Transcript Education, Collaboration, Communication

Counterfeiting and Piracy: A
Global Concern
Heike Wollgast
Senior Legal Officer
World Intellectual Property Organization (WIPO)
Building Respect for IP Division
Presentation
I. Counterfeiting and piracy – some current
trends
II. The international legal framework
III. The role of WIPO
I. Counterfeiting and piracy some current trends
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Terminology:
- TRIPS language
- No uniform understanding
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High piracy and counterfeiting rates worldwide; precise scope
difficult to assess
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OECD (The Economic Impact of Counterfeiting and Piracy, 2009
update - www.oedc.org)
- International trade in counterfeit and pirated goods worth up to
250 billion US$ in 2007 (not including digital piracy)
- Increase of share of counterfeit and pirated goods in world trade
from 1.85% in 2000 to 1.95% in 2007
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Today almost every category of goods affected, with dramatic
increases in the field of consumer goods, foodstuff and counterfeit
pharmaceuticals
I. Counterfeiting and piracy some current trends
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Example: 2009 seizures at EU external borders (source: TAXUD)
I. Counterfeiting and piracy some current trends
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Example: 2009 seizures at EU external borders (source: TAXUD)
I. Counterfeiting and piracy some current trends
Example: 2009 seizures at EU external borders (source: TAXUD)
Product sectors
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Cigarettes
Clothing and brand labels
Medicines
Clothing and shoes
Body care items
CDs, DVDs
Foodstuff
19%
13%
10%
10%
4%
5%
2%
I. Counterfeiting and piracy some current trends
The case of counterfeit medicines:
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Between 2005 and 2007, seizures of counterfeit medicines at the EU
borders increased by 380%, and by another 57 % in 2008.
In 2008, 50% of these goods were intercepted in import procedures, 26%
in transit and 21% in re-export.
Almost all seized medicines intercepted at EU borders were so-called “lifestyle” drugs.
The end-user distribution of these fake drugs typically is organized via
online portals.
In some developing countries, especially in Africa, the level of counterfeit
medicines is immense (e.g., at a recent WHO conference, Senegal has
reported a level of 60%), and the drugs concerned are anything but “lifestyle” drugs (e.g., anti-malaria pills). In addition, in some developing
countries, fake drugs have entered the official distribution channels.
I. Counterfeiting and piracy some current trends
Counterfeiting and Piracy via the Internet:
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The unauthorized distribution of copyright protected content over
the Internet (P2P, social networks) and recent legislative
developments, e.g.:
- Downloading from “obviously illegal sources” (Germany);
- « Loi Hadopi » (France):
 Introduces a graduated response system to deter repeat
unauthorized down-/ uploading of copyright protected
content, with the possible sanction of account suspension.
 A first assessment of the effects of Hadopi among P2P
users has been published by the University of Rennes in
March 2010. Based on a survey among users the report
finds that one third of users stopped using such services,
while two thirds would have simply changed techniques
that would not fall under the law (streaming, direct
downloading etc.).
I. Counterfeiting and piracy some current trends
Counterfeiting and Piracy via the Internet:
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The Internet as platform for the distribution of counterfeit goods,
e.g., in the field of counterfeit medicines: Focus on self-regulatory,
cooperation models between right holders and Internet platforms
E.g. “Charte Sirinelli”, France (2009): Agreement between various
right holders and Internet Providers on information exchange;
cooperation in the development of filtering techniques;
suspension of accounts of sellers of counterfeit products; filtering
of offers of medicines from non-authorized vendors; etc.
II. The International Legal
Framework
The TRIPS Agreement 1994, part III
– Civil and administrative procedures & remedies;
– Provisional measures;
– Border measures;
– Criminal procedures.
 The WIPO Internet Treaties (WCT, WPPT), 2002
- Protection against the circumvention of technological protection
measures
 Under negotiation:
- The Medicrime Convention (Council of Europe): criminal measures
against counterfeit medical products
- The Anti-Counterfeiting Trade Agreement (ACTA)
II. The International Legal
Framework
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Dynamic legislative developments at regional and national levels;
e.g. at EU level:
- Regulation 1383/2003 (IP border enforcement); currently under
review;
- Directive 2004/48 EC (civil IP enforcement);
- Proposed Directive on criminal IP enforcement (2005)
- Legislative proposal (2008) to amend Directive 2001/83 EC on
medicinal products for human use; seeking to limit the risk of
counterfeit medicines entering the legitimate supply chain of
medicines in the EU. The proposal is currently reviewed by the
European Parliament and the Council.
