The Silent Supporter EU 32: De Leon 1

EU32: INTEGRATING CLASS

The Silent Supporter:

The EU Intellectual Property Rights Enforcement Directive
And the Push for an International IP System

Isaac De Leon

Student, IV AB European Studies | Business Track,

School of Social Sciences, Ateneo De Manila University

“The foundation of economic development is the acquisition of

more productive knowledge.” - Ha-Joon Chang, Bad Samaritans

INTRODUCTION
Over the past two decades, the so-called TRIPS (Trade-Related Intellectual Property
Rights) agreement was introduced in the World Trade Organization. This agreement had
widened the scope, extended the duration and heightened the degree of protection for IPRs to
an unprecedented extent, making it much more difficult for developing countries to acquire the
new knowledge they need for economic development.1 The main reason lies in the continued
use of webs of coercion by the EU and the US, both of which remain united on the need for
strong global standards of intellectual property protection.2
The picture which emerges is one in which higher and higher standards of intellectual
property protection are being globalized with little or no attempt to build into those standards a
freer movement of new knowledge to developing countries.3 Developing countries are largely
left to pursue their agendas within the interstices of an IP paradigm dominated by the EU and
US.4

MAIN PROBLEM

1 Ha-Joon Chang, “Windows 98 in 1997—Is it wrong to ‘borrow’ ideas?” Bad Samaritans—Rich Nations, Poor Policies, and the Threat

to the Developing World, (London: Random House Business Books, 2007), 141.
2 Peter Drahos, Developing Countries and International Intellectual Property Standard-setting, Commission on Intellectual Property

Rights, http://www.iprcommission.org/papers/pdfs/study_papers/sp8_drahos_study.pdf, Accessed 28 February 2008, 2.

3 Convention on Biological Diversity, Article 16.
4 Peter Drahos, 26.
 The Silent Supporter EU 32: De Leon 2

If development is about expanding the ability of people “to shape their own futures” then
we have a reason to be concerned about the loss of national sovereignty of developing
countries over standards that impact on sectors such as agriculture, food, environment, health
and education. However, the EU and the other G8 (Group of Eight) top industrialized countries
have been putting much priority to IP issues which deter many developing countries’ growth.

RESEARCH QUESTION
Why is the European Union playing the “silent supporter” role in the discussions
regarding enforcement of stronger global standards of IP security in developing countries while
simultaneously compelling these countries to follow for a supposed “uniform protection” for
IPRs if they are in fact having trouble keeping the integrity of their own free market area because
of IPR standards that cause unfair domestic competition?
There is a disparity of norms when it comes to intellectual property rights not just in a
globalized system, but also in an EU community scale. Although it is hard to quantify the overall
impact, strengthening of IP protection (most especially copyright) had made education,
especially higher education that uses specialized and advanced foreign books more taxing and
costly.
This paper will seek to problematize the effects of a stronger world IP standard and its
effects in the internal working of the EU free market and its external repercussions to
developing countries. We do this because in quintessence the new IPR system had made
economic development both within and outside the EU more difficult.
Since intellectual property rights are but one micro-tool of national policy it is difficult to
isolate their importance as a variable in development. But if development is about expanding
the ability of people “to shape their own futures” then we have an imperious normative reason to
be concerned about the loss of national sovereignty of developing countries over standards that
impact on sectors such as agriculture, food, environment, health and education due to the
overly stringent boundaries of IP protection5 as well as its general dissuasion of free trade within
the EU.

