Sisule F. Musungu (sfmusungu@sisulemusungu) University of Bern

1. Regional Dialogue on EPAs, IP and Sustainable Development for ECOWAS CountriesDialogue organised by ICTSD, ENDA Tiers Monde & QUNOSaly (Dakar), Senegal, 30 - 31 May 2007 Sisule F. Musungu (sfmusungu@sisulemusungu.org) University of Bern

2. Introduction • Enforcement as an important plank in the TRIPS strategy • TRIPS was intended to provide effective means of IPR enforcement • About 30% of the TRIPS provisions are in Part III on enforcement • The nature of minimum enforcement provisions in the TRIPS Agreement • The minimum - the floor and hence additional measures both for IPR holders and for third parties and for improving competition permitted • Implementation methodology and prescriptive rules left to national governments • Recent developments and initiatives on enforcement and the players • Comparative advantage, changing nature of competition in the global economy and IPRs as lock-in tools • Many initiatives involving WTO, WIPO, OECD, G-8, EU, INTERPOL, World Customs Union (WCU), free trade agreements (FTAs) and EPAs, among others

3. Context (The TRIPS Enforcement Framework) • Key framework and contextual elements for TRIPS enforcement (three key elements) • Recognition of intellectual property as private rights hence private enforcement and issue of competitor relations (On the same day alleged infringer and innovator) • Effective and appropriate means of enforcing intellectual property rights taking into account differences in national legal systems and the right to determine the appropriate method of implementing the provisions of the Agreement within their own legal system practice • Implementation and interpretation in light of the object and purpose (see Doha Declaration) • Key elements of the general enforcement obligations under TRIPS (Art. 41) • Enforcement Provisions must permit effective action against infringement but must be applied in a manner that avoids barriers to legitimate trade and have safeguards against abuse • Enforcement procedures must be fair and equitable, not be overly complicated or costly or entail unreasonable time-limits or unwarranted delays (for both IPR holders and third parties and competitors) • Parties to infringement proceedings (IPR holders as well as alleged infringer) must have an opportunity for review except in criminal conviction • No obligation to introduced special IPR enforcement judicial system or expend more state resources on IP judicial enforcement than other areas of law • Specific Standards • Civil and administration procedures and remedies • Border measures • Criminal procedures and penalties

4. EU’s IP Enforcement Framework and Strategy • Intellectual Property Rights Enforcement Directive, 2004 (IPRED1) • Civil and administrative procedures only • Designed for the EU internal market • Important balancing concepts and rules especially in the recitals in Preamble, hence TRIPS-plus but predicated on the TRIPS idea of balance • Intellectual Property Rights Enforcement Directive (Draft), 2007 (IPRED2) • Criminal procedures and penalties only • Designed for the EU internal market • Limited to counterfeiting and piracy and excludes patent infringement, in particular, because “treating patent infringements as criminal offences could deter inventors and academics from developing innovations” • EU Strategy for the Enforcement of IPRs in Third Countries, 2004 • Meant to: provide a long-term strategy for the Commission to achieve significant reduction of IPR violations; to describe, prioritise and coordinate the commission actions in this area; and inform right holders and other entities the actions • Eight areas of action • Not intended to: impose unilateral solutions; propose one-size-fits-all approach to enforcement; or to copy other enforcement models e.g., the US Special 301 model

5. EPA (ECOWAS April 2007 Draft Text) Enforcement Provisions: Key Issues and Challenges • Loss of flexibility to determine appropriate method of implementing enforcement provisions in light of own legal system and practices and socio-economic imperatives • A disconnect between object and purpose of Cotonou Agreement (Art. 46) with draft provisions • Lack of sufficient safeguards and balancing mechanisms vis-à-vis third parties including competitors • Creation of liability for intermediaries • Far-reaching and unproportional evidence gathering capabilities (e.g., informal sector) • Permitting consideration of extraneous factors in quantifying damages • IPR enforcement in free trade zones and goods destined for exports or re-export (consider e.g., the para 6 negotiations) • Criminal procedures and penalties (exclusion a positive aspect of draft text)

6. Possible Elements of a Positive Enforcement Agenda in EPAs (ECOWAS) • At the very least (if detailed enforcement provisions are indeed required in the EPAs – I do not think so) maintaining the TRIPS conceptual framework for enforcement based on the three key elements • Adherence to EU enforcement strategy objective NOT to impose a one-size-fits-all approach on enforcement on ECOWAS. IPRED1 is one size and applying it to ECOWAS wholesale is fitting it to all • Treaty prohibition of unilateral measures (like US Special 301 process) in the context of activities such as identification of priority countries • Enforcement measures and procedures for flexibilities and other obligations such as technology transfer • Ensure continued exclusion of criminal procedures and penalties from the EPA even upon approval of IPRED2 • Ensure that enforcement provisions, if any, do not affect competition regulation currently on in the future • Non-exhaustive list of abusive enforcement practices and enforcement practices that unduly affect trade and competition • Include outcomes of the WIPO Development Agenda relevant to enforcement including technical assistance on enforcement