Eurobsit: In your view, is France doing enough to protect itself from counterfeiting?
Senator R. Yung: “France has a particularly strong legislative arsenal. The fight against counterfeiting was given a boost by the Law of 11 March 2014 (increased civil damages for the victims of counterfeiting; improved conditions for demolishing counterfeiting networks; facilitated proof of counterfeiting; enhanced capacity for customs checks). I hope that there will soon be a first track record statement on this text and its application. It’s particularly important to look at how damages have changed in value, to see whether there has been an upward trend.
Note, too, that the standard length of sentence for aggravated counterfeiting offenses was increased in 2016, as part of a law on fighting terrorism funding. Counterfeiting offenses committed by organised gangs or on public online platforms are now punishable by 7 years imprisonment and a 750,000 Euro fine.
More recently, a law passed in 2017 doubled the limitation period for bringing criminal cases for the offense of counterfeiting (6 years rather than 3 years). It will be interesting to see whether this reform can lead to an increase in the number of cases the criminal courts process. At present, the victims of counterfeiting tend to take civil action, which is quicker and often more transparent in terms of compensation awarded for damages.
These legislative reforms should be complemented by better education on intellectual property. Given that young people aged 15 to 24 are the most tolerant age group towards counterfeiting and piracy, I have suggested to the French education minister to add an ‘intellectual property’ component to civic and moral education curricula. Here I count on the support of the European Union Intellectual Property Office (EUIPO), which manages a network dedicated to questions of intellectual property and education.”
E.: Do you think that European statute for tackling smuggling and counterfeiting has sufficiently grasped the scale of the phenomenon?
Senator R.Y: “As far as European-level initiatives are concerned, I do find them to be globally inadequate, given the exponential development of cyber-counterfeiting. I regret that the 2004 Directive on the enforcement of intellectual property rights, or ‘IPRED’, has not been made a priority by the European Commission. So far, it has settled for publishing ‘guidelines’ to facilitate the application of the Directive. Many rights holders have expressed their deep disappointment, which I share.
As part of the fight against illicit online content that infringes intellectual property rights, the Commission recently published recommendations (implement clearer notification and withdrawal procedures, set up automated tools to detect and delete all illicit content, etc.) By the end of next summer, Member States and businesses have to inform the Commission about the measures they have taken in the light of its recommendations. Only then will the European executive consider whether it is necessary to adopt legislative measures.
In my view, there should be an urgent overhaul of the so-called ‘e-commerce’ Directive, which was adopted almost twenty years ago! Ever since 2011, I have been calling for the creation of a new ‘online intermediary’ status, that of an editor of online services (collaborative ‘2.0’ websites, online auction sites, etc.) Given that they enjoy a direct economic payoff when someone consults the content they host, even if some of that content is illegal, editors of online services should be subject to an online intermediary liability regime, which should be more lenient than for online publishing but stricter than for online hosting. The Prime Minister recently expressed support for this kind of reform, which he would like to promote to our European partners. I welcome this.
Although I lament the European Commission’s lack of ambition, I do welcome its initiative to set up a European Markets Watch List on intellectual property rights. This list should be published by the end of this year.”
E.: What does CNAC recommend for tackling counterfeiting?
Senator R.Y: “The fight against cyber-counterfeiting is CNAC’s number one priority. We would like online payment intermediaries to get more involved in tackling counterfeiting, in order to dry up the financial resources of websites that massively infringe upon intellectual property rights. To this end, I would encourage the private sector to create a one-stop shop to centralise alerts on websites prone to breaking the law. This one-stop shop would pass on its most important dossiers to the enforcement authorities, which would examine the information gathered by the private sector and, perhaps after further investigation, decide on whether or not to approach the public prosecutor’s office.
CNAC’s other proposals include permanent closure for domain names that violate intellectual property rights. Under current legislation, once these domain names are closed they go back into the public domain and can then be registered by new applicants. This situation is unacceptable and I would like to see it brought to an end as soon as possible.
Moreover, I would like to see the creation of an intellectual property court for enterprise, based on the model set up in the United Kingdom (Intellectual Property Enterprise Court). This has a dual objective: to simplify the settlement of disputes for small claims and to improve access to justice for SME counterfeiting victims. At present, some rights holders – particularly SMEs – are reluctant to go to court, partly because of the excessive legal costs in proportion to the amounts claimed, and due to the excessive time it takes for cases to be judged.”
E.: What does public-private collaboration in the fight against counterfeiting have to offer?
Senator R.Y: “Businesses and the public authorities can collaborate in mutual understanding by joining CNAC’s four working groups (awareness-raising and communication; international cooperation; normative and jurisdictional issues; cyber-counterfeiting), all of which are co-presided by one representative from the public sector and one from the private sector. These working groups promote information-sharing and facilitate good practice-sharing.
As far as the public sector is concerned, I would strongly support strengthening anti-counterfeiting inter-ministerial steering by setting up a streamlined coordinating body, which could be an expanded version of the current Bercy committee.”