HYPOTHESIS
The issue of intellectual property has been an effective rhetorical vehicle, in particular by
less economically stable developing countries, to keep issues of autonomy and self-
determination on the global bargaining table. Developing nations provide a destination for
obsolete information, technology, and markets to the wealthy nations, without which the former
could not have the standard of living the former enjoys.
Furthermore, what is meant by difficulty in economic development concerning IPR is
when 97% of all patents and the vast majority of Copyrights and trademarks are held by rich
countries, which means that strengthening of the rights of IPR-holders makes acquiring
knowledge more expensive for developing countries.6
Poor nations provide a destination for obsolete information, knowledge, and technology
and a market for the wealthy nations, without which the latter could not have the standard of
living they enjoy.
Yet, the EU uses strong web coercion to support strong IP protection though it has legal
problems regarding its IP Enforcement Directive. This is true because a country with strong IP

5 World Bank, The Quality of Growth, OUP, NY, 2000, xxiii.

6 Ha-Joon Chang, 141.
 The Silent Supporter EU 32: De Leon 3

capabilities will benefit from entering an international IP system as it essentially becomes an

exporter of IP products.7 This research takes a second look at the role of EU in setting global
standards for IP protection and the mechanism it works in to meet its own agenda.

THEORETICAL FRAMEWORK
INTERNATIONAL RELATIONS THEORY: MARXISM:
DEPENDENCY THEORY

Before going on, we want to acquaint the reader with the theoretical framework under
discussion—dependency theory. Whereas Dependency theorists are unified by a number of
working premises about world systems best described under this branch of international
relations theory of socialism, the adherents of the Dependency school essentially argue that the
poverty of the countries in the periphery is the result of the manner of their integration of the
"world system", a view to be contrasted with that of free market economists, who argue that
such states are progressing on a path to full integration. The economic interplay between
developed countries and developing countries with respect to the flow of knowledge and
technology is best described by the Dependency theory because there is a definite class
distinction when it comes to technological ranks of countries and a monopoly in the amassment
and dispersion of knowledge.
The following are the basic premises of dependency theory.8
1. Developing countries as a destination. Poor nations provide a destination for
obsolete technology, and markets to the wealthy nations, without which the latter could
not have the standard of living they enjoy.
2. First world policies and initiatives. First World policies and initiatives nations actively,
but not necessarily consciously, perpetuate a state of dependence through various
policies and initiatives—a sort of cataleptic neocolonial methodology. This is
multifaceted, involving economics, media control, politics, banking and finance, culture,
sport, education, and all aspects of human resource development. In our case,
education in view of economic development becomes the main focus.
3. Economic and military pressure. Attempts by the dependent nations to resist the
influences of dependency often result in economic sanctions and/or military invasion
and control.
Also, Dependency theory holds that poverty and backwardness in poor countries are
caused by the peripheral position that these nations have in the international division of labor
and capital. Ever since the capitalist world system evolved, there is a stark distinction between
the nations of the center and the nations of the periphery.
There is a financial and technological penetration by the developed capitalist (center)
countries to the developing (peripheral) countries. This produces an imbalanced economic
structure both (a.) within the peripheral societies; (b.) and, between them and the centers. This
leads to restrictions on self-sustained growth in the periphery. This naturally favors the
appearance of specific patterns of class relations.

7 Pugatch, Meir Perez. “Economic and political explanations for the emergence of a stronger international IP system. “The

International Political Economy of Intellectual Property Rights, (UK: Edward Elgar, 2004), 49.
8 Wikipedia, Dependency Theory, Wikipedia The Free Encyclopedia, http://en.wikipedia.org/wiki/Dependency_theory,

Accessed 28 February 2008.

 The Silent Supporter EU 32: De Leon 4

“Backward or peripheral” countries are characterized by dual economies: a large

agricultural sector and a small industrialized sector. Profit margins and the potential to generate
economic surplus from agricultural produce are still minimal, where as of today roughly 1.4
billion peasants in the developing countries amount to a less than 13% of the world trade.
Evidently too, there is an unequal exchange standard or low comparative price level
which is measured as the ratio between GDP at purchasing power rates and GDP at international
exchange rates. In our case, the price of intellectual property and other forms of new knowledge
is the unit of analysis. In this lens, we can say that monopolistic structures of international trade
let the centers profit from the high prices of their exports to the world markets in comparison to
their labor productivity.

