Christian Engström, Pirat

24 september 2011

Alert To Activists: Customs Enforcement of IPR

Filed under: ACTA,English,informationspolitik — Christian Engström @ 10:12

The EU Commission wants to give customs increased powers to confiscate goods to protect the economic interests of IP rights holders

A very worrying proposal called ”Customs enforcement of intellectual property rights” has arrived from the EU Commission, and will be handled by the European Parliament this autumn. It is an attempt to introduce by the Commission to expand enforcement of intellectual property rights in line with the ACTA agreement, before ACTA has even been signed. Some of the provisions even go beyond ACTA in scope.

The Commission has a page with information about the proposal and links to various documents. The European Parliament also has an information page.

There are many individual parts of the proposal that cause concern, and taken together they represent a long wish list from the intellectual property lobby. The basic idea is to give customs in the member states the right to confiscate goods on more grounds, including types of goods that are not illegal to import under substantive intellectual property laws.

Here are some of the issues:

  • Small consignments. It currently is illegal to import counterfeit goods for commercial purposes, and the customs have the right to stop such shipments. This is as it should be. It is not illegal for consumers to import counterfeit goods for their own use, however. Despite this, the proposed regulation wants to give customs the right to confiscate goods sent in small consignments. A consumer who buys something on the internet that it is perfectly legal to import, may get his goods confiscated anyway, according to this proposal. The proposal also allows for checks of travellers, giving customs the right to confiscate goods even if it falls within the limits set out for granting customs duty free allowances, and thus falls outside the scope of the law.
  • Patents. In Article 2.1.e in the regulation, the Commission wants to include patents in the regulation. This even goes beyond ACTA, where the US has not wanted patents as part of the border measures. From a practical point of view, I cannot see how customs officials on the ground could determine on their own if there is a patent infringement, considering that patent law is so complex and specialized that even ordinary courts don’t touch it, but delegate it to special patent courts and patent lawyers.
  • Parallel imports. In point 5 in the Explanatory Memorandum the Commission talks about ”infringements from parallel trade”. Parallel imports are currently legal, and it is an important cornerstone of the internal market that they should be, even if some rights holders would prefer to ban it. In first reading of the IPRED2 directive, the European Parliament made very clear that parallel imports should continue to be legal. This regulation suggests the opposite.
  • DRM. In the same point 5, they also talk about ”devices to circumvent technological measures”, i.e.: devices to circumvent DRM. I don’t know the exact legal status of these under current law, but this is obviously a matter of concern. In many cases DRM restrictions prevent legal uses of protected content, and tools for circumventing DRM often have legitimate uses as well. I don’t know how the inclusion of this provision in the regulation will affect the right for print disabled persons to get reading material on accessible formats, but it certainly will not help people with disabilities.
  • Access to medicines. The regulation touches upon access to medicines, which is a very sensitive issue, but where I know to little about the subtle details of the issue to find the traps and pitfalls in this particular regulation. I assume there are problems with the regulation in this regard, however, considering the general IP-maximalist perspective of the Commission’s proposal.

All in all, the proposal for Customs enforcement of intellectual property rights looks like it contains a whole array of nasty details, and I have no reason to think that the above list is exhaustive. There are almost certainly other poison pills hidden in it as well.

I am shadow rapporteur for the Green group for the report in the European Parliaments committee for the internal market IMCO, and I will need help from the swarm in finding all the detail problems in it. Erik Josefsson, who is advisor to the Green group and has been working a lot on the closely related ACTA agreement, has promised to help coordinate input from NGOs and activists.

Although this proposal is formally unrelated to ACTA, the subject matter overlaps to a large extent, and it is the same IP expansion agenda that is the driving force behind both this proposal and ACTA.

The preliminary time table for the report in the European Parliament looks like this:

  • November 22nd: Hearing in IMCO
  • Beginning December : Draft report sent to translation
  • January 2012: Consideration of draft report in IMCO
  • January 20th: Deadline for amendments
  • February: Vote in IMCO
  • March: Vote in Plenary

…………

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22 kommentarer

  1. ”devices to circumvent technological measures”
    Doesn’t every laptop fall into this category?

