The European Union has warned the United States not to make last-minute demands for measures on intellectual property rights, as the two attempt to conclude the Trans-Atlantic Trade and Investment Parnership (TTIP ). In particular, the EU has stressed that some US demands would 'have a limited chance of being accepted'.
The position on IPR in TTIP has come to light in the documents leaked to Greenpeace, and revealed to the German media on Tuesday this week.
Within the documents made public by Greenpeace was
an EU briefing note on the current state of play. The document appears likely to have been issued by the responsible Directorate-General of the European Commission – DG Trade. It is marked 'Restreint' or confidential. It contains a summary of the latest round of negotiations that took place in Brussels from 22-26 February.
Intellectual property rights, whilst only occupying less than a page of text, also receive a mention upfront – an indicator that IPR could be politically nearer the top of the agenda than the two negotiating parties will publicly admit.
The briefing note says that the EU is still waiting for IPR proposals to be tabled by the US, but that the US, in turn, has not produced anything concrete.
"[...] the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement)"
Enforcement means measures taken against infringing or 'pirated' content, and in the online context it will include domain seizure, blocking measures, and stopping of payment methods by means of intermediaries.
The concern of the EU negotiators appears to be that the US could bring forward last-minute proposals on IPR, just as the treaty as a whole is being agreed. This would be a a problem because some of the measures that the US wants, would be 'sensitive' and would require changes to EU law. Hence, the EU also susggests that any such proposals would 'have a limited chance of being accepted'.
Especially interesting is the negotiator's comment that they US should not bring forward its standard 'model' IPR agreement as per the one in the Trans Pacific Partnership (TPP).
the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its "model" creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA.
The TPP provisions on IPR have been attacked for re-writing global copyright law and entrenchng certain controversial elements of the US Digital Millenium Copyright Act into the laws of the other signoatory nations. For example, see this precis by the EFF. The TPP has also raised concerns about the way it addresses the criminal penalties for IPR infringement. Notably, it risks making intermediaries and small businesses criminally liable in ways that would not be the case under current EU law*.
On that basis, the EU negotiators' push-back against a TPP-style IPR provisions is good news.
But it is still worrying that the EU is being pushed via TTIP into acceding to the demands of the US-based rights-holders. Innocent-sounding terms like 'voluntary stakeholder initiatives' are a cover for measures such as website blocking and other measures by ISPs working in conjunction with rights-holders. These kinds of measures have other, unintended consequences for users and content.
Reading between the lines, it would seem that the United States negotiators are being heavied by their IP industries to push for stronger measures on IPR enforcement. This would be consistent with the industry lobbying on the previous attempt for an EU-US copyright treaty – known as ACTA or Anti-counterfeiting Trade Agreement. It is also consistent with the intensity of the relationship between the lead US negotiating body, the United States Trae Representative (USTR) and representatiives of the US entertainment industries – notably the Motion picture Association of America (MPAA).
A suggestion that is hinted at by the EU negotiators is a new IPR Committee. It is not clear where such a committee would be based, or what its role is, but we can safely assume that it will incorporate the interests of the US corporations who seek to influence EU policy.
The documents leaked to Greenpeace have stirred a public controversy over what they reveal of the corporate – State powerplay influencing the TTIP negotiations, but until now the focus has been on other sectors, notably the environment and public health. The IPR provisions have not caught the public imagination as much as the other revelations - not yet anyway. The EU should remember ACTA!
*I've used this academic paper by Kimberlee Weatherall with regard to the Trans-Pacific Partnership (TPP) IPR provisions: TPP – Australian Section-by-Section Analysis of the Enforcement Provisions of the August Leaked Draft
The picture credit for the photo of the German Parliament (Bundestag) transparent with TTIP text is: picture-alliance/dpa/Greenpeace/Ruben Neugebauer
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2016, TTIP leaks: US warned on sensitive IPR issues in Iptegrity.com, 4 May 2016. Commercial users - please contact me.
If you like this article, you might also like my latest book The Closing of the Net which discusses corporate influences over EU policy. It has three chapters on copyright including coverage of web blocking litigation, and the intriguing case of Megaupload.