REVIEW OF RELATED LITERATURE

“The quality of the culture of an age depends primarily on its intellectual and artistic creations. This
quality is affected in turn by the appreciation, the protection, and the encouragement given their
creators.”9

An Example of the Problem:

The Philippine IP Industry

In micro scale, even the Rizal Library, Ateneo De Manila University’s Library, offers at
least 8 photocopying machines with respective photocopying personnel to aid the students in
copying pages from books for research papers, dissertations, theses, and most of all for the
dissemination of course readers required by professors. Handouts can range from a page to a
great extent of 500 pages at a time; each page costing a mere 60 centavos—proving that
knowledge is still too expensive for a developing country like ours.
“Books are much too expensive,” according to Leonard Shatzkin, author of the book In
Cold Type: Overcoming the Book Crisis.10 Any student, any teacher, or anyone craving for
information would know this as a fact. We are faced with a global situation where Western
“intellectual goods” are sold at very high prices because the IP generating countries are too
profit-oriented, which makes access to knowledge and information a hard task for developing
countries like the Philippines. Foreign textbooks are overly expensive and the necessary ones
highly inaccessible.
In addition, universities prefer foreign textbooks—textbooks that have been adequately
researched for, ones that are generally up to date, and are made from the best quality materials.
The Filipino community can only afford cheaper low-quality Asian editions of these books
because of the extreme prices global IP standards allow the western monopolist. But Asian
editions aren’t even preferred. IP is generally more available, though illegally according to global
standards, through the internet and person to person online sharing.
The Philippines is in fact struggling in publishing local titles in any field ranging from
medical reference books to the literary books, minuscule as they are, it produces. Literary titles
only consist of 4% of the total output of published books per year. According to a survey done
by a local book publisher’s association, the number of imported books compared to locally
published ones in the country can reach the ratio of a hundred to one, signaling the fact that

9 Kent, 43.
10 Leonard Shatzkin, In Cold Type: Overcoming the Book Crisis, (Boston: Houghton Mifflin Company, 1982), 8.
 The Silent Supporter EU 32: De Leon 5

Filipinos do not patronize local works, and that local authors are principally suffering despite the
fact that there are already not a lot of local authors to begin with.11
One of the reasons for this actuality is that although the system for manufacturing
commodities have changed to more complex, less expensive, and more effective systems
allowed by technology transfer looser IP bureaucracy, the struggle of our book industry is still
affected by the more wasteful distribution system made even more competitive by a more
educated public and more talented authors.12 Improving the technology of manufacturing has
not made knowledge and information more accessible and credible. It has made the
Philippines’s book industry more passive and careless due to the fact that our country has not
yet matured to the level of generally appreciating the value of book, scholarly works, and other
forms of new knowledge. It has also become more biased toward foreign titles, making local
publishing a more expensive business venture because of all the competition the industry is
receiving. This is manifested in our bookstores, where EU and US published books mostly
occupy the shelves. At the end, this falls out into two problems: A dependency on EU and US IP
goods, and a more expensive way of obtaining them. Why is this happening? We have to
first take a look at IPR and how the EU applies this system of standards.
Intellectual Property Rights:
IPR and TRIPS in a Nutshell
"Copyright is [in fact] a monopoly," according to authors Allen Kent and Harold Lancour
of the Encyclopedia of Library and Information Science, "[and] the price paid to the creator and
entrepreneur, however, is high.13” According to the Copyright act, the author reserves the right to
allow or prohibit publication of the title that was created whether or not it is based on his rational
conscience or illegitimate reason—for the Copyright law protects his interest and not primarily
the interest of the public. The legislators treat the Copyright law as protection and as a right of
the author instead of protection for the general public; and this error in characterization is a
product of history rather than reason14, which should be in reality its primary function as to allow
for the circulation of knowledge. While we understand that indeed an author would want to own
the right to his work since this is technically his intellectual property, we then must also consider
why the Copyright Act was invented in the first place.
Without question, the international Intellectual Property standards were drafted to
protect the interests of the major publishing nations (UK, US, France, etc.) and many
industrialized countries accepted IPRs only when it was in their interest. Then in the last few
decades it was upgraded into a standard with a more economic perspective called the
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an

international agreement administered by the World Trade Organization (WTO) that sets down
minimum standards for many forms of IP regulation. It was negotiated at the end of the Uruguay
Round of the General Agreement on Tariffs and Trade (GATT) in 1994.15

