European Parliament (IMCO): Customs enforcement of intellectual property rights

After the introductory blog post about the proposed EU regulation about customs enforcement of intellectual property rights COM(2011) 285, we follow this future ”more robust enforcement tool” to the European Parliament.

The committee stage in the EP is soon closing for the new regulation. The Committee on the Internal Market and Consumer Protection (IMCO) is scheduled to vote on 29 February 2012 (agenda item No 21).

The draft report by Jürgen Creutzmann PE470.069 proposes 60 amendments to the Commission text.

The rapporteur wants to make the distinction between procedural and substantive intellectual property (IP) law even clearer. Thus, the regulation should not set out any criterion for determining an infringement of intellectual property rights (IPR).

The report does not subscribe to a simplified procedure only for counterfeit and pirated goods, but wants all IPR infringements to be treated in the same, simplified manner.

Small consignments are a special case. Creutzmann does not want the Commission to use a delegated act to define a small consignment. Hence, he introduces a definition into the regulation. A total weight of less than 2 kilograms seems clear enough, but does ”less than three items” mean a maximum of two?

The explanatory statement (from page 44) shows unwavering support for toughening customs control, welcoming the extension of the scope to all types of IPR infringements contemplated by the EU's and member states' substantive legislation, including parallel trade and overruns.

Since this regulation should remain procedural, Creutzmann calls for future substantive legislation, as in:

The rapporteur is of the opinion that the substantive IP law should recognise the principle that fake goods also constitute infringements of IPR when they are for private use and encourages the Commission to address this problem by revising the respective legislation.

-----

The principle of freedom of transit was never intended to apply to illicit trade, including goods which infringe IPRs. Therefore the rapporteur encourages the Commission to ensure in future revisions of substantive IP law that goods placed under suspensive procedures that are imitations or copies of goods protected in the EU by IPRs can always be classified as counterfeit and pirated goods.

Opinions

Marielle Gallo has prepared the opinion PE478.335 of the Committee on Legal Affairs (JURI) about the proposal to replace regulation 1383/2003. Some amendments were proposed.

The opinion PE476.120 of the Committee on International Trade (INTA) was prepared by Josefa Andrés Barea. The opinion discusses especially goods in transit, parallel trade and international cooperation.


Amendments

In addition to the sixty amendments proposed by the rapporteur, IMCO can look forward to voting on a number of other amendments (61 – 259), found in document PE480.583.

The preliminary date for the EP plenary debate is 22 May 2012.



Ralf Grahn
speaker on EU affairs, especially digital policy and law

P.S. 1: For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. More than 900 euroblogs are aggregated by multilingual Bloggingportal.eu. Is your blog already listed among them? Are you following the debates which matter for your future?

P.S. 2: A few moments ago, the petition launched by @Avaaz for the European Parliament (and the national parliaments) to reject #ACTA had already been signed by 2,363,595 netizens, but more are welcome until the official funeral of the anti-piracy treaty.

EU customs enforcement of intellectual property rights

The digital agenda and the intellectual property agenda of the EU are closely related.

On 24 May 2011, the same day the European Commission published its strategy paper A Single Market for Intelletual Property Rights COM(2011) 287, it also proposed new measures to toughen the control at the borders of the customs union.

For an overview, you can read MEMO/11/327 Customs enforcement of intellectual property rights – Frequently Asked Questions.


COM(2011) 285

The detailed proposal for a new regulation in English (pdf):

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning customs enforcement of intellectual property rights; Brussels, 24.5.2011 COM(2011) 285 final (32 pages)

This legislative proposal is available in all 23 official EU languages.

The Commission offers the following reasons for tightening the rules of IPR enforcement at the customs borders (page 1):

IPR infringements and the resulting trade in infringing goods are of growing concern, particularly in a globalised economy. In addition to the economic consequences for industry, the infringing products may pose serious health and safety risks to consumers. In its Communication on a Single Market Act [COM(2011) 206], the Commission therefore recalled that customs authorities should be able to provide greater protection for intellectual-property rights through revised legislation.

One thing the ACTA debate has demonstrated, is how the external and internal aspects of IPR protection are communicating vessels. The Commission clearly spells out the relationship (page 2):

The proposal is in line with the Union’s longstanding policy and strategy on the protection of IPR. This policy has been reflected in several Communications from the Commission, such as Europe 2020 and the Communication on a Single Market Act [COM(2010) 608]. Protection of intellectual property stimulates innovation and effective enforcement has a positive impact on employment, consumers and society as a whole.

The border enforcement of IPR by customs complements enforcement on the internal market, as well trade initiatives with third countries and in international fora. The proposal is an integral part of the strategic framework outlined in the new Communication from the Commission on a Single Market for Intellectual Property Rights of [24 May 2011, COM(2011) 287].

With regard to the legal basis, the Commission reasoned (page 3):

The Regulation concerns the commercial aspects of intellectual property rights in that it deals with measures enabling customs to enforce intellectual property rights at the border on goods that are internationally traded. Article 3(1) of the Treaty on the Functioning of the European Union provides exclusive competence on the European Union in the area of common commercial policy.

The new regulation is intended to repeal and replace the existing Council regulation No 1383/2003.

Among the proposed novelties meant to introduce new restrictions (page 4):

In order to strengthen enforcement, it is proposed to broaden the scope covered by Regulation (EC) No 1383/2003, by including trade names, topographies of semiconductor products and utility models. It is also proposed to widen the scope of the Regulation by including infringements resulting from parallel trade and devices to circumvent technological measures, as well as other infringements of rights already enforced by customs.

