IP Maximalists
Source: overview by Prof. Susan K. Sell, Susan.sell@gmail-com
Overview of Organizations
The main actors in the ACTA process are “nodal actors” or networks of state and private sector actors who coordinate their positions and enroll nodal actors to help the cause. These are not single issue coalitions of states, but rather a mélange of private and public sector actors who share compatible goals and continue to coordinate their negotiating positions over time and across forums. Drahos states that “there is considerable evidence that the US runs its trade negotiation as a form of networked governance rather than as a simple process of domestic coalition building.”[12] The anti-counterfeiting and enforcement agenda represents densely networked governance. Among the actors that this network recently has enlisted are the World Customs Organization, the US Department of Homeland Security, and Interpol.
Campaign to Protect America
This campaign is the USCC’s Coalition against Counterfeiting and Piracy’s Intellectual Property Enforcement Initiative. This initiative lays the groundwork for all of the other efforts because it is comprehensive, and outlines the full court press strategy that industry and supportive government agencies currently are pursuing. While it is US-based, it offers significant insights into the broader global strategy because the US has been the first mover and major instigator of the quest for ever higher IP standards. Many of the initiatives that follow fit neatly under this broader rubric. The campaign includes a number of ambitious goals. The campaign presents six initiatives. I will discuss each in turn. First, is to improve coordination of federal government intellectual property enforcement resources. To this end, the campaign sought to designate a chief IP enforcement officer (“IP czar”) within the White House. The US House of Representatives passed this provision, in the Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP) in May 2008.It awaits the Senate vote. The campaign also sought to raise anti-counterfeiting and piracy responsibilities to senior levels at the Department of Justice and Department of Homeland Security.
In 2004 the White House initiated its Strategy Targeting Organized Piracy STOP! This has focused on interagency coordination. The US has established the National Intellectual Property Enforcement Council. Its members include the U.S. Coordinator for International IP Enforcement and high level officers from the Departments of Commerce, Homeland Security, Justice, State, and USTR. The US Copyright Office serves as an advisor to the Council.
The second initiative focuses on border protection against counterfeiting and piracy. This involves expanding information-sharing capabilities, developing databases to flag suspect shipments, to fund more agents and training programs, to give Customs and Border Protection agents more legal authority “to audit and assess fines for importers, exporters, or other parties that materially facilitate the unlawful entry of counterfeit and pirated goods into the US.” This raises important questions because what constitutes a “counterfeit” or “pirated” product varies from jurisdiction to jurisdiction. These are complex legal issues that Customs officers are neither trained nor authorized to adjudicate. Border protection goals include eliminating the existing “personal use” exemption and outlawing importation of any quantity of counterfeit or pirated products including via mail or courier service.[17] These goals could impact the fair use doctrine, or allowances for infringements for noncommercial purposes.
The third initiative addresses enhanced law enforcement capacities to crack down on “intellectual property theft” by increasing funding for law enforcement (US Attorneys’ Offices, FBI, training for state and local law enforcement), enhancing penalties for counterfeiters who cause bodily injury or death, and increasing coordination between law enforcement and industry.
The fourth initiative to “Protect America” is to coordinate with law enforcement and customs officials across borders and abroad. Activities include training and technical assistance. USTR and industry are, together, to devise and coordinate priorities for technical assistance. Public-private partnerships feature prominently. It also involves funding “technical assistance” to train governments in IP enforcement, establish IP attaches at US embassies, and increase funding for Intellectual Property Law Enforcement Coordinators internationally. Again, in conjunction with USTR, the initiative endorses the use of the Generalized System of Preferences (GSP) and regional trade preference programs to encourage enforcement of IP rights.
Fifth, “Protect America” seeks to establish a pilot program for judges to handle counterfeiting and piracy cases, and institute treble damages against complicit activity related to counterfeiting.
Finally, “Protect America” seeks to create and administer a nation-wide consumer awareness campaign revealing the harms caused by counterfeiting and piracy (including paid and donated ads for television, radio, print, and the Internet).[20] It also seeks to focus on college campuses to fund R&D to secure campus networks against P2P network activity, and to direct funding agencies to favor those campuses that have the most stringent antipiracy practices.
