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

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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

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




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