In some cases counterfeit or pirated goods could be more easily destroyed than currently. Small consignments are dealt with in this context, but with a specific light procedure.

The scope of intellectual property rights is also widened.

All in all, the directly applicable new regulation, with 37 Articles, is described as a ”more robust enforcement tool”.

***

We are going to return to the legislative procedure for the proposed regulation in later blog posts.



Ralf Grahn
speaker on EU affairs, especially digital policy and law

P.S. 1: For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. More than 900 euroblogs are aggregated by multilingual Bloggingportal.eu. Is your blog already listed among them? Are you following the debates which matter for your future?

P.S. 2: The @Avaaz petition for the European Parliament (and the national parliaments) to reject #ACTA has already been signed by 2,341,157 netizens, but more are welcome until the anti-piracy treaty has been officially buried.

More on EU Commission roadmap for A Single Market for Intellectual Property Rights

In the blog post EU Commission roadmap: A Single Market for Intellectual Property Rights, we looked at the issues listed in the communication 24.5.2011 COM(2011) 287 (available in 22 language versions).


Overviews

For those who want overviews of the strategy proposal and related questions, the European Commission published material for journalists and the wider public on the day.

The main introduction is the press release Commission sets out ”blueprint” for Intellectual Property Rights to boost creativity and innovation (IP/11/630, 22 languages).

In addition, there are two memos in English: Intellectual Property Strategy – Frequently Asked Questions (MEMO/11/332) with ongoing and planned initiatives to strengthen protection of copyright and industrial rights, and Orphan Works – Frequently Asked Questions (MEMO/11/333), which deals with works under copyright but without known holders, as well as with out-of-commerce books.

You find more information through the web page Internal Market > Protection of rights and further to Copyright, Industrial property and Enforcement of rights, especially if you use the links on the pages.



Ralf Grahn
speaker on EU digital policy and law

P.S. 1: For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. More than 900 euroblogs are aggregated by multilingual Bloggingportal.eu. Is your blog already listed among them? Are you following the debates which matter for your future?

P.S. 2: The @Avaaz petition for the European Parliament (and the national parliaments) to reject #ACTA has already been signed by 2,316,523 netizens, but more are welcome until the anti-piracy treaty has been officially buried.

EU Commission roadmap: A Single Market for Intellectual Property Rights

We started exploring the intellectual property rights (IPR) agenda of the European Commission here and here.

We arrived at the Commission's roadmap or strategy paper, published last spring:

A Single Market for Intellectual Property Rights: Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe; Brussels, 24.5.2011 COM(2011) 287 final (25 pages)

The communication is available in 22 EU languages.


Overview


The Contents offer an overview of the multitude of issues related to copyright and other intellectual property rights on the agenda of the EU Commission and the other institutions. I present the headlines (but without page numbering):

1. INTRODUCTION
2. OPPORTUNITIES AND CHALLENGES FOR A SINGLE MARKET FOR IPR
3. KEY POLICY INITIATIVES TO MEET THE CHALLENGES AHEAD
3.1. Reform of the patent system in Europe and accompanying measures
3.1.1. A unitary patent protection
3.1.2. A unified patent litigation system
3.1.3. An IPR valorisation instrument
3.2. Modernisation of the trade mark system in Europe
3.3. Creation of a comprehensive framework for copyright in the digital single market
3.3.1. European copyright governance and management
3.3.2. Technology and database management
3.3.3. User-generated content
3.3.4. Private copying levies
3.3.5. Access to Europe's cultural heritage and fostering media plurality
3.3.6. Performers' rights
3.3.7. Audiovisual works
3.3.8. Artists' resale right
3.4. The issue of complementary protection of intangible assets
3.4.1. Trade secrets and parasitic copies
3.4.2. Non-agricultural geographical indications
3.5. Enhanced fight against counterfeiting and piracy
3.5.1. Public awareness
3.5.2. A more sustainable structure for the European Observatory on Counterfeiting and Piracy and new tasks
3.5.3. A review of the IPR Enforcement Directive
3.6. The international dimension of IPR
3.6.1. Multilateral initiatives, including co-ordination with international organisations
3.6.2. Bilateral negotiation and co-operation on IP protection with third countries
3.6.3. Enhanced IPR protection and enforcement at the EU border
4. CONCLUSIONS

The strategy is well documented and thus a valuable source for those who want to follow individual issues.

Naturally, matters have moved on since May 2011. We are going to return to the digital single market, or the single market for intellectual property rights, in future blog posts.



Ralf Grahn


P.S. For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. More than 900 euroblogs are aggregated by multilingual Bloggingportal.eu. Is your blog already listed among them? Are you following the debates which matter for your future?

I work as a speaker on EU digital policy and law.

ACTA demonstrations and EU online music licensing

All around Europe demonstrations are planned, especially for Saturday, 11 February 2012, against the Anti-Counterfeiting (and much more) Trade Agreement ACTA. As never before, Europeans keep tweeting #ACTA calls to sign the @Avaaz online petition for the European Parliament (and the national parliaments) to reject the anti-piracy treaty.

But they also tweet to exchange information about the deal among governments to attain ”state-of-the-art provisions on the enforcement of IPR, including provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms” etc.

By now the Avaaz online petition has been signed by 1.946 million citizens, so the new goal of two million signatures is approaching fast.