    Kommentar av Stewie Orf — 24 september 2011 @ 10:29

  2. Parallel import as in goods from non EU countries? Because I thought goods could freely circulate within the EU community…. or do they want to take away that right as well?

    Kommentar av Goya — 24 september 2011 @ 11:12

  3. ”From a practical point of view, I cannot see how customs officials on the ground could determine on their own if there is a patent infringement, considering that patent law is so complex and specialized that even ordinary courts don’t touch it, but delegate it to special patent courts and patent lawyers.”

    Then the customs officials will put this law into practice only in specific cases where they have been told that there is a patent infringement. Most likely it will work as a way for big corporations to order the confiscation of a competitor’s goods.

    Kommentar av Björn Persson — 24 september 2011 @ 11:46

  4. Well… They’re fucked anyway. The more money they spend on this, the faster their business will decay. Especially as pirate support tends to grow with the growing anti-pirate legislation and the growing anti-pirate measures…

    It was my hopes that some of these guys (with some reasoning) would realize piracy is unstoppable and try to adapt, but… seems they are burning money ever faster until they hit the fan(s).

    Kommentar av ForskarGurra — 24 september 2011 @ 11:50

  5. About the issue of accessability of medicines – I think the parallel import can be the thing that will affect this the most.

    Parallel import is used, to shove medicines into a second market, it is genuine medicines under copyright and patent laws. When parrallel import is used, the nations different pricing strategies and regulations are considerd – to sell medicine at higher rates in ”A”-countries, and then be able to sell the same medicine cheaper in ”B”-countries. This ofcourse, in a humanistic point of view – is a good thing.

    Always astonishing and sad to see your post about all thats going on i the EU. Keep up!

    Kommentar av TOQig — 24 september 2011 @ 12:50

  6. It seems like you are trying to make a big deal of things that already are part of EU law.
    - According to EU law, it is illegal for companies abroad to sell goods on the EU market. This means that goods that arrive in small consignment (e.g. has been bought on the internet) constitute infringing goods even if the recipient has not committed an infringement (it is enough that the sender has committed an infringement from abroad). Therefore, the customs authorities are expected to seize and eventually destroy the goods even if it is sent in small consignments to individuals in member states where import for private use is not illegal as such (it should be noted that even such import is illegal in many member states). This is why the current Regulation 1383/2003 and the proposed new Regulation only have an exception for personal luggage, i.e. not for small consignments.
    - If you look at Regulation 1383/2003 you will see that it already cover patents.

    Kommentar av Anonym — 24 september 2011 @ 16:11

  7. ” In many cases DRM restrictions prevent legal uses of protected content”

    What cases? If you buy a product protected with DRM you obviously know that beforehand and if you dislike, don’t buy it!

    ”and tools for circumventing DRM often have legitimate uses as well.”

    So what. It’s the use that can be question, not the technology. Bittorrent technology can be used both for legal and illegal purposes, it’s not the technology that’s illegal,

    ”I don’t know how the inclusion of this provision in the regulation will affect the right for print disabled persons to get reading material on accessible formats, but it certainly will not help people with disabilities.”

    This is a totally different matter and has nothing to do with DRM. Disabled or not, the laws shall be obeyed. There are other ways to work for the disabled than trying to connect their problems with the pirates insatiable needs for getting paid media for free.

    Kommentar av nejtillpirater — 24 september 2011 @ 16:48

  8. #(4) It is also appropriate not to apply the Regulation to goods carried by passengers in their personal luggage as long as these goods are for their own personal use and there are no indications that commercial traffic is involved.

    That ”appropriate” is much too vague and needs to be stronger to not open a big hole allowing – well, go figure.

    Kommentar av jemamo@telia.com — 24 september 2011 @ 17:59

  9. I think that the only way to counter this type of regislations are to increase the political pressure from us, the Pirate parties in europe and the rest of the word.

    We need to reposition and mobilize a common effort to get alot more Pirate officials into the heart of the power. Like the Piratenpartei in Berlin.

    We need to focus our efforts on that now the coming years.

