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Summary of Discussions - ACTA Roundtable Consultation, April 6, 2009

On Monday, April 6, 2009, Foreign Affairs and International Trade Canada (DFAIT) hosted a roundtable consultation on the Anti-Counterfeiting Trade Agreement (ACTA). Canadian stakeholders representing a broad range of interests were invited to attend the meeting, as well as the Ottawa-based representatives of some of the countries participating in the ACTA discussions. Over 40 participants were present. Members of the Canadian negotiating team from Foreign Affairs and International Trade, Industry Canada, Canadian Heritage, the Canada Border Services Agency, the Department of Justice and the Royal Canadian Mounted Police were also present.

The roundtable was chaired by Mr. Don Stephenson, Assistant Deputy Minister, Trade Policy and Negotiations, at DFAIT. The Chair opened the meeting by providing context around the ACTA initiative, noting the increased concern worldwide regarding counterfeiting and piracy related issues and the need for like-minded countries to come together to address the problem through a plurilateral process, in particular given the lack of substantive discussion and progress on intellectual property rights enforcement in traditional multilateral organizations (such as the World Intellectual Property Organization and the World Trade Organization).

Canadian chief negotiator for ACTA, Mr. Douglas George, provided participants with an update on the status of the ACTA negotiations and shared an outline of the main issues under negotiation.

Participants were then invited to ask questions, make comments and share their views on the ACTA and the topics under discussion. The following issues were raised during the discussion period:

Release of negotiating text

The issue of releasing negotiating text was raised early in the discussion period, and the Chair provided further comment on the ‘outline of the main issues under discussion’ document in this regard. He expressed Canada’s commitment to further transparency, noting Canada’s good track record for transparency in negotiations. He provided clarification on Canada’s position, saying that Canada was pushing for the release of negotiating text at the appropriate time but that Canada could not act unilaterally. He also said that at that time the text was not sufficiently advanced to be conducive to substantive consultations since much of the text was not agreed upon, or in some sections, had not been drafted. He mentioned that at the appropriate time, it may be possible to release the text in an unattributed format in order to provide a basis for further consultations while protecting participants’ negotiating positions.

Seizure of the assets derived from illegal counterfeiting and piracy activities

Some stakeholders identified rules on “proceeds of crime” as an effective tool for tackling the problem of counterfeiting and piracy and recommended that the ACTA include such measures.

Relationship between ACTA and other bilateral trade negotiations

A question was raised regarding the relationship between Canada’s participation in ACTA and its positions in any potential upcoming free trade negotiations. Officials responded that, generally speaking, intellectual property has been addressed in Canada’s bilateral trade agreements, and that Canada anticipated the inclusion of full intellectual property chapters in potential upcoming free trade agreements with India and the European Union. Regarding bilateral agreements with other ACTA participants, officials noted that Canada’s position on intellectual property enforcement in these agreements would be informed by Canada’s positions at ACTA.

ACTA participation and relationship with other international organizations

Some participants noted that if the issues ACTA seeks to address were discussed in a broader multilateral forum instead, such as the World Intellectual Property Organization (WIPO), more countries would be involved in the process, including those who were generally considered the “sources” of trade-mark counterfeiting and copyright piracy, and others which could be important markets of Canadian interest. Specifically, there were concerns expressed that the ACTA would not be effective without broader membership. There were also concerns that the ACTA may precipitate a trend circumventing multilateral bodies’ discussions on intellectual property issues, thereby rendering WIPO less effective in the future. Canadian officials explained that the intention was to have ACTA open for other countries to join and reaffirmed Canada’s commitment to working in WIPO, expressing support for WIPO’s new Director General and the hope that it would overcome the problems of recent years. Officials also noted that Canada’s participation in ACTA did not preclude active engagement with other countries on the global problem of counterfeiting and piracy in a variety of other fora

Counterfeit pharmaceuticals

A significant part of the discussion focused on this issue, in particular what role the ACTA could and could not play in addressing the health risks associated with counterfeit medicines. It was noted that this problem was particularly dire in certain parts of the world (a participant raised the result of a study which stated that 60% of pharmaceuticals in South East Asia were substandard or counterfeit). There were a variety of views on this issue, with some participants suggesting that the ACTA was not the appropriate venue for addressing this issue and expressing concern that it could detract from efforts in other multilateral organizations, such as the World Health Organization. The point was also raised that appropriate means for the destruction of counterfeit pharmaceuticals needs to be addressed in order to prevent their resurfacing and posing a continued threat to public health. Officials highlighted Canada’s demonstrated commitment to the issue of public health, also noting that work on this issue could continue in other fora, and that the ACTA was not meant to preclude or take away from other initiatives or discussions on this issue.

Timeline for completion of the ACTA and the possibility of Canada hosting a round of ACTA negotiations

Officials confirmed that there was no definitive timetable for the completion of the ACTA negotiations, and that Canada had hosted meetings at its Mission in Geneva. Canada could host a future round but as yet this remained undetermined.

Reforms to Canada's intellectual property regime and regime harmonization

Some participants raised the question of whento expect updates to Canada's domesticintellectual property regime. Canadian officials said that this was a priorityfor Canada,noting its inclusionin the most recent Speech from the Throne. Officials also noted that the Ministers of Canadian Heritage and Industry Canada were engaged in an active dialogue on this issue, butthat there was no established timelinefor domestic reform at that point. It was noted that stakeholder viewswere welcome in this process.A participant alsoasked the question if ACTA was a mechanism for regime harmonization betweenACTA participants. Canadian officials emphasised that ACTA was not about harmonizingthe intellectual property regimes of ACTA participants, rather it was about setting predictable standards forintellectual property enforcementamongst ACTAmembers.

