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The EU mandate for the TTIP trade talks with the US indicates that  ‘issues related to intellectual property right’s (IPR)  will form part of the discussions.  The bureacrats in charge of the talks have managed to draft  a text that looks quite benign, designed to fool the politicians and the uninitiated. But when decoded,  it would seem to amount to the same old enforcement agenda.

 The  mandate specifies  that the intellectual property  discussion  will address ‘areas most relevant for fostering exchange of goods and services with IP content, with a view to reducing costs and supporting innovation’.

 This language sounds harmless enough, it  never mentions enforcement, and says nothing about 3 strikes or web blocking. Indeed it is so vague that we may almost dismiss it as meaningless bureaucratic garbage. But I  think we do so at our peril. Having studied the copyright industries and their lobbying tactics for over five years, I remain sceptical.

 The negotiators of the EU –US trade talks (TTIP) have learned something from ACTA. Being too specific about IPR enforcement measures brings bad publicity. This is just what the EU does not want prior to next year’s European elections.

Therefore, they have couched their requirements in a new language.  Let’s pull it apart. ‘Fostering exchange of goods and services […]’. That means they want to encourage the distribution of US movies and music in the EU, and conversely, the distribution of European music and movies in the US. Bear in mind that whilst the EU has a very small film industry, Britain, at least, has a global music industry and  a growth market in film production working for the Hollywood studios.

From their viewpoint, the showstopper is the  free circulation of their products on ‘pirate’ websites and services. If you wanted to ‘foster exchange’,   would you demand  enforcement measures to kill off those ‘pirate’ sites? Perhaps we should put that question to the USTR and DG Trade.

 Similarly, ‘reducing costs’ might also mean reducing the costs of enforcement measures. Supporting innovation might mean measures that protect the innovation of the film and music industries – which could well mean, stronger enforcementmeasures taken  against the ‘pirate’ websites.  

We learn a bit about the substance of the IPR negotiations from a  report report released by a so-called  High Level Working Group.  This  was a committee of bureacrats who will be running the talks.

 The  TTIP High Level Working Group report  says the EU-US talks will promote a high level of intellectual property protection including enforcement, and to cooperating extensively. ”

 The High Level Working Group report goes on to say that “both sides explore opportunities to address a limited number of significant IPR issues of interest to either side”. What are these limited but significant issues’?

  In the digital environment,  , ‘protection’ and  ‘enforcement’ means measures such as website blocking, payment blocking and  some form of 3 strikes  or 6 strikes. Could they also comprise the ‘limited number of significant IPR issues of interest to either side’.

 The meaning of ‘cooperating extensively’  is not clear. Are the EU and the US  cooperating with each other to produce like-for-like IPR laws?  Does it mean industry cooperation ( reprising the language of the Telecoms Package,  see "Co-operation" amendment WAS designed to support 3-strikes )? Or some other type of cooperation?

 The copyright industries' perspective does not change. Their limited interest will be to dispose of the largest peer-to-peer file-sharing sites, and to find ways of dealing with people who download or stream copyrighted material without permission or payment.

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2013,EU-US trade talks  - Soft words but what’s the real IPR agenda? , in iptegrity.com, 24 June 2013. Commercial users - please contact me.

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Iptegrity.com is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing.   I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. I am currently (from June 2022)  Policy Manager - Freedom of Expression, with the Open Rights Group. For more, see About Iptegrity

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