Resistance and EU Commission agenda

Yesterday I looked at why forcing ACTA down the throats of actively resisting EU citizens wasn't such a great idea in the wider scheme of things, and I also presented the bare bones of the EU Commission's agenda on intellectual property rights (IPR), as recorded in the Commission Work Programme (CWP) 2012.

Let us take a look at the individual proposals being prepared.


Online music

82 Legislative proposal on collective rights management: Music rights – music online

The proposed instrument will have a double focus: first, a general level of governance and transparency to apply to all collecting societies; and second, specific rules aimed at licensing of online music in order to foster the digital single market and provide more cross-border services to customers across the EU. (1st quarter 2012)

The CWP web page offers us access to forthcoming CWP initiatives 2012. The link provided opens up the so called roadmap regarding initiative 82: Legislative initiative on collective rights management.

If we want a real digital single market, the whole European Union (EU), indeed the European Economic Area (EEA), should constitute one seamless, borderless market for online citizens and consumers.

However, the roadmap language is much fuzzier, speaking only about facilitating multi-territory licenses, which looks like a more modest aim.

Are these doubts justified?

We need further study.


COM(2011) 287

The roadmap refers to a communication from the Commission. For my multilingual readership I would like to point out that this ”strategy paper” is available in 22 of the official EU languages and different formats on Eur-Lex. Here the English version (pdf):

A Single Market for Intellectual Property Rights: Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe; Brussels, 24.5.2011 COM(2011) 287 final (25 pages)

The introduction seems ambitious enough for those, who accept the basic idea of monopoly rights for creators and right holders, but without the ”medieval” online market fragmentation and outdated business models we see in Europe today:

Putting in place a seamless, integrated Single Market for Intellectual Property Rights (IPR) is one of the most concrete ways to release the potential of European inventors and creators and empower them to turn ideas into high quality jobs and economic growth.

We need to take a closer look at the proposed strategy and the process in future blog posts.



Ralf Grahn
speaker, teacher and advisor

P.S. For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. Is your blog already listed among the more than 900 euroblogs aggregated by multilingual Bloggingportal.eu? Are you following the debates which matter for your future?

EU intellectual property rights (IPR) agenda

The high-running Twitter discussion about #ACTA, the Avaaz online petition for rejection of the Anti-Counterfeiting (and much more) Trade Agreement and the wave of demonstrations all over Europe merit some facts and discussion about the IPR agenda of the EU Commission.

External and internal obligations walk hand in hand, although EU-wide or national rules are sometimes alternatives.

Here are some bare bones for a starter.


Commission Work Programme 2012

In the blog post European Commission Work Programme 2012: Internal market and services we looked at the CWP proper 15.11.2011 COM(2011) 777 final (Volume 1/2) as well as the more substantive Annex to the CWP 2012 (Volume 2/2).

In the CWP Annex we found the following relevant actions planned for this year. The headlines have been modified, but the added texts are quotes.


Online music

82 Legislative proposal on collective rights management: Music rights – music online

The proposed instrument will have a double focus: first, a general level of governance and transparency to apply to all collecting societies; and second, specific rules aimed at licensing of online music in order to foster the digital single market and provide more cross-border services to customers across the EU. (1st quarter 2012

IPRED revision

88 Enforcement of intellectual property rights – adaptation of the Directive 2004/48 known as IPRED

The main objective would be to adapt the Directive (2004/48/EC) to today’s challenges in order to make sure that intellectual property rights can be protected effectively and uniformly in the EU, in particular in a digital environment. Several provisions of the Directive should be clarified in order to achieve consistent interpretation and enforcement

Notice and takedown

91 Digital Single Market: Initiative on notice and takedown procedures

The main policy objectives are: contribute to a good functioning of Digital Single Market, contribute to combating illegality on the internet, ensure the transparency, effectiveness, proportionality and compliance with fundamental rights of notice and takedown procedures, ensure a balanced and workable approach towards NTD procedures, with focus on fundamental rights and the impact for innovation, growth

Illicit drugs (crime)

This was not mentioned in the earlier post.

97 Minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (legislative proposal)

To enable Member States to tackle illicit drug trafficking more efficiently and foster a common EU approach to drug trafficking through approximation of offences and sanctions, addressing shortcomings identified during the assessment carried out in 2009 of Framework Decision 2004/757/JHA, and replacing this instrument

Ralf Grahn

P.S. For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. Is your blog already listed among the more than 900 euroblogs aggregated by multilingual Bloggingportal.eu? Are you following the debates which matter for your future?

ACTA and EU IPR enforcement agenda

It is not only a question about what the Anti-Counterfeiting (and much more) Trade Agreement ACTA contains or not, because it is a part of an intellectual property enforcement agenda driven by the European Commission.

Long before popular discontent became the massive confrontation we now see, wiser people than I warned the EU institutions of heading in the wrong direction and of advancing with undue secrecy. Some of them are mentioned in the blog posts I wrote on Grahnlaw about two years ago, and which paint a background picture for the IPR agenda today:

EU enforcement of intellectual property rights (IPR) and ACTA
EU ACTA addenda
ACTA: Whose Digital Agenda for Europe and the world?
EU IPR enforcement discussion
EU: Criminal enforcement of IPR? Resurrection of IPRED2?
EU: ”Manifold initiatives” for enforcement of intellectual property rights (IPR)


La Quadrature du Net

Little has changed. Today, La Quadrature du Net reminds us of the ongoing agenda in The EU Commission's Repressive Plans Beyond ACTA.

