Enforcement of Intellectual Property Rights in the Community Benoît Lory European Commission, DG Internal Market and Services Enforcement of Intellectual Property Rights Unit

Overview EC initiatives: three levels Domestic EU territory: Internal Market initiatives External EU borders: Customs initiatives Council Regulation (EC) No 1383/2003 on customs action against (suspected) counterfeited and pirated goods (OJ of 2.8.2003, L 196, p. 7) Third countries: inter alia Trade initiatives Strategy for the enforcement of Intellectual Property rights in third countries (10.11.2004) TRIPS (1994), FTA’s and multilateral discussions

Internal Market initiatives Directive 2004/48/EC on the enforcement of intellectual property rights (OJ of 2.6.2004, L 157, p. 45) harmonisation of (basically) civil law measures, procedures and remedies Proposal on criminal sanctions to combat intellectual property offences amended proposal presented by the Commission on 26 April 2006

“IPR Enforcement Directive” 2004/48/EC Legislative background Transposition deadline 29.4.2006 Long procedure in all Member States with a high number of authorities involved All Member States faced with amendments in more than one internal laws Now all Member States transposed the directive. However several Member States transposed with significant delays (e.g. Germany August 2008, Sweden April 2009, Luxembourg May 2009) Complements substantive IP provisions Based on “best practices” of Member States “Minimum”: Member States may give IP right holders more protection

2010!! - Commission report on the implementation of the directive Article 18: by 29 April 2009 “…each Member State shall submit to the Commission a report on the implementation of the Directive. On the basis of those reports, the Commission shall draw up a report on the application of the Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society”.

Internal Market initiatives Communication of the Commission on IPR Strategy of 16 July 2008 Council Resolution on a comprehensive European Anti-Counterfeiting and Anti-Piracy Plan of 25 September 2008 NEW!!! Commission Communication on the Enforcement of Intellectual property Rights of 11 September 2009 6

European Counterfeiting and Piracy Observatory Will serve as the central pan-European resource for business and public authorities engaged in IP enforcement to gather, monitor and report information related to IPR infringements. Tasks of the Observatory (chapter 2 of the new Commission Communication on IPR Enforcement from 11 September 2009): Statistics on the extent of counterfeiting and piracy in the Internal Market (with the help of external expertise), Administrative cooperation between enforcement authorities, Sharing best practices between private sector, Raising of public awareness Two sub-groups of the Observatory: 1. Sub-group on legal framework 2. Sub-group on statistics

European Counterfeiting and Piracy Observatory The first public-private partnership to fight counterfeiting/piracy at a European level A cooperation platform to exchange information, best practices and develop new strategies Participants: PUBLIC SECTOR: each Member State nominates 1 representative; plus representatives from PRIVATE SECTOR: key sectors. Consumers are also represented. First meeting of the Observatory held on 4 September 2009 (meeting with private sector representatives) Next meeting of the Observatory: with Member States representatives- 14 December 2009 in Stockholm Plenary meeting (both private and public sector representatives- April 2010)

Stakeholders’ dialogue on the sale of counterfeit goods over the Internet While the internet is not in itself the source of counterfeiting, it has nevertheless become an important vehicle for the sale of fake goods world-wide. Its accessibility, the possibility for traders to remain anonymous and for offers to be placed and withdrawn instantly has made it one of the most attractive tools for the sale of counterfeit goods. The enormous growth of the phenomenon makes this an area for priority action. It is also an area where voluntary arrangements would seem to be particularly promising, given the rapid progress of technological developments and the resulting need for practical technology-based solutions. Internet developments are quite fast- therefore neither legislation (legislative process too long) nor litigation (too long, uncertain result, contradictory judgments) seem to be provide for a solution

Stakeholders’ dialogue on the sale of counterfeit goods over the Internet Launched by DG MARKT in July 2009. Leading rights owners (mostly trademark owners) and online marketplaces are working on a Memorandum of Understanding dealing with issues such as prevention, identification and removal of infringing offers and sellers from internet platforms. Commission plays a role of a neutral facilitator. However, if voluntary arrangements cannot be agreed, the Commission will need to consider legislative solutions, in particular in the context of the IPR Enforcement Directive Confidentiality agreement agreed between participants

Stakeholders’ dialogue on illegal uploading and downloading Objective: to reduce illegal uploading and downloading of copyright-protected content over the Internet Participation: leading Telecom companies, ISPs and content industries In case voluntary arrangements fail, the Commission will consider legislation One of the greatest obstacles to online copyright enforcement seems to be privacy laws and protection of personal data 11

Concluding remarks EU takes fight against counterfeiting seriously: joint responsibility of EU, Member States and civil society Enforcement Directive constitutes appropriate balance among all interests involved. Needs to be complemented by criminal measures. Non-legislative measures: stakeholders should be encouraged to exploit the potential of collaborative approaches and to place more emphasis on joining forces to combat counterfeiting and piracy in the common interest. Voluntary arrangements to combat counterfeiting and piracy on the ground can give stakeholders the flexibility to adapt quickly to new technological developments. Moreover, this approach empowers stakeholders themselves to work out optimal measures, particularly technological solutions. 12

Thank you for your attention! …and do you see the difference? Further questions? Markt-d3@ec.europa.eu benoit.lory@ec.europa.eu