Intellectual Property Enforcement, European Style: Dogma Internally, Coercion Externally
History Will Set You Free
For intellectual property critics it is a commonplace that the United States is the villain of the policy piece. Why? Well, because Corporations such as Pfizer and Disney who have played a vital role in the protectionist crusade since the ’70s have always found a sympathetic ear in the US administration. As plugged elsewhere, this is a story best recounted by Peter Drahos in Information Feudalism. A fact mentioned by Drahos, but rarely given its due prominence, is that the Europeans (and the Japanese) have aided and abetted since at least the mid ’80s. Back in the day the transmission mechanisms for generating complicity were business networks. The Advisory Committee on Trade Negotiations (ACTN) who advised the President on policy included the key IP maximalist Edmund Pratt of Pfizer. In 1986 it was vital to mobilize business opinion to pressure national governments to include IP issues with the GATT, and to this end they set up the Intellectual Property Committee (IPC) an industry alliance of heavy-hitters who then set to work on their European (the 113 Committeee of the EC and the Union of Industrial and Employers Confederations of Europe (UNICE)) and Japanese (MITI) colleagues and contacts. We know the results, and the unplumbable depth of the conzequences occurred to me again reading various documents relating to IPRED 2; the criminal sanctions are legitimised through reference to Article 61 of TRIPS:
“Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.”
Elephant Hunters of the 21st Century
But on to the real juice, because what I want to highlight here is that Europe’s external relations policy on IP has been reshaped by the percolation of dogma over time – it appears that the white man’s burden of the 21st century is to ensure that their intellectual property isn’t misappropriated by uppity post-colonials.
In November 2004, the Commission published a “Strategy for the Enforcement of Intellectual Property Rights in Third Countries“ laying out the actions to be undertaken (the various documents are hosted at DG Trade). In the presentation of the document they describe the steps leading to legislation such as the Regulations relating to customs seizures of counterfeit goods and IPRED 1, before going on to emphasise the need to focus on infringements taking place outside the borders of the EU. Before getting their hands dirty there are some defensive qualifications where they insist that there is no intention to behave unilaterally, impose a one-size-fits-all IP policy on others, or to copy ‘other models of IP enforcement’ – but where oh where could they be referring to!?
Don’t Copy That Policy! Measures and Actions
1. As if to immediately renege on the promise not to copy other models, the first point on the action plan is the need to collect data from the stakeholders regarding the type and extent of violations in different countries. Yes, that’s exactly what the US Trade Representative does each year as part of the 301 Process, helped by the benevolent elves at the International Intellectual Property Association. To get things rolling the Commission initiated such a process at then of 2002 and published the results in 2003. Apart from EC delegations responding (12) there were submissions from 9 companies and 14 rights-holders organzations. Interestingly their identities are not listed, whether intentionally or inadvertently. I decided to have a taste and selected Argentina, seeing as I have a little experince in that part of the world. Furthermore the EC was party to the complaints made against Argentina for non-compliance with its TRIPS obligations regarding patent protection at the WTO.
So what does it say?
“Patents – Pharmaceutical products: medicine which violates IPR legislation is estimated to represent about 54% of the domestic consumption. If one includes “generics”, then about 85% of medicine in the market do not pay any patents.”
Two things jump ot straight away: first exactly the IPR legislsation being relentlessly violated is not specified; i’s certainly not the argentine patent law. Secondly, what is the second sentence supposed to mean? Why does the reference to generics need to be in inverted commas? And is it now an offense not to pay patent fees on products which are, like, not protected by patents?
Most of the beef with Argentina derives from the fact that it previously had no product protection for pharmaceuticals (which is no big deal as this was common recently in places from Canada to India) and Big Pharma has never forgiven them for this, as it means much of the market remains in the hands of local manufacturers. Another stick used to beat them is clinical test data protection for pharmaceuticals (expensive stuff to compile), but the Argentines have an honest way of getting round this: a demonstration of bioequivalency with a product that has been approved ina series of listed countries is treated as adequate assurance of safety. Formally then Argentina has a defensible position. In addition the country has serious social problems as demonstrated by the collapse of its economy in 2001, the return of death through malnutrition, and a health system overwhelmed by the swollen ranks of the poor – a deserving case in sum.