Specifically, TRIPS contains requirements that nations' laws must meet for: copyright
rights, including the rights of performers, producers of sound recordings and broadcasting
organizations; geographical indications, including appellations of origin; industrial designs;
integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties;

11 Alfredo Salanga, 140, 144.

12 Shatzkin, 7.
13 Kent, 43.

14 Kent, 44
15 Wikipedia
 The Silent Supporter EU 32: De Leon 6

trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies
enforcement procedures, remedies, and dispute resolution procedures.

The TRIPS agreement introduced intellectual property law into the international trading
system for the first time, and remains the most comprehensive international agreement on
intellectual property to date. In 2001, developing countries concerned that developed countries
were insisting on an overly-narrow reading of TRIPS, initiated a round of talks that resulted in the
Doha Declaration: a WTO statement that clarifies the scope of TRIPS; stating for example that
TRIPS can and should be interpreted in light of the goal "to promote access to medicines for
all."16 Leaning towards other industrialized countries, the TRIPS application obviously does not
serve the best interest of developing countries.
The case of the Philippines demonstrates that many developing countries for most of
their history have never exercised a meaningful sovereignty over the setting of intellectual
property standards. By the time many countries shed their colonial status, they were confronted
by an international IPR system that was run by an Old World club of former colonial powers to
suit their economic interests.17
The EU’s Role:
A look at the EU’s pharmaceutical industry
The internationalization of IPRs cannot be explained by a pure economic approach. It is
linked, rather as we have seen above, to the political activities of IP generating countries seeking
to secure the interests of key IP-based groups.
The pharmaceutical industry had been one of the world’s largest and most solidly
established manufacturing industries. Its modern roots can be traced to the invention and
development of milestone medicines such as aspirin and penicillin. The industry has
consistently demonstrated incredible manufacturing capabilities, sales growth, innovative
potential and capacity to generate profits.
At Financial Times April 2000 survey found that five pharmaceutical MNCs were ranked
among the leading top 20 companies in Europe in terms of market value. Of course, these MNCs
devote at least 20% of their profits to pharmaceutical and biotech R&D. But lately, generic-based
companies (mostly found outside the EU which create these drugs to help developing
countries) pose as a clear problem to these private pharmaceutical MNCs because companies
focus on the production of existing generic compounds rather than developing new drugs.
Furthermore, the EU is also one of the world’s largest traders in pharmaceuticals. During
the last decade, intra-European imports of pharmaceuticals accounted for more than two-thirds
of total imports by EU based countries.
Therefore, patent protection is very important for EU for the simple reason that 5 of its
top 20 companies are pharmaceutical companies, and that these companies need strong IP
protection as a profit-making tool during the marketing stage of their pharmaceutical drugs.
These patents serve as an insurance tool during the pre-marketing stage of drugs that are still in
various development stages. They cannot afford for generic-based companies to copy their
massive R&D investments.

An Explanation:
A Look through Dependency
Technology is not easily transferable across countries but, on the contrary, it is country-
specific and rooted in skills, capabilities and knowledge accumulated over time. The interest of
industrialized countries is to safeguard their technology and to create local incentives for
innovation. This is characterized by the heavy prioritizing of IP protection even within the EU.

