An efficient and effectively enforced intellectual property infrastructure is necessary to ensure the stimulation of investment in innovation and to avoid commercial-scale intellectual property rights (IPR) infringements that result in economic harm. The European Commission’s aim is to ensure that this infrastructure allows creators and inventors in the EU to reap appropriate returns from welfare-enhancing innovation for EU citizens.
In December 2015 the Commission published a consultation on the evaluation and modernisation of the legal framework for the enforcement of IPR.
The summary of responses is now available.
Legal instruments, such as the Directive on enforcement already exist in the EU to prevent the infringement of intellectual property rights. But to make them more effective, the Commission is seeking stronger cooperation between authorities at all levels in the fight against intellectual property infringement, and is working to prevent infringing activity from undermining growth and sustainable employment in the EU.
The Directive on the enforcement of intellectual property rights such as copyright and related rights, trademarks, designs or patents was adopted in April 2004.
The Directive requires all EU countries to apply effective, dissuasive, and proportionate remedies and penalties against those engaged in counterfeiting and piracy, and aims to create a level playing field for right holders in the EU. It means that all EU countries will have a similar set of measures available for right holders to defend their intellectual property rights.
As announced in the Communication on a Digital Single Market Strategy for Europe, the Commission will make proposals in 2016 to modernise the enforcement of intellectual property rights, focusing on commercial-scale infringements (the 'follow the money' approach) as well as cross-border applicability.
On 9 December 2015 the Commission launched a public consultation on the evaluation and modernisation of the legal framework for the enforcement of IPR. With this consultation the Commission sought views from all interested parties, in particular rightholders, the judiciary and legal profession, intermediaries, public authorities, consumers and civil society, on whether the legal enforcement framework is still fit for purpose.
In July 2014, the Commission adopted the Communication 'Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan'. In the Action Plan, the Commission seeks to re-orientate its policy for intellectual property enforcement towards better compliance with intellectual property rights by all economic actors. Rather than penalising the citizen for infringing intellectual property rights (often unknowingly), these measures pave the way towards a 'follow the money approach' that seeks to deprive commercial scale infringers of the revenue flows that draw them into such activities.
On 21 June 2016, the Commission held the 'Intellectual Property Rights Enforcement Conference' where key European and international decision makers, public representatives, enforcement agencies, rights-holders and representatives of civil society gathered to review the progress made in disrupting IP infringing activities at the source and ensuring supply chain integrity.
This event also saw the signature of the renewed Memorandum of Understanding on the online sale of counterfeit goods, an updated version of the previous voluntary agreement which introduces mechanisms that can measure the effectiveness of the agreement over time.
With over 300 attendees, the conference addressed other pressing issues such as the role of advertising intermediaries or payment service providers in the fight against IPR infringement. It also offered a first glance at the preliminary results of the public consultation on the functioning of the Intellectual Property Rights Enforcement Directive (Directive 2004/48).
In June 2015, the Commission held the workshop, 'Due diligence in supply chains: How can responsible supply chain management improve respect for intellectual property?'.
The event gathered a wide range of stakeholders to assess how existing due diligence practices (e.g. risk management and corporate social responsibility) could apply to intellectual property in order to prevent the infiltration of counterfeit and substandard products into legitimate supply chains.
In September 2014, the Commission set up an Expert Group on the enforcement of intellectual property rights. The objective of the group is to establish cooperation between the Commission and authorities in EU countries that are responsible for overseeing the enforcement of intellectual property rights. The group will provide the Commission with advice and expertise in relation to the preparation and implementation of policy initiatives, and will facilitate the exchange of regulatory experience and good practice between EU countries.
The Commission facilitates stakeholder dialogues that promote collaborative approaches and voluntary, practical solutions to problems in intellectual property rights enforcement in evolving technological and commercial environments. One such approach is the signing of a Memorandum of Understanding.
In May 2011 a Memorandum of Understanding (MoU) was concluded under the auspices of the Commission that brought together major internet platforms and right holders for products for which counterfeit versions are often sold online. The MoU commits companies to undertake certain measures and trade associations to further promote the MoU among their members.
On 18 April 2013, the Commission adopted a report on the functioning of the MoU. The report provides a detailed assessment of best practices and practical measures that successfully prevent the sale of counterfeits online, thus protecting consumers looking for genuine products in the digital Internal Market. The report also demonstrates that, in parallel with legislation, voluntary cooperation significantly contributes to curbing online counterfeiting and that it can provide flexibility to adapt quickly to technological developments and deliver efficient solutions. The MoU contributes to enhanced trust in the online Internal Market and in so doing helps the EU's Digital Market to grow.
On 21 June 2016 a new MoU on the online sale of counterfeit goods (see also addendum) was opened for signature. It follows on from the previous version signed in 2011 between internet platforms, brand owners and trade associations. To track its impact and to objectively measure its success, the MoU includes 'Key Performance Indicators'.
In addition, on 20 June 2016 the Commission adopted a Declaration that focuses on the facilitation and monitoring of memoranda of understanding seeking to dissuade IPR infringing activities. It recognises the role of civil society associations and encourages these organisations to sign the MoU as well.
In the Digital Single Market Strategy of May 2015 and the Single Market Strategy of October 2015, the Commission announced that it will make legislative proposals in 2016 to modernise the enforcement of intellectual property rights, focusing on commercial-scale infringements (the 'follow the money' approach) and the cross-border applicability of enforcement. The Copyright Communication of December 2015 also announced that the Commission will take immediate action to engage, with all parties concerned, in setting up and applying ‘follow the money’ mechanisms, based on a self-regulatory approach, with the objective of reaching agreements by spring 2016. It said that those codes of conduct at EU level could be backed by legislation, if required, to ensure their full effectiveness.
On 14 March 2016, the Commission held a Stakeholders' general meeting on online advertising and IPR, bringing all the interested parties together (the advertising industry, intermediaries, content protection sector, online media, right owners, civil society, consumer organisations, brands and advertisers). The stakeholders discussed the possibility of establishing a voluntary agreement at EU level in order to avoid the misplacement of advertising on IP-infringing websites, thereby restricting the flow of revenue to such sites while safeguarding the reputation of the advertisers and the integrity of the advertising industry.
The Commission invites experts to take part in thematic workshops to discuss issues related to the economic context of intellectual property. With markets in which ideas and innovations associated with intellectual property constantly evolving, careful monitoring of developments is required. By establishing links with experts in the field, the Commission can proactively screen these developments and their likely economic impacts.
The first workshop, The economic rationale of referring to commercial scale or commercial purpose when referring to IP infringements took place in September 2014.
The Commission is establishing a list of economists, researchers and experts specialised in the economics of intellectual property to participate in the workshops.
A call for expression of interest is open.
To encourage greater collaboration in the enforcement of intellectual property rights, the Commission launched the European Observatory on Counterfeiting and Piracy in April 2009. In June 2012, the Observatory was transferred to the Office for Harmonization in the Internal Market and was renamed the European Observatory on Infringements of Intellectual Property Rights. Its tasks include encouraging greater collaboration in the fight against IPR infringements between public and private stakeholders.
In April 2016, a joint study by the OECD and EUIPO (the EU Intellectual Property Office) was undertaken that illustrated the full scale of the impact of counterfeit and pirated products using empirical evidence. The Commission will use the results to assess how the IP enforcement framework in the Single Market should be modernised.