IPR Lists For Trans-Atlantic Trade Deal Still Growing; Risk Of Locking In Old IPR Regimes?

Locking in Europe and the United States to “old” intellectual property regimes is the one “killer argument” against including an IP chapter in the upcoming Transatlantic Trade and Investment Partnership (TTIP), according to Bernd Hugenholtz, director of the Institute for Information Law (IViR) at the University of Brussels. Hugenholtz spoke at a workshop on “What Role for Intellectual Property Rights in the TTIP?,” organised by Marietje Schaake, member of the European Parliament for the Liberal Group. Questions also were raised during the meeting about the lack of transparency of free trade negotiations.

Rupert Schlegelmilch, director of DG Trade at the European Commission, outlined the issues for what he said is not expected to be a comprehensive TTIP IP chapter. Both the US and the EU have a high level of IPR protection, even if the rules used differ. Therefore, there is no need for fixing things. “Our systems are not broken,” Schegelmilch said, and there was no intent to create new rules or to change the IPR systems “via an external impulse.”

Instead, negotiators are looking for a “limited number of significant IPR issues interesting for both sides,” including the handling of trade secrets, questions of upstream systems of trademark and patent systems (databases and the like), cooperation and also enforcement. Schlegelmilch said that contrary to the embattled Anti-Counterfeiting Trade Agreement, no harmonisation of rules in enforcement are intended.

Yet on both sides of the Atlantic lists are still being compiled, Schegelmilch said. “We are receiving ideas as we speak,” he said, also pointing to a dedicated stakeholder dialogue meeting by DG Trade next Friday. One issue which is well-known to be high on the EU list is better protection of the geographic indications. “We would want to see a little bit more engagement from our US friends, who are not very keen to work on the concept beyond what is in the WTO,” Schlegelmilch said.

Opening lists for an IPR chapter means that more and more things might be put on the table, warned Hugenholtz. “You see on the American side the number of the IP issues is already expanding.” The high level of IPR protection in both jurisdictions is in fact an argument against an IP chapter in the TTIP, he said.

Hugenholtz presented some of the differences between the two systems, namely in copyright or patenting software. But, he said, there is no indication of big trade barriers from the differences, especially as both parties had signed international treaties intended to facilitate trade. Given the differences, it also is doubtful that the parties could compromise.

The most important argument of all, according to him, is the lock-in resulting from an agreement based on current standards. With both the US and the EU discussing changes to their copyright systems, reform is not a theoretical thing.

“Reform is in the air,” Hugenholtz said. “If we lock in now, we will regret it, because we cannot easily roll back.” Schaake said that in a way the copyright system in the digital age in fact is broken and therefore reform is necessary.

Finally, Hugenholtz also warned that including an IP chapter could be asking for trouble for the TTIP in general. “You can tell a hundred times that this is completely different from ACTA. But I am not sure the Internet community will hear that.”

The lack of transparency, Joe McNamee, executive director, European Digital Rights (EDRi), was a tool to kill ACTA and certainly could be used against the TTIP in the same way. McNamee said he is looking forward to seeing DG Trade living up to promises of more consultation and transparency.

Schlegelmilch promised it was not about an nontransparent backdoor deal and that transparency is important. Yet negotiations would be made more difficult if proposals were published immediately, and furthermore negotiating partners sometimes are opposed to publishing documents and this has to be respected.

Yet without being able to read what was in an IP chapter, Michael Engström, Pirate Party member of Parliament, said it would be impossible to explain how the TTIP IP chapter is different from ACTA. Schaake reiterated her commitment to share information and broadly consult with interested public.

Interest in the hearing in Brussels was considerable. Concerns raised by representatives from different NGOs touched on the the potential inclusion of limitations and exceptions in a potential IP chapter (James Love, Knowledge Ecology International) and the legal effects from small arbitration panels interpreting treaties in investor-state dispute settlement (Ante Wessels, Foundation for a Free Information Infrastructure).

There were also warnings against giving up the protection of audiovisual content in the EU, challenged as protectionism on the panel by Hosuk Lee-Makiyama, director of the Brussels-based trade group European Centre for International Political Economy. Whether the EU will agree to have audiovisual content be a part of the agreement remains to be seen.

Schlegelmilch said the TTIP will be difficult to negotiate, as it is “not just another FTA,” but rather a “game changer.”