2. Next up is the use of Multilateral and Bilateral fora. Authorities such as Carlos Correa have documented the introduction into EU Trade agreements of language requiring the ‘highest international standards’ in IP protection, a vague requirement which leaves little doubt as to its TRIPS-plus intentions. But the Commission is looking for more precision in this area. The potential to use the TRIPS council as a venue for pressing the enforcement agenda is also underlined, and that attempt is currently underway and resulted in the last meeting of the TRIPS Council descend into something of a shambles. WIPO meanwhile is to be used to monitor complaince (an early warning system!) and provide technical back-up Lastly, participants in Summit meetings organised under the aegis of multlateral and bilateral deals are reminded that it is an opportunity to maintain the pressure politically on their counterparts.
3. Most of this point is dedicated to making sure that Commission officials remain on message when discussing these issues: they are to stress that it is for the other country’s ultimate benefit. EC delegations are to be used as gather information and dispense advice to rightsholders in priority (read problem) countries. An greements with Japan regarding an enforcement ‘joint venture’ EU – Japan Joint Initiative for IPR Enforcement in Asia, is offered as an example of the possibility of streamlining resource allocation through co-operation.
4. Next the document turns to the use of technical assistance programs to increase enforcement, noting that thiese programs are useually requested (demand-driven) and thus requires some adjustment, ie moving to a dialogue-driven (is this a new euphemism for ‘what we want?). TA obviously offers a rich vein of potential collaborators (US, Japan, WIPO, World Customs Organizations) architectures (existing customs agreements for example) s well as complex administration.
5. Enforcement mechansims are already available under the Trade Barriers Regulation (TBR), the WTO Dispute Resolution Process and in some bilateral agreements. The Commission is to act ex officio at the WTO and remind companies of the option to use the TBR to force the Commission to instigate an investigation and ultimately proceedings.
6. Industry associations and companies are to be drawn more closly into the fold through private-public partnerships and the possibility of mobilising existing EU structures such as the Innovation Relay Structures is mooted. Is it not worrying that structures designed to gestate innovation are to be reshaped in the shadow of a policing project?
7. The Commission is not blind to the normative stakes and proposes an awareness campaign to highlight the benefits of protectionism and warn against the risks embodied in counterfeit and pirated goods. The unkind would refer to this as a propaganda campaign. More properly part of their bailiwick is the suggestion of a prohram aimed at informing businesses of their rights in this field and the publication of a guidebook on the same theme.
Genealogy of a Dogma
In the Commission’s eyes the great white hope of the European economy resides in the possibility of increasing levels of innovation and consequently growth, and this vision is enshrined in the Lisbon Strategy. Rather than pursuing even a diversified strategy of nurturing the numerous models of non-protectionist innovation documented in recent years, or drawing the lessons from comparative research in existence for much longer, they’ve gambled the house on an expansionist IP approach. Thus, for example, one of the key benchmarks for Lisbon is the level of patenting. no attention of course is based to the quality of these patents, analysis of productivity changes or wealth gains created thanks to their invention, and the role of divergent tax regimes in determining the location of patents. I won’t even get into the previous attempt to introduce software patents, now being attempted via the back-door of the Patent Litigation Agreement. Database Protection was introduced at the behest of the publishing behemoths – the recent consultation indicated it made no impact, but we’ll never know what innovation it halted. Regarding copyright: the term of protection was extended without justification; a huge effort was put into drafting the EUCD around Technological Protection Measures etc to protect business models meeting the fate of the dinosaurs….
The Commission has always been heavy on the rhetoric regarding small and medium sized enterprises and designing policies to support them, but in practice follows the tune of the biggest corporations. The policy being pursued under the guise of IPRED 2 and the Enforcement Strategy is out of control.
More on all this later.
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