February 25, 2014

IP and privacy in TTIP / TAFTA

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With other representatives of civil society organisations and business stakeholders, I spent an afternoon at the Dutch Ministry of Foreign Affairs talking about the ongoing talks on a proposed EU – US trade agreement (TTIP/TAFTA).

Intellectual property (IP)

Of course, the ministry assured us that TTIP will not contain ACTA-like Internet provisions or provisions that will limit access to medicine. TTIP will neither change substantial copyright nor the enforcement of copyright. We can only check this after texts are published, may that happen soon. The text of the EU-Singapore FTA is not reassuring, with examples of damages that go beyond adequate damages, creating an upward trend. See: ACTA-plus damages in EU-Singapore Free Trade Agreement.

The story on IP is that multilateral agreements are hard to conclude, the US and EU have rather similar systems, how to deal with remaining differences? The Commission follows a bottom up approach, it inventorises which issues are important for companies, the issues may regard both substantial issues and efficiency issues. The bottom up approach was earlier mentioned in A TTIP Christmas wish.

Issues that may come up in the negotiations are geographical indications (important for the EU), exportation of the EU artist’s resale right, grace period (patents), broadcasting rights, trade secrets and harmonisation of patent procedures.

Regarding the last issue, I noted that mutual recognition of patent grants should not lead to software and business patents in Europe. In 2005 the European Parliament overwhelmingly rejected the software patents directive, they should not come back by the back door.

There are no texts yet.

Privacy

Regarding privacy, the ministry pointed to GATS art 14, EU-Korea FTA article 7.50 (e) (ii) (is similar to GATS) and article 7.43, and the Charter of Fundamental Rights of the European Union article 8. The story became less convincing when the EU-US safe harbor agreement was described as providing adequate protection.

The Dutch government aims for provisions as in the EU-Korea FTA and solving conflicts resulting from the extraterritorial effects of the US Patriot Act.