Trade commissioner Karel De Gucht is supported by the commissioner for the Digital Agenda Neelie Kroes and the commissioner for justice, fundamental rights and citizenship [no kidding] Viviane Reding. The internal market commissioner Michel Barnier is preparing new and more invasive enforcement measures to please the entertainment industry.


Michael Kennedy

In the well written piece For Your Digital Freedom and Ours, professor Michael Kennedy hopes that the resistance the Poles have inspired in Europe could lead to some sort of common sense aproach from the US administration as well. A short quote about the stakes:

We need legislation that preserves the Internet as a public good and recognizes legitimate concerns over copyright. In particular, we need to recognize and support the new business models coming along with this new technology so that private interests and public goods can be in sync again. The ACTA is better than it was, but it is still not good enough. We also need to be concerned about basic democratic rights in the process.

Is it too much to ask for legitimacy, transparency, responsiveness and a return to the drawing board?



Ralf Grahn

P.S. Between the global issues and the national level, the European Union shapes our digital future and online freedoms. Is your blog already listed among the more than 900 euroblogs aggregated by multilingual Bloggingportal.eu? Are you following the debates which matter for your future?

ACTA: 1.717 million ”misinformed” citizens to ignore

I was reminded by @alexanderhanff on Twitter that the EU trade commissioner Karel De Gucht asked members of the European Parliament to disregard public opposition to ACTA (Infojustice). In my view De Gucht's attitude (letter at La Quadrature du Net) is enough to deserve rejection of the Anti-Counterfeiting (and much more) Trade Agreement ACTA (Grahnlaw).

Despite the Commission's efforts [by now legendary] to ”provide all the relevant facts”, according to De Gucht ”the action they take is based on misinformation, or possibly even worse, on wilful misinterpretation of the content of the agreement. This is all the more striking given the fact that ACTA does not change existing EU rules in this area” (letter at La Quadrature du Net).

A few moments ago, there were 1.717 million of these ”misinformed” or ”wilfully misrepresenting” citizens for the MEPs to ignore, as documented by the number of signatures on the Avaaz petition to the European Parliament (and the national parliaments) to reject ACTA.

Admittedly, many citizens are only now awakening to how far EU and national legislation has already incorporated the views of IPR rightholders and to the promised ACTA blessings of ”state-of-the-art provisions on the enforcement of IPR, including provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms among ACTA Parties to assist in their enforcement efforts, and the establishment of best practices for effective IPR enforcement” (ACTA proposal).

Civil society is just telling the politicians that voters want an end to IPR fundamentalism and a new start based on equitable rules.



Ralf Grahn

P.S. Between the global issues and the national level, the European Union shapes of our digital future and online freedoms. Is your blog already listed among the more than 900 euroblogs aggregated by multilingual Bloggingportal.eu? Are you following the debates which matter for your future?

Piercing ACTA armour

We have looked at the growing protests online and on the ground against the Anti-Counterfeiting (and much more) Trade Agreement ACTA. The anti-ACTA feelings run high, but there is also a need for deliberation on the official policies of ever more draconian IPR enforcement, including ACTA (in 22 EU languages).


ACTA sources

The continuing #ACTA stream on Twitter offers you almost real time updates (if you wait a few moments), but the original contributions and gems are easily drowned by the the repetitive messages and the hype.

The decisive discussions are going to take place in the European Parliament and national parliaments, where arguments have to be based on hard facts and cool analysis in order to pierce through defensive armour, such as preordained government positions, party discipline and prior EU Council arrangements.

Here are a few gateways to critical networks and sources to help you steer towards more reasoned opposition.

You can follow @StopActaNow on Twitter for information including noteworthy blog posts and articles. The stopacta.info website contains both facts about ACTA and promotional items for activists. There are links to critical civil society websites and selected documents for further study.

You can advance to the ACTA dossier of La Quadrature du Net, the ACTA blog posts by professor Michael Geist, the Foundation for a Free Information Infrastrucure FFII ACTA blog, the What's Wrong With ACTA Week at EDRI (with five short briefing papers), the Access website for global digital freedom and the section on trade agreements at Infojustice.org.

More quality analysis is needed, but these websites are worth following for troubling questions and reasonable solutions regarding IPR enforcement.

Freedom and justice for all.



Ralf Grahn

P.S. Between the global issues and the national level, the European Union shapes our digital future and online freedoms. Is your blog already listed among the more than 900 euroblogs aggregated by multilingual Bloggingportal.eu?

ACTA in European Parliament committees: Legal Affairs (JURI)

After the roundup of ACTA blog posts in Finnish, Swedish or English on Grahnlaw Suomi Finland, IPR trade protection: ACTA controversy, I have published two recent updates about the agreement in the European Union:

Grahnlaw (EN): ACTA update (in part) (22 January 2012)

Grahnlaw (EN): ACTA in European Parliament committees: International Trade and Development (23 January 2012)

The Development Committee (DEVE) draft opinion by Jan Zahradil enthusiastically brushed aside all doubts regarding the anti-counterfeiting agreement.

Is it really this simple? Yesterday I found two new items to update my blog post. For your convenience, here they are again, with slight modifications:

La Quadrature du Net sees ACTA as the international counterpart of the SOPA and PIPA copyright bills in the USA. La Quadrature blogged about ACTA in the European Parliament both in English and in French.

European Digital Rights (EDRi) published a critical paragraph-by-paragraph assessment of what must be the DEVE committee draft opinion regarding ACTA.

Even if you do not buy the counter-arguments lock, stock and barrel, there are enough questions and references to merit serious thought.


