A European Parliament majority this week
approved a free trade agreement with Korea with strong provisions on intellectual
property rights protection, according to Robert Stury, rapporteur of the
lead EP Committee on the dossier.
The FTA, linked here, and welcomed by the conservative, socialist and liberal
parties, carries expectations of creating new trade in goods and services worth
€19.1 billion for the EU and save EU exporters €1.6 billion a year. It is the
first of a series of FTAs passed under the Lisbon Treaty
with additional scrutiny from the EU Parliament.
Yet according to the Green Party, the Parliament failed in giving the FTA a broader check
also with regard to broader social and environmental aspects. The Green Party
and the European United Left/Nordic Green Left Party Group voted against the
FTA. But the FTA will now come into effect on 1 July.
The Parliament rapporteur for the extensive dossier, Robert
Sturdy (EPP), when pointing to the benefits for EU industry through the
reduction of up to 98 percent of existing tariffs, also underlined the “strong
IP protection” alongside with “a chapter on sustainability” of the FTA. On IP
protection, the FTA contains the extension of patent rights for pharmaceuticals
and data exclusivity, both provisions ardently fought over in the ongoing
EU-India FTA negotiations.
The extension of patent rights for up to five years
shall make up for time lost during the application phase. The data exclusivity
provision prevents generic drug manufacturers from relying on data used by the
patentee for market authorisation. Clinical test data generated by the patent
holder, for example, therefore cannot be used for market authorisation of a
generic drug using the same substance, obliging the generic drug users to
reiterate the tests.
Green Party Member Yannick Jadot issued a release
criticising the agreement, because of its intervention with the Korean carbon dioxide emission policy.
“Among the more odious provisions of the agreement, the EU succeeded in pushing
Korea to massage its rules on car CO2 emissions
to allow European carmakers to export more big gas-guzzling cars to Korea,” he
said. “This arm-twisting by the EU, which has undermined the environmental
integrity of Korea’s car emissions rules, is nothing short of scandalous. Worse,
the EU is trying to spin this environmental loophole as allowing Europe’s car
industry laggards to ‘compete fairly’ in the Korean market with smaller,
cleaner and more efficient Korean cars.”
EU Commissioner Karel de Gucht on the other hand welcomed the CO2 compromise,
as it will address some of the concerns of European carmakers. De Gucht also
hastened to underline that the US-Korea FTA (Korus) signed recently would not
lead to any disadvantages for the EU.
The Green Party also pointed to possible backdoor legislation on internet
freedom because of excessive criminal liability provisions for online
intellectual property infringements contained in the IP chapter. Green party
member Jan Philipp Albrecht talking to Intellectual
Property Watch said : “We can draw parallels to the debate about the
Anti-Counterfeiting Trade Agreement.”
For ACTA, too, the criminal law parts are heavily under discussion with regard
to their compatibility with the EU acquis, the existing EU law. A criminal law
sanctions directive against IP infringements has failed in the EU, making
criminal law IP enforcement a matter of EU member states. For example, the FTA
also contains the crime of “aiding and abetting” copyright and trademark infringement on a commercial scale.
Reaching IP Protection Levels ACTA Couldn’t
The rapporteur for the Industry Committee of the Parliament, Daniel Caspary, told Intellectual Property Watch: “The
FTA provisions are all in line with the EU acquis communautaire, according to
the Commission. I welcome implementation of the acquis and certainly this is
easier in a bilateral agreement than in a plurilateral negotiation like ACTA.”
That some provisions that were part of the acquis were not implemented in ACTA,
“does not mean that we are against these provisions in the acquis,” Caspary
said.
Caspary’s point with regard to broader possible results in bilateral
negotiations proves to be true in the IP chapter of the FTA. The EU-Korea FTA
reaches the level of IP protection standards that ACTA was intended to reach:
the scope of the IP chapter is far broader, including not only copyright,
related rights and trademarks, but also designs, services marks, layout designs
of integrated circuits (in chip production), geographical
indications, plant varieties and the “protection of undisclosed
information”.
A special section covers broadcasters’ right to prohibit re-broadcasting,
fixation, and communication to the public of their TV broadcasts for a fee.
Also included are stronger border measures, including searches
and seizures upon request of rights holders.
The FTA also is similar to ACTA in another aspect, said Albrecht. Information
about the provisions of the agreement was kept secret before the agreement was
signed by the parties last year. While the committee in charge of the dossier,
the Committee on International Trade, gets access
in a private reading room, there is a clear gag order for them to speak about
the issues. With a document as long and complex as the FTA this leaves not much
chance for input by Parliament, not to speak of public scrutiny.
Concerns especially of the European car industry were well fought for by the
Parliament, though. Parliament brought in since the time of the signature a
so-called safeguard clause that will try to remedy situations in which EU
companies lose due to the effects of the FTA. Dutch independent MEP Laurence
Sassen criticised the safeguard clause as “protectionist reflex” in the face of
free trade.
“Uncompetitive companies will be protected when they do not act competitively,”
she said, “and EU citizens will pay the bill for this.” Some MEPs also tried to point that there certainly would be
losers of the FTA.
How much the FTA will be a blueprint for other FTA negotiations – EU-India,
EU-Canada and EU-Mercosur – remains to be seen. Trade Commissioner De Gucht
said the EU still does “favour the multilateral process.” He initiated talks
between seven countries in Davos in January and hopes for a breakthrough at the
WTO in summer.
“But bilateral and multilateral negotiations are no enemies.” he said. “The
opposite may hold true. Liberalisation fuels liberalisation.” The slow pace of
multilateral negotiations was the motivation for the EU-Korea FTA, too.