EU Seeks Stronger IP Enforcement At Every Level

By William New
The growing problem of intellectual property rights piracy and counterfeiting requires global cooperation, and the European Union has elevated its focus on the issue at every policy level, an EU official told a recent intergovernmental gathering discussing IP and economies in transition.

The official described efforts internally within its members, in bilateral trade negotiations with small economies, and multilateral organisations including the United Nations, World Trade Organization and groups of the world’s wealthiest nations.

The 27-nation EU has a minimum level of standards for enforcement that member states must adhere to, but it does not have full competency for enforcement issues, said Pedro Velasco Martins of the EU trade directorate. Its oversight includes civil cases and customs procedures, he added, and the group is in the process of harmonising criminal sanctions.

An enforcement directive making its way through the EU process would raise criminal sanctions for infringements and tighten rules on copyrights, trademarks, databases, design rights, and geographical indications (IPW, EU Policy, 26 April 2007).

Some concern has surfaced that proponent members of Parliament may try to further amend the directive to criminalise parallel imports in a way that avoids debate on the subject, according to sources.

Patents are largely still at the national level, while trademarks and geographical indications (products deriving their names from places) are at the EU level, he said. Trade-related intellectual property issues are exclusively the domain of the EU level.

The discussion took place at a 25-27 July conference of the United Nations Economic Commission for Europe, which has launched a team on IP issues (see related story).

The European Commission, the EU executive body, has created IP-specific dialogues with China and Russia and is developing one with Latin America, Velasco said, adding that the aim is to be “results-oriented.” The Commission also is expanding the role of EU delegations on IP enforcement, he said, with an expanding network of IP experts, including officials already in Beijing and Moscow and a customs official who deals with IP in Bangkok.

Velasco described a bilateral strategy with the United States involving customs and information cooperation with the involvement of the private sector. In free-trade agreements under negotiation by the EU, the IP chapter is more detailed than in the past with a strengthened enforcement element, he said. An official in the audience raised concern that greater detail could lead to legal problems in the future and possible conflict with US law.

Velasco replied that those working in IP policy “are used to criticism” and take input into account. “Of course having more detailed provisions creates some of the problems you mentioned,” he said. The EU effort is “not a competition” with the United States to see who can achieve the “toughest provisions” on IP protection in bilateral deals, he added.

He said that many of the countries engaged in bilateral negotiations with the EU already signed bilateral deals which have IP enforcement provisions so it is “not new to them.” For the others, the EU is “aware” of the difficulty it might present.

The EU also is aware of its differences from what the US negotiates in its bilateral agreements, perhaps most notably on geographical indications (GIs), named after the regions from which they came. An example is with Chile, which signed bilateral agreement with both, and “must be aware” of the differences, he said. Europe is pushing hard for greater protection of GIs, many of which derive from Europe, while the US is reluctant on this.

But the EU is “very, very careful on sensitive areas” such as access to medicines which can be affected by pharmaceutical patents. The sections of the negotiations on patents are “mostly aimed at helping rights holders,” Velasco said, but they do respect the flexibilities available to countries under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

At the multilateral level, Europe is seen as taking the lead. At the World Trade Organization, the EU introduced a discussion of enforcement into the Council on Trade-Related Aspects of Intellectual Property Rights despite opposition from key developing countries who argue it is outside the council’s mandate. But Velasco said the EU is supported by language in the TRIPS agreement, and that one “cannot ignore or pretend doesn’t exist.” He said Japan, Switzerland and the United States have helped with the effort in the council.

The Group of Eight industrialised countries at their annual meeting in June produced “an impressive list” of IP objectives, he said, including some action items like a customs database. In addition, the Organisation for Economic Cooperation and Development is addressing the issue now, including with a project on the economic impact of IP rights infringements, Velasco said. Furthermore, the EU is working directly with countries to provide technical assistance to build their IP systems.

The EU would like to have stronger means to pressure countries on IP enforcement, such as sanctions, he said. This is only possible in the WTO, where the EU is closely following a dispute settlement case filed by the United States against China this year.

William New may be reached at wnew@ip-watch.ch.