14 February 2012

IP Enforcement Efforts in the European Union

Now as the debate on the Anti-Counterfeiting Trade Agreement (ACTA) is gaining momentum, as shows this Google Trends graph, the ksnh::law blog is trying to put a stronger focus on the enforcement efforts within the European Union. We began working on that topic with the following postings during recent weeks and months:

    ACTA. (cf. ksnh::law [1], [2], [3]) While ACTA requires in Art. 2 § 1 that
    Each Party [i.e. Acta member state] shall give effect to the provisions of this Agreement. A Party may implement in its law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. [...]
    it does not come as a surprise that in some of the ACTA member states some (if not many) of the provided provisions are already in force, e.g. by implemented secondary EU law regarding IP enforcement:
    Many of these existing provisions have worked for many years now without causing much trouble, so that the question arises as to what is the desired effect of ACTA. These are our observations:
    1. Forge something like a ‘coalition of the willing’ that desires to create some sort of institutionalised lock-in setting which in future prevents that certain standards agreed upon are ever undercut by reforms of national law weakening the system of IP protection;
    2. ACTA will create a third pillar of international IP enforcement institutions with own funding and bureaucratic structures, independent of and easier to control as WIPO and WTO / TRIPS
    3. Unlike WIPO and WTO, ACTA proponents chose to conduct initial negotiations in secrecy without even disclosing the initial text drafts, in order to prevent interventions from civil society that might disturb the desired Enforcement of Intellectual Property Rights in the Digital Environment, by which a legal environment would be set up where businesses relying on the Internet, in particular intermediaries, are subjected to a draconian regime of forced co-operation with a broad spectrum of enforcement efforts.  
    ACTA in Germany. As recently reported in German media (e.g. here or here), the German Government maintains its support for the international copyright agreement despite the recent mass protests in major Germany cities since IP rights need to be protected and enforced also in the Internet, as recently explained by Government spokesman Steffen Seibert on twitter. Besides that, many of the objections raised on ACTA in the Internet were not applicable, since e.g. ACTA neither requires net barriers nor is it a secret agreement, he added. Mr Seibert also explained that preliminary versions of the agreement have been made available on the Internet as early as 2010, while the final agreement as approved by the Federal Government is online since December 2011 (pdf).
    ACTA falls under the responsibility of the Federal Ministry of Justice under Sabine Leutheusser-Schnarrenberger (Liberal Democrats; FDP). While she initially gave instructions to sign the agreement, it came as a surprise that she expressed concerns and even withdrew her signing instruction only recently. This change of mind was explained by the fact that ACT is a "mixed multi-lateral agreement", which is why the Federal Ministry of Justice did not take an active part in the negotiations but only had an observer status. Besides this rather "constructed" argument, a Ministry spokesman could not give more convincing reasons for the Minister's turn-around.

    The center right CDU party of Federal Chancellor Angela Merkel, being the larger coalition partner of the Leutheuser-Schnarrenberger's FDP in the German Government, however, left no doubt that they consider the agreement still appropriate, which is why the Minister of Justice's change of mind was noted "with surprise". For example, Wolfgang Bosbach, prominent CDU spokesman of internal affairs, defends the ACTA agreement by arguing that what is forbidden in real life - i.e. copying other's intellectual property - cannot be allowed in virtual life.

    Revised IP Enforcement Directive. (cf. ksnh::law [1]) A Document obviously authentic laying out a Roadmap Proposal for a revision of the IP Enforcement Directive (Directive 2004/48/EC) says:
    [Some] initial assessment as well as a public consultation early in 2011 have revealed that certain provisions in the Directive may not be sufficiently clear and that this has lead to diverging interpretations in national courts. In addition, the Directive seems not to be sufficient to effectively tackle IPR infringements on the Internet. A number of other issues have been raised, that could be hampering a proper enforcement of intellectual property rights in particular for SMEs, such as the use of provisional and precautionary measures, procedures to gather and preserve evidence (problem of relation between the right of information and protection of privacy), the meaning of various corrective measures, including the costs of destruction, the calculation of damages.
    Furthermore, the roadmap document argues:
    The Directive has not been designed to deal with the challenges posed by the internet. The internet and digital technologies have added a new dimension to enforcement of intellectual property rights. On the one hand, the internet has allowed creators, inventors and their commercial partners to find new ways to market their products, but on the other hand it has also opened the door to new forms of infringements, some of which have proved difficult to combat. [...] As a result, there is a need to modernize the Directive to make it a suitable legal tool for the infringements committed on the internet.
    OHIM. (cf. ksnh::law [1] and [2]) Also recent measures to transform OHIM anto an IP enforcement think-tank appear to be politically related to an expectation that ACTA will enter into force within the EU, as Art. 28,31, 33 to 35 of ACTA aim at entrusting OHIM with certain tasks related to the protection of IP rights, including establishing a European Observatory on Counterfeiting and Piracy (COM(2011) 288 final).

    Future Role of EU Customs. (cf. ksnh::law [1], [2]) The first posting reports on Document 10880/11 (COM(2011) 285 final) covering a proposal for a new EU regulation replacing Council Regulation (EC) No 1383/2003 that intensifies the legal framework for enforcement of intellectual property rights, e.g. with respect to "introducing procedures enabling customs, under certain conditions, to have goods abandoned for destruction without having to undergo formal and costly legal proceedings", the latter sounding somehow frightening. This approach is justified by Document 10880/1 ADD 1 conveying a Commission Staff Working Paper, a summary of which is available with Document 10880/11 ADD 2, while details concerning a public consultation held in 2010 were published with Document 10880/11 ADD 3.
    The responsible Rapporteur, Jürgen Creutzmann (Liberal Democrats) has published his Draft Report on the proposed EU Regulation on 13 December 2011, suggesting, inter alia, that a traveller exemption clause in the Commission Proposal should be deleted, since the exemption of travellers’ luggage is inconsistent because IPR can only be enforced when the goods are of commercial nature/used in the course of trade. This and other suggestions of Mr Creutzmann apparently are highly controversial (Google translation).

    Document 5145/12, which originally was classified LIMITE but was obtained under a request based on Regulation (EC) No 1049/2001, covers some related notes of the General Secretariat of the EU Council and informs the Delegates of the Working party on Customs Union  under the Danish EU Presidency on the thematic topics to be further discussed, while the Role of customs and responsibilities of the right-holders and Transit are commented in some detail. Regarding the Role of Customs, however, the question arises as to whether or not Customs Officials indeed are qualified to take an active role in countering IPR infringements and safeguard the legitimate interests and rights of the concerned persons if it comes to more complex and entangled situations, especially when patent rights are involved.

     (photo 2009 by e³°°° via Flickr under a CC license)