[Commons-Law] EU strategy to enforce Intellectual Property Rights in third countries

[paul keller]

dear all,
very interesting indeed. i find it quite interesting that in each and 
all the 'ranging from ... to ... ' lists in articles, memos and studies 
of IPR issues one always finds 'aeroplane spare parts'. to me this 
looks like a blunt attempt to appeal to some deep rooted human fear 
invoking the idea of a plane crash due to the malfunction of an 
inferior pirated spare part. does anybody here on this list know of an 
actual case (or plane crash for that matter) involving pirated 
aeroplane spare parts. or is this just fear mongering pretty much in 
line with the frequently invoked connection between piracy and 
terrorism?
best, paul

On 6 Dec, 2004, at 18:12, Lawrence Liang wrote:

>
> Very interesting read.....
>
> Lawrence
>
> -------- Original Message --------
> Subject: EU strategy to enforce Intellectual Property Rights in third
> countries
> Date: Mon, 06 Dec 2004 07:21:35 -0500
> From: James Love <james.love at cptech.org>
> To: Random-bits <random-bits at lists.essential.org>
>
> This is the EU enforcement strategy for IP in "third countries."
>
>     The Basics.......
>
> 1. Identifying the priority countries: EU action will focus on the most
> problematic countries in terms of IPR violations. These countries will
> be identified according to a regular survey to be conducted by the
> Commission among all stakeholders and should be the basis for renewing
> the list of priority countries for the subsequent period.
>
> 2. IPR mechanisms in multilateral (incl. TRIPs), bi-regional and
> bilateral agreements: This would include: raising enforcement concerns
> in the framework of these agreements more systematically; consulting
> trading partners with the aim of launching an initiative in the WTO
> TRIPs Council, sounding the alarm on the growing dimension of the
> problem, identifying the causes and proposing solutions; strengthening
> IPR enforcement clauses in bilateral agreements..
>
> 3. Political dialogue: Making clear to trading partners that an
> effective protection of IP, at least at the level set in TRIPs, is
> essential; launching joint initiatives focusing on IPR enforcement with
> countries sharing or affected by similar concerns; providing training
> and implementing networking mechanisms for officials in EU Delegations
> in third countries facing enforcement problems.
>
> 4. Incentives-Technical Co-operation: Ensuring that technical 
> assistance
> provided to third countries focuses on IPR enforcement, especially in
> priority countries; exchanging ideas and information with other key
> providers of technical co-operation, like the World Intellectual
> Property Organisation (WIPO), the US or Japan , with the aim of 
> avoiding
> duplication of efforts and sharing of best-practices.
>
> 5. Dispute settlement / Sanctions: Recalling the possibility that
> right-holders have to make use of the Trade Barriers Regulation in 
> cases
> of evidence of violations of TRIPs or of bilateral agreements; making 
> ex
> officio use of the dispute settlement mechanisms included in
> multilateral and/or bilateral agreements in case of non-compliance with
> the required standards of IP protection.
>
> 6. Creation of public-private partnerships: Supporting-participating in
> local IP networks established in relevant third countries; using
> mechanisms already put in place by Commission services (IPR Help Desk
> and Innovation Relay Centres) to exchange information with 
> right-holders
> and associations; building on the co-operation with companies and
> associations that are very active in the fight against
> piracy/counterfeiting.
>
> 7. Awareness raising / Drawing on our own experience: Promote the
> inclusion in technical co-operation programmes and in public-private
> partnership initiatives of information destined to raise public
> awareness about the impact of counterfeiting (loss of foreign 
> investment
> and technology transfer, risks to health, link with organised crime,
> etc.) and raise the awareness of Community right-holders doing business
> in problematic countries about the risks incurred; make available to 
> the
> public and to the authorities of concerned third countries a “Guidebook
> on Enforcement of Intellectual Property Rights”.
>
> 8. Institutional co-operation: Improving the exchange of information 
> and
> the co-ordination between the services in charge of the different
> aspects of IPR enforcement; simplifying the identification and the
> access of external entities (right-holders, third country authorities,
> etc.) to the service responsible for the specific issue concerning 
> them.
>
>
> .....  The complete document
>
>
> MEMO/04/255
> Brussels, 10 November 2004
> EU strategy to enforce Intellectual Property Rights in third countries 
> -
> facts and figures
>
> What is the dimension of the problem?
>
> Between 1998 and 2002 the number of counterfeit or pirated articles
> intercepted at the EU's external frontiers increased by more than 800%.
> Figures published by the European Commission in November 2003  show 
> that
> customs seized almost 85 million counterfeit or pirated articles at the
> EU's external border in 2002 and 50 million in the first half of 2003.
> This illicit trade is worth the equivalent of more than 2 billion euro
> on the legal Community market.