JURI

The Committee on Legal Affairs (JURI) is preparing an opinion for the committee responsible in the European Parliament, the Committee on International Trade (INTA), which offered us the timetable. If we look at the JURI minutes 19-20 December 2011, we find the following:

24. Anti-Counterfeiting Trade Agreement between the EU and its Member States, Australia, Canada, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the USA

JURI/7/06357
*** 2011/0167(NLE) COM(2011)0380

The following spoke: Marielle Gallo (rapporteur), Christian Engström, Alexandra Thein, Eva Lichtenberger, Antonio Caiola (Parliament Legal Service)

There is nothing specific about ACTA on the JURI draft agenda 25 and 26 January 2012.


Marielle Gallo MEP

Somehow the JURI committee, too, has managed to select a gung ho rapporteur. Marielle Gallo MEP is known for her unwavering support for holders of intellectual property rights.

The IP Policy Committee blog offers a background picture about the rapporteur in the previous committee discussion, as well as the legal and political doubts expressed by other participants: Shoving ACTA down the throat of the European Parliament.

There is a Spanish version of the article, published by the Asociación de internautas: Haciendo tragar con el ACTA al Parlamento Europeo.

Erich Moechel, on FM4 ORF.at, discussed the proposals of Marielle Gallo with regard to the customs enforcement of intellectual property rights (IPR): ACTA wirft seine Schatten voraus.

Christian Engström, the Green (Pirate) MEP, wants the European Union Court of Justice (EUCJ) to scrutinise if ACTA is compatible with fundamental rights. He has blogged about the JURI discussion, as well as on several previous occasions about the anti-counterfeiting agreement both Swedish and English.

When Futurezone.at discusses the imminent signing of ACTA by Austria, the worries of internet service providers (ISPs) are highlighted, and these concerns are shared by the Green MEP Eva Lichtenberger.

***

The Anti-Counterfeiting Trade Agreement (ACTA) remains controversial, but the two rapporteurs we have looked at this far seem to be on auto-pilot to bulldoze through the agreement.




Ralf Grahn

ACTA in European Parliament committees: International Trade and Development

Yesterday I offered some information about the state of ACTA in the institutions of the European Union: ACTA update (in part). Now for some complementary information.


INTA

The Committee on International Trade (INTA) is the responsible committee in the European Parliament.

The INTA minutes 20 December 2011 (INTA_PV(2011)1220_1) offer us this decision by the coordinators (page 2/13) about the EP timetable during the committee stage:

- To ask the INTA rapporteur for ACTA to fix the timetable so that the first exchange of views takes place in February and the vote in committee takes place in April or May 2012.

The draft agenda for the INTA meeting 25 and 26 January 2012 makes no specific additions regarding ACTA.


DEVE

According to the draft agenda (item 6), the Committee on Development (DEVE) 24 and 25 January 2012 is going to have an exchange of views Tuesday about the Anti-Counterfeiting Trade Agreement between the EU and its Member States, Australia, Canada, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the USA (procedure 2011/0167(NLE), based on COM(2011)0380).

While INTA is the committee responsible (Kader Arif S&D rapporteur), the rapporteur for the DEVE opinion is Jan Zahradil (ECR).

The DEVE draft opinion PA – PE478.666v01-00, dated 6 January 2012, is strongly supportive of measures to protect intellectual property and welcomes the conclusion of ACTA, commending the Commission for ”having ensured that ACTA provisions comply with the Union acquis and that nothing in ACTA contradicts the obligations between parties under existing agreements, including the TRIPS Agreement”.

After four paragraphs of vigorous endorsement (and one other), the last two paragraphs of the DEVE draft fittingly note development concerns regarding the legitimate trade in generic medicines and access to medicines.


Update 23 January 2012: La Quadrature du Net has now blogged about ACTA in the European Parliament both in English and in French.

Update 2, 23 January 2012: European Digital Rights (EDRi) has published a critical assessment of the (DEVE committee) draft opinion regarding ACTA.


Ralf Grahn

Greens challenge ACTA legality

The European Commission has made two connected ACTA proposals:

Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America; Brussels, 24.6.2011 COM(2011) 379 final

Proposal for a COUNCIL DECISION on the conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America; Brussels, 24.6.2011 COM(2011) 380 final

The Council needs the consent of the European Parliament before the conclusion of the the agreement. See Article 218(6)(a)(v) TFEU. You can follow the procedure on Oeil, the Legislative Observatory of the EP, under the reference 2011/0167 (NLE).


Commission asserts

The European Commission knows that the less than open negotiating process leading to ACTA increased mistrust in many quarters. Some of the issues and proposals discussed during the negotiations have been criticised on Constitutional and civil rights grounds, as well as for being slanted in favour of big business interests – holders of intellectual property rights (IPR) - against the wider public (citizens, consumers, other users).

In the superficial and brief explanatory memorandum, which seems to be identical in the signing and the conslusion proposals, the Commission tries to sell the benefits of stricter IPR enforcement in international trade. It also makes assertions intended to eliminate obstacles, calm doubts and to promote the smooth passage of the proposal. Here a few picks:

* ACTA does not modify the EU acquis, because EU law is already considerably more advanced than the current international standards

* ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries

* It has never been the intention, as regards the negotiation of ACTA to modify the EU acquis or to harmonise EU legislation as regards criminal enforcement of intellectual property rights

Fundamental Rights

The Green group in the European Parliament has constantly scrutinised supposedly illiberal proposals from the Commission or member states in relation to the digital environment and the Internet.