16 Wikipedia
17 Ha-Joon Chang, 135.
 The Silent Supporter EU 32: De Leon 7

Developing countries, however, took those considerations as an expression of “neo-

protectionism” of the economic standards of industrialized countries.18
Developing countries feared in particular that high international standards of IPR would
strengthen the position of international firms, whereas prices for good and basic needs like
medicine or food in developing countries would rise. In the education sector, this is evident in
the prices of books used for higher education. Computer software also becomes a target for
illegal copying because there is usually a 1:1 computer-copy ratio restriction given by the
software developer making it harder to own a personal computer.
Dependency school essentially argues that the poverty of the developing countries in
the periphery is the result of the manner of their integration of the "world system” dictated by
the industrialized center countries. We can also say that there is a distinction between “north”
(developed/center) and “south” (developing/peripheral) that is between capable and less-
capable countries in the field of IP.19
The most plausible explanation as to why countries with weak IP capabilities and
legislation commit themselves to a stronger international IP system is attributable to trade
relations and the fear of trade retaliation that the center controlling countries can easily impose
on developing countries. Despite the existence of the TRIPs agreement and its built-in dispute
settlement mechanism, even today, the US and the EC still reserve the right to use the tool of
trade retaliation against countries with weak IP protection.20
Otherwise, developing countries would not want to set higher standards for IP because
they are generally copiers of the technology and other forms of IP created by the developed
countries. It is assumed that IP capabilities are found only in the north. The south, though is
capable of successfully imitating the newly developed products, would be better off not joining
the international IP system at all.
An additional reason for the aversion of developing countries against IP standards was
that the agreement was considered to be just another example for the paternalistic approach of
the industrialized countries.21 Some would argue that in order for a country with IP capabilities
to become less dependent on the importation of IP-related products it must also obtain know-
how capabilities essential for the commercial exploitations of such products. But when newer IP
is harder to obtain because of higher global standards of protection, this is next to impossible.
Then what happens?
Countries with low IP capabilities will only be able to increase their attractiveness to IP
technology transfer if they join an international system of IPRs.22 This is the benefit that a
peripheral country can look forward to. But when by joining an international IP system the local
innovators of peripheral countries cannot compete anymore, the country might face the
problem of talent migration, or in our case, a “brain drain.
Under a an international system of IPRs a country with strong IP capabilities will not only
improve its terms of trade by becoming an exporter of IP-related products but will also benefit
from additional income which represents the excess in prices that IP owners are able to charge
because of their monopolistic position. On the other hand, countries with weak IP capabilities are
likely to benefit most from trade in IP-related products when choosing not to join the
international IP system. Doing so will enable tem to freely exploit and imitate the IP-related
products in their own domestic economise. Where they are successful these countries may
even be able to compete with the original IP owners thus becoming exporters of such products
themselves.23 It is clear here that the peripheral weak-IP-capable countries are at a

18 Thumm, Nikolaus. “Harmonisation versus Differentiation” Intellectual Property Rights: National Systems and Harmonization in

Europe, (New York: Physica-Verl 2000), 64.

19 Pugatch, 47.

20 Ibid 72.
21 Thumm, 64.

22 Pugatch, 56.
23 Ibid, 70.
 The Silent Supporter EU 32: De Leon 8

disadvantage when a majority of companies that lobby for a stronger IP system are based on
the EU and US.

