Meeting of the U.S.-EU IPR Enforcement Working Group

A meeting of the EU-U.S. IPR Enforcement Working Group took place today, September 23, 2009 in Washington, DC. The TransAtlantic Consumer Dialogue (TACD) and the TransAtlantic Business Dialogue were both invited to the event, which was entitled “IPR Enforcement Working Group – Meeting with Private Sector.” Below are a few highlights from the meeting; comprehensive notes of the meeting will follow.

The meeting was well-attended, with about 80 participants. In attendance were industry representatives, government officials, and just four non-profit representatives. Susan Wilson (U.S. Dept. of Commerce) and Luc Devigne (EU Commission) were the co-chairs of the meeting. In addition, Stan McCoy and Jennifer Groves of USTR and other EU officials also presented their viewpoints. The U.S. and EU government representatives reported on various IPR enforcement related activities and answered questions.

Susan Wilson in her introduction stated the IPR Enforcement Working Group’s objectives were:

– To promote enforcement
– To fight piracy and counterfeits
– To promote public & private partnerships on piracy and counterfeits

A copy of the meeting agenda is here.

a) Government Report on Multilateral fora

– At the OECD, work is currently being undertaken on phase III of the enforcement study. The U.S. government mentioned that it is unlikely they will be contributing any additional funding to this.

– Reporting on the WHO, Resolution WHA 61.21 and the IMPACT initiative were mentioned and USTR representatives said that counterfeit medicine will be a topic addressed at the next meeting of the WHA.

– The discussion of ACTA (an item on the agenda) focused more on practical details such as the dates and location of previous meetings and upcoming meetings, availability of reports of previous meetings and an announcement that for all forthcoming meetings (including the next meeting in November), a draft agenda would be made available one to two weeks before the meeting. When I mentioned the TACD resolution on Enforcement, and asked why the negotiating text had not yet been made public, Luc Devigne of the European Commission said that they are releasing as much information as possible, as text on each of the topics was completed. Kira Alvarez of the State Department mentioned two public consultations on ACTA. She also pointed to existing FTAs as a model and said that the U.S.’s contributions would be modeled after those. Both EU and U.S. negotiators acknowledged that their aim is to have ACTA finalized by next year.

b) Engagement of the labor movement

– The U.S. and EU both expressed a desire to engage labor movements in delivering a “positive and constructive message” about IPR protection and enforcement. The RIAA (Recording Industry Association of America) and IIPA (International Intellectual Property Association) were both very enthusiastic about this proposal. Judit Rius of KEI pointed out that any effort to engage labor in IP discussions must present a balanced picture of IP issues, including how poorly-directed enforcement can hurt businesses; she pointed to Google’s public submission on ACTA, and Microsoft’s seeking of a compulsory license to sell its Word products in a recent (and still pending) lawsuit. She also highlighted that some of the EU’s demands on ACTA about injunctions and damages could hurt innovation and U.S. and EU jobs. Susan Wilson of the Department of Commerce said the U.S. is considering a public event on the topic and they welcome all views on how to do this better.

c) On Co-operation with third countries on IPR enforcement

– EU and U.S. governments highlighted the following countries and regions: Brazil, China, India, Russia, Canada and ASEAN.

– With respect to Canada, the U.S./EU governments and industry all shared their concerns on Canadian IPR enforcement. The Electronic Software Association suggested using ACTA as a means of “raising the bar” in Canada to force Canadian government to respect TPMs and uphold its IPR commitments. U.S. representatives responded by stating that they expect all parties involved in ACTA to uphold the provisions put forth in ACTA, and will not accommodate the “lowest common denominator.”

– The EU and U.S. have been working extensively with China on IP issues, including its new patent law, which was an issue of great concern among the business interests present.

– The EU has not been working with India directly on IP programs, characterizing FTA negotiations as “difficult.” Industry representatives asked the U.S. and EU governments to push India to implement digital obligations.

– The U.S. and EU have been working extensively in Russia, training judges and law enforcement in IP issues. Rashmi Rangnath of Public Knowledge asked that civil society be consulted when developing these training programs, as they run the risk of training judges with a stringent, uniquely U.S./EU perspective on the law, but without the balances included in U.S./EU law. Devigne was dismissive of this concern: “We train them in Russian law.”

– The RIAA raised Mexico as a point of concern. The U.S. responded that they had an ongoing dialogue with Mexico.

– General Electric representative Thaddeus Burns expressed concern about emerging markets “eager to gain access to our technology” by “weakening IP measures.”

– In general, industry representatives expressed satisfaction with the workshops on IPR enforcement that the U.S./EU governments are organizing on China and Russia.

d) Government report on Customs

– In response to a question raised by Malini Aisola of KEI on the effects of ACTA & custom IPR enforcement on legitimate trade of medicines (such as the recent seizure of generics in Europe), Devigne (of the EC) dismissed the outcry over the European Custom authority seizures of legitimate, generic medicines in transit to developing countries as “much ado about nothing.” He said that, when compared to the volume of trade, the occurrence of such incidents is minuscule. He also said that customs regulations gave an overall benefit, they save lives by stopping counterfeits and that it was not EU policy to detain legitimate generic medicines. The EU is engaged in talks with two countries affected by the seizures (India and Brazil). Further, some pharmaceutical industries have pledged on their websites not to request customs officials’ interventions in cases where patents are valid.

– The World Customs Organization recently formed a Counterfeiting And Piracy (CAP) group, which will meet at the end of October. According to a U.S. Customs representative, many member nations did not want businesses to play a major role in the group; the U.S. and EU, however, pushed hard for business inclusion.

e) Future work

The discussion on future work mostly focus on climate change. General Electric and Microsoft were particularly outspoken in highlighting their fear that some current negotiations over green technology and IPR would weaken IPR. They also denounced the inclusion of proposals that limit patentable subject matter and recommend compulsory licenses or licenses of rights. General Electric highlighted that discussions on climate change and IPR should be differentiated from those concerning pharmaceutics and IPR. The EU representative agreed with industry and even mentioned that there is no need for a measure resembling “a Doha Declaration on public health” for climate change & IPR. Some industry representatives mentioned that the discussions on climate change are sometimes more about industrial policy by emerging developing countries.

The meeting concluded with the U.S. government asking for proposals of topics to be included in the TEC meeting scheduled to take place on October 27 in Washington DC. Proposals should be sent by the end of next week (by October 2) to Susan Wilson at Commerce and Jennifer Groves at USTR.