Counterfeiting and Piracy: A Global Concern Heike Wollgast Senior Legal Officer World Intellectual Property Organization (WIPO) Building Respect for IP Division

Presentation I. Counterfeiting and piracy – some current trends II. The international legal framework III. The role of WIPO

n Terminology: - TRIPS language - No uniform understanding n High piracy and counterfeiting rates worldwide; precise scope difficult to assess n OECD (The Economic Impact of Counterfeiting and Piracy, 2009 update International trade in counterfeit and pirated goods worth up to 250 billion US$ in 2007 (not including digital piracy) - Increase of share of counterfeit and pirated goods in world trade from 1.85% in 2000 to 1.95% in 2007 n Today almost every category of goods affected, with dramatic increases in the field of consumer goods, foodstuff and counterfeit pharmaceuticals I. Counterfeiting and piracy - some current trends

n Example: 2009 seizures at EU external borders (source: TAXUD) I. Counterfeiting and piracy - some current trends

n Example: 2009 seizures at EU external borders (source: TAXUD) I. Counterfeiting and piracy - some current trends

Example: 2009 seizures at EU external borders (source: TAXUD) Product sectors n Cigarettes 19% n Clothing and brand labels 13% n Medicines10% n Clothing and shoes 10% n Body care items4% n CDs, DVDs 5% n Foodstuff 2% I. Counterfeiting and piracy - some current trends

The case of counterfeit medicines: n Between 2005 and 2007, seizures of counterfeit medicines at the EU borders increased by 380%, and by another 57 % in n In 2008, 50% of these goods were intercepted in import procedures, 26% in transit and 21% in re-export. n Almost all seized medicines intercepted at EU borders were so-called “life- style” drugs. n The end-user distribution of these fake drugs typically is organized via online portals. n In some developing countries, especially in Africa, the level of counterfeit medicines is immense (e.g., at a recent WHO conference, Senegal has reported a level of 60%), and the drugs concerned are anything but “life- style” drugs (e.g., anti-malaria pills). In addition, in some developing countries, fake drugs have entered the official distribution channels. I. Counterfeiting and piracy - some current trends

Counterfeiting and Piracy via the Internet: n The unauthorized distribution of copyright protected content over the Internet (P2P, social networks) and recent legislative developments, e.g.: - Downloading from “obviously illegal sources” (Germany); - « Loi Hadopi » (France): n Introduces a graduated response system to deter repeat unauthorized down-/ uploading of copyright protected content, with the possible sanction of account suspension. n A first assessment of the effects of Hadopi among P2P users has been published by the University of Rennes in March Based on a survey among users the report finds that one third of users stopped using such services, while two thirds would have simply changed techniques that would not fall under the law (streaming, direct downloading etc.). I. Counterfeiting and piracy - some current trends

Counterfeiting and Piracy via the Internet: n The Internet as platform for the distribution of counterfeit goods, e.g., in the field of counterfeit medicines: Focus on self-regulatory, cooperation models between right holders and Internet platforms n E.g. “Charte Sirinelli”, France (2009): Agreement between various right holders and Internet Providers on information exchange; cooperation in the development of filtering techniques; suspension of accounts of sellers of counterfeit products; filtering of offers of medicines from non-authorized vendors; etc. I. Counterfeiting and piracy - some current trends

The TRIPS Agreement 1994, part III –Civil and administrative procedures & remedies; –Provisional measures; –Border measures; –Criminal procedures. n The WIPO Internet Treaties (WCT, WPPT), Protection against the circumvention of technological protection measures n Under negotiation: - The Medicrime Convention (Council of Europe): criminal measures against counterfeit medical products - The Anti-Counterfeiting Trade Agreement (ACTA) II. The International Legal Framework

n Dynamic legislative developments at regional and national levels; e.g. at EU level: - Regulation 1383/2003 (IP border enforcement); currently under review; - Directive 2004/48 EC (civil IP enforcement); - Proposed Directive on criminal IP enforcement (2005) - Legislative proposal (2008) to amend Directive 2001/83 EC on medicinal products for human use; seeking to limit the risk of counterfeit medicines entering the legitimate supply chain of medicines in the EU. The proposal is currently reviewed by the European Parliament and the Council. European ParliamentCouncil European ParliamentCouncil n IP enforcement issues in bilateral trade agreements II. The International Legal Framework

Advisory Committee on Enforcement (ACE) Advisory Committee on Enforcement (ACE) Assistance to WIPO Member States Assistance to WIPO Member States International co-operation to combat counterfeiting and piracy International co-operation to combat counterfeiting and piracy Information exchange Information exchange III. The role of WIPO