>
> These figures only tell us what is being caught at the Community
> borders. As is the case with other types of illegal traffic, seizures 
> by
> the authorities represent only the tip of the iceberg and show us 
> little
> about the dimension and value of the illicit goods that end up being
> sold in markets and streets worldwide.
>
> This is why it is extremely difficult to quantify the exact values
> involved in the global trade of fake goods. Some estimations point to
> figures representing between 3% and 9% of the total world trade, i.e.,
> 120 to 370 billion euro a year. Studies carried out by the OECD in 1998
> and by the International Chamber of Commerce in 1997, estimated then
> that counterfeits accounted for 5 to 7% of world trade and were
> responsible for the loss of 200,000 jobs in Europe.
>
> Which IP rights are violated and which sectors are most affected?
> One frequent misconception is that piracy and counterfeiting mainly
> affect some luxury, sports and clothing brands, music and software
> CDs/DVDs, and little else. The reality is that virtually every IP is
> being violated on a considerable scale and that the variety of fake
> products ranges from cereal boxes to plants and seeds, from aeroplane
> spare parts to sunglasses, from cigarettes to medications, from AA
> batteries to entire petrol stations. Big software producers are as
> likely to be harmed as small makers of a certain type of tea. The 
> annual
> statistics published by the Commission’s customs services regarding the
> number and the nature of seized pirated and counterfeit goods
> originating from third countries provide detailed and reliable
> information about the dimension and the growth of the problem .
>
> Why focusing now on third countries?
> The WTO Agreement of intellectual Property Rights (TRIPs) establishes
> for the first time a single, comprehensive, multilateral set of rules
> covering all kinds of IPR. It contains also a detailed chapter setting
> minimum standards of IPR enforcement to be adopted by all members of 
> the
> WTO.
>
> However, despite the fact that, by now, most of the WTO members have
> adopted legislation implementing such minimum standards , the levels of
> piracy and counterfeiting continue to increase every year. These
> activities have, in recent years, assumed industrial proportions,
> because they offer considerable profit prospects with often a limited
> risk for the perpetrators.
>
> Within the Community and at its external borders there have been a
> number of important initiatives in the last 10 years. In 1994 the EU
> adopted the Customs Regulation (Regulation (EC) No 3295/94), allowing
> border control of imports of fake goods. Later, in 1998, the Commission
> issued its Green Paper on Combating Counterfeiting and Piracy in the
> Single Market. As a result of responses to the Green Paper, the
> Commission presented an Action Plan, on 30 November 2000. This Action
> Plan has been translated into a Directive  published last April,
> harmonising the enforcement of intellectual property rights within the
> Community, a Regulation  improving the mechanisms for customs action
> against counterfeit or pirated goods set by the previous Customs
> Regulation, the extension of Europol’s powers to cover piracy and
> counterfeiting, etc.
>
> The situation is, however, different outside the borders of the
> Community. The internal instruments available to Community 
> right-holders
> in the case of violations of their rights within the Community or in 
> the
> case of imports of fake goods into the EU are not usable when these
> violations occur in third countries and the resulting goods are either
> consumed domestically or exported to other third countries. Although
> such violations occur outside, they directly affect Community
> right-holders. Hence the need for an Enforcement Strategy focussing on
> third countries.
>
> Why should developing countries concentrate their limited resources in
> areas like justice, police or customs on the fight against the sale of
> copies of goods and brands belonging to right-holders from rich and
> developed countries?
>
> The trade of fake goods is no longer limited to cheap copies of luxury
> brands and recordings of music and films consumed mostly by tourists
> looking for a bargain souvenir. Nowadays, almost every conceivable
> product is being illegally copied: from food to pharmaceuticals, from
> toys to car and plane parts, from toasters to mineral water. The risks
> to public health and consumer safety incurred by frequently unaware
> purchasers are obvious. Consumers in the poorest countries are
> particularly exposed to sales of these dangerous products.
>
> Another reason why every country, rich or poor, should be concerned has
> to do with the undeniable role played by organised crime networks in 
> the
> spread of piracy and counterfeiting. Until this activity is no longer
> seen as a low risk / high profit type of crime, it will continue to
> spread and to put in the hands of criminal organisations entire sectors
> of the economy. It is therefore also a question of public order,
> security and good governance.
>
> Effective enforcement of IP rights is also essential to attract foreign
> investment, transfer of technology and know-how, as well as to protect
> the local right-holders in developing countries.
>
> It is also an indicator of international credibility and respect of the
> rule of law. Finally, in the mid-to-long term, it will encourage more
> domestic authors, inventors and investors and contribute to the
> development of these countries.
>
> Why does the Commission target the problem in third countries when
> pirated and counterfeited goods are so easily available within the EU?