The Result:
More Expensive Knowledge
IP promoters always claim that IPRs are necessary for creation of new knowledge; yet,
knowledge distribution according to need requires people to be motivated more by moral
incentives, rather than just material ones. This is the premise of anti-IP activists because IP has
become more economic than it is social.
New knowledge creation and IPR holdings should not be the private concern of the
small group of businessmen engaged in it. There should be a primacy of equality, over other
values, for the measure of social equality is the essential guarantee of stability and cohesion of
the educated public, encouraging the individuals to identify with their fellow academics instead
of limiting interaction because of the barrier of the IPR system. This equality should be the basis
for the exercise of legal and political rights instead of the supposed rights of monopolies.
However, it is evident that prices imposed on new knowledge can be ridiculous enough to merit
international attention, especially for protection of the interests of developing countries.
Apparently, publishers and innovators are only after the money involved in the creation of this
knowledge (whether it be in the form of literature, technology, pharmaceuticals, or media) and
not the public interest nor the public welfare.
There is also the nuance of interlocking IPRs. If other people own the ideas you need in
order to develop your own new ideas, you cannot use them without paying for them. Here we
can see that countries with better starting conditions can take more advantage out of trade
negotiations and the country with the biggest oval market has an advantageous position.24 This
can make producing new ideas more expensive.
Then there has also been a trend where IP is being extended even after the inventor dies
(evident in the pharmaceutical and book industry). As should be immediately obvious to anyone,
extending the term of protection for existing work can never create new knowledge. As the
protection of intellectual property rights involves monopoly (and its social costs), extending the
period of protection clearly increases those costs. Lengthening the term—like any other
strengthening of IPR protection—means that society is paying even more for new knowledge.25
The EU (and US) agenda for an international IP system has brought the affected parties
into a bigger playing field. EU capitalism has not only obtained economic power through the
ownership of wealth, but also through the exercise of political power through the agency of the
EU community, and has been possessing ideological power because its ideals are the “ruling
ideas” of the age.26 Because of the clutches of IPR protection, the weaker IP community argues
that ideas are rendered inert and unused. For example, professors sometimes have to wait for a
particular work to be placed into the public domain before they can legally replicate it for their
class which would take it at least 50 years. New knowledge should not be distributed primarily
because of the profit it can make, but because it should develop a society.

The EU agenda:
The EU IPR Enforcement Directive
The EU IPR Enforcement Directive is a result of pressure brought by Hollywood and the
music industry to crack down on music copying, and by luxury brand owners such as Yves Saint
Laurent to crack down on counterfeiting found mostly in Asia. However, it is now apparent that
the main result will not be a reduction in music copying, so much as a reduction in competition
and in traditional usage rights. There will be significant adverse effects on economic growth and

24 Thumm, 65.
25 Ibid.
26 (Rañeses), 54.
 The Silent Supporter EU 32: De Leon 9

innovation; the European Single Market will be undermined; and liberty will suffer in many
ways.27

The EU's IPR Enforcement Directive on the enforcement of IPRs sets out to make it
dramatically easier to enforce copyrights, patents, and trademarks in Europe, and to punish
people who tamper with technical mechanisms designed to prevent copying or counterfeiting.
The directive has been welcomed by the music and film industries. But software and telecom
companies seem to be protesting because of some limitations that directly affect them.28

At present, copyright infringement is treated by most Member States as a civil matter in

general, and as a criminal offense only when practiced on a large scale. But, the Directive would
compel every member state to criminalize all violations of intellectual property that are
deliberate and conducted in the course of a business. The implications for business are subtle
but profoundly worrying, especially in an international level.

Printer cartridges provide a clear example. Many of them now come with chips in the EU
that authenticate them to the printer. Printers may refuse to work with third-party or refilled
cartridges, or even with genuine cartridges that have passed an expiry date. Cartridge tying is
now leading to trade conflict between the USA and Europe. In the USA, a court has granted the
printer maker Lexmark an injunction preventing the sale of cartridges with chips that
interoperate with Lexmark's printers. Meanwhile, the European Commission has adopted a
Directive on waste electrical and electronic equipment which will force Member States to
outlaw, by the end of 2007, the circumvention of EU recycling rules by companies who design
products with chips to ensure that they cannot be recycled.29 Here we can already see the
hostility of a more international IP system, even in just an EU community level.