This time the Greens/EFA have commissioned a legal study of the compatibility of ACTA with civil rights. The press release offers the conclusions in a nutshell: New study underlines rights concerns with ACTA, strengthens calls for deal to be scrapped.

Yesterday, the Green MEP Jan Philipp Albrecht said that the ACTA agreement violates binding fundamental rights, and that the EU and its member states have a duty to scrap the ACTA agreement as it stands.

Those who are interested in the individual arguments, can read the full study, or at least the Summary and Conclusions (page 58-61):

Douwe Korff & Ian Brown: OPINION on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights

The experts conclude:

Our analysis shows that ACTA, as currently drafted, seriously threatens fundamental rights in the EU and in other countries, at various levels.

***

The assertions by the European Commission are not enough. The European Parliament and national parliaments need to look closely at the legal implications of ACTA, however keen they might be to promote the interests of IPR holders in international trade and the internal market.



Ralf Grahn

IPR protection: ACTA opinions USA and EU

After the signing ceremony blog post ACTA signed – EU deaf-mute and arguments by proponents in IPR protection in world trade: ACTA signed, we turn to recent and varied opinions about the Anti-Counterfeiting Trade Agreement (ACTA) and the quest for more stringent protection of intellectual property rights (IPR) in international trade.


Information Society Project

Margot has posted a note on the Information Society Project at Yale Law School, wondering if ACTA is unconstitutional in the United States as a Sole Executive Agreement.

The post links to four articles, among which Infojustice.org and Techdirt are the most recent ones.


Infojustice.org

Sean Flynn, on Infojustice.org, discusses the Constitutional problem in the USA. Can ACTA be implemented by the executive, or does it need approval by Congress? The post links to a number of articles arguing the need for Congressional consent and doubting if the ACTA provisions are consistent with US law.

The post also discusses potential approval or ratification problems in the European Union and Mexico, with links to detailed opinions and sources.


Techdirt

Ahead of the signing ceremony, Techdirt ran a story with links to a number of articles regarding Constitutional concerns in the United States and EU views corroborating that ACTA is an international treaty. According to the article, intellectual property is clearly a Congressional issue.


USTR

Official US views are expressed by the Office of the United States Trade Representative (USTR), which was diligent enough to post three news items during the weekend.

Partners Sign Groundbreaking Anti-Counterfeiting Trade Agreement, with a link to the USTR ACTA ”fact sheet”

ACTA: Meeting U.S. Objectives

Joint Press Statement of the Anti-Counterfeiting Trade Agreement Negotiating Parties

Due to the lack of recent active information from EU institutions and services, the USTR serves European and other readers as well:

Representatives of the European Union, Mexico, and Switzerland attended the ceremony and confirmed their continuing strong support for and preparations to sign the Agreement as soon as practicable. All participants expressed their firm resolve to work cooperatively to achieve the Agreement’s prompt entry into force, and to support actively its goals.

Ralf Grahn

European Observatory on Counterfeiting and Piracy

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).



IPRED




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.




Ralf Grahn

EP hearing Michel Barnier: Intellectual property rights

The web pages of the European Parliament are overflowing with written and audiovisual material on the hearings by the EP committees of the Commissioners-designate, although the last scheduled hearings have yet to take place today and tomorrow.


Since the 1957 EEC Treaty of Rome, the common market has been a core aim of European integration. The Lisbon Treaty consistently uses the newer term internal market.

The internal market is envisioned as an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the treaties, notably the Treaty on the Functioning of the European Union (Article 26(2) TFEU).

The internal market is generally a shared competence between the European Union and the member states (Article 4(2)(a) TFEU).

In other words, the internal market is one of the core responsibilities of the European Commission, and it is one of the heavyweight portfolios within the Commission.

The designated internal market Commissioner for [2009] to 2014 is Michel Barnier, a former Commissioner and MEP, as well as French government minister.

Without going into the recorded hearing with Barnier, we notice that the summary of his hearing brought nothing to light with regard to intellectual property rights (IPR):



Summary of Hearing of Michel Barnier – Internal Market and Services (13 January 2010)



Highly political issues such as the social nature of the internal market and the future of financial regulation dominated the Barnier hearing summary on EurActiv.fr as well.



In his written answer to the relevant EP committees, Barnier had presented the knowledge based economy as a priority, including the reinforcement of IPR:

Developing a knowledge-based economy: I intend to adapt our intellectual property rights strategy to meet new challenges. The European intellectual property system must be modernised and reinforced in order to promote the knowledge-based economy. I am in favour of an exhaustive and consistent framework for copyright law which will enable us to meet new challenges such as digitisation. Negotiations on the Community patent and the unified patent litigation system must be concluded. To enable European enterprises to realise their full potential for innovation and creation, a modern intellectual property framework is required which will stimulate investment and technological progress and facilitate access to knowledge and its dissemination.

In his written answer Barnier had the following to say regarding IPR when he outlined coming legislative proposals:

In the area of intellectual property rights, I would like to see the development of a consistent legal framework. I will ensure the finalisation of the legislative work on the Community patent and the patent litigation system. I am also planning to modernise the legal framework for trademarks. I intend to reinforce the legal framework relating to the respect of intellectual property rights, which will be further supported by the Counterfeiting and Piracy Observatory.