Industry associations and the USTR
Associations such as Motion Picture Association, the Recording Industry Association of America, the International Intellectual Property Alliance, and the Business Software Alliance routinely provide data and information about foreign governments’ failure adequately to protect their intellectual property. They submit reports and complaints through the Special 301 process and USTR names alleged offenders on its annual Watch Lists.
According to law professor Michael Geist, “Canadian officials have ‘rightly dismissed’ the Special 301 process as ‘little more than a lobbying exercise.’ … One official told a parliamentary committee that Canada does not recognize the process because it ‘lacks reliable and objective analysis’ and is ‘driven entirely by US industry.’” The 2008 Watch List identified China, Russia, and Thailand as among the worst offenders. Significantly, China’s placement on the Priority Watch List is due to concerns about enforcement. The US has filed a complaint against China with the WTO; this will be the first WTO dispute focused on enforcement. Industry, through the USTR, is pressuring Russia to adopt TRIPS-Plus measures as part of its WTO accession process.
On October 23rd 2007, just two weeks after WIPO’s September 2007 adoption of the Development Agenda, USTR Susan Schwab announced that it would seek to negotiate ACTA in order to “set a new, higher benchmark for enforcement that countries can join on a voluntary basis.” Kevin Havelock, president of Unilever United States noted that Schwab ‘’made quite a commitment of her own energy’ pushing for ACTA.”On that same day, the Ministry of Foreign Affairs of Japan and the European Commission announced their intentions to pursue an international enforcement agreement. Notably this process will go forward independently of any international organization. Indeed, Eric Smith, head of IIPA, reflects industry’s determination for an uncompromising agreement when he states that the ambitious agreement for strengthened enforcement “should not be sacrificed for additional signatories or the need for a hurried conclusion of negotiations.”
Industry-dominated groups in International Organizations
WIPO: the Advisory Committee on Enforcement (ACE), established in 2002 is industry dominated, and has devoted its efforts to discussing strengthening enforcement and problems that rights holders face in third countries. ACE has not devoted attention to public interest considerations or rights holders’ obligations.
The World Health Organization’s International Medicinal Products Anti-Counterfeit Taskforce (IMPACT) is supported by the International Federation of Pharmaceutical Associations (IFPMA). Interpol is deeply involved in this effort and has focused its efforts in Southeast Asia. Other members include representatives of WIPO, OECD, WTO, and WCO. Government participation is voluntary; IMPACT tends to be industrydominated, and according to Outterson and Ryan, industry tends to blur the distinctions between parallel trade, compulsory licenses, and generics. Critics question this initiative, which is a G8 priority that focuses on counterfeit drugs rather than other pressing health issues.
Industry is very involved in monitoring the WTO accession process, and is pressing to make enforcement a permanent part of the TRIPS Council agenda.
ACTA
While copyright and trademark-based industries have been concerned about enforcement for many years, the most recent push for a new approach emerged in 2004 at the first annual Global Congress on Combating Counterfeiting. The Global Business Leaders’ Alliance Against Counterfeiting (GBLAAC), whose members include Coca Cola, Daimler Chrysler, Pfizer, Proctor and Gamble, American Tobacco, Phillip Morris, Swiss Watch, Nike, and Canon, sponsored the meeting in Geneva.Interpol and WIPO hosted the meeting. At the July 2005 Group of 8 (G8), meeting Japanese representatives suggested the development of a stricter enforcement regime to battle “piracy and counterfeiting.” The G8 issued a postmeeting statement: “Reducing IP Piracy and Counterfeiting Through More Effective Enforcement.” In what would become a familiar trope, the first line claims that trade in counterfeit and pirated goods “can have links to organized crime,” and threatens employment, innovation, economic growth, and public health and safety. That same year, the US Council of International Business partnered with the International Chamber of Commerce to launch the Business Coalition to Stop Counterfeiting and Piracy (BASCAP).