Effects within the EU:

Harsher enforcement and a threat to liberty
In these turbulent waters, the Commission has launched a draft Directive that will
criminalize all acts of intellectual property infringement that are carried out deliberately in the
course of a business, rather than just serious cases as at present. The Directive does not compel
Member States to enact these safeguards and it is predictable that many will not.30 The likely
outcome is that IP owners will be able to bully their competitors much more effectively than
before.
The law will thus empower companies like Sony and Microsoft at the expense of other
players in the industry; it will make it much more risky for supermarkets, pharmacies and car
dealers to get low-cost supplies through parallel import channels; and where the relevant IP
rules turn on national interpretations of the EU Copyright Directive, the effects of enforcement
will vary wildly between one jurisdiction and another. Indeed, the Commission's attempts to
harmonize intellectual property law and enforcement in order to facilitate the Single Market may
well fragment the market - and promote a trade dispute with the USA. At the end, competition
would be harsher if not non-existent within or outside the EU.
The proposed EU IPR Enforcement Directive will also undermine basic liberties in ways
that will offend many influential groups in society, from academics and librarians through
disabled people to musicians. At present, a blind guitarist who plays David Cook’s version of
“You’ll always be my Baby' in a subway station should in theory send American Idol a cheque for

27 Anderson, Ross. “The Draft IPR Enforcement Directive — A Threat to Competition and to Liberty.” Foundation for information
Policy Research Website. (http://www.fipr.org/copyright/draft-ipr-enforce.html), accessed 13 May 2008.
28 Ibid.
29 Ibid.
30 Ibid.
 The Silent Supporter EU 32: De Leon 10

a few cents for the performance royalties. At present, American Idol sensibly do not bother to
pursue these IPR-infringers for tiny royalties; but in future, this activity must be criminalized.
Draconian enforcement will have a chilling effect on large numbers of musicians, ranging from
amateur bands who play main stream songs in bars for small fees through to `cover artists'
whose art consists of sampling and reworking existing tunes.31
At present, Member States have a long list of `fair use' or `fair dealing' exceptions to
copyright. For example, it is generally permitted for people to make copies of printed works for
private study, and the prices charged to libraries by journal publishers reflect this. (Economic
studies have shown that the invention of the photocopier actually helped journal publishers;
journal prices to libraries rose significantly, because journals become more useful once articles
could be photocopied.) Most Member States currently allow the disabled to break copy
protection mechanisms to get access; thus blind people circumvent copy-protection so that
their screen-scrapers can read electronic books out loud to them, even if the designer of the e-
book software did not intend this.32
Unfortunately, the implementation of the EU Copyright Directive in many countries has
diminished fair use rights. In the UK, for example, the proposed EU IPR Enforcement Directive
implementation (Copyright specifically) does not allow the blind to break copy-protection
mechanisms, and it will therefore become a criminal offence to supply them with effective book
readers.

The Future of EU:

The IPR Enforcement Directive’s Effects
Art 235 EC requires unanimity. The general obligation in the Directive is to provide for
remedies necessary to enforce intellectual property rights. These shall be “fair and equitable”
and must not be “complicated or costly, or entail unreasonable time-limits or unwarranted
delays”. They must furthermore be effective, proportionate and dissuasive and must not act as
barriers to trade. 33 It must be simple, rapid, legally certain, accessible, and it should not involve
excessive expenditure. But this is difficult to achieve because of the relatively large number of
languages in the Union and the corresponding high cost of translation.34

To the Single Market

The EU was set up to create a free-trade area, yet its EU IPR Enforcement Directive will
undermine that. Within a few years, products such as clothes will all contain radio-frequency
identification (RFID) tags, which will be used as market control devices. At present, market
control centers on trade-mark law and distribution contracts; the EU has largely managed to
hammer down the trade barriers (but not entirely). RFID plus the IPR Enforcement Directive will
set back the cause of free trade by twenty years. It will enable brand owners to undermine the
Single Market and challenge the principal economic benefit of the European Union.35
Universities, libraries and the disabled
These groups will be hit by the restriction of `fair use' and `fair dealing' rights under
copyright law. In future, publishers of electronic books will be able to use technical mechanisms
to suppress the right to make copies for private study, or to use devices such as book readers
that render published matter into formats accessible to the blind. Also, European universities will
be immediately subject to the intense legal harassment which the record industry has inflicted
on some US universities over students swapping songs. If universities are held liable for the

