The Commission aims to ensure that a truly efficient and proportionate system of enforcement of intellectual property rights exists, both within and outside the internal market, said the press release of 14 December 2009 (IP/09/1919).
Already the European Union already has the directive known as IPRED in place, providing for the (civil) measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights (including industrial property rights):
DIRECTIVE 2004/48/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 on the enforcement of intellectual property rights
(The corrected version of this text with EEA relevance was published in the Official Journal of the European Union 2.6.2004 L 195/16.)
European Observatory on Counterfeiting and Piracy
However, the European Commission is far from content with progress this far.
Last Spring, the European Observatory on Counterfeiting and Piracy was created to spread the best enforcement techniques to combat infringements of intellectual property rights.
Little public information of substance exists about the Observatory, but it is administered by the Commission’s internal market services and designed to join national public officials as well as representatives of IP rights holders experienced in IPR enforcement (designated as stakeholders).
Despite token consumer representation, citizens, consumers and net users, especially youth, mainly seem to have been cast into the role of receivers of awareness and education campaigns.
This meeting report from the sub-group on the legal framework, by the European Communities Trade Mark Association (ECTA), sheds some light on representation and work within the Observatory. The consumer representative (BEUC) was not present, but the following were represented:
Business Action to Stop Counterfeiting and Piracy (BASCAP; ICC), Union des Fabricants (Unifab, the French anti-counterfeiting and IPR protection association), Istituto di Centromarca per la lotta alla contrafazzione (Indicam; Italian anti-counterfeiting association), the Motion Picture Association, the International Federation of the Phonographic Industry (IFPI), the Business Software Alliance (promoting IPR protection for the software industry) and (national) representatives of the Global Anti-Counterfeiting Group (GACG) Network.
There is nothing wrong in business associations lobbying openly for their interests during the process of creating regulation, but it becomes problematic when one angle – increasing and enforcing monopoly rights - becomes the driving force behind the public EU Commission machinery, which is supposed to shape balanced rules taking all interests into account.
With an input mechanism totally dominated by IPR enforcement interests, there seems to be practically no real voice for citizens, net users or consumers with an interest in the free flow of information.
The same pattern is discernible in legislative initiatives in EU member states such as France, Spain and the United Kingdom.
Good public policy should build on the markets as much as on the marketeers.