A recently leaked discussion paper about ACTA circulated among industry insiders and government negotiators from the US, Japan, Switzerland, Canada, the European Union, Australia, Mexico, South Korea, and New Zealand included all of these negative effects and added “loss of tax revenue” to the litany.
This is no high-minded quest for the public good. As David Fewer of the Canadian Internet Policy and Public Interest Clinic and the University of Ottawa noted, “if Hollywood could order intellectual property laws for Christmas what would they look like? This is pretty close.”One of the central features of ACTA’s approach would be to enlist the public sector in enforcing private rights. This means that tax payers’ dollars would be used to protect private profits. The opportunity costs of switching scarce resources for border enforcement of IP “crimes” is huge. There surely are more pressing problems for law enforcement in developing countries than ensuring profits for OECD-based firms. Other concerns address the lopsided nature of the ACTA approach, favoring rights holders above all else and presuming suspects to be guilty. Due process of law will be sacrificed to the interests of IP rights holders and there will be few, if any, checks on abuses of rights.[38] It would authorize border guards and customs agents to search laptops, iPods, and cell phones for infringing content. Customs officials would have authority to take action against suspected infringers even without complaints from rights holders; they could confiscate the laptops and iPods. Privacy issues arise over extensive data sharing and possible wire tapping that could be involved in ramped up enforcement efforts.
ACTA would require Internet Service Providers to police and control their systems for infringing content.[39] Its one-size fits all policy exacerbates the problems that even the far more forgiving and flexible TRIPS revealed. It sharply reduces policy space for developing countries to design appropriate policies for their public policy for innovation and economic development. It also would create an additional international intellectual property governance layer atop an already remarkably complex and increasingly incoherent intellectual property regime.
As Shaw points out, “instead of merely shifting the debate from one forum to another, the ACTA supporters now seek to create an entirely new layer of global governance.” The treaty will be tabled at the G8 meeting in Tokyo in July 2008.
World Customs Organization
The G8 opened negotiations at WCO to establish customs enforcement standards. In June 2006 Members recognized the major role that they could play in IP protection, and established a set of standards for IP enforcement.[42] Brussels-based WCO is a congenial forum for IP rights holders because there they are on equal footing with governments.
Discussions at WCO have not been transparent, and advocacy and consumer groups have not been able to participate; many suspect that “rich country governments view it as a forum where they can strive for new IP rules, free from scrutiny.” The provisional Standards to be Employed by Customs for Uniform Rights Enforcement (SECURE), dramatically expand the scope and level of enforcement protections beyond TRIPS, leading some commentators to refer to these as Trips-Plus-Plus standards. At its third meeting of the Working Group on SECURE the WCO Secretariat announced that consultations on SECURE had been completed, with an eye toward adopting SECURE at its June 2008 meeting.
SECURE is Trips-Plus-Plus because it: extends the scope from import to export, transit, warehouses, transshipment, free zones, and export processing zones; extends protection from trademark and copyright to all other types of IP rights; removes the obligations of rights holders to provide adequate evidence that there is prima facie an infringement to initiate a procedure; requires governments to designate a single authority as a contact point for Customs; gives Customs administrations the legal authority to impose deterrent penalties against entities knowingly involved in the export or import of goods which violate any IPR laws (versus just trademark counterfeiting and copyright piracy).
The IP enforcement agenda’s nodal network has enlisted the WCO to champion IP protection and to pursue an expanded mandate. SECURE privileges IP rights holders, and while at this moment adopting SECURE is voluntary, these TRIPS-Plus-Plus provisions are likely to appear in bilateral and regional trade and investment treaties.[47] One can expect this given the US and EU track record of norm-setting, and then institutionalizing Trips-Plus provisions into Bilateral Investment Treaties, Free Trade Agreements, and EPAs.[48] Thus even though “the WCO lacks the authority to set or enforce policies that contradict the WTO,”[49] TRIPS specifies that member states are free to adopt IP protection and enforcement standards that exceed TRIPS provisions; therefore if states adopt SECURE provisions in bilateral or regional agreements they will not be contradicting WTO. WCO works with WIPO, Interpol, OECD, the European Commission, WHO, and the Council of Europe to coordinate its activities. Brazil has been an outspoken critic of these measures as setting a dangerous precedent and of sneaking in TRIPS-Plus-Plus provisions “’through the backdoor.’”