31 Anderson.
32 Anderson.
33 Thumm, 68.

34 Ibid.
35 Anderson,
 The Silent Supporter EU 32: De Leon 11

content that passes over their networks, then they will have to start policing this content - which
will be profoundly contrary to academic values.36

A Solution:
The Potential Compromise
What the EU can lawfully do is to first harmonize patent law within the EU (which is
underway due to be done by 2010), and to back developing countries in flexibilities of the TRIPs
agreement through free trade deals to help drive down the prices of drugs, technology
transferred, educational books, and media. TRIPs and other forms of IP protection should not go
against human rights—in this case rights to public health, education, access to knowledge, and
agriculture. The EU has to be constantly reminded of these boundaries if they would want to
enforce the international IP system benevolently.
Also, the Commission accepts that the draft is defective in many respects and will need
extensive rewriting. The definitions in particular will need much work, as they diverge in the
English, French and German versions and are not consistent with the rest of IP law in Europe. But
it is unlikely that the Commission will agree to drop the whole thing, at least right now, as they
have been working on it for three years since an earlier working document.

CONCLUSION
“The quality of the culture of an age depends primarily on its intellectual and artistic
creations. This quality is affected in turn by the appreciation, the protection, and the
encouragement given their creators.”37 Appreciation by use is therefore now unlocked for the
general public, and protection is still maintained for the mutual benefit of both the creator and
the consumer. Though the status of the developing countries’ economies are still major factors
in the variable price of new knowledge, the citizens in these countries should not patronize
reproduced copies to help the country exhibit with integrity and stability in front of the IP
oriented center countries. This would encourage technology transfer and investments in these
developing countries, and international support and consideration could be given to help
develop their economies.
The foundation of economic development is the acquisition of more productive
knowledge.38 This has been evident not just by looking at the history of economic giants like the
EU and the US, but this can also give charge to their leadership in production of new knowledge
in direct proportion to economic growth. Hard tactics are used by EU and US negotiators to
drive hard bargains with developing countries that do not adhere to the TRIPs agreement and
those who do not honor the global IP standards. The US leads in these kinds of tactics and the
EU plays the role of quiet supporter.
As water flows from high to low, knowledge has always flowed from where there is more
to where there is less. Those countries that are better at absorbing the knowledge inflow have
been more successful in catching up with the more economically advanced nations. On the
other side of the fence, those advanced nations that are good at controlling the outflow of core
IP goods have retained their IP leadership for longer. The IP ‘arms race’, between backward
countries trying to acquire advanced foreign knowledge and the advanced countries trying to
prevent its outflow has always been at the heart of the game of economic development.39

36 Anderson.
37 Kent, 43.
38 Ha-Joon Chang, 142.
39 Peter Drahos, 127
 The Silent Supporter EU 32: De Leon 12

But because of this, the stronger international protection for IPRs is, the more difficult it is
for the follower countries to acquire new knowledge. If knowledge is like water that flows
downhill, then today’s IPR system is like a dam that turns potentially fertile fields into
technological and intellectual dustbowls. Economics precedes social welfare as we have seen
in the examples. EU has become more oriented in the global aspect of IPR because of the
opportunity they can grab from their former colonies even if the EU has internal problems
regarding competition and the single market, much so to the IPR Enforcement Directive.
Again, this is true because a country with strong IP capabilities will benefit from entering
an international IP system as it essentially becomes an exporter of IP products.40 Whether or not
there is internal instability, economic principles still work: EU, the silent supporter, is capital
abundant, therefore, it creates IP.

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WORD COUNT

Word Count of Body of Research: 5, 777

Word Count of Block Quotes: 391
Word Count of Body of Essay Excluding Block Quotes: 5, 386

HONOR CODE

I have not given nor received unauthorized aid for this academic task.

__________________
Isaac D. De Leon