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European IP Bulletin, Issue 18, January - Copyright
Copyright
2. IIPA Recommends That Poland Remains on Special 301 "Watch List"
On 4 November, the International Intellectual Property Alliance (IIPA) announced its recommendation that Poland remain on the Special 301
“Watch
List”. IIPA’s announcement follows the 2004
Special 301 Report of the US Trade Representative (USTR), on 3 May 2004, placing Poland on the Special 301 “Watch List”.
IIPA acknowledges that progress has been made by the Polish government in the areas of copyright law reform and heightened enforcement, but stresses that an intense level of continued effort and vigilance is needed to properly implement the new optical disc decree and improve enforcement against both hard goods piracy and internet piracy. For 2003, the total estimated trade losses due to copyright piracy in Poland amounted to $240 million.
IIPA’s comments focus on the four copyright and enforcement-related elements identified by USTR in its May 2004 announcement:
effective raids and prosecutions against piracy and counterfeiting activities across the country.
DAMIS, the administrator of the Warsaw Stadium, working with local police have started to play a significant role in banning trading in optical discs in the Stadium while Polish police continue their activities, disclosing storage places for pirated products. The reports of concerned industries about the Stadium were mixed. For example, the entertainment software industry reported that there had been little change in its industry’s situation at the Stadium, while the recording industry reported that pirate disc distribution at the Stadium had been largely limited. It was concluded that there is room for improvement at the Stadium.
2. Strengthening border enforcement.
The copyright industries reported mixed results with the Polish government’s efforts to strengthen border enforcement practices. The Motion Picture Association (MPA) reported that border enforcement had been strengthened by the creation of special mobile groups in the Regional Customs Houses to conduct raids inside the country and by reinforcing the manpower at the eastern borders. On the other hand, the recording, business software and film industries all reported that the eastern border remains a problem, despite recent legislative customs reforms made by Poland in order to accede to the European Union.
3. Signing into law and implementing the new copyright law amendments and optical disc regulations.
The Copyright Law Amendment 2004 contains several improvements but there remained a number of issues which had not been addressed including the need for broader exclusive rights for producers of phonograms and performers, and the narrowing of an overly broad exhaustion rule. The Optical Disc Decree appeared to have the potential to control the production of optical discs; however the lack of criminal sanctions remained an important concern. Enforcement of the regulations has yet to take place and their usefulness in combating piracy has yet to be assessed.
4. Taking concrete, effective steps to strengthen domestic enforcement of IPR.
While the industries reported generally favourable cooperation from Polish police officials, they reported varying degrees of results in practice. The recording industry felt that the activity of enforcement agencies with regards to the instigation of criminal proceedings was at a similar level as in the former period, albeit the quantities of seized pirated sound recordings were much smaller. The film industry shared the recording industry’s concern about internet piracy enforcement. On the other hand, the Business Software Alliance (BSA) had recently seen positive and effective action taken by the national police and local police units against internet piracy. There is a continued need to improve judicial actions/deterrent results since many elements of Poland’s enforcement regime remain incompatible with its TRIPS enforcement obligations, including the failure to impose deterrent criminal penalties in commercial piracy cases and the lengthy delays in bringing and completing copyright infringement cases. Both the film and recording industries report examples of long, unresolved cases and excessive delays.
3. Belgium, Finland and Sweden Fail To Implement Copyright Directive
The ECJ handed down its decisions on Belgium (18 November 2004, C-143/04) Finland (9 December 2004, C-56/04) and Sweden (18 November 2004, C-91/04).
The 2001 Copyright Directive (2001/29/EC) on the harmonisation of certain aspects of copyright and related rights in the information society was due to be implemented by the Member States by 22 December 2002. Only Greece and Denmark met the implementation deadline. By July 2003 eleven Member States had still failed. When Member States have completely missed the deadline and continue to fail after the Commission has sent them “reasoned opinions” with new shorter deadlines, the legal procedure in these cases is quite straightforward. Finland did not give the Court any explanations. Belgium claimed the delay was due to legislative procedure caused by Federal elections and Sweden argued their legislative procedure was complicated since complete review of copyright law was needed. These excuses did not attract the sympathy of the Court. The result was identical in all three cases. The Court declared that the Member States had failed to communicate measures transposing into their national law the provisions of the Directive. The Member States were ordered to pay the costs.
The next step for the Commission is to ask the Court to impose daily fines on the relevant Member States until they comply. Cases against France, Luxembourg, Netherlands, Portugal, Spain and the United Kingdom are still pending. Although the UK has implemented the Directive it does not satisfy the Commission, as the UK law does not apply to the territory of Gibraltar.
The 2001 Copyright Directive includes many controversial provisions relating to modern problems of digital environment. New digital rights management measures and responsibilities of the service providers have not been easily presented to national parliaments. Though the issues are difficult and the Member States were only given a short time of 18 months, another two years have now passed. It is perhaps time that the Commission step up its enforcement programme against the Member States.
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