The Directive on the enforcement of intellectual property rights 2004/48/EC (Directive), which harmonised member states' laws on enforcement, remedies and penalties relating to intellectual property infringement, came into force on 20 May 2004. The Directive was required to be implemented by member states by 30 April 2006.

In January 2011, the European Commission, as required by Article 18 of the Directive, published its first evaluation report of the impact and implementation of the Directive. The Commission concluded that the Directive has had a substantial and positive effect on protecting the intellectual property under civil law in Europe, but the volume and value of online intellectual property infringements was alarming. It then launched a consultation on its report and various issues on which clarification might be required.

The European Commission received 380 responses from a broad range of respondents, the largest share of which was submitted by individuals. Respondents included rights-holders, internet service providers (ISPs), member states' governments, the Committee on Legal Affairs of the European Parliament (Legal Affairs Committee), and the European Data Protection Supervisor (EDPS). 

Here is a summary of the key points of the report; 

1) On the question of whether the Directive was able to meet the challenges posed by the digital environment:

Rights-holders and collecting societies criticised the shortcomings of the Directive as transposed into national law especially regarding the role of intermediaries, as well as its perceived failure to stop the increased online copyright infringement. Rights-holders also requested a stricter liability regime and a reform of the safe-harbour principles.

ISPs, telecommunication operators and individuals stressed that there was no need to change the Directive. Individuals expressed concern that stricter rules would interfere with net neutrality and freedom of speech.

Those respondents who called for a change of the current legal regime considered that it should be in accordance with the already existing legal framework at EU-level, ensuring consistency with the E-Commerce Directive (2000/31/EC).

The Legal Affairs Committee called on the Commission to address aspects of, and challenges posed, by the internet to the enforcement of intellectual property with particular care.

2) On the issue of clarifying and modifying the scope of the Directive, respondents supported the idea of generally clarifying the scope of the Directive. Most of them were in favour of the introduction of a non-exhaustive list into the annex of the text, while a great part considered that the scope should not only be clarified, but, also extended to cover, for example, trade secrets. However, the majority of member states did not consider an extension was justified and that the nature of acts of unfair competition were different from intellectual property infringements.

3) On the issues relating to intermediaries and injunctions:

The great majority of the rights-holders and all collecting societies that responded called for a stronger involvement from intermediaries and for clearer rules regarding the conditions under which injunctions may be granted.

ISPs and telecommunication operators considered this to be a task for the public authorities and if more clarity on how to apply the rules on injunctions was necessary, this should be achieved through Commission guidance.

The majority of member states (including the UK) considered that it was necessary to clarify the role of intermediaries in the process, particularly in relation to the internet where anonymity made it more difficult to take appropriate measures against infringers.

The Legal Affairs Committee considered that an analysis of both the E-Commerce Directive and the Copyright Directive (2001/29/EC) could prove useful for further assessment concerning online intermediaries.

4) On the relationship between the right of information under the Directive and rules on data protection and privacy:  

The majority of rights-holders and collecting societies, considered that the interaction between the current sets of rules needed to be clarified.

All ISPs, telecommunication operators and consumer organisations opposed any such change, referring to the public's right to privacy and the principle of proportionality.

Member states who took a position on this question were almost evenly split in their views, with half of them considering that there was no need to change the current situation. The EDPS saw no need for a modification of the Directive, but considered that guidance on certain issues (such as the limits to the allowed monitoring of internet usage and transferring information in the context of court proceedings) should be provided by way of an interpretative Commission Communication.

5) On the issue of damages:

Rights-holders requested improvement as they felt that the damages awarded were often not dissuasive. They also complained that the considerable differences and inconsistencies in the implementation and interpretation of the Directive across member states made damages claims uncertain and costly in some jurisdictions.

On the other hand, the majority of member states (including the UK) felt that the Directive provided sufficient compensation provisions for rights-holders and that it would be up to the courts under national law to respond accordingly.

All articles are for general purposes and guidance only and do not constitute legal or professional advice.

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