EU IP Enforcement Summit: Figures Grave, Reactions Slow

BERLIN — With figures now available for what intellectual property infringement is worth, the European Union copyright office made a call to action at its 2^nd International IP Enforcement Summit in Berlin, which ended today.

“Now that we know the facts, it is time to move to action and problem solving,” said Antonio Campinos, head of the EU IP Office (EUIPO).

Rights owner organisations reiterated their calls for stronger enforcement provisions and intermediaries were eager to present technology-based approaches against piracy and counterfeiting, but the unresolved issue remains how to realise what everybody calls a “balanced approach.”

Five percent of imports in the European Union are fake products, according to one of the studies of the EUIPO’s Observatory on Infringements of Intellectual Property Rights. The Observatory has released two studies during the Summit, with one “Mapping the Real Routes of Trade in Fake Goods.”

“For years it was said, right owners would complain about how bad the situation was, yet there was no data to support their calls for stronger legislation,” Paul Maier, director of the Observatory, told Intellectual Property Watch. “But the data we have now are worse than even we expected. Five percent fake goods is a lot.” While the Observatory is not tasked with making policy recommendations, Maier listed evaluations and adaptions of several existing laws as being under discussion by stakeholders.

“The EU Directive on the Legal Protection of Designs is from the late nineties,” said Maier, and given that design law gets more and more important, a revision is under consideration by the Commission with two studies currently being discussed. Another clear path, he explained, is a revision of the IPR Enforcement Directive from 2004.

Maier warned that given the now revealed numbers of counterfeit goods reaching European markets, there is a question if the balance intended by the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) framework is undermined. The grave results of the new studies so far have not yet been discussed in Geneva, he observed.

“If you want to promote clean trade globalization you will have to talk about the dark side, the ones that are making money that is not going through your tax authorities,” stated Rolf Alter, director of Public Governance and Territorial Development Directorate at the Organization for Economic Cooperation and Development. The OECD had partnered with the Observatory in the big “Mapping” study.

The lack of commitment from the Commission to drive this forward resulted in some highly critical comments during the Summit in Berlin, for example by a representative of the International Chamber of Commerce Business Action to Stop Counterfeiting and Piracy (BASCAP) (IPW, Enforcement, 22 June 2017).

Progress in Tech instead of Regulation

Talking about current challenges of enforcement in one of the summit sessions, Richard Yung, president of the French Anti-Counterfeiting Committee, reported that practitioners “were talking about how bad it is and how sad we are” and that “we all know enforcement is a very difficult matter.” Several participants said that their impression from the summit was that there was a lack of progress in enforcement.

Yung said the fast track procedures for infringement cases at a newly established specialised court in London was seen as promising, being cheaper, quicker and deciding 100 cases annually.

Nearly unanimously, conference participants were supportive of IP education, even for small children. In Japan, Yung said, even toddlers are already made familiar with the topic. Kids in download age certainly could be addressed, “and that age is going down,” said Andreas Beckmann, deputy secretary-general of European Schools.

Innovation in enforcement was reported much more, though, from the other side of the table. Several intermediaries presented how they address infringing content on their platforms. Differentiating fake from real products through algorithms is still not yet possible, said Peter Szyskzko, founder of WhiteBULLET. But tech providers are working on that.

Google is not only continuously developing its Content ID Program that helps protect copyright content on YouTube. The company also is working to further evolve machine learning algorithms to perfect in order “to predict and understand what content might be infringing.”

Considerable efforts to clamp down on IP-infringing products were reported for Alibaba by Matthew Bassiur, head of Alibaba’s Global IP Enforcement. “Rights owners can report any infringement, trademark, patent or copyright,” Bassiur told the IP Summit.

WhiteBULLET’s system on the other hand allows brand owners and law enforcement agencies to track ad placements on what the companies ranks as “high risk” sites. “We do not call it a black list,” said Szyszko. For the ranking, the WhiteBULLET software uses 400 data points to decide if a site is high risk.

More futuristic even are the proposals of using blockchain technologies for IP protection. The vice-chair of the newly set up Blockchain Intellectual Property Council of the Chamber of Digital Commerce pointed to pioneers like British Musician Imogen Heap whose because who became dissatisfied with the music industry-initiated Ujo Music. Ujo Music allows musicians to list their rights in a blockchain system that automatically channels revenues from users to the musicians and composers involved.

Similar approaches could be thought through for trademark and patent offices, said Maier. “Every office could list their marks,” he said. This and other future ideas are on the agenda of the EU Observatory, that itself is for the first time under evaluation after having completed its first set of studies.

Other topics the Observatory wants to address now are “helping enforcement” and looking into ICANN (the Internet Corporation for Assigned Names and Numbers) and potential problems of trademark owners with generic top level domains, but also country-code top-level domains (ccTLDs).

Consumers Rights and the EU Copyright Directive

Meanwhile, representatives of consumer organisations appealed to the Enforcement Summit to be more considerate of the interests of users and consumers.

Looking forward on IP protection and a balanced policy response, “the first thing to do is not to treat all IP infringement the same way,” said Agustin Reyna, digital team leader at the European Consumer Organization BEUC. With regard to consumer safety, he noted it is not the counterfeiting that makes a product unsafe, but how it is produced. At the same time, not all real products are safe by definition.

With regard to copyright, there is no “security risk” for consumers, Reyna said. Instead, more access to legal content is the first step towards less piracy, as perception studies show.

Julia Reda, member of the European Parliament, even warned against what she called the “securitization of IP”, meaning that IP infringement is linked not only to organised crime, but also to “financing of terrorism”.

According to Reda, “That is a distraction of the fact that IP is an economic right and the fight over it is about allocations of rights.” Rights owners also do not always have the high ground, she said, pointing to generic medicine and the reconciliation of public health interests with IP rights.

Reda was highly critical of the current draft of the revised EU Copyright Directive, claiming it to be an attempt to include enforcement in the basic legislation and making it contradictory in parts to the E-Commerce Directive’s liability regime.

The directive is in “dear need of an overhaul” she said, adding that “enforcement can only be as good of the underlying law. Geoblocking and different regimes in the member states of the EU have to be dealt with, she argued, and copyright limitations as rights for users and also the panorama right are necessary, the Pirate Party member said.

“We need fix the underlying law, it is currently virtually impossible to stay compliant all the time”, she said. “if perfectly enforced, our communication system would collapse and we would all stand in front of a court.”

 

Image Credits: Monika Ermert