A few ACTA notes

fter speaking with people in or close to the negotiations, European Commission and Spanish Presidency of the EU, this is some of what I have gathered despite dealing with very tight-lipped people:

1. The negotiations are not going that well and many issues are still wide open. It is doubtful they could wrap up soon.

2. There is a significant problem in making US and EU legislation compatible on a number of issues. One of the important topics of contention, but not the only one, is probably the differences between US “fair use” and the “commercial scale”, term the EU negotiators seem adamant on leaving very ambiguous to be interpreted later a la carte, even with all the risks involved.

3. The Spanish Presidency insists that their role is to coordinate the introduction of criminal sanctions as a kind of “benchmark”. They complained of the laxness of EU member state judges in applying strictly the law – even making reference the recent P2P judgement in Barcelona. They refused to comment on how the criminal sanctions would be integrated into member state laws, whether directly or through a new IPRED on the EU level.

4. On access to medicine, border measures and TRIPs plus requirements, there exists increasing political sensitivity with countries like Germany, Netherlands and UK insisting against these strict measures in current FTAs and I would gather in ACTA. The border seizures of generics in the EU will probably be stopped by a new regulation or protocol. It is very clear that the access to medicine issue is a soft spot on which the negotiators feel very vulnerable politically.

5. The impact of the EP resolution on ACTA is unclear. The EU has called for publishing the texts. Negotiator Luc Devigne interprets that the parliament resolution tacitly accepts a broad scope of trademarks, patents and copyright since in mentions more than a narrow definition of counterfeiting. In fact on many issues the EC considers that EU law is already in line for example ISP liability. How they interpret this consequences of this liability along with the E-Commerce Directive┬┤s “mere conduit” clause, I do not know.

6. The negotiators are at a loss at what the political impact of the treaty will be on institutions like WTO and WIPO. But it is clear there is great “frustration” at the chaos and noise from the South at the Geneva institutions. They insist the institutional arrangements are still very open and will be the last issue to be discussed after agreeing on the content of the Treaty.

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

8. 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.

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

The saga will continue.

David Hammerstein, TransAtlantic Consumer Dialogue