    Kommentar av Erik Lönroth — 24 september 2011 @ 19:10

  10. they are adding this to the laws eu use.. so when the ACTA agreement comes up for public debate the commision will say ”it changes noghing”…

    Kommentar av Billy G — 24 september 2011 @ 21:28

  11. ”it changes nothing”.. crap spelling by me ftw..

    Kommentar av Billy G — 24 september 2011 @ 21:29

  12. ””devices to circumvent technological measures”

    I.e. personal computers. Most types of DRM can be circumvented by simply using the native functionality of the OS. It’s as banal and moronic as trying to outlaw ”Tools suitably for open locked doors” – which may include lockpicks (ownership of which is not an offense in itself) but unfortunately also covers the entire range of hand tools available, from screwdrivers to crowbars.

    The issue of ”tools circumventing DRM came up when the US congress were mulling over the DMCA – but even they had to drop it as every expert asked correctly identified any law containing such a formulation would effectively outlaw personal computers with admin access granted to the users.

    Something our dear NTP had some problems digesting when the same formulation came up in the debates regarding the ACTA treaty. It’s a logical trap which unfortunately everyone else without basic IT knowledge seems to fall into.

    Basically from what I can read from CE’s post it looks like this proposed legislation is an unholy hybrid of IP enforcement and national protectionism.

    Kommentar av Scary Devil Monastery — 24 september 2011 @ 23:30

  13. Import of ”devices to circumvent technological measures” is already illegal in the EU. Article 6 of Directive 2001/29/EC include the following:

    ”2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
    (a) are promoted, advertised or marketed for the purpose of circumvention of, or
    (b) have only a limited commercially significant purpose or use other than to circumvent, or
    (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,
    any effective technological measures.
    3. For the purposes of this Directive, the expression ”technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC. Technological measures shall be deemed ”effective” where the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.”

    On the “appropriate” wording relating to personal luggage, it should be noted that Article 1.4 contains a binding provision in this respect (“This Regulation shall not apply to goods of a non-commercial nature contained in travellers’ personal luggage”). This seems to be an exception that even goes beyond what is allowed under TRIPS (Article 60 TRIPS is limited to small quantities).

    Kommentar av Anonym — 25 september 2011 @ 1:14

  14. @Anonym

    ”the expression ”technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.”

    That would be the most useless wording I ever heard of – it basically either applies to any technology where the dual use is to break DRM – thus making most toolkits used by programmer and security experts illegal to own and operate – or it defaults as inapplicable wherever dual use can be established, in which case it’s a law stating more or less ”Any screwdriver specifically constructed for burglary purposes…”.

    I stand by my previous statement – any such legislation is either completely useless if it provides for proper dual use…or it does not provide such a loophole in which case owning a computer with a functional OS over which you have superuser/admin access is illegal. ”In the normal course of it’s operation”? Heh. Every computer programmer would have to quit his job as most of his tool suite would be rendered illegal to own.

    Most courts have recognized this which is why using a computer in order to jailbreak (read – removing security restrictions on a copyrighted GUI) the OS of an Apple iPhone or a PS3 has been deemed fully legal by any court which has been forced to make a ruling.

    Kommentar av Scary Devil Monastery — 25 september 2011 @ 1:50

  15. NTP said: ”What cases? If you buy a product protected with DRM you obviously know that beforehand and if you dislike, don’t buy it!”

    Format shifting is legal (in Sweden at least) – i.e. ripping my legally purchased DVD and watching the movie on my tablet. The proposed rules would make that illegal.

    NTP said: ”It’s the use that can be question, not the technology.”

    They are making possession of the technology illegal. So you agree that it is a bad idea, that’s good.

    NTP said: ”Disable or not, the laws shall be obeyed.”

    Did you think this through properly? According to your statement, Rosa Parks should have given up her seat for a white passenger like a good law-abiding citizen.

    Kommentar av Prisoner 201 — 25 september 2011 @ 9:06

  16. I think this proposal follows in long line of ”fuzzy-laws”. The point may simply be that if the state/EU wants to nail a person there is always a way to do this as you can interpret the writings in a way you want for the moment. There is an increasing number of measures the ”law” can take to make the life of a ”troublemaker” miserable. With this legislation the customs may regularly (at least temporarily) take the laptop fom anybody and search trough it.

