The Fight Against Counterfeiting and Piracy in the Bilateral Trade Agreements of the EU

Abstract

Concerns about counterfeiting and piracy are becoming increasingly widespread and have now taken on an international dimension. Higher standards of intellectual property protection are being set multilaterally and through the inclusion of intellectual property provisions in bilateral trade agreements. The EU Strategy for the Enforcement of Intellectual Property Rights in Third Countries has undertaken to revisit the approach to the intellectual property rights chapter of bilateral agreements, including the clarification and strengthening of the enforcement clauses. This approach should be reconsidered in the light of ongoing negotiations on bilateral trade agreements with a number of trading partners such as Korea, India, and ASEAN, while negotiations on bilateral trade with Ukraine and Russia are also being considered. If the Lisbon Treaty on the Functioning of the European Union (TFEU) comes into force, the European Parliament will have a significantly enhanced role to play in the negotiation of such agreements, including the power of veto. In scrutinising and giving consent to agreements, it is recommended that the European Parliament takes account of the following: (1) if intellectual property enforcement provisions are to be included in agreements, this must be done on the basis of adequate evidence on the level of counterfeiting and piracy and its effects; (2) intellectual property rights are private rights and the main responsibility for taking measures to protect and enforce intellectual property rights should lie with individual right holders; (3) the European Parliament should consider carefully the need to balance flexibilities in the TRIPS Agreement with the need for additional provisions in bilateral agreements to fight counterfeiting and piracy; (4) agreements that contain provisions on recourse to bilateral dispute settlement mechanisms risk weakening the multilateral dispute settlement system; (5) provisions in agreements that expand the scope of border measures to cover exports as well as goods in transit or transhipment should not be unnecessarily burdensome and should be subject to the availability of judicial review; (6) the European Parliament should encourage the EU to undertake needs assessments in third countries to ensure that adequate and appropriate technical and financial cooperation is made available on mutually agreed terms and conditions in order to assist with the training of police, customs officers, judiciary and other government officials; (7) it would be advantageous to establish a parliamentary forum or an inter-parliamentary observatory to monitor and assess the impact of bilateral agreements in the fight against counterfeiting and piracy.