In the pipeline


We know that intellectual property rights are crucial in the digital age, also as bones of contention. We also know that “manifold initiatives” are in the pipeline to enhance IPR protection in the European Union, with regard to the internal market and criminal law (IPRED2). In parallel with the internal market, secret external trade negotiations are ongoing, with the aim to conclude a plurilateral Anti-Counterfeiting Trade Agreement (ACTA).



To get a picture of the concerns of citizens, users and consumers, it is worthwhile to look at the questions prepared by La Quadrature du Net ahead of the hearing on copyright and freedoms in the digital age (12 January 2010).




Ralf Grahn



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If you write a blog on European affairs, such as politics, policies, communication, economics, finance and law, you can submit your blog for inclusion.

Internet and IPR in EP hearings of EU Commissioners: Neelie Kroes

La Quadrature du Net has been active on many fronts, submitting replies to Commission consultations on copyright and the coming EU 2020 strategy as well as distributing questions ahead of the European Parliament’s hearings with various candidate-Commissioners responsible for various issues related to the Internet. There is a press release following up the hearing with Neelie Kroes: Commissioner Kroes commits herself to Net neutrality (15 January 2010).




Europaeum presents the context for the hearing of Neelie Kroes, designated for the European Digital Agenda (in German): Neelie Kroes muss in die Verlängerung, und wir leider draußen bleiben (15 January 2010).



Europaeum linked to Netzpolitik.org where Simon Columbus reported on Kroes’ statements in favour of net neutrality as well as European fundamental rights in the ACTA negotiations, but noted that she was quite cautious on copyright: Neelie Kroes für Netzneutralität, muss aber nachsitzen (15 January 2010).



Swedish blogger Henrik Alexandersson offers a few personal reflections on the hearing of Neelie Kroes, as well as links to EurActiv and Swedish media: Mer om Kroes… (15 January 2010).



Earlier Alexandersson had offered his impressions of the new Commission and the web, with remarks on Neelie Kroes’ replies on ACTA, net neutrality and copyright: Den nya kommissionen och nätet (14 January 2010).




The press service of the European Parliament offers a Summary of the hearing of Neelie Kroes – Digital Agenda (14 January 2010).




Ralf Grahn





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EU: “Manifold initiatives” for enforcement of intellectual property rights (IPR)

The blog post Innovating Europe and the knowledge society (15 January 2010) looked at what the Spanish presidency of the Council of the European Union held in store for the knowledge society (European Digital Agenda) generally. In a nutshell: positive, but vague.

Now we turn to what the presidency programme tells us more specifically about intellectual property rights:




The Programme for the Spanish Presidency of the Council of the European Union 1 January – 30 June 2010: Innovating Europe (52 pages).



ACTA?


Under the Common Trade Policy, on page 25, Spain makes the following promise:

The Markets Access Strategy will be bolstered and work will be geared to opening Public Tender markets, effective effective observance of intellectual and industrial property rights, and the conclusion of the Trade Agreement against Forgery.

This leaves us with some questions: Does the “Trade Agreement against Forgery” mean the Anti-Counterfeiting Trade Agreement (ACTA)? If this is the case, why not use the proper name of the treaty soon being negotiated in a new round in Mexico?



Criminal sanctions


Criminal sanctions are in the pipeline against infringements of intellectual property rights. Under Criminal justice, the following paragraph seems to promise new legislative proposals (page 32):

Protection instruments in the fight against intellectual and industrial property piracy should also be improved.

Internal market?


Under the Domestic Market (probably meaning the internal market) the presidency programme sets out the objective to reinforce IPR protection by “manifold initiatives” (page 35-36) (The Community brand name probably means trademark):

Safeguarding and protecting intellectual and industrial rights will be reinforced at Community level through manifold initiatives in the fight against piracy and forgery. With regard to industrial property, work will continue on the Community brand name file. As to the Community patent and the litigation system for the European patent, a constructive search for efficient and non-discriminatory solutions will be pursued, renewing efforts to improve companies’ management of these rights, particularly by SMEs.

Internet


Better protection of intellectual and industrial property rights are promised on the Internet as well, under Telecommunications (page 38):

Efforts will be put into the approval of the New 2010-2015 Strategy to promote the Information Society (i2010 follow-up). The Presidency will encourage a joint debate with Member States to improve Information Society indicators, as well as the deployment of cutting-edge networks, increased networks security and protection of intellectual and industrial property on the Internet.

Citizens’ rights?


“Manifold initiatives” are in the pipeline to enhance IPR protection in the European Union, with regard to external trade, criminal law, the internal market and the Internet.

The lack of transparency is worrying with regard to ACTA, a resurrected IPRED2 and other future proposals.

Even if the Spanish presidency programme is full of references to human rights and fundamental freedoms, users’ rights in the digital era are exempt, except for the promised debate on broadband access as a universal service obligation (page 38).

There are no guarantees of a fair deal for consumers and citizens against unduly restrictive commercial practices or draconic enforcement measures.




Ralf Grahn




P.S. Stephen Spillane blogs about Irish and European politics. Stephen Spillane is one of the more than 500 great euroblogs on steadily growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance and law.

EU: Criminal enforcement of IPR? Resurrection of IPRED2?

In the blog post EU IPR enforcement discussion (12 January 2010) we mentioned the conference arranged by the Swedish presidency of the Council of the European Union: Enforcement of Intellectual Property Rights, with a Special Focus on Trademarks and Patents (15 December 2009).




Monika Ermert has written an illuminating post on the blog of Intellectual Property Watch: ACTA May Prompt Quick Restart To EU Harmonisation Of Criminal Enforcement Of IP (21 December 2010).

