The European Union appears to be preparing for adoption of the “gold standard” of enforcement, the Anti-Counterfeiting Trade Agreement (ACTA), as intellectual property law expert Annette Kur from the Max Planck Institute of Intellectual Property, Competition and Tax Law said it is now called.

At a conference of the Swedish EU Presidency on “Enforcement of Intellectual Property with a Special Focus on Trademarks and Patents” on 15-16 December in Stockholm, representatives from EU bodies, member states and industry supported a quick enforcement of ACTA, according to participants. A representative of the Justice, Freedom and Security Directorate General of the European Commission, presented a plan for a quick restart of a legislative process in the EU to harmonise criminal law sanctions in the Community.

But according to an analysis of the European Commission leaked in November, the lack of harmonisation of such criminal law sanctions might conflict with the much-wanted “gold standard.” Criminal law sanctions were originally integrated into the draft EU IP enforcement directive (IPRED), but kicked out during the legislative process. The attempt to push through a legislative instrument dedicated to criminal law sanctions against IPR infringers by DG Justice, Freedom and Security also failed, largely because IP experts of member states had insisted that criminal law sanctions are under national governments’ competency.

“With the ratification of the Lisbon Treaty, that issue is solved,” explained Kostas Rossoglou from the European Consumer Association (BEUC), who came back from the conference with some concerns, he said. A representative from DG Justice, according to Rossoglou, announced at the conference that the Commission intends to table the draft IPRED 2 in May or June 2010. The original draft text is expected to be used as the base for it, he said. A big concern, according to Rossoglou, is that the term “on a commercial scale” that was intended to limit criminal sanctions in the IPRED2 to large-scale infringement activities had not been well-defined.

Kur in her presentation said the IPRED2 proposal lacked hard and fast safeguards addressing the rights of defendants, lagged in some respects behind other EU legislation like the Council Framework Decision (2005/212/JHA) on confiscation. The IP law researcher also said too much influence for public-private investigation teams in IPR infringement cases might be harmful.

The European Economic and Social Committee had recommended limiting the role of victims of an infringement “purely to providing information to the public authorities. It would be inappropriate for a company following an accusation of commercial counterfeiting, to be involved in monitoring activities or confiscating the property of a competitor, who is innocent until proved otherwise in court”, reads the Committee statement. Tendencies towards private justice had to be resisted, Kur said.

In general, Kur and Rossoglou warned against an imbalance in IPR enforcement.
According to them, no clear distinction was made between trademark, patent and copyright infringement, not even at the Stockholm conference that according to its title was supposed to focus on patent and trademarks only.

Kur was critical of the fact that: “Fabrication of fake medicine and fake spare parts for airplanes are always mentioned in these discussions as an argument for stronger IPR enforcement legislation in general.” But using the public concern about serious crimes like fabrication of noxious medicaments in this way is inappropriate and dangerous, “because it obscures the fact that to combat risks for public health is not primarily an IP issue,” she said.

Rossoglou demanded clear definitions when talking about further legislative tools in enforcement. Proportionality also has to be respected and fundamental rights upheld, he said with regard to three-strikes-concepts under discussion in EU member states. Three-strikes is a rising practice that penalises any internet user for three alleged copyright infringements.

In discussing the way forward in IP enforcement, transparency is of utmost importance, he said. Transparency requests by many, even the members of the EU Parliament, so far have been rejected for the negotiations of ACTA.

While the Swedish EU presidency had favoured greater transparency with regard to the ACTA, discussions on this are still ongoing, according to Magnus Fridh, special adviser at the Division for Intellectual Property and Transport Law Ministry of Justice in Sweden. Fridh in reply to a question from Intellectual Property Watch rejected the notion that there was a clear timetable. But he confirmed that a representative from the Directorate General Justice, Freedom and Civil Rights announced that a new draft for IPRED 2 would be tabled in May or June.

He declared that “nothing prevents the EU and/or its member states from signing ACTA before such a directive is in place.” An expert at the Commission answering a request from Intellectual Property Watch said that ACTA and the criminal sanctions of a EU IPRED 2 have a connection, but that “a particular arrangement was established that should allow the EU to successfully achieve its objectives for ACTA even without IPRED 2.”

Only two members of Parliament attended the conference in Stockholm, which despite its high-level panels was not much publicised by the Swedish presidency. Not even an agenda had been published beforehand, though the agenda was to be put online together with presentations after the conference, said Fridh. Presentations have been posted here. Under the Lisbon Treaty, the European Parliament would be kept informed of the negotiation process in a manner similar to the Council, a Commission expert said. Furthermore, the ACTA text would be approved both by the Parliament and the Council.