Search & Destroy: Enforcement in Eastern Europe
Some months ago I was asked for comments on IP enforcement and more specifically about initiatives in Eastern Europe. These are just rough notes, recovered from a work in progress lost when my computer went south in a tech white-out. A christmas in France should provide the time and good wine necessary to get that article back on the road.
Having successfully railroaded its legislative agenda through weak political opposition, the IP industries priority shifted to enforcement. Former US IP czar Bruce Lehaman was to comment that the GATT-TRIPS agreement (Trade Related Aspects of Intellectual Property Rights) had been a disaster because the promises made by states in return for market access in the US had not been fulfilled. For Lehmann and other hawks only bilateral agreements where the power relationship is crystal clear offer the necessary instruments. For industry and the interested post-industrial nations the process has multiple levels. First the mobilization of the political circus in a performance designed to signal increased seriousness, such as the G8 declarations on counterfeiting released at Gleneagles in 2005 and St. Petersburg 2006. Similar declarations are wheeled out ritually at innumerable meetings such as the EU-US Summit in 2005.
Beyond making visible ‘political leadership’, the real drive is normative and institutional transformation. Enforcement pressure emanates both from the EU/US (and to a lesser extent Australia, Switzerland and Japan), international organizations and occurs at the level of international cooperation (WIPO), trade (WTO), as well as police, judicial and customs organizations.
The annual section 301 report, summarizing “adequacy and effectiveness of intellectual property rights (IPR) protection around the world”, remains the centerpiece of US IP coercion, ranking countries performace based on compliance with their standards and monitoring those considered unsatisfactory. Where there exists a bilateral agreement imposing special requirements this is supplemented by a section 306 review. These are the essentials tool of the US Trade Representative and is of particular importance where trade deals are sought. The form allows the US to maintain continuity in the exertion of pressure. USTR’s report is heavily determined by data provided to it by the copyright and patent industries, especially by the IIPA (International Intellectual Property Alliance) who produce their own annual analysis, although there are occasional divergences as is normal given the fact that IP is just one a a series of competing policy factors in deciding whether of not to place a country on the watch list. The IIPA not only provide a snapshot of their estimated losses but assess the local enforcement machinery, analyze the number of prosecutions initiated, judicial attitudes etc, examine Customs issues and the appraise national IP strategies.
The US has beefed up its overseas IP enforcement efforts since 2004 and the publication of the justice department’s Task Force on Piracy report. Regional IP enforcement co-ordinators have been appointed to work with the legal attaches in the embassies in Budapest and Hong Kong and the FBI have
been asked to appoint staff with IP experience to the same locations. In both cases the idea is that they will serve as staging posts for activity
in the wider region. The push is now on to create legal assistance agreements where local knowledge is deemed to be lacking and to increase
horizontal contacts between law enforcement agencies. In 2000 the US government established the National Intellectual Property Law Enforcement
Coordination Council (NIPLECC) to integrate domestic and international IP enforcement strategies, encompassing activity in the USTR, WTO,
International Trade Administration (department of commerce), Dept of Homeland Security and others.
Whilst ostensibly less aggressive the EU is also energetic in this field, operating both through its own bilateral agreements (enshring the ‘highest
international standards’ in IP) the WTO and diplomatic pressure.
In addition there are a range of capacity-building and training initiatives which have been underway for many years (CARDS, RIPP). Sometimes this work
is conducted with the World Intellectual Property Organization (Advisory Committee on Enforcement), who organize and finance training and education from a protectionist perspective, aimed at civil servants and influential players within business. An array of initiatives are promoted by organizations ranging
from the UN/ECE Advisory Group for the Protection and Implementation of Intellectual Property Rights for Investment, whose ambit is specifically
Eastern Europe and whose players include Microsoft, Pfizer and Proctor and gamble. whose interest is the “the investment environment for the
creative, innovative, high technology and branded goods industries in the region.”.
Norm Redefinition: Police, Interpol, CCIPS (US)
At institutional level the drive is focussed on the police and custom’s authorities and its objective is to intervene in these corps so as to
reprioritise IP enforcement. Populations do not regard IP infringement as being a significant social problem and would be unhappy with resources
being diverted from dealing with organised and petty criminal activity or violent offenses, and this is obviously reflected in the culture of the
police. One strategy has been to push for the establishment of dedicated “IP Crime Units” within the police, following the example of the
Cybercrimes division of the FBI and the network of regional IP prosecutors in the United States. Once in place their creation alters the internal
dynamic; the unit must deliver results in order to justify its existence and ultimately increase its budget allocation so that it can serve the
career interests of those employed there. Sometimes these initiatives enter into the realm of strict theatre. eg In 2004 the uS co-ordianted
Operation Fastlink, a spectacular transborder raid against the Warez scene, whose mediatic purpose was unconcealed. Involving eleven countries
and directed by the United States, I understood its purpose much better after hearing a participant investigator from Singapore narrate the event
with thrilled excitement – it was a chance to play at James Bond – synchronize watches for global action! Similarly, as part of the strategy
focussed on copyright enforcement in South America, an operation code-named “Jupiter” was carried out in the border region between Brazil,
Argentina and Paraguay in 2005, stage-managed by Interpol and involved local police and customs authorities. Significantly a recent anti-piracy
event in Europe called for its replication in the eastern european region.
Current enforcement strategies concentrate on production facilities (including several; optical disk plants in Serbia) and distribution
points, particularly market places. Kadaka Market (Estonia), Petofi (Hungary) Warsaw Stadium (Poland).
Customs and Regional Reinforcement, WCO
Meanwhile, Custom’s Guards are perceived as playing a key role in preventing the arrival of unauthorised product from countries outside of
the EU with more lax IP regimes such as Georgia or the Ukraine. Ideally customs officers would act ex officio of their own initiative and function
as ancillary copyright and trademark police, rather than awaiting a complaint by a rights-holder. Myriad new umbrella organizations have been
formed to carry out this process of norm redefintion. The Global Congress on Combating Counterfeiting and Piracy is just one example, involving
WIPO, Interpol, the World Customs Organization and several industry associations. Over the last three years they have been holding regional
conferences which seek to encompass both political decision-makers and institutional components. In July this year they held a conference in
Bucharest focussed on Eastern Europe
International efforts are accompanied by the creation of regional organizations designed to bolster cross-border cooperation and continuity,
such as the newly born “Subgroup on Intellectual Property Theft” within the Southern European Cooperative initiative (SECI).
The music and audio-visual industries target the pirate economy at the level of production (optical disk manufacturing plants), import/export
(thus the pressure on Customs authorities) and street level activity (markets, internet cafes etc).
Under pressure from industry many countries have Optical Disk Production regulations, requiring them to keep records demonstrating that the amount
of raw materials used is commensurate with the legitimate production contracts they have acquired. In addition they are required to use SID
codes issued, amongst others, by the International Federation for the Phonographic Industry. This allows the manufacturer of the CD/DVD to be
identified. As of 2005, for example, Serbia had 4 DVD and 10 CD production lines, and no optical disk regulations.
Of course the drive against optical disk factories is not limited to Serbia, but I though you would find it relevant. Some details are
contained in: http://www.iipa.com/rbc/2006/2006SPEC301SERBIAANDMONTENEGRO.pdf
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