Recommendation No. 45 of the WIPO Development Agenda: « To approach IP enforcement in the context of broader societal interests and especially development-oriented concerns with a view that « the protection and enforcement of IPRs should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations » in accordance with Article 7 of the TRIPS Agreement” - Shift of approach, beyond mere law enforcement considerations - Including: analysis of motivations; socio-economic considerations (prioritization); pricing issues; etc. III. The role of WIPO

Established in 2002 Established in 2002 The mandate of the ACE: The mandate of the ACE: –Coordination with certain organizations and the private sector to combat counterfeiting and piracy –Technical assistance –Public education and coordination of national and regional training –Exchange of information –Norm setting excluded The WIPO Advisory Committe on Enforcement (ACE)

First session (June 2003): Agreed on a thematic approach First session (June 2003): Agreed on a thematic approach with expert presentations Second session (June 2004): The role of judiciary, quasi-judiciary authorities and prosecution in the enforcement of IP rights as well as related issues such as specialization of the judiciary and litigation costs Second session (June 2004): The role of judiciary, quasi-judiciary authorities and prosecution in the enforcement of IP rights as well as related issues such as specialization of the judiciary and litigation costs Third session (May 2006): Education and awareness building, including training, concerning all factors related to enforcement Third session (May 2006): Education and awareness building, including training, concerning all factors related to enforcement Fourth session (November 2007): Coordination and cooperation at the international, regional and national levels, with a focus on the criminal enforcement of IP rights Fourth session (November 2007): Coordination and cooperation at the international, regional and national levels, with a focus on the criminal enforcement of IP rights Fifth session (November 2009): Contribution of, and costs to, right holders in enforcement, taking into consideration Recommendation No. 45 of the WIPO Development Agenda Fifth session (November 2009): Contribution of, and costs to, right holders in enforcement, taking into consideration Recommendation No. 45 of the WIPO Development Agenda

The WIPO Advisory Committe on Enforcement (ACE) Sixth session (December 1-2, 2010): Review of methodologies to measure scope and effects of counterfeiting and piracy; recommendations Review of methodologies to measure scope and effects of counterfeiting and piracy; recommendations Motivations/reasons that fuel counterfeiting and piracy, including with a view to different levels of development (e.g., price; accessibility; social tolerance; profits vs. relatively little risks; absence of job opportunities) Motivations/reasons that fuel counterfeiting and piracy, including with a view to different levels of development (e.g., price; accessibility; social tolerance; profits vs. relatively little risks; absence of job opportunities) Analysis of enforcement efforts from an economic welfare perspective (e.g., measures to guide the demand/competition at the low end of the market; storage and destruction of goods) Analysis of enforcement efforts from an economic welfare perspective (e.g., measures to guide the demand/competition at the low end of the market; storage and destruction of goods) Working documents:

Assistance to WIPO Member States Upon request: Legislative advice on enforcement-related provisions in national law Legislative advice on enforcement-related provisions in national law Strategic assistance: development of strategic approach to strengthen the national enforcement infrastructure Strategic assistance: development of strategic approach to strengthen the national enforcement infrastructure Training programs (e.g., judiciary, customs, police, prosecution, lawyers) Training programs (e.g., judiciary, customs, police, prosecution, lawyers) Awareness-raising Awareness-raising Update at Update at

International cooperation Examples: –Global Congress on Combating Counterfeiting and Piracy (6th Congress February 2-3, 2011, Paris) –OECD - Economic Impact of Counterfeiting and Piracy –WHO-IMPACT Project on Counterfeit Medicines –WCO Counterfeiting and Piracy (CAP) Group –Interpol, UNODC –IPR Business Group; Unifab –NGOs

Information Exchange Publications: Case books: Case books: –The Enforcement of IP Rights, second edition, 2008 (English) –Receuil de jurisprudence, 2007 (French) –Case book in Spanish under preparation WIPO Magazine Special Editions March 2008 / January 2010 WIPO Magazine Special Editions March 2008 / January 2010 Studies: Studies: –Comparative study on criminal enforcement of IP rights (2007) –Study on technical assistance needs relating to the enforcement of intellectual property rights (border measures) within Oceania (2008)

Information Exchange IP enforcement newsletters (quarterly): IP enforcement newsletters (quarterly): Portal to Member States online information on IP enforcement: Portal to Member States online information on IP enforcement: Internet sources for Intellectual Property case law: Internet sources for Intellectual Property case law:

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