Interpol
Interpol increasingly has gotten involved in IP enforcement. It has been a prominent participant in the Annual Global Congresses Combating Counterfeiting & Piracy.
Interpol, WCO, WIPO, International Trademark Association, International Chamber of Commerce, and the International Security Management Association co-sponsor the Congresses, which have become an important global forum for government officials and IP rights holders to exchange information, best practices, and to discuss ways to stop counterfeiting and piracy. Interpol has dedicated one officer full-time to work with WHO’s IMPACT program. It has introduced an IP crime training program, beginning in June 2007 and will be expanding these activities.
In 2006 Interpol entered into partnership with the US Chamber of Commerce to develop a database on IP crime to facilitate information sharing. In February 2008, Interpol presented its database on international IP crime (DIIP) at the G8 IP Experts Group meeting in Japan as best practice for all countries to adopt.Critics have raised privacy concerns. Ronald Noble, Interpol’s Secretary General, has stated that “it is no longer acceptable to invoke misguided data-protection arguments for not sharing information.” The politics of fear have facilitated support for a law enforcement approach to IP protection. Interpol and the World Customs Organization enthusiastically have embraced this new mission, with its prospect of high-level support and expanded resources. Thomas Donahue, President and CEO of the U.S. Chamber of Commerce actively has supported an expanded role for Interpol through lobbying government, and targeting “hotbeds” of piracy such as China, India, and Russia. Interpol and the US Chamber of Commerce conducted their 1st Annual Global Forum on Innovation, Creativity and Intellectual Property in Beijing in March 2007, and their 2nd in Mumbai in February 2008. The USCC has provided resources and information for an Interpol Database on International Intellectual Property Crime (DIIP). While Interpol has largely focused on counterfeit pharmaceuticals, it has been working with the Business Software Alliance, the Entertainment Software Association, the International Federation of the Phonographic Industry, and the Motion Picture Association to build internet anti-piracy capacity.
Interpol’s “intellectual property crime” unit fails to provide clear definitions of trademark counterfeiting and copyright piracy; “this is a serious concern for developing countries and consumers, given that the potential scope of the definition of counterfeit and piracy may be so wide as to include legitimate uses of works and cases where an individual may infringe an intellectual property right without knowing it.”
The Security and Prosperity Partnership of North America
The SPP is a White House-led initiative among NAFTA signatories: the US, Canada, and Mexico, “to increase security and to enhance prosperity.” Under a competitiveness rubric the SPP aims to enhance IP enforcement and crack down on counterfeit and pirated goods. It seeks to target export processing zones in particular {maquilladoras}, and has established a task force of senior officials from all three countries to develop a coordinated strategy to combat counterfeiting and piracy. It is best described as an ongoing dialogue rather than a formal agreement or treaty. The US government agencies engaged in this dialogue are the Department of Commerce {“prosperity}, the Department of Homeland Security {security} and the Department of State {to coordinate}. The SPP is focused on increasing private sector engagement in the process to help the North America’s competitive position in the global economy.
APEC
In APEC the U.S. has been pressing an “Anti-Counterfeiting Piracy Initiative.” APEC has adopted a number of U.S. proposals including five model guidelines on reducing trade in counterfeiting and pirate goods.
“Think Tanks”
One of the IP maximalists’ objectives is to build a “virtual IP network (NGO) capable of influencing leading European political parties and non-business think tanks in favor of government support for IP – in Germany, Austria, Switzerland, France, Italy, Scandinavia, and the UK.”Industry-supportive “think tanks” have been producing studies for the cause of ratcheting up IP standards and enforcement. For example, industry lobbyist outlets such as the International Intellectual Property Institute, the Institute for Policy Innovation, the Stockholm Network, and the Center for Innovation and Economic Change, have all supplied studies and articles promoting TRIPS-Plus-Plus approaches to IP." (http://www.twnside.org.sg/title2/intellectual_property/development.research/SusanSellfinalversion.pdf)