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.
What the Commission is doing
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 IPR
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.
Guidance on the Directive on the Enforcement of IPR
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 IPR towards better compliance with intellectual property rights by all economic actors. Rather than penalising the citizen for infringing IPR (often unknowingly), these measures pave the way towards the 'follow the money approach', which seeks to deprive commercial scale infringers of the revenue flows that draw them into such activities.
In 2016 a declaration (PDF, 196 KB) was adopted that focuses on the facilitation and monitoring of memoranda of understanding (MoUs) seeking to dissuade IPR infringing activities.
Stakeholder dialogues promote collaborative approaches to, and voluntary practical solutions for, better enforcing IPR in an ever-changing technological and commercial environment, by applying ‘follow the money’ mechanisms.
The ‘follow the money’ approach to IPR enforcement consists of designing policy measures that identify and disrupt the money trail for commercial scale IPR-infringing activities, diminishing their profit-making potential.
Voluntary industry-led initiatives taken by IP rights owners and intermediaries play an important role in the protection of IPR, complementing the EU legislative framework, in particular the 2004 Directive on the Enforcement of IPR
- the MoU on the sale of counterfeit goods on the internet, signed in 2011, brings together online platforms, rights owners and industry associations to limit the offer of counterfeit goods online
- the MoU on online advertising and IPR, signed in 2018, helps build cooperation between advertising intermediaries, advertisers, technology providers and industry associations to prevent ads being placed on IPR-infringing websites, such as illegal streaming websites
The Commission is not a signatory, but it plays a facilitating role, e.g. by organising meetings and ensuring that all signatories act constructively and in good faith.
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.
- Report on the public consultation on due diligence and supply chain integrity for intellectual property protection
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 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.
In March 2019, the Organisation for Economic Cooperation and Development (OECD) and the EU Intellectual Property Office (EUIPO) launched the joint study, 'Trends in Trade in Counterfeit and Pirated Goods', which examines the value, scope and trends of trade in counterfeit and pirated goods, and illustrates the full scale of the impact of these goods using empirical evidence. The Commission will use the results of this study to assess how the IP enforcement framework in the single market should be modernised. This study updates the results published in the 2016 report, 'Trade in Counterfeit and Pirated Goods: Mapping the Economic Impact'.