Several nations are negotiating ACTA, the Anti-Counterfeiting Trade Agreement. In the Netherlands the Department of Economic Affairs is coordinating this. Three internal documents that reveal negotiation positions, struggles and obstacles came to my attention. Originally the text were written in Dutch in government workers’ slang. They also clearly show how people within Dutch government see the treaty and the process. On my request a friend, let’s call him John Doe, translated them to make them available.

Report of the directorate Innovation week 49 namely November 30th till December 4th, 2009

Currently two chapters of ACTA are being discussed in EU-co-operation, namely civil law enforcement of Intellectual Property rights  and enforcement of Intellectual Property on the internet. The last-mentioned chapter has been drafted by the United States of America and has only recently been provided. This chapter (in particular) has given, mainly because the documents and negotiations of ACTA are classified, occasion to speculation by several groups on the internet regarding its contents (among which inclusion of the “Three strikes out”-principle). We have already received two civic letters about this: one by Stichting Brein, in which the Undersecretary has been asked to include all forms of piracy in this chapter; and a letter by a civilian, who, with reference to a letter by Stichting Brein, asks not to include piracy in ACTA.

EU questionnaires for the benefit of studies to the information exchange by governmental institutes with regard to the fight against piracy and counterfeit DG IM has asked governmental institutes (departments and administrative offices) of member-states to provide information on the mutual information exchange with regard to the fight against piracy and counterfeit.
The EC strives after an electronic information network, in which governmental institutes can exchange information about the before mentioned fight. Seen the number of institutes involved and the fact that the department of economical affairs is leading in the enforcement of Intellectual Property rights, has the response to these questionnaires been coordinated by the department of economical affairs.

IRHP 2010- 02(c)

3. ACTA: preparations of the 7th round of negotiations
The presidency requested member-states to make participation in this round [of negotiations] known as soon as possible. The EC reported on the current state of affairs in the matter of transparency. The EC is prepared to go along in the direction of full disclosure of documents, but matters were dependent on the position of the new Commissioner and of course the wishes/concessions of other countries (The USA did not seem convinced) had to be taken into consideration. The EC feared to establish a precedent for the free trade agreement currently under negotiation. It is not the intention that the position of the EU in those will be completely public.  This could have great repercussions for the interests of the EU.

Poland, the United Kingdom, Austria, The Netherlands, Finland, Ireland, Hungary, Estonia and Sweden were in favour of more transparency. France let it be known that they were not against full disclosure if that would have consensus, but they were concerned about the position of the USA. Italy concurred and expressed concerns about the repercussion for the free trade agreements and mentioned that the multi-lateral setting of ACTA should negate the establishment of a precedent. Denmark agreed with Italy and made a reservation for study of the documents. Hungary countered that logically the discussion of ACTA documents was more comparable to documents of multilateral negotiations.

The EC announced another stakeholder meeting to be held after the Mexico round [ of negotiations]. The presidency concluded that more transparency had broad support in the trade policy committee, but that isolation of the EU in this matter had to be prevented. Also the establishment of a precedent in bilateral negotiations had to be prevented.

IRHP 2010- 06(c)

ACTA: 7th round has been concluded, considerable progress has been made. Member states want that the EC pro-actively advocates transparency (amongst others publication of documents), but the EC is not in favour. Member states increase pressure.

6. ACTA (7th round [of negotiations], Mexico)
The EC reported on the negotiations. It has been a long meeting; parties didn’t seem ready to make significant concessions. Good progress has been made on customs procedures (exception of personal belongings has been confirmed, important, because that’s a delicate issue in the public opinion). Civil enforcement remains a hot topic, because all parties have different judicial systems. Transit and export remain points of discussion. On the matter of internet not all topics have been discussed because of a lack of time. The remaining issues have been moved forward to the next round (among them digital rights management). In general the scope remains an issue (EU offensive interest). Transparency has been discussed, but more in the sense of addressing unwarranted criticism in public opinion (i.e. inspection of personal belongings, 3-strike rule for illegal download, all of them no part of ACTA). Release of documents is still under discussion (Korea and Singapore oppose, the Japanese are now in favor, but the USA remain silent). A written report will follow. The EC was prepared to share with the member state its position towards the press. There will be another stake holder meeting next month (preferably in a football stadium so all ACTA criticasters can be accommodated the EC in joking). Next round in New Zealand, next April 12th till 16th. The ninth round probably in Geneva just before the TRIPs Counsel.

The United Kingdom, supported by Finland, France, The Netherlands, Sweden, Austria, Hungary, Denmark, Italy, Ireland, Poland Belgium and Portugal, pressed the EC again to have a pro-active stance on transparency and to try to convince the other parties of the necessity of being transparent.

The Netherlands asked the EC and the Judicial service of the Council for the judicial basis of ACTA under the Lisbon treaty and the possible involvement of the national parliaments in the ratification. Italy and Portugal expressed concern that currently GI’s would have a raw deal in the negotiations. JDvdR reported that de judicial basis would depend on the final text [of the treaty], but with the possibility of penal sanctions there would be an agreement under mixed judicial basis. At the end of this point on the agenda Germany mentioned that it had not yet decide its position in the matter of transparency. The United Kingdom thought that there was consensus and therefor the EU position could be changed. The presidency mentioned that the position [of the EU] that it could not stand alone in this matter had not changed. Some member states still had reservations. Belgium, Portugal, Denmark and Germany are still not convinced that complete transparency has to be achieved. It seemed Germany, Belgium and Portugal were to be persuaded, but Denmark is not very flexible. The internal process of reflection has not been completed, but according to the presidency, should be completed before the next round in New Zealand.

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