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:
- OHIM to be transformed into IP enforcemebt agency
- Chasing the Intermediaries
- Obsession with IP enforcement
- Proposal for EU regulation for customs enforcement of IP rights
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:
- Council Regulation (EC) No 1383/2003 of 22 July 2003 on customs action against goods suspected of infringing certain IP rights and the measures to be taken against such goods (to be replaced by a new, stricter Regulation soon; see below).
- Directive 2004/48/EC of 29 April 2004 on the enforcement of IP rights (IPRED1).
- 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;
- 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.
- 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.
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 ) 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  and ) 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 , ) 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.