According to Ermert’s sources, the European Union seems to be preparing for the adoption of the “gold standard” of enforcement, the Anti-Counterfeiting Trade Agreement (ACTA). The European Commission is preparing for a quick restart of a legislative process in the EU to harmonise criminal law sanctions. The Commission may table the new IPRED2 proposal in May or June 2010.



EU Stockholm Programme




In December 2009 the European Council adopted The Stockholm Programme – An open and secure Europe serving and protecting the citizens (dated 2 December 2009; Council document 17024/09).


Under Economic crime and corruption, the European Council calls for criminal sanctions against IPR infringements (page 49):

Counterfeiting is a serious danger for consumers and economies. The Union must improve studies of this phenomenon and ensure that greater account is taken of law enforcement aspects in the work of the future European Observatory on Counterfeiting and Piracy. The European Council calls upon the Council and the European Parliament to consider as soon as possible legislation on criminal measures aimed at ensuring the enforcement of intellectual property rights.

Draft Council Resolution



The draft Council Resolution (document 5022/10) on the Commission Communication Enhancing the enforcement of intellectual property rights in the internal market was discussed yesterday in the Council’s Working Party on Intellectual Property.

The draft Resolution contained an invitation to the Commission (page 5):

… in close collaboration with the Member States, to analyze the application of the Directive 2004/48/EC, 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.

Criminal IPR sanctions are in the pipeline, but we don’t know their scope, either internationally (ACTA) or in the internal market (IPRED2 redux), but the two are connected.




Ralf Grahn






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EU IPR enforcement discussion

The Grahnlaw blog post EU enforcement of intellectual property rights (IPR) and ACTA (10 January 2010) mentioned some of the materials for understanding the current moves to enhance IPR enforcement:




IPRED: Directive 2004/48/EC on the enforcement of intellectual property rights, as published with corrections in the Official Journal of the European Union 2.6.2004 L 195/16




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



EU Conference on Enforcement of IPR




On 15 to16 December 2009 the Swedish government arranged an EU Conference on Enforcement of Intellectual Property Rights (11 December 2009).





Additional information is available through the web page of the Swedish presidency of the Council of the European Union: Enforcement of Intellectual Property Rights, with a Special Focus on Trademarks and Patents (15 December 2009), especially the links to fourteen presentations made in Stockholm by:


Richard D. Heath, Stefan Johansson, Annette Kur, Benoît Lory, Konstantinos Rossoglou, Alvydas Stancikas, Anamaria Stoia, Thierry Sueur, Anne-Charlotte Söderlund, Birte Timm-Wagner, Dariusz Urbanski, Erling Vestergaard, Susanne As Sivborg ja Luc Pierre Devigne.


Even if these are mainly PowerPoint presentations, mainly consisting of bullet points, they offer basic information about legislative and non-legislative actions; internal market, customs and international trade efforts; the agendas of different stakeholder groups etc.





These were all part of the background for the discussion today on the draft Council Resolution on enhancing IPR enforcement (document 5022/10) we mentioned in the earlier post.





Ralf Grahn




P.S. The different language versions of the webzine Le Taurillon are part of an active effort to describe and to improve the European Union from the viewpoint of its citizens. The articles of Le Taurillon (in French) / The New Federalist (in English) / Eurobull (in Italian) / Taurin-Magazin (in German) appear together with blog posts of more than 500 great euroblogs, listed on multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, economics, finance and law.

By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about our common challenges.

ACTA: Whose Digital Agenda for Europe and the world?

The mysterious ways of the Anti-Counterfeiting Trade Agreement (ACTA) negotiators raise questions about whose Digital Agenda is being pursued. The lack of transparency results in growing mistrust. Here is a sample of recent texts about the problems for citizens and consumers in the digital era.






The Washington Post, Rob Pegoraro: Copyright overreach goes on world tour (15 November 2009)




P2PNet, Jon Newton: ACTA: epic fail (31 December 2009)





Europolitics, Marianne Slegers and Dafydd ab lago: Internal market – Patents and European private company top agenda (4 January 2010)





Googland, Mistique Cano: First 2010 Google D.C. Talk on ACTA: the global treaty that could reshape the Internet (5 January 2010)




The Sheaf, Andrew Olsvik: ACTA puts Canadian copyright law at risk (6 January 2010)




O’Reilly Radar, Andy Oram: The fate of WIPO, ACTA, and other intellectual property pushes in the international economy (6 January 2010)




Wired, David Kravets: Senator Demands IP Treaty Details (7 January 2010)




Christian Engström (in Swedish): Bono har rätt om fildelarjakten (8 January 2010)




Michael Geist: Legislators Worldwide Asking Questions About ACTA (8 January 2010)




The Command Line, Thomas Gideon: Another Senator Writes USTR about ACTA (8 January 2010)




P2PNet.net News: Unlock ACTA secrets, legislators demand (9 January 2010)




Numerama, Julien L. (in French): L’ACTA inquiète de plus en plus de parlementaires dans le monde (9 January 2010)




Bigwobber, Brenno de Winter (in Dutch): De onderhandlingen over ACTA (11 January 2010)



What is the consequence of secrecy? It clearly says that they don’t trust us. Why should we trust them?




Ralf Grahn



P.S. Out of Lightbox displays stunningly beautiful photos by Mehraj Anik, the latest from New Years Eve.

Cross-border communications are easier than ever: More than 500 great euroblogs are listed on multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, economics, finance and law.