Today EU trade commissioner Karel de Gucht travels to Washington to discuss the possibilities to start negotiations on an EU – US trade agreement. Some companies already dream of setting a gold standard in areas such as intellectual property rights (IPR) protection. That sounds like ACTA, the agreement overwhelmingly voted down last July in the European Parliament. Will ACTA return, should IPR be part of a Trans Atlantic “Free Trade” Agreement (TAFTA)? Opinions go from in, out or optional. The right answer is out, as with an IPR chapter, the EU and US will violate their human rights obligations.
IPR in or out?
The June 2012 interim report of the EU-U.S. High Level Working Group on Jobs and Growth said about inclusion of IPR in an EU – US trade agreement: “Both sides agree that it would not be feasible in negotiations to seek to reconcile across the board differences in the IPR obligations that each typically includes in its comprehensive trade agreements.” (pdf)
The EU and US then held consultations, Infojustice lists some reactions regarding IPR. The National Association of Manufacturers, National Foreign Trade Council and a Joint comment by the Pharmaceutical manufacturers and Research Association, and the European Federation of Pharmaceutical Industries and Associations are in favor of including IPR in the trade agreement. The European Generic Medicines Association and the the (US) Generic Pharmaceutical Association recommend keeping IPR out of the trade agreement.
In its submission, the National Foreign Trade Council mentions “a comprehensive agreement or set of agreements”. A set of agreements would be the right approach, as one yes or no vote on a monolithic trade agreement does not seem compatible with democracy.
An optional IPR chapter?
Intellectual Property Watch yesterday reported the possibility that an IPR chapter could be made optional: “Being part of a larger, comprehensive package, special provisions in the IP chapter might not be made a make-or-break issue for a TAFTA, unlike in the debates about the Anti-Counterfeiting Trade Agreement.”
That, at first sight, may look reasonable. But it is important to remember what Michael Geist wrote in his report on ACTA for the European Parliament International Trade committee: “In an attempt to resolve ongoing conflicts over several substantive areas, the ACTA negotiators agreed to make many provisions permissive rather than mandatory. Supporters frequently point to the non-mandatory nature of several contentious provisions as evidence that there is little reason for concern with the substantive elements of ACTA. The permissive approach may be a useful mechanism to achieve consensus, but it provides cold comfort to those concerned with the long-term implications of the agreement. The experience with other treaties indicates that flexible, permissive language is gradually transformed into mandatory, best-practice language.” (pdf)
Access to knowledge and culture is a human right. As Peter Yu wrote earlier, it is imperative that countries strike a more appropriate balance between the protection and enforcement of intellectual property rights and the commitments made in international or regional human rights instruments.
An optional IPR chapter will point in the wrong direction. All countries have an obligation to respect, protect and fulfil human rights, and must desist from acts and omissions that create a real risk of nullifying or impairing these rights. All countries are obliged to create an enabling environment conducive to the universal fulfilment of human rights. (See the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights, pdf)
With an IPR chapter, the EU and US will violate their human rights obligations.