The Unrolling Enforcement AgendaParva Fattahi
August 19, 2008
TRIPS is a binding and an enforceable multilateral agreement. However, its provisions are not sufficient for IPR proponents in developed countries that are aggressively pushing IPR beyond TRIPS obligations in many fronts. In addition to ongoing strategies of the U.S. government such as Special 301 and pressuring countries to sign bilateral agreements with TRIPS-Plus provisions, a new wave of worldwide multi-layered collaboration between private sectors, governmental and intergovernmental agencies is being orchestrated to set TRIPS-Plus norms.
IPR policy expert Susan Sell explains that IP maximalists are focusing on "counterfeiting," "piracy," and "enforcement" for their launch of a major anti-A2K campaign and introducing a "security" frame to their previous "competitiveness" focus of the 1980s to employ intergovernmental and law enforcement agencies around the globe for their cause.
Sell also mentions that TRIPS would not have emerged as an international Agreement if the U.S. government had not been inclined towards intellectual property protection, along with strong lobbying and collaboration of the private sectors with the U.S. and other OECD governments. Therefore, it is not surprising to observe that recent proposals for more favorable changes in U.S. domestic law for intellectual property owners have emerged in the same time frame as international proposals.
The following is a brief introduction to a non-exhaustive list of the newly established/proposed domestic and international IPR frameworks:
The Enforcement of Intellectual Property Rights Act of 2008 was introduced in the U.S. Senate on July 24, 2008. The Act gives the Attorney General authority not only to bring criminal actions against copyright infringers, but to bring civil actions as well. This means the Attorney General may step in on behalf of copyright owners and patent holders, carry in the burden of proof of any harms occurred to those industries, and ultimately impose IP holders’ legal fees on tax payers. Another provision authorizes seizure of illegally infringed documents and records which can include seizure of a private computer in the case of one download since the bill does not differentiate between large scale commercial piracy and non-commercial private use. The bill further aims to create an advisory position, the Intellectual Property Enforcement Coordinator (IPEC) in the Executive Office of the President, and to establish an operational unit within the FBI to fight IP crimes.
Since 2007, Howard Berman, California Democratic Congressman and chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property, has introduced several Pro-IP bills in the Congress. His PRO-IP (Prioritization and Organization for Intellectual Property) Act, passed the House of Representatives in May. The bill increases the government’s authority to seize property used for piracy, which may affect ordinary people that download records for non-commercial purposes. Concerned by the bill’s implications, Jason Oxman, Vice President of Communications at the Consumer Electronics Association states, “the content community takes an overly restrictive view of consumer rights to use content.” When consumers purchase content legally, he said, they should be able to use it as they wish in their homes. "I have a DVD player in my house, and I own an iPhone. I would like the ability to watch movies on my iPhone," Oxman said. "I had to buy a second copy of the 'Italian Job' to put it on my iPhone [because] if I had endeavored to put that DVD on my iPhone, according to the [movie industry], I'm a pirate. I shouldn't have to buy two copies."
Other Berman-sponsored IP bills include the Orphan Works Act, which was approved by the subcommittee in May. It requires users to thoroughly search for the creator of an orphan art work prior to using it, and even to pay a reasonable fee if an artist turns up later. The Subcommittee passed Berman’s Performance Rights Act in June, which requires terrestrial radio stations to pay royalties for playing composers or performers’ songs. Satellite and Internet-based stations already pay such royalties.
In October 2007, USTR announced that United States and some of its key partners are negotiating an Anti-Counterfeiting Trade Agreement (ACTA). The text of ACTA has remained secret despite repeated requests from civil society and some of ACTA’s tech industry stakeholders. The secrecy of the negotiations and the governments’ rush to sign ACTA into an international agreement concerns many public interest groups. According to the 2008 G8 Declaration on the World Economy, OECD countries have expressed their commitment to complete the ACTA negotiations by this year’s end.
So far, civil societies’ knowledge about ACTA provisions is based on a four page summary of ACTA leaked in the wikileaks.org which reveals the following goals: criminalizing peer-to-peer file sharing, requiring ISPs to police the internet, tightening border measures that allow customs officials to seize personal MP3s, laptops, iPods, etc. for alleged copyright infringements, interfering with legitimate parallel imports of patented goods and fair use of copyrighted materials, and criminalizing counterfeiting/piracy acts that are done for non-commercial purposes.
The Universal Postal Union adopted its Resolution 40 on "counterfeit and pirated items sent through the post" during its 24th Congress on August 1, 2008. Despite expressed concerns by some member countries that postal operators are not enforcement officials and lack the legal expertise to fight counterfeiting, the Resolution was adopted by majority vote (unlike most other UN agencies, UPU makes decisions based on vote not consensus), urging “member countries in the context of national legislation to encourage their postal administrations to:
- take all reasonable and practical measures to support Customs in their role of identifying counterfeit and pirated items in the postal network;
- cooperate with the relevant national and international authorities to the maximum possible extent in awareness-raising initiatives aimed at preventing the illegal circulation of counterfeit goods, particularly through postal services."
The World Customs Organization (WCO) was among strong supporters of the Resolution.
The World Customs Organization (WCO) Secretariat is pushing for quick adoption of "Standards to be Employed by Customs for Uniform Rights Enforcement" (SECURE). In June 2008, along with the SECURE draft document, the WCO Secretariat presented a misleading report of the SECURE Working Group (WG) to the WCO Council, asserting there is consensus on SECURE when in reality many developing countries have objected to its standards.
Six developing countries (Argentina, Brazil, Cuba, Ecuador, China, and Uruguay) responded to the Secretariat by issuing a document stating that the Secretariat’s report on SECURE at best reflects the “position and intentions of the Secretariat.” This by itself is a cause of concern, since the Secretariat is supposed to remain neutral, especially in politically sensitive issues such as border control. Both the content of SECURE and the process in which the WCO Secretariat is pushing for its adoption are of major concern to many developing countries that are not well-represented at the WCO.
SECURE introduces harmonized standards on IP enforcement to challenge counterfeiting and piracy by giving more power to the Custom Administrations at the border and providing more benefits to IP right holders. It sets TRIPS-Plus obligations for developing countries that are believed to become another non-tariff barrier for legitimate international trade. The SECURE document is likely to be reconsidered by the WG in its next meeting on October 2008.
The "International Medical Products Anti-Counterfeiting Taskforce (IMPACT)" is a new TRIPS-Plus initiative undertaken by the World Health Organization (WHO) - the primary responsibility of which is to provide leadership for global health issues. IMPACT faced intense criticism from developing countries during the 61st World Health Assembly in May 2008. Their concerns included the composition of IMPACT, which consists of industry representatives and law enforcement organizations; the WHO Secretariat’s haste action for IMPACT endorsement; IMPACT’s definition of “counterfeiting” which may interfere with the trade of legally produced generic drugs; and WHO’s ignoring of its previous initiative, i.e. "Guidelines for the development of measures to combat counterfeit medicines" without any explanation.
Several developing countries have also expressed their dissatisfaction with WHO’s support for IMPACT, as its report focuses on combating counterfeiting as the main goal instead of dealing with it in the context of public health. They believe WHO’s crucial role in global health should not be mixed with law enforcement mechanisms that are politically charged. The draft resolution of IMPACT will be discussed during the next WHO Executive Board meeting in January 2009 and at the World Health Assembly in May 2009.
 Susan Sell, The Global IP Upward Ratchet, Anti-Counterfeiting and Piracy Enforcement Efforts: The State of Play, June 2008, available at http://www.twnside.org.sg/title2/intellectual_property/development.research/SusanSellfinalversion.pdf