[A2k] ACTA May Prompt Quick Restart To EU Harmonisation Of Criminal Enforcement Of IP

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/2009/12/21/acta-may-prompt-quick-restart-to-=
eu-harmonisation-of-criminal-enforcement-of-ip/

21 December 2009
ACTA May Prompt Quick Restart To EU Harmonisation Of Criminal
Enforcement Of IP
By Monika Ermert for Intellectual Property Watch @ 7:42 pm

The European Union appears to be preparing for adoption of the =93gold
standard=94 of enforcement, the Anti-Counterfeiting Trade Agreement
(ACTA), as intellectual property law expert Annette Kur from the Max
Planck Institute of Intellectual Property, Competition and Tax Law
said it is now called.

At a conference of the Swedish EU Presidency on =93Enforcement of
Intellectual Property with a Special Focus on Trademarks and Patents=94
on 15-16 December in Stockholm, representatives from EU bodies, member
states and industry supported a quick enforcement of ACTA, according
to participants. A representative of the Justice, Freedom and Security
Directorate General of the European Commission, presented a plan for a
quick restart of a legislative process in the EU to harmonise criminal
law sanctions in the Community.

But according to an analysis of the European Commission leaked in
November, the lack of harmonisation of such criminal law sanctions
might conflict with the much-wanted =93gold standard.=94 Criminal law
sanctions were originally integrated into the draft EU IP enforcement
directive (IPRED), but kicked out during the legislative process. The
attempt to push through a legislative instrument dedicated to criminal
law sanctions against IPR infringers by DG Justice, Freedom and
Security also failed, largely because IP experts of member states had
insisted that criminal law sanctions are under national governments=92
competency.

=94With the ratification of the Lisbon Treaty, that issue is solved,=94
explained Kostas Rossoglou from the European Consumer Association
(BEUC), who came back from the conference with some concerns, he said.
A representative from DG Justice, according to Rossoglou, announced at
the conference that the Commission intends to table the draft IPRED 2
in May or June 2010. The original draft text is expected to be used as
the base for it, he said. A big concern, according to Rossoglou, is
that the term =93on a commercial scale=94 that was intended to limit
criminal sanctions in the IPRED2 to large-scale infringement
activities had not been well-defined.

Kur in her presentation said the IPRED2 proposal lacked hard and fast
safeguards addressing the rights of defendants, lagged in some
respects behind other EU legislation like the Council Framework
Decision (2005/212/JHA) on confiscation. The IP law researcher also
said too much influence for public-private investigation teams in IPR
infringement cases might be harmful.

The European Economic and Social Committee had recommended limiting
the role of victims of an infringement =93purely to providing
information to the public authorities. It would be inappropriate for a
company following an accusation of commercial counterfeiting, to be
involved in monitoring activities or confiscating the property of a
competitor, who is innocent until proved otherwise in court=94, reads
the Committee statement. Tendencies towards private justice had to be
resisted, Kur said.

In general, Kur and Rossoglou warned against an imbalance in IPR
enforcement.
According to them, no clear distinction was made between trademark,
patent and copyright infringement, not even at the Stockholm
conference that according to its title was supposed to focus on patent
and trademarks only.

Kur was critical of the fact that: =93Fabrication of fake medicine and
fake spare parts for airplanes are always mentioned in these
discussions as an argument for stronger IPR enforcement legislation in
general.=94 But using the public concern about serious crimes like
fabrication of noxious medicaments in this way is inappropriate and
dangerous, =93because it obscures the fact that to combat risks for
public health is not primarily an IP issue,=94 she said.

Rossoglou demanded clear definitions when talking about further
legislative tools in enforcement. Proportionality also has to be
respected and fundamental rights upheld, he said with regard to three-
strikes-concepts under discussion in EU member states. Three-strikes
is a rising practice that penalises any internet user for three
alleged copyright infringements.

In discussing the way forward in IP enforcement, transparency is of
utmost importance, he said. Transparency requests by many, even the
members of the EU Parliament, so far have been rejected for the
negotiations of ACTA.

While the Swedish EU presidency had favoured greater transparency with
regard to the ACTA, discussions on this are still ongoing, according
to Magnus Fridh, special adviser at the Division for Intellectual
Property and Transport Law Ministry of Justice in Sweden. Fridh in
reply to a question from Intellectual Property Watch rejected the
notion that there was a clear timetable. But he confirmed that a
representative from the Directorate General Justice, Freedom and Civil
Rights announced that a new draft for IPRED 2 would be tabled in May
or June.

He declared that =93nothing prevents the EU and/or its member states
from signing ACTA before such a directive is in place.=94 An expert at
the Commission answering a request from Intellectual Property Watch
said that ACTA and the criminal sanctions of a EU IPRED 2 have a
connection, but that =93a particular arrangement was established that
should allow the EU to successfully achieve its objectives for ACTA
even without IPRED 2.=94

Only two members of Parliament attended the conference in Stockholm,
which despite its high-level panels was not much publicised by the
Swedish presidency. Not even an agenda had been published beforehand,
though the agenda was to be put online together with presentations
after the conference, said Fridh. Presentations have been posted here.
Under the Lisbon Treaty, the European Parliament would be kept
informed of the negotiation process in a manner similar to the
Council, a Commission expert said. Furthermore, the ACTA text would be
approved both by the Parliament and the Council.

Monika Ermert may be reached at info@ip-watch.ch.

------------------------------------------------------------


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997