Authority for customs officers to act on their own initiative (i.e. “ex officio” authority)

Some participants expressed the view that a provision enabling customs officers to detain infringing goods without a complaint from a rights holder could help prevent counterfeit and pirated goods from coming into Canada. Other participants expressed their concern with providing customs officers with such an authority given a lack of specific expertise on complex intellectual property issues, noting difficulties in particular when so-called “parallel imports” were concerned. The view was also expressed that such provisions must be established in a balanced manner in order to prevent interference with legitimate trade if they were to be included in the proposed ACTA. Officials reiterated that the purpose of ACTA is not to change basic rules regulating intellectual property rights; rather it is to set standards for the enforcement of intellectual property rights. It was also noted that, at this point, much is still being discussed by ACTA participants, and that Canada’s position in the ACTA negotiations is informed by its domestic policies and interests.

“De minimis” clause

The possible inclusion of a clause which would exempt infringing materials in small quantities and for personal use received mixed views. The point was raised that such a clause could confuse messaging since on the one hand, ACTA participants would conduct public awareness campaigns on the negative impacts of counterfeiting and piracy, and on the other hand, the de minimis clause could be perceived as condoning counterfeiting and piracy for personal use. Canadian officials clarified that the inclusion of such a clause would not prohibit a country from taking measures to deal with small quantities and individual travellers at the border. However, the ACTA was intended to address counterfeiting and piracy activities that occur on a larger scale.

ACTA Advisory Groups

Some participants were interested to know whether the Government had conducted consultations with an exclusive ACTA advisory group. Officials explained that this had been considered but no such group exists. Officials shared that DFAIT may choose to consult with groups regarding specific technical issues if the need arises, and that this is standard practice in the context of trade negotiations.

Transparency

Following the question on ACTA advisory groups, the Chair invited suggestions from participants relating to transparency. Some participants welcomed the roundtable as an effort to demonstrate transparency in the process. There were also calls from participants to make the draft ACTA text public, in order to foster a more specific discussion on the substance of the proposed agreement, and also noting that transparency is increasingly the norm for international negotiations. The Chair reaffirmed Canada’s position for greater transparency in the ACTA negotiations, but explained that Canada could not act unilaterally and make the text public. Officials indicated they would continue to press for more transparency and release of texts as appropriate.

Some stakeholders also proposed that the consultations process itself would benefit from additional transparency. This could be achieved by making all submissions on the ACTA public, unless they contain commercially sensitive information. Officials agreed to take this under consideration.

In his concluding remarks, the Chair reiterated the Government’s commitment to further transparency, inviting stakeholders to follow up with any further questions or comments they may have by contacting the Canadian negotiating team with the contact information provided during the presentation.

Participants
Diego Argáez – Canadian Association of Research Libraries
Amir Attaran – University of Ottawa
Jody Cox – Canadian Generic Pharmaceutical
Jennifer D.Crowe – MTS Allstream Inc.
Daniel Drapeau – Intellectual Property Institute of Canada
Graham Rae Dulmage – Underwriters Laboratories of Canada
David Dyer – Access Copyright
David Fewer – Canadian Internet Policy and Public Interest Clinic
Michael Geist – University of Ottawa
Ysolde Gendreau – University of Montreal
Doug Geralde – Canadian Standards Association
Asha Gosein – Yahoo! Canada
Declan Hamill – Canada’s Research Based Pharmaceutical Companies
Brian Isaac – Canadian Anti-Counterfeiting Network
Paul Jones – Canadian Association of University Teachers
Virginia Jones – Canadian Motion Picture Distributors Association
Mark A. Joseph – Canadian Musical Reproduction Rights Agency
Jason J. Kee – Entertainment Software Association of Canada
Megan Kendall – University of Ottawa
Gerald Kerr-Wilson – Business Coalition for Balanced Copyright
Bob Keyes – Canadian Vintners Association
Howard Knopf – Canada Bar Association
Reynolds Mastin – Canadian Film and Television Production Association
Craig McTaggart – Telus Canada
Hélène Messier – Société québécoise de gestion collective des droits de reproduction
Annie Miville-Dechêne – Business Coalition for Balanced Copyright
Kelly Moore – Canadian Library Association
Suzanne Morin – Bell Canada
Terrance Oakey – Retail Council of Canada
Richard Pfohl – Canadian Recording Industry Association
Barry Sookman – Canadian Intellectual Property Council
Andrea Stairs Krishnappa – eBay Canada
Ryan Stoner – Embassy of the United States of America
Ken G. Thompson – Rogers Communications Inc
Christopher Tortorice – Microsoft Canada
Gabriel van Loon – Canadian Association of Broadcasters
Stephen Waddell – Alliance of Canadian Cinema, Television and Radio Artists
Lee Webster – Canadian Chamber of Commerce
Carol West – Canadian Society of Customs Brokers
Steve Wills – Association of Universities and Colleges of Canada
Bill Zerter – Canadian Publishers’ Council

Foreign Affairs and International Trade Canada
Don Stephenson – Assistant Deputy Minister
Douglas George – Lead Negotiator
Nancy Segal
Francis Villeneuve
Don McDougall
Andrea Wenham
Sarah Mitchell
Jacob Kuehn
Andrea Asbil
Industry Canada
Albert Cloutier
Sébastien Arès
Bruce Couchman
Shirley Liang
Alison Bunting

Canada Border Services Agency
Nicole Lefebvre
Chris Nelligan

Canadian Heritage
Drew Olsen
Loris Mirella

Royal Canadian Mounted Police
Supt Graham Burnside
Sylvain St-Jean

Canadian Intellectual Property Office
Nancy Leigh

Agriculture and Agri-food Canada
Lynne Fortin

Department of Justice
Lisa M. Jacobson
Tara Berish

Public Safety Canada
Matthew Senft