IP enforcement issues in bilateral trade agreements
III. The role of WIPO
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Advisory Committee on Enforcement (ACE)
Assistance to WIPO Member States
International co-operation to combat counterfeiting and
piracy
Information exchange
III. The role of WIPO
Recommendation No. 45 of the WIPO Development Agenda:
« To approach IP enforcement in the context of broader societal
interests and especially development-oriented concerns with a view
that « the protection and enforcement of IPRs should contribute to
the promotion of technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of producers
and users of technological knowledge and in a manner conducive to
social and economic welfare, and to a balance of rights and
obligations » in accordance with Article 7 of the TRIPS Agreement”
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Shift of approach, beyond mere law enforcement considerations
Including: analysis of motivations; socio-economic considerations
(prioritization); pricing issues; etc.
The WIPO Advisory Committe on
Enforcement (ACE)
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Established in 2002
The mandate of the ACE:
– Coordination with certain organizations and the private sector to
combat counterfeiting and piracy
– Technical assistance
– Public education and coordination of national and regional
training
– Exchange of information
– Norm setting excluded
The WIPO Advisory Committe on Enforcement
(ACE)
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First session (June 2003): Agreed on a thematic approach
with expert presentations
Second session (June 2004): The role of judiciary,
quasi-judiciary authorities and prosecution in the enforcement
of
IP rights as well as related issues such as specialization of the
judiciary and litigation costs
Third session (May 2006): Education and awareness building,
including training, concerning all factors related to enforcement
Fourth session (November 2007): Coordination and cooperation
at the international, regional and national levels, with a focus on
the criminal enforcement of IP rights
Fifth session (November 2009): Contribution of, and costs to,
right holders in enforcement, taking into consideration
Recommendation No. 45 of the WIPO Development Agenda
The WIPO Advisory Committe on Enforcement
(ACE)
Sixth session (December 1-2, 2010):
• Review of methodologies to measure scope and effects of
counterfeiting and piracy; recommendations
• Motivations/reasons that fuel counterfeiting and piracy, including
with a view to different levels of development (e.g., price;
accessibility; social tolerance; profits vs. relatively little risks;
absence of job opportunities)
• Analysis of enforcement efforts from an economic welfare
perspective (e.g., measures to guide the demand/competition at
the low end of the market; storage and destruction of goods)
Working documents: http://www.wipo.int/enforcement/en/ace/
Assistance to WIPO Member States
Upon request:
• Legislative advice on enforcement-related provisions
in national law
• Strategic assistance: development of strategic
approach to strengthen the national enforcement
infrastructure
• Training programs (e.g., judiciary, customs, police,
prosecution, lawyers)
• Awareness-raising
• Update at http://www.wipo.int/enforcement/en/activities/
International cooperation
Examples:
– Global Congress on Combating Counterfeiting and Piracy
(6th Congress February 2-3, 2011, Paris)
– OECD - Economic Impact of Counterfeiting and Piracy
– WHO-IMPACT Project on Counterfeit Medicines
– WCO Counterfeiting and Piracy (CAP) Group
– Interpol, UNODC
– IPR Business Group; Unifab
– NGOs
Information Exchange
Publications:
• Case books:
– The Enforcement of IP Rights, second edition, 2008
(English)
– Receuil de jurisprudence, 2007 (French)
– Case book in Spanish under preparation
• WIPO Magazine Special Editions
March 2008 / January 2010
• Studies:
– Comparative study on criminal enforcement of IP rights
(2007)
– Study on technical assistance needs relating to the
enforcement of intellectual property rights (border
measures) within Oceania (2008)
Information Exchange
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IP enforcement newsletters (quarterly):
http://www.wipo.int/enforcement/en/news.html
Portal to Member States online information on IP enforcement:
http://www.wipo.int/enforcement/en/member_states.html
Internet sources for Intellectual Property case law:
http://www.wipo.int/enforcement/en/case_law.html
Thank you