EC can’t agree on IP norms but can agree on funding-bans for developing countries that don’t follow them?

On 1st and 2nd July, the European Commission has put out two significant, yet contradicting IPR related press releases. While the first one talks about possible funding bans for developing countries that ‘violate IPR rules’, the second press release is a perfect example of a major problem with the approach in the first press release! Read on for more:

1. “Strategy for the protection and enforcement of intellectual property rights in third countries”

In a 19 page letter, addressed as ‘Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee‘, the Commission outlined an interesting and seemingly balanced set of pointers with regard to IPRs in emerging economies, which are oddly referred to as “third countries” in the document. As with most IP policy recommendations coming from US/EU countries, the focus was more on the ‘rights holders’ portion of IP. Interestingly though, there was also a fair bit of acknowledgement of the requirement that emerging economies have to calibrate their respective IP regimes to their specific levels of economic growth and development. They also acknowledged their continued obligation to promote technology transfer to least developed countries. While, on one hand it’s a relief to see some sort of acknowledgement to the fact that a maximalist harmonized IP regime is not appropriate or beneficial to all countries, the end result of the document doesn’t offer much comfort at all. In a section titled “Way Forward”, any hope that the document was indeed professing a balanced approach, was put to rest, with the following three sentences on page 17:

For countries that persistently break international commitments on IP rules in ways that have a major impact on the EU, and where the authorities are unwilling to cooperate or where cooperation shows limited results, the Commission may consider restricting their participation or funding in specific EU-funded programmes in sufficiently serious and clearly targeted cases. This would not affect programmes financed by the European Development Fund or Development Cooperation Instrument. Commission policy dialogues with partner countries might also be utilised to engage on serious IPR infringement issues. To ensure coherence, efforts should be made to encourage Member States to apply such or other approaches in tandem.

To provide further context to these statements, the document also explicitly refers to IP rights as a fundamental right, and puts it on the same platform as the freedom of expression, privacy rights and due process rights!

The communication is non-binding, however it is possible that it will result in hard law rules in the future.

My comments: It’s a pity that there seems to be the ability to comprehend that IP is just a part of a larger ‘information regulation’ system (which should optimally balance’ innovation’ and ‘access’ in accordance to local context), but that the European Commission has instead taken the troubling road of finding new methods of imposing IP regimes on developing countries in accordance to EU’s own directions – when there’s little evidence to show why such a system would be appropriate for other countries or even for themselves. [On a related note, at a recent WHO symposium held in Delhi a few days ago, a relevant government personnel had mentioned that such ‘stale tricks’ like aid-trade linkages may not have an impact on negotiating dynamics for India anymore.]

I haven’t had time to go through their methodology for their watchlist yet but India does find a place on it. The relevant text has been extracted from their 2013 watchlist: 

2. “Our single market is crying out for copyright reform”

Just the day after the press release for the above was released, there was another press release that ironically enough, in highlighting the need for copyright reforms within the EU, demonstrated the biggest problem with the above mentioned action – that developed countries haven’t figured out what IP system is optimal for them yet – and are trying to pressure developing countries into following their instructions on how to design IP systems. The press release is a speech given by Neelie Kroes, Vice President of the European Commission responsible for the Digital Agenda. She starts off by pointing out the absurdity that copyright has become – saying that she’d wish the institute a happy birthday if not for the fact that she might find herself having to pay royalties for doing so. (See more on the Happy birthday copyright controversy here – it used to bring in more than $2million in royalties annually).

She then comes to the purpose that Copyright ought to play in society. She lists them as (1) Promotion of creativity and innovation; (2) it must reward creators (and that the current system does a bad job of it; (3) Enabling a single digital market – and destroying barriers between artists and their audiences that prevent innovation; and (4) “perhaps most importantly, the legal framework needs to take account of the needs of society. Users’ interest and expectations matter alongside creators’ rights. Rules cannot be impractical, uncertain, or unreasonable for ordinary users.”

After this wonderful introduction, she goes on to lists the problems that their current copyright system impose upon society – from rendering every day users of technology as unknowing infringers, to inducing creators to abandon creative, innovative ideas due to legal issues. She gives a whole host of examples. It’s really a wonderful listing out of current issues with copyrights in the digital age, as well as gives examples of “weaker” copyright measures taken in other countries and says “In none of those places has the sky fallen in. All of those places are now innovating, creating, progressing, while the EU lumbers by with an ageing system for an analogue age.”  She finally ends with a strong call for urgent copyright reform. I’d highly encourage you to read this wonderful extrapolation of various issues with copyright law in the digital age here.

Aside from a bit of applause from my side, on this strong call for copyright reform, I also hope the EU commission takes note of this shining example of them not knowing what kind of IP is appropriate for themselves, before they decide to go around trying to guide other countries as to what type of IP regimes are good for them.

(Hattip: Prof Gargi Chakrabarti and Prof V.C.Vivekanandan on the two press releases respectively)