Sunday 10 January 2010

EU enforcement of intellectual property rights (IPR) and ACTA

The enforcement of intellectual property rights (IPR) is high on the agenda of the European Union, both in the internal market and in the EU’s external trade.

On Wednesday, 13 January 2010 the Council’s Working Party on Intellectual Property (document CM 1019/10) meets to discuss for a preliminary exchange of views on a Draft Council Resolution enhancing the enforcement of intellectual property rights in the internal market, based on a proposal by the Spanish presidency.

The draft Council Resolution on enhancing IPR enforcement (document 5022/10) is a valuable source with references for those who want an overview of actions in force, decisions taken and measures planned in order to combat counterfeiting and piracy, as well as to protect existing business models based on intellectual property rights.

Among the 39 points on the six pages, the draft agrees with the principal lines of action put forward by the Commission, and the Council is expected to adopt i.a. the following proposals:

• The Commission to further define and fulfill the scope of competences of the European Observatory on Counterfeiting and Piracy, supporting its activity through existing institutional structures and through the Enforcement Committee mentioned below.

• The Commission to consolidate cooperation with and between Member States through the creation of an IPR Enforcement Committee, encompassing the IPR Enforcement Directive contact points, Member States' representatives to the Observatory and designated National Coordinators.

• The Commission, in close collaboration with the Member States, to analyze the application of the Directive 2004/48/EC on the enforcement of intellectual property rights, including an assessment of the effectiveness, of the measures taken and, while taking account of the rapidly developing digital environment, if necessary propose appropriate amendments.

Commission proposal

The underlying preparatory document is the Commission's Communication of 11 September 2009 on enhancing the enforcement of intellectual property rights in the internal market1; COM(2009) 467final (12 pages)

The Commission set the tone for the debate by offering the following conclusions (page 11):

By providing incentives to create, innovate and trade, intellectual property rights are one of the cornerstones of a competitive, wealth-generating, knowledge-based society. IPR infringements cause widespread economic harm and an increasing number of counterfeit products now pose a real threat to consumer health and safety. It is therefore in the interest of stakeholders and consumers alike to have a responsive enforcement system which is robust, proportionate and fair.

The Commission seeks to ensure this by complementing the existing regulatory framework with non-legislative measures to make for more collaborative and focused enforcement across the Internal Market, in particular by:

• supporting enforcement through an EU Counterfeiting and Piracy Observatory;

• fostering administrative cooperation throughout the Internal Market;

• facilitating voluntary arrangements between stakeholders.

The Commission is convinced that these measures will significantly strengthen the fight against counterfeiting and piracy, in the common interest of European citizens, business and the economy as a whole.

Since the non-legislative Commission proposal does not require codecision by the European Parliament, the Legal Committee is preparing an own-initiative report, and it has nominated Marielle Gallo (PPE) as rapporteur; procedure number INI/2009/2178.


The external aspect of the matter is the pluri-lateral Anti-Counterfeiting Trade Agreement (ACTA) being negotiated.

ACTA will be discussed on 12 January 2010, but sadly the European Union has not made the relevant document 17779/09, dated 23 December 2009, available to the public.

The Commission’s 2nd Implementation Report for the Community Lisbon Programme 2008 – 2010 COM(2009) 678 final offers us the following crumbs (page 12):

Continued action is being taken to improve the effectiveness of the IPR enforcement system against counterfeiting and the negotiations on the Anti-Counterfeit Trade Agreement (ACTA) are now well advanced. In October 2009, the Commissioned issued a report on intellectual property rights (IPR) infringement which targets countries for closer cooperation in the field of IPR enforcements and combating infringements.

The United States Trade Representative USTR has published a 6 page summary on 6 November 2009: The Anti-Counterfeiting Trade Agreement - Summary of Key Elements Under Discussion.

Although the summary starts by mentioning the proliferation of counterfeit and pirated goods in international trade as an ever-increasing threat to the sustainable development of the world economy (page 1), it appears on page 4 that rights in the digital environment are included in the scope under discussion:

Intellectual Property Rights Enforcement in the Digital Environment

This section of the agreement addresses some of the special challenges that new technologies pose for enforcement of intellectual property rights. Elements under discussion in this section include the availability of remedies:

- in cases of third party liability, without prejudice to the availablity of exceptions and limitations;

- related to infringing material online, including limitations on the application of those remedies to online service providers;

- related to the circumvention of technological protection measures, including the availability of exceptions and limitations;

- related to the protection of right management information, including the availability of exceptions and limitations.

To conclude this blog post, we quote the written question E-6094/09 by Christian Engström MEP (Greens-EFA; Pirate Party SE) on 4 December 2009:

Subject: ACTA negotiations and Telecoms Package principles

In the recent agreement on the Telecoms Package it was decided that no measures restricting end-users’ access to the Internet may be taken unless they are appropriate, proportionate and necessary within a democratic society — and never without a prior, fair and impartial procedure that includes the right to be heard and respects the presumption of innocence and the right to privacy.

Are the proposals currently being discussed in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations fully in line with the letter and the spirit of these provisions in the Telecoms Package? If not, when and how will the Commission redress any incompatibilities?

Ralf Grahn

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  1. Often we forget the little guy, the SMB, in our discussions of the comings and goings of the Internet marketing industry. Sure there are times like this when a report surfaces talking about their issues and concerns but, for the most part, we like to talk about big brands and how they do the Internet marketing thing well or not so well.

  2. The commission's recommendations for IPR are really good. Let's see how strictly they are enforced?


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