the that-is-downright-scary dept
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 remedicies are now limited by statute, contrary to the plain language of the ACTA text advanced by the U.S. government.Yes, it appears we're negotiating an agreement where the US isn't too concerned with the fact that it goes against key points in US law because we'll just ignore the parts we don't like. But, you can bet that we'll put massive pressure on any other country that tries to do the same. And, when there's any discussion of improving US law, we'll be told we can't, because of our "international obligations" under ACTA.
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.
As for that last point about how "it's hard to understand what ACTA meant" at this point, Michael Palmedo from American University sent over his notes from the meeting, which I've published below with permission. The key scary point in his notes was that the top European negotiator, Luc Devigne, doesn't seem to realize or care that this is supposed to be an "anti-counterfeiting" agreement, but insists it's an "intellectual property agreement." Perhaps they should rename it, then. Here was the key part:
Luc Devigne (Head EU Negotiator) is gung ho that patents will be in. He thinks that medicines have been addressed and therefore medicines are not an issue. He asked more than once how you could have an 'IP Enforcement' treaty and not include patents - and dismissed suggestions that ACTA was specifically an 'Anti-Counterfeiting' treaty rather than a broader enforcement treaty.When you compare both of these points from Palmedo and Love, what you come up with are negotiators who are negotiating an agreement without much concern for what the agreement is supposed to be about or what it will actually do. That's downright scary.
Anyway, we've included Palmedo's full notes after the jump, so click on through if you want to read the differing views on patents, safeguards and key issues like access to medicine.
Michael Palmedo's notes on ACTA lunch:
Today's lunch with ACTA negotiators was informal, and it was set up in a way that surprised all who attended. There were no presentations, Q&A, or structured conversations. Instead, the room was set up with a bunch of small tables that seated 5 or 6 people each, and everyone walked around and mingled. Almost none of the negotiators who I talked to had business cards. There wasn't really an opportunity to take notes or record anyone.
Jamie Love (KEI), Malini Aisoloa (KEI), Alberto Cerda(KEI), Peter Maybarduk (Public Citizen), Sherwin Siy (Public Knowledge), Rohit Malpani (Oxfam), Meredith Jacob (American Univeristy, PIJIP) and I were the civil society attendees. There were approximately 30 ACTA negotiators from various countries. All negotiators seemed to share the sense that progress was being made, yet it was coming along very slowly.
Four Korean negotiators were at a table together, and Hyeyoon Choi, Assistant Director, Copyright Division, DG of Copyright Policy spoke with us more than the others. In general, they said that the conversations so far had centered around copyright issues. Conversations about the scope of what would be included in ACTA had not yet taken place. They understand some people are concerned about access to medicines, but the way they see it, patents are out of the border section so there's no more issue there. They didn't seem to agree that trademark issues or third party liability could threaten access to medicines. When asked what Korean civil society was pushing for, the answer was quite different than what we expected. There has been some pressure in Korea for the inclusion of 'morality on the internet' provisions following a string a scandals in Korea involving celebrity suicides linked to gossipy internet slander.
George Mina from the Australian negotiation, and Benoit Lory and Luc Devigne from the EU, were at a table together. They said that the scope of IP in ACTA had come up in conversations, although in a somewhat indirect manner. They all said that a decision will be made about whether or not to release the text publicly at the end of the week, but said that (personally, not officially) they didn't see why the text shouldn't be released if it's just going to be leaked anyway.
Luc Devigne (Head EU Negotiator) is gung ho that patents will be in. He thinks that medicines have been addressed and therefore medicines are not an issue. He asked more than once how you could have an 'IP Enforcement' treaty and not include patents - and dismissed suggestions that ACTA was specifically an 'Anti-Counterfeiting' treaty rather than a broader enforcement treaty. George Mina said the Australian government's position was that patents should out of the agreement entirely.
Mina amenable to the idea that more safeguards ought to be inserted into the text. Devigne was not opposed to this either, but the Mina was seemed more open to it.
Kira Alvarez (lead USTR negotiator) said she will come and speak at an open, publicized, webcast event at American Unviersity Washington College of Law. She will need to figure out the specifics of her schedule, but she will do the event.
Stan McCoy (USTR) said that the main aim of the meeting is to slowly go through the text, and trying to iron out as many brackets as possible. They want to figure out what are the differences that negotiators feel strongly about, and which might be more easily resolved. They want to have something less bracketed that negotiators can take back to their home countries before the next round.
All of the negotiators I talked to said that there was no date set for the next round in Japan. They said that this issue would be discussed on Friday. Someone told another that the next round will be the week of September 27.