Some Preliminary Remarks On COM(2011) 287 Provisional

According to this Document, the timetable of the EU Commission (only future projects listed here) is as follows:

• IPR valorisation instrument: Comprehensive analysis on the basis of ongoing feasibility study and report to the European Council. Report to be submitted before the end of 2011.
• Revision of the Community Trade Mark Regulation and the Trade Mark Directive: Proposals will aim at rendering the EU trade mark system more effective, efficient and coherent. Second half 2011.
• Orphan works: Legislative proposal for a Directive on certain permitted uses of orphan works. First half 2011.
• Multi-territorial collective management of copyright: Proposal for a legal instrument to create a European framework for online copyright licensing in order to create a stable framework for the governance of copyright at the European level. Second half 2011.
• Audiovisual works: Green Paper public consultation on various issues relating to the online distribution of audiovisual works. Second half 2011.
• Further measures in the area of copyright: To report following the stakeholder consultation and assess the need for further measures to allow EU citizens, online content services providers and right holders to benefit from the full potential of the digital internal market. 2012.
• Private copying levies: Appointment of a high-level mediator with a view to brokering stakeholder agreement on private copying levies. Second half 2011.
• User-generated content: Stakeholder consultation. Second half 2012.
• European Copyright Code: Assessment and discussions with stakeholders and reporting back. 2012 and beyond.
• Review of Directive 2001/29/EC: Report on the application of Directive 2001/29/EC as required by Article 12 of that Directive. 2012.
• Rights complementing IPR: Study to assess the economic and societal impact of infringements of trade secrets and practices of "competing at the edge of the law" like parasitic copies and to assess the economic benefits of an EU approach in this area. End 2012.
• Non-agricultural geographical indications: Feasibility study to consider an EU-wide protection of GIs for non-agricultural products. This study will provide an analysis of the existing legal frameworks in the Member States and an indepth assessment of the stakeholders' needs and the potential economic impact on protection for non-agricultural GIs. Second half 2012.
• Review of the IPR Enforcement Directive: Review of the Directive aimed at creating a framework allowing, in particular, to combat more effectively IPR infringements via the internet at their source. First half 2012.
• Voluntary measures of stakeholders targeting IPR infringements: Stakeholder agreement (Memorandum of Understanding) on the sale of counterfeit goods over the internet and follow-up process. MoU signed on 4 May 2011, evaluation and review by mid-2012.
• EU database COPIS: Development of database to ensure efficient management of companies' applications for customs action and produce statistics of customs detentions. First half 2012
• Review of the Commission's 2004 strategy for the protection and enforcement of IP rights in third countries: Redefined strategy to adapt it to recent needs and evolutions, to ensure higher standards of IPR customs enforcement in third countries and cooperation in the framework of trade agreements. End 2011.

It surely will take some time until all major implications of this enormous programme are fully understood. For today, just a very few remarks:

On page 19 of the Document, the text runs as follows:

3.5.3. A review of the IPR Enforcement Directive

In parallel, the Commission intends to review the IPR Enforcement Directive 2004/48/EC in Spring 2012. The recently published Report on the application of the IPR Enforcement Directive shows that the challenge lies in reconciling IPR enforcement in the digital environment. The Commission will identify ways to create a framework allowing, in particular, combating infringements of IPR via the internet more effectively. Any amendments should have as their objective tackling the infringements at their source and, to that end, foster cooperation of intermediaries, such as internet service providers, while being compatible with the goals of broadband policies and without prejudicing the interests of endconsumers. The Commission will ensure that such amendments respect all fundamental rights recognised by the EU Charter of fundamental Rights, in particular also the rights to private life, protection of personal data, freedom of expression and information and to an effective remedy.

In parallel, the Commission will continue its efforts, on the basis of the Memorandum of Understanding signed between stakeholders on 4 May 2011, to explore to what extent, in particular, the sale of counterfeit goods over the internet can be reduced through voluntary measures, involving the stakeholders most concerned by this phenomenon (right holders, internet platforms and consumers).

When re-translating this statement into plain English, the phrase "Any amendments should have as their objective tackling the infringements at their source and, to that end, foster cooperation of intermediaries, such as internet service providers, while being compatible with the goals of broadband policies and without prejudicing the interests of endconsumers." appears to say that indeed there are considerations within the EU Commission to force ISPs throughout Europe to police their customers with regard to acts of IP infringement. The second half of the statement asserting "while being compatible with the goals of broadband policies and without prejudicing the interests of end consumers" might well represent a formal compromise between different Directorates.

On page 20, there is a statement as follows:

The EU should also be in a position to ratify the Anti-Counterfeiting Trade Agreement (ACTA) once it has been signed by the contracting parties in the course of 2011. ACTA, which is fully in line with the EU acquis, is an important step in improving the international fight against IPR infringements, in cooperation with countries sharing the same concerns and views. The Commission will table its proposal for an EU decision to sign the agreement in the coming weeks.

Of course, it is not yet that clear how far ACTA actually is in line with the EU acquis. Anyway, we probably shall see in near future an intense public discussion on the question as to whether or not the EU needs to / should sign ACTA.

Another controversial topic might be touched on page 21:

The EU will continue to negotiate IPR provisions in its free trade agreements (FTAs) with third countries. In negotiating FTAs, the IPR clauses should as far as possible offer identical levels of IPR protection to that existing in the EU while taking into account the level of development of the countries concerned. Cooperation through political and technical dialogues also form part of the EU's strategy on the trade related elements of IPR.

Provisions are planned to enhance IPR protection and enforcement at the EU border (pages 21/22):

[...] For example, the Commission will establish an expert group and a network of national customs contact points in order to prevent the import of IPR-infringing goods sold over the Internet. Moreover, combating IPR infringements at the border also means preventing the exportation of illicit goods to the EU. [...]

Details are already available from Document COM(2011) 285 titled Proposal for a Regulation of the European Parliament and of the Council concerning customs enforcement of intellectual property rights. It appears that the scope of EU border measures is to be extended to acts of non-identical trade mark infringement and other acts of IP infringement normally only established after court hearings. If this thing goes worst case, a group of barely trained Customs Officials might cause a lot of trouble when attempting to properly assess complex cases of non-identical trade mark infringement or patent infringement on the spot at the borders. To seduce general public, the Regulation shall not apply to goods of a non-commercial nature contained in travellers’ personal luggage. But a lot will depend on the proper definition of "non-commercial nature". If this goes wrong, we might see Customs Officials regularly searching travellers' computer equipment for counterfeit goods arguing that there might perhaps be a "commercial scale" of infringement.