1. Enforcement Directive and Software Protection Joost Verbeek Partner ULYS Law Firm Brussels, 26th of April 2006

2. Plan I. Introduction II. Legal Context III. Enforcement Directive 2004/48/EC IV. Legal Developments in Belgium and Implementation of the Directive V. Conclusion

3. I. Introduction A.The Importance of the Software Industry B.The Impact of Software Theft C.Types of Piracy

4. I. Introduction A.The Importance of the Software Industry: -One of the fastest growing segments of the world's economy -BSA-IDC Study December 2005: E.U.: a $311 billion IT industry 365,000 companies 2.5 million IT workers $268 billion a year in tax revenues

5. I. Introduction B. The Impact of Software Theft: Source: SIIA 2005 AntiPiracy Year End Report: -In 2005: 366 reports of alleged piracy Source: www.bsa.org:www.bsa.org -More than 1 in 3 copies of software in use in Western Europe is unlicensed -Deprives EU Member States of over 200,000 jobs and well over €9 billion in annual tax revenues

6. I. Introduction B. The Impact of Software Theft: Source: BSA-IDC Study December 2005 -Cutting the software piracy rate in the EU by 10 % over 4 years could generate an additional 155,000 jobs, $88 billion in economic growth and $25 billion in tax revenues -In Belgium, a 10% reduction in software piracy, currently at 29%, would generate an additional 4000 new jobs, 2,6 billion dollars in economic growth and 844 million dollars extra in tax revenus.

7. The BSA-IDC Study suggests five steps: Update national copyright laws to implement WIPO obligations; Create strong enforcement mechanisms, as required by the WTO, including tough anti-piracy laws; Dedicate government resources to the problem, including national IP enforcement units, cross border cooperation, and more training for law enforcement; Improve public education and awareness; and Lead by example by requiring the public sector to use only legitimate software.

8. Source: BSA-IDC Study December 2005

9. Source: BSA-IDC Study May 2005

10. I. Introduction C. Types of Piracy: End User Piracy Client-Server Overuse Internet Piracy Hard-Disk Loading Software Counterfeiting

11. II. Legal Context A.International Level TRIPS Europe B.Legal Framework in Belgium Laws and Regulations Specific Problems when Combating Counterfeiting Procedures Available Against Counterfeiters of Software

12. II. Legal Context A.International Level: 1. TRIPS: - international minimum standards - horizontal effect - not exhaustive - Member States as well as the Community are bound

13. II. Legal Context A.International Level: 2. Europe: Directive 91/250/EC Directive 2001/29/EC Directive 2004/48/EC Council Regulation No 1383/2003 Commission Regulation No 1891/2004

14. II. Legal Context B.Legal Framework in Belgium 1.Laws and Regulations: Copyright Law June 30, 1994 Software Law June 30, 1994 Law of May 22, 2005 2 Drafts to Implement Directive 2004/48

15. II. B. Legal Framework in Belgium 2. Specific Problems when Combating Counterfeiting: Article 96 of our Law Againts Unfair Trade Practices Financing the combat against counterfeiting Courts not specialized Indemnities are to low

16. II. B. Legal Framework in Belgium 3.Procedures Available Against Counterfeiters of Software: 3.1. Civil proceedings 3.2. Criminal proceedings

17. II. B. Legal Framework in Belgium 3.Procedures Available Against Counterfeiters of Software: 3.1. Civil Procedures: Request for unilateral measures (art 584 Judicial code) Accelerated proceedings Copyright infringement proceedings Proceedings on the merits of the case Intervention of the customs Anton Piller Orders

18. II. B. Legal Framework in Belgium 3. Procedures Available Against Counterfeiters of Software: 3.2 Criminal Procedures: Advantages Disadvantages

19. III. Enforcement Directive 2004/48/EC A.General B.Background C.Objectives D.Scope E.Content F.Persons Entitled to Apply for the Application of the Measures and Procedures G.Civil Measures H.Damages and Legal Costs I.Criminal Sanctions

20. III. Enforcement Directive 2004/48/EC A.General: Adopted on April 29, 2004 Date of Transposition: April 29, 2006 Horizontal Effect Harmonize Member States’ Legislation in order to: - aligne enforcement measures throughout the Union - ensure an equivalent level of intellectual property protection in the internal market

21. III. Enforcement Directive 2004/48/EC B. Background: October 15, 1998: the Commission presented a Green Paper on the fight against counterfeiting and piracy in the Single Market Subsequent to this consultation exercise, the Commission presented on 30 November, 2000 a follow-up Communication to the Green Paper proposing an action plan to improve and strengthen the fight against counterfeiting and piracy

22. III. Enforcement Directive 2004/48/EC C. Objectives: To ensure a high, equivalent and homogeneous level of enforcement of intellectual property rights in the Member States: Promoting innovation and business competitiveness Preserving employment in Europe Preventing tax losses and market destabilization Ensuring consumer protection Ensuring the maintenance of public order

23. III. Enforcement Directive 2004/48/EC D.Scope: The measures apply to any infringement of the intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned The Directive does not affect: the Community provisions governing the substantive law on intellectual property; Member States' international obligations and notably the "TRIPS Agreement"; any national provisions in Member States relating to criminal procedures or penalties in respect of infringement of intellectual property rights.

24. III. Enforcement Directive 2004/48/EC E. Content: Transpose the provisions of the TRIPS Agreement on the enforcement of IP rights (Art. 41 - 50 and Art. 61) Implement further instruments to enforce IP rights: “Best Practice Measures” Member States are free to further introduce more favorable measures or procedures

25. III. Enforcement Directive 2004/48/EC F. Persons Entitled to Apply for the Application of the Measures and Procedures: Holders of intellectual property rights, their representatives and all other persons authorised to use those rights in accordance with the applicable law The procedures and measures provided for can, in principle, also be used against private persons and end- consumers.

26. III. Enforcement Directive 2004/48/EC G. Civil Measures: 1.Evidence 2.Right to obtain information 3.Provisional and precautionary measures 4.Measures resulting from a decision on the merits of the case

27. III. Enforcement Directive 2004/48/EC H. Damages and Legal Costs Take into account all appropriate aspects relating to the prejudice suffered Economic and moral factors Legal costs, lawyer's fees and any other expenses incurred by the successful party shall normally be borne by the other party Set in two ways: -take into account all appropriate aspects, such as negative economic consequences and moral prejudice -fix damages as a lump sum on the basis of elements such as the amount of royalties or fees

28. III. Enforcement Directive 2004/48/EC H. Damages and Legal Costs: Recall and destruction Injunctions prohibiting the continuation of infringing acts Pecuniary compensation Publication of judicial decisions Elaboration of codes of conduct

29. III. Enforcement Directive 2004/48/EC I.Criminal Sanctions by Member States: No provisions on criminal sanctions foreseen Member States are free to apply other sanctions, which go further than the provisions set out, to prosecute offenders

30. IV. Legal Developments in Belgium and Implementation of the Directive 1.Draft of Proposal of Law Related to Civil Aspects of Enforcement 2.Draft of Proposal of Law Related to Criminal Aspects of IP Protections

31. IV.1. Proposal of Law Related to Civil Aspects of Enforcement Proposed measures: The abolition of the prohibition to cumulate the action in cessation with the action to stop counterfeiting The reform of the procedure of descriptive seizure A centralization of the disputes concerning intellectual property The implementation of certain civil proceedings

32. IV.2. Proposal of Law Related to Criminal Aspects of IP Protections The intentional element The filing of a complaint by the prejudiced party is no longer a preliminary condition The penalties are increased and diversified A warning procedure is set into place

33. V. Conclusion