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.
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