International cooperation in combating IP crimes: Criminal IP enforcement in the international policy debate Heike Wollgast World Intellectual Property Organization (WIPO) Enforcement Division

Presentation I.IP enforcement in the TRIPS Council II.WIPO: The WIPO Advisory Committee on Enforcement (ACE) III.WHO: The IMPACT taskforce IV.The UN Convention on Transnational Organized Crime (UNTOC) V.The negotiations on a new “Anti- Counterfeiting Trade Agreement (ACTA)” VI.The role of bilateral FTAs

Proposals to address IP enforcement issues in the TRIPS Council: n EC initiatives June 2005 (TRIPS enforcement implementation, including in the area of criminal enforcement), March 2006 (TRIPS enforcement implementation), June 2006 (border measures) n Joint Communication from EC/Japan/Switzerland/US, October 2006 (TRIPS enforcement implementation) n Communication from the US, February 2007 (exchange of information as to border measures) n Communication from Switzerland, June 2007 (exchange of information as to border measures) IP enforcement in the TRIPS Council

n Created in 2002 n Global forum for - Exchange of country experiences, - Coordination to combat counterfeiting and piracy, including with the private sector - Technical assistance. n Mandate excludes norm-setting The WIPO Advisory Committee on Enforcement (ACE)

n Themes addressed: - The role of the judiciary in the enforcement of IP rights, including with a view to a specialization of the judiciary - IP enforcement education, awareness building and training, capacity building for law enforcement officials - Cooperation to streamline the criminal enforcement of IP rights n Working documents/studies at The WIPO Advisory Committee on Enforcement (ACE)

n Perspectives: - Theme for the fifth session? - Request for review of the mandate (GA 2007): norm-setting? - Interrelation with the WIPO Development Agenda? The WIPO Advisory Committee on Enforcement (ACE)

The WHO IMPACT taskforce n Objective: to strengthen, through international cooperation, the combat against Counterfeit medical products n Created in 2006 under the auspices of the World Health Organization (WHO); members are national health and enforcement authorities, international organizations, and pharmaceutical manufacturers n December 2007: adoption of « Principles » for effective anti-counterfeiting legislation; recommendations to national law-makers n Implementation suggested in IP enforcement legislation and/or other bodies of law

The WHO IMPACT taskforce n Elements of the “Principles”: - Definition of «counterfeit medical products»: false representation as to product identity (e.g. name, composition, strength etc.) or source (manufacturer, country of production etc.) - Detailed obligations of governments, manufacturers, and operators of the distribution chain - Criminalization of certain acts, e.g. manufacture, trade, possession in commercial circumstances, provision of online services knowing, or having reasonable grounds to know, that they are used for such offenses etc.

The WHO IMPACT taskforce n Not relevant for criminalization: - actual harm caused - volume or value of goods (these may be aggravating factors) n Kind and level of recommended sanctions: - Equivalent to those provided in national law for “serious crimes”, such as drug trafficking, including mandatory prison sentences - In addition: destruction of goods and implements, confiscation of assets, closure of establishment, prohibition to engage in medical product-related activities, placing activity under judicial supervision, withdrawal of business licenses, etc. n Implementation?

The UN Convention on Transnational Organized Crime (UNTOC) In force since 2003; 143 Parties (including most countries in the Arab region) In force since 2003; 143 Parties (including most countries in the Arab region) First legally binding UN instrument in this field First legally binding UN instrument in this field Objective: more effective international cooperation of law enforcement authorities in combating organized crime Objective: more effective international cooperation of law enforcement authorities in combating organized crime Obligation to criminalize four categories of acts: - Participation in organized criminal group - Laundering of proceeds of crime - Corruption - Obstruction of justice Obligation to criminalize four categories of acts: - Participation in organized criminal group - Laundering of proceeds of crime - Corruption - Obstruction of justice

The UN Convention on Transnational Organized Crime (UNTOC) Applicable also to any other offenses punishable under national law by at least four years imprisonment, if organized crime is involved Applicable also to any other offenses punishable under national law by at least four years imprisonment, if organized crime is involved Obligations address - measures that have to be taken at national level to combat the above crimes; and - international cooperation in these areas, e.g. in the area of extradition, mutual legal assistance, transfer of proceedings and jurisdiction, joint investigations. Obligations address - measures that have to be taken at national level to combat the above crimes; and - international cooperation in these areas, e.g. in the area of extradition, mutual legal assistance, transfer of proceedings and jurisdiction, joint investigations. Relevance in the combat against IP crimes? Relevance in the combat against IP crimes? Text available at Text available at

The negotiations on a new multilateral Anti-counterfeiting Trade Agreement (ACTA) Launched in November 2007 by Canada, the EU Member States, Japan, South Korea, Mexico, New Zealand, Switzerland and the U.S.; negotiations today involve further interested countries Launched in November 2007 by Canada, the EU Member States, Japan, South Korea, Mexico, New Zealand, Switzerland and the U.S.; negotiations today involve further interested countries Objectives: approximation of obligations concerning criminal and civil enforcement, border measures, optical disc piracy, internet distribution, international cooperation among enforcement agencies, capacity building and technical assistance. Objectives: approximation of obligations concerning criminal and civil enforcement, border measures, optical disc piracy, internet distribution, international cooperation among enforcement agencies, capacity building and technical assistance. Perspectives? Perspectives?

The role of bilateral Free Trade Agreements (FTAs) Examples in the Arab region: - FTAs between the US and Jordan; Morocco; Bahrain; Oman (pending implementation); UAE (under negotiation), respectively - Association agreements between the EU and Algeria; Egypt; Lebanon; Jordan; Morocco; respectively; FTA under negotiation between the EU and the GCC -Some agreements include detailed intellectual property-related obligations for the trading partners, including in the area of enforcement Examples in the Arab region: - FTAs between the US and Jordan; Morocco; Bahrain; Oman (pending implementation); UAE (under negotiation), respectively - Association agreements between the EU and Algeria; Egypt; Lebanon; Jordan; Morocco; respectively; FTA under negotiation between the EU and the GCC -Some agreements include detailed intellectual property-related obligations for the trading partners, including in the area of enforcement

The role of bilateral Free Trade Agreements (FTAs) Obligations in the area of criminal IP enforcement (examples): Criminalization of certain acts: - Infringements of related rights; - “Significant willful counterfeiting and piracy”, even if not motivated by financial gain; - Importation/exportation and the domestic distribution of counterfeit/pirated goods - Knowing trafficking in counterfeit labels or documentation for phonograms, software, movies etc. Criminalization of certain acts: - Infringements of related rights; - “Significant willful counterfeiting and piracy”, even if not motivated by financial gain; - Importation/exportation and the domestic distribution of counterfeit/pirated goods - Knowing trafficking in counterfeit labels or documentation for phonograms, software, movies etc. Initiation of criminal action ex officio Initiation of criminal action ex officio

Thank you