An efficient and effectively enforced intellectual property (IP) framework is necessary to encourage investment in innovation and creativity while preventing commercial-scale infringements of IP rights that pose risks to the economy, consumer safety, and the environment. The European Commission is committed to establishing an infrastructure that empowers creators and inventors within the EU, ensuring they receive fair returns from creations and innovation, ultimately benefiting the EU economy and society.
What the Commission is doing
As part of the Commission’s commitment to fostering innovation, safeguarding investments, driving the green and digital transition, and protecting consumer safety, public health and the environment, the Commission has adopted a recommendation to combat counterfeiting and enhance the enforcement of IPR (toolbox to fight counterfeiting).
Building on the directive on the enforcement of IPR and the Digital Services Act, this recommendation seeks to make the fight against counterfeiting and piracy more effective by calling for stronger cooperation and information exchange between authorities at all levels and opening a modernisation process for the memorandum of understanding on the online sales of counterfeit products.
It also includes recommendations aimed at enhancing enforcement procedures, the use of AI in the fight against counterfeiting and pirated goods and content, reinforcing the enforcement capacity of SMEs including against cyber-theft and promoting IP awareness, training, and educational material.
The Directive on the Enforcement of IPR
The Directive on the Enforcement of Intellectual Property Rights ('IPRED') was adopted in April 2004. The directive requires all EU member countries to apply effective, dissuasive, and proportionate remedies and penalties against those engaged in counterfeiting and piracy. The objective of IPRED is to create a level playing field for rightsholders in the EU, ensuring that each EU country provides a harmonised set of measures to empower rightsholders in defending their IP rights.
Guidance on the Directive on the Enforcement of IPR
Following the evaluation of IPRED in November 2017 the Commission adopted, as part of the IP package, the guidance communication clarifying provisions of IPRED that have been subject to varying interpretations across EU member countries. These interpretations may relate to the scope, rules on obtaining and preserving evidence, injunctions, or calculation of damages. The guidance is based on rulings by the EU Court of Justice and best practice developed in EU countries.
In light of the findings of the previous evaluation, and taking into consideration the 2017 Commission guidance on certain aspects of the directive and the challenges and recommendations highlighted in the 2022 European Court of Auditors report on EU IP rights, the enforcement study has the objective to further examine the application of specific provisions and measures provided for by IPRED in different EU countries, and to follow up on the Commission recommendation on measures to combat counterfeiting and enhance the enforcement of intellectual property rights. In doing so, it will focus on 5 areas that have been identified as priorities for further alignment:
- Proportionality principle: The study will determine if, in the EU market and considering national laws, the proportionality principle may be applied more effectively.
- Patent Assertion Entities: The study will update the 2016 study on patent assertion entities in the EU taking into consideration the introduction of the Unitary Patent and Unified Patent Court.
- Dynamic blocking injunctions: The study will examine the relevance of dynamic injunctions for IP rights other than copyright and related rights.
- Sharing of information and data protection: The study will focus on the interaction between article 8 of IPRED and data protection rules; identify obstacles and good practices to sharing data among key stakeholders; and assess how data protection rules may be interpreted or adapted to allow an efficient sharing of information for IP enforcement purposes.
- Costs for destruction of infringing goods: The study will focus on potential impacts of alternative corrective measures considering current practices in EU countries and suggest potential solutions.
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.
- Frequently Asked Questions (including the 10 main actions of the plan)
- Citizens’ summary of the Action Plan
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.