> Generally speaking, the Community and its Member States are 
> acknowledged
> for protecting and enforcing IPR according to very high standards. In
> practical terms, reports like the one published annually by the 
> European
> Commission give a clear idea of the results achieved by each Member
> State in terms of seizures of fake goods at the borders. This has
> already led to an increase of more than 800% in the volume of such
> confiscations between 1998 and 2002 (from 10 million to more than 85
> million articles).
>
> The recently approved Directive harmonising the enforcement of
> intellectual property rights within the Community will not only help to
> improve the situation, but it also constitutes an example to third
> countries of measures that proved effective in some  Member States and
> that are now being extended to the entire Community.
> The challenge is now to ensure that enforcement takes place beyond the
> EU borders, in third countries.
>
> What is in the Enforcement Strategy?
>
> The Enforcement Strategy is a Communication of the Commission
> determining the priorities and optimising the use of resources in order
> to obtain the most effective results in terms of IPR enforcement in
> third countries.
>
> The actions in detail:
>
> 1. Identifying the priority countries: EU action will focus on the most
> problematic countries in terms of IPR violations. These countries will
> be identified according to a regular survey to be conducted by the
> Commission among all stakeholders and should be the basis for renewing
> the list of priority countries for the subsequent period.
>
> 2. IPR mechanisms in multilateral (incl. TRIPs), bi-regional and
> bilateral agreements: This would include: raising enforcement concerns
> in the framework of these agreements more systematically; consulting
> trading partners with the aim of launching an initiative in the WTO
> TRIPs Council, sounding the alarm on the growing dimension of the
> problem, identifying the causes and proposing solutions; strengthening
> IPR enforcement clauses in bilateral agreements..
>
> 3. Political dialogue: Making clear to trading partners that an
> effective protection of IP, at least at the level set in TRIPs, is
> essential; launching joint initiatives focusing on IPR enforcement with
> countries sharing or affected by similar concerns; providing training
> and implementing networking mechanisms for officials in EU Delegations
> in third countries facing enforcement problems.
>
> 4. Incentives-Technical Co-operation: Ensuring that technical 
> assistance
> provided to third countries focuses on IPR enforcement, especially in
> priority countries; exchanging ideas and information with other key
> providers of technical co-operation, like the World Intellectual
> Property Organisation (WIPO), the US or Japan , with the aim of 
> avoiding
> duplication of efforts and sharing of best-practices.
>
> 5. Dispute settlement / Sanctions: Recalling the possibility that
> right-holders have to make use of the Trade Barriers Regulation in 
> cases
> of evidence of violations of TRIPs or of bilateral agreements; making 
> ex
> officio use of the dispute settlement mechanisms included in
> multilateral and/or bilateral agreements in case of non-compliance with
> the required standards of IP protection.
>
> 6. Creation of public-private partnerships: Supporting-participating in
> local IP networks established in relevant third countries; using
> mechanisms already put in place by Commission services (IPR Help Desk
> and Innovation Relay Centres) to exchange information with 
> right-holders
> and associations; building on the co-operation with companies and
> associations that are very active in the fight against
> piracy/counterfeiting.
>
> 7. Awareness raising / Drawing on our own experience: Promote the
> inclusion in technical co-operation programmes and in public-private
> partnership initiatives of information destined to raise public
> awareness about the impact of counterfeiting (loss of foreign 
> investment
> and technology transfer, risks to health, link with organised crime,
> etc.) and raise the awareness of Community right-holders doing business
> in problematic countries about the risks incurred; make available to 
> the
> public and to the authorities of concerned third countries a “Guidebook
> on Enforcement of Intellectual Property Rights”.
>
> 8. Institutional co-operation: Improving the exchange of information 
> and
> the co-ordination between the services in charge of the different
> aspects of IPR enforcement; simplifying the identification and the
> access of external entities (right-holders, third country authorities,
> etc.) to the service responsible for the specific issue concerning 
> them.
>
> Is this an attempt to impose on poor countries additional TRIPs plus,
> one-size-fits-all mechanisms of IP enforcement? Is this an attempt by
> developed countries to gang up against developing countries?
> No and no. The strategy paper does not impose any additional, TRIPs 
> plus
> obligations on any developing country. It is just focused on 
> enforcement
> of existing rules.
>
> We are not trying to gang up with or to copy other countries that may
> share our concerns. We believe however that we can create synergies and
> rationalise our efforts in areas like technical assistance with 
> partners
> that also believe in the use of such mechanisms to improve the 
> situation.
>
> On the other hand, we don’t believe in pre-formatted solutions. It will
> be necessary to have a flexible approach that takes into account the
> different needs, the level of development, the membership or not of
> World Trade Organisation (WTO), and the main problems in terms of IPR
> (country of production, transit or consumption of fake goods) of the
> country with whom we are talking. We believe that any proposed 
> solutions
> will only be effective if they are prioritised and indeed felt as
> important in the recipient country.
