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.
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 ('IPRED') 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.
Following the evaluation of IPRED (see below), in November 2017 the Commission adopted, as part of the IP Package, the Guidance Communication clarifying the provisions of IPRED where there have been differing interpretations in EU countries. These might be related to its scope, rules on obtaining and preserving evidence, injunctions, or calculation of damages. The guidance is based on ruling by the EU Court of Justice and best practice developed in EU countries.
In 2016, the Commission conducted an evaluation of the Directive on the enforcement of IPR (‘IPRED’) to further improve the application and enforcement of IPRs, as announced in the Single Market Strategy and Digital Single Market Strategy.
The results presented in the evaluation report and accompanying study show that the measures, procedures and remedies set out in the Directive have effectively helped to better protect IPR throughout the EU and are still fit for purpose. IPRED has led to the creation of a common legal framework where the same set of tools is applied across the EU. However, the provisions of IPRED are not implemented and applied in a uniform manner in all EU countries. Thus, the EU legal framework for civil enforcement of IPR could benefit from the clarification of certain aspects of the Directive, allowing a more consistent and effective interpretation and application. This clarification was provided through the Guidance Communication, adopted as part of the IP Package.
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.
On 17 December 2015 the Commission launched a public consultation on due diligence and supply chain integrity in order to identify the mechanisms developed by companies to secure and monitor their supply chains to reduce the risk of intellectual property infringements.
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.
In 2016 the Commission facilitated the conclusion of a Memorandum of Understanding (MoU) on the online sale of counterfeit goods which brought together internet platforms, brand owners and trade associations. The MoU includes key performance indicators to track its impact and measure its success. A declaration was also adopted that focuses on the facilitation and monitoring of MoUs seeking to dissuade IPR infringing activities.
The MoU is an updated version of the MoU first signed in 2011.
In November 2017, the Commission published an overview of the functioning of the MoU, as part of the IP Package. The overview concludes the assessment period during which progress made during the first year of the work under the revised MoU was measured. The results are based on data obtained in relation to the key performance indicators set out in the MoU and feedback gathered from the MoU signatories.
The results of the work under the MoU are positive. They show that the MoU has effectively contributed to removing counterfeit products from online marketplaces and that it is a useful forum which allows trust and cooperation between parties to be strengthened
In April 2013, the Commission published a report on the functioning of the 2011 MoU. The report provides a detailed assessment of best practices and practical measures that successfully prevent the sale of counterfeits online. The report also demonstrates that, in parallel with legislation, voluntary cooperation significantly contributes to curbing online counterfeiting, providing flexibility to adapt quickly to technological developments and deliver efficient solutions.
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.
At the next general meeting on 21 October, stakeholders agreed on the basic principles of an agreement to help to restrict the income that IP-infringing websites get from online advertising.
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 (the observatory). Its tasks include encouraging greater collaboration in the fight against IPR infringements between public and private stakeholders.
The European Commission is now evaluating the Observatory, based on the study 'Evaluation of the application of Regulation 386/2012' carried out for the Commission by Technopolis.
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.