    Kommentar av JohJoh — 25 september 2011 @ 10:21

  17. In some European jurisdictions it’s illegal to own counterfeited goods. Parallel imports are NOT allowed since 1974 (Silhouette case, ECJ). Since it’s not legal to circumvent DRM then, to my best of understanding, 2005/222/JHA also disallows attempt to circumvent DRM (it’s unauthorized access) and supplying of means by which to do so (art. 5 and 8). Access to medicines on the internal European market is not so much a customs issue as it is a competition law issue – where access to medicines becomes /really/ incomprehensible is where European trademark law becomes applicable on goods not destined for the European market. This happens with medicines, but since last year also with physical goods(!) (counterfeited Nokia mobile phones going from China, destined for Colombia seized in the UK with approval from judge).

    The patent thing will primarily come into play when boxes are labelled, I guess. Also in Eastern Europe where the borders towards even further east are quite open it’s possible that it could have some amount of impact on the number of counterfeited goods that pass into Europe. It’s a bit stupid though – the vast majority of counterfeited goods that enter into Romania, for instance, don’t actually leave Romania for the rest of the Union. The middle-to-dark grey imports will, as ever, be almost impossible to get rid of.

    So I agree with Anonymous it’s not an alarm situation other than that things are getting consolidated. On the other hand, the Commission has taken care to re-evaluate old framework decisions (like 2005/222/JHA) and make them into directives (which are always co-decided by the parliament) so that they will be democratically more legitimate. Maybe it’s a good opportunity to try and make it slightly better…?

    Kommentar av Amelia Andersdotter — 25 september 2011 @ 17:15

  18. http://arstechnica.com/tech-policy/news/2011/09/anti-counterfeiting-trade-agreement-slouches-toward-signing-this-saturday.ars
    ”The Anti-Counterfeiting Trade Agreement (ACTA) will finally be signed this Saturday, October 1, in Japan.”

    Kommentar av Idee — 27 september 2011 @ 22:07

  19. You wrote
    ”From a practical point of view, I cannot see how customs officials on the ground could determine on their own if there is a patent infringement, considering that patent law is so complex and specialized that even ordinary courts don’t touch it, but delegate it to special patent courts and patent lawyers.”

    If we assume that IoT
    http://christianengstrom.wordpress.com/category/informationspolitik/internet-of-things/
    and INDECT
    http://www.indect-project.eu/
    ”protecting the confidentiality of recorded and stored information. INDECT targets threat detection in both real environments (intelligent cameras) and virtual environments (computer networks, especially Internet).”
    are coming up as well there will be not that practical problem for the customs.
    Furthermore we will notice some assistance like deputy sheriffs for the customs instructed by rightholders. Normally when there is an exhibistion there is police and lawers from rightholders going through the exhibitor shops.
    Besides there are already companies

    But I think the seller of infringements will be better organised in future. They carry harmless things through the customs to the factures inside the country and make the infringements ”indoor”. Example: They do cotton T-Shirts through the customs and manufacture them into infringements sewing ”Nike”, ”adidas” etc. without proper licence onto the T-Shirts and sell it in outlet factories in that country.
    It’s like Steganography.
    http://en.wikipedia.org/wiki/Steganography

    This treaty will only penalize the citizens, while they really do not know if their souvenir contains patentinfringements. In former times you knew when a stranger told you to carry white powder through customs it is cocain and things like that. But you don’t know if your tablet is a samsung or apple one. :)

    Kommentar av Idee — 28 september 2011 @ 4:35

  20. The real question to do with the DRM circumvention devices has to do with the human brain. as should be well known, the human brain is the basis and foundation of all circumvention devices.

    What really needs to be asked, since the EU customs and border controls appear to be empowered to confiscate all and sundry such circumvention devices, what do they intend doing with the confiscated travellers’ brains?

    Kommentar av Wesley Parish — 1 oktober 2011 @ 12:39

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