For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Wednesday, 16 May 2012

If you can't beat 'em, watch 'em: here's the Observatory Regulation

The Observatory: the Kats
will be watching you ...
It's not a pretty title, but if you can remember 386 (like the classic 1985 microprocessor), it shouldn't be too difficult to remember [and here's where you take a deep breath, before reciting ...] "Regulation 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights", the full 6-page text of which was posted here this morning on the Official Journal website.

There are only nine Articles in the new Regulation, taking up about as much space as the recitals in the Preamble.  It's function, under Article 1, is to establish and empower the famous Observatory:

"This Regulation entrusts the Office for Harmonization in the Internal Market ... with tasks aimed at facilitating and supporting the activities of national authorities, the private sector and the Union insti­tutions in the fight against infringements of the intellectual property rights covered by Directive 2004/48 [the IP Enforcement Directive]. In carrying out these tasks the Office shall organise, administer and support the gathering of experts, authorities and stakeholders assembled under the name ‘European Observatory on Infringements of Intellectual Property Rights’ (‘the Observatory’).
The tasks and activities of the Office under this Regulation do not extend to participation in individual operations or investi­gations carried out by the competent authorities".
Merpel thinks that this is a bit like setting up a Supporters' Club for a football team. It might be able to facilitate and support, but it's not allowed on to the pitch -- which is where all the action is. Be that as it may, it's worth taking a look at Article 2(1), which gives the Supporters' Club a set of tasks:

(a) improving understanding of the value of intellectual property [does anyone have a list of publicly funded bodies that have been given the same task? The IPKat offers a small prize to whoever comes up with the longest one by Monday 21 May, plus a katpat when he publishes that list]
(b) improving understanding of the scope and impact of infringements of intellectual property rights [this can be a double-edged sword, since results that show how easy and how profitable it is to infringe, and how difficult it is to prevent infringement, may make further infringements more attractive, says Merpel]
(c) enhancing knowledge of best public and private sector practices to protect intellectual property rights [the IPKat and Merpel are happy that the  Observatory will be assisting them in this task ...]
(d) assisting in raising citizens’ awareness of the impact of infringements of intellectual property rights [the IPKat agrees that this is of critical importance but suspects that it is better tackled on a local/national basis, since public reactions are more greatly influenced by cultural determinants than by the coldly objective laws of economics]
(e) enhancing the expertise of persons involved in the enforcement of intellectual property rights [Merpel wonders whether the Observatory will be able to muster a degree of manpower with the qualifications and experience to enhance the expertise of those people who are already actively engaged in the enforcement of IP]

(f) enhancing knowledge of technical tools to prevent and tackle infringements of intellectual property rights, including tracking and tracing systems which help to distinguish genuine products from counterfeit ones [why not make Product and Image Security and similar publications freely available to IP-owning businesses, so that information about the large number of existing technical tools can be more swiftly digested and acted upon?]
(g) providing mechanisms which help to improve the online exchange, between Member States’ authorities working in the field of intellectual property rights, of information
relating to the enforcement of such rights, and fostering cooperation with and between those authorities [conspicuously missing here is any reference to mechanisms for improving online or indeed offline exchange between injured rights owners. Is the Commission still so concerned that this is collusive and anticompetitive?]
(h) working, in consultation with Member States, to foster international cooperation with intellectual property offices in third countries so as to build strategies and develop tech­niques, skills and tools for the enforcement of intellectual property rights [let's just hope that, in these recessional times, IP offices in third countries can be persuaded to bolster their public sector just that little bit more, in order to build strategies, skills, techniques etc to tackle infringers who are better resourced and more resourceful than they are].

Observation is much more fun in 3D ...

As for the rest of the Regulation, it fleshes out the means by which these objectives may be achieved, together with all the usual formalities.

This Kat remains unconvinced that there is a need for an Observatory. Since IP owners are tax-collectors for their respective national governments (particularly through indirect taxation in the form of Value Added Tax on sales and services), he thinks it would make more sense for the Commission and national governments to invest in their ability to collect taxes by incentivising them to do so -- just as the EU and national governments incentivise investment and innovation by making IP rights in the first place.  As it is, IP enforcement is expensive, often distracting and stressful for IP owners, who get less out of their enforcement activities than they pay in costs and taxation. n't be


1 comment:

Anonymous said...

It beats me why there is so little interest expressed in this regulation and on the role of the observatory itself. In more than 20 years advising companies how to ward off counterfeits, gray goods imports etc, I've never heard a single one say "what we need is an observatory"

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