>
> Which are the most problematic countries?
> In July 2003, the European Commission issued the results of a survey on
> enforcement issues in the area of intellectual property rights , aimed
> at assessing in a detailed manner the situation in third countries.
> The countries considered then as most problematic according to the
> results of the survey were China, Thailand, Ukraine, Russia, Indonesia,
> Brazil, Turkey and South Korea. Respondents considered these as the 
> main
> countries where production of pirated and counterfeit goods, both for
> domestic consumption and for export, reached worrying dimensions.
> Results of the survey in detail:
>
> - China: In the area of copyright, there is widespread piracy in all
> formats (CDs, VCDs, cassettes, DVDs). There are also extensive illegal
> digital downloads and distribution of films, music and software.
> Regarding trademarks, estimates that around 15 20% of all brand 
> products
> sold in China are fakes, and that the portion has risen significantly 
> in
> recent years. Information was received regarding fake clothes, 
> footwear,
> leather goods, watches, toys, cigarettes, pharmaceutical products, car
> parts and entire cars, electronic devices, lighting products, small
> electrical appliances (hairdryers, irons, kettles), semiconductors,
> large industrial machines, lubricants and even entire petrol stations.
> In the area of patents, there are reports of infringements on
> pharmaceutical products, electrical domestic appliances, industrial
> machinery, etc.
>
> - Thailand: Copyright - generalised piracy of music, movie, business 
> and
> game software in CD, DVD and VCD format. Trademarks - There is an
> important counterfeiting problem in this country, regarding well know
> brands of cloths manufacturers.
>
> - Ukraine: Copyright - Production and dissemination of audio-visual
> products, in particular CD’s and copying and dissemination of 
> unlicensed
> software are most acute. About 95% of software in Ukrainian computers
> are estimated to be illegally installed. Trademarks - Clothes, alcohol,
> cigarettes, fertilizers, agrochemicals and increasingly foodstuffs. The
> violations in this area ranged from the illegal use of trademark or
> mixing it in a misleading way with a proper trademark, to the illegal
> use of a company name, to the divulging of commercial secrets. Patents 
> -
> Pharmaceuticals.
>
> - Russia: There is a high level of music piracy (more than 60% of the
> market in 2002). The same situation is witnessed by other copyright
> related industries (e.g. video and film, software industries). Internet
> based piracy is also extensive. There is also a significant level of
> counterfeiting of pharmaceuticals, (accounting for around 12% of the
> Russian pharmaceutical market), counterfeits of drinks, food, and other
> fast moving consumer goods products etc.
>
> - Brasil: Copyright piracy: during 2001, the legitimate industry
> reported losses of over 300 million €, caused mainly by the growth of
> piracy. This figure represents 55% of the recorded music in Brazil.
> During the same period, the software industry lost around € 300 million
> which represents 58% of the computer software programs sold. Trademark
> counterfeiting, notably clothing, sport items, toys, perfumes, tobacco,
> etc. (€ 150  million in 2001). The legitimate clothing industry loses
> 1.5 million € per year due to counterfeiting.
>
> - Turkey: Copyright - Piracy (cassettes and CDs) is the main area of
> violation in the music industry.  Piracy in Turkey is estimated between
> 50 and 75% of the market, with the higher figure reflecting piracy of
> international repertoire. Trademarks - Extensive and systematic
> counterfeiting of trademarks on clothes, footwear, leather goods,
> apparel, car parts and others..
>
> - South Korea: Trademarks and designs - counterfeiting of high value
> luxury consumer goods, estimations that Korea was in 2002 the third
> producer of counterfeit goods in the world. Copyrights - Music piracy 
> in
> all format, CDs, VCDs, cassettes and illegal digital downloads and
> distribution. Industrial design -There are also reports of
> counterfeiting of designs in sports equipment (mainly footwear)
>
> - Indonesia: Trade marks and industrial design: Extensive 
> counterfeiting
> of apparel and of automotive products. But also copyright violations of
> music, films and software.
>
> --
> James Love, Director, CPTech, http://www.cptech.org
>
> Consumer Project on Technology in Washington, DC
> PO Box 19367, Washington, DC 20036, USA
> Tel.:  1.202.387.8030, fax: 1.202.234.5176
>
> Consumer Project on Technology in Geneva
> 1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
> Tel: +41 22 791 6727
>
> Mobile +1.202.361.3040
> james.love at cptech.org
>
>
>
>
> --
> James Love, Director, CPTech, http://www.cptech.org
>
> Consumer Project on Technology in Washington, DC
> PO Box 19367, Washington, DC 20036, USA
> Tel.:  1.202.387.8030, fax: 1.202.234.5176
>
> Consumer Project on Technology in Geneva
> 1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
> Tel: +41 22 791 6727
>
> Mobile +1.202.361.3040
> james.love at cptech.org
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