New EU actions on enforcement of Intellectual Property Rights

by DLA Piper

On 1 July, the European Commission has adopted two communications on (i) an Action Plan to address infringements of intellectual property rights (IPRs) in the EU and (ii) a Strategy for the protection and enforcement of intellectual property rights in third countries.

Intellectual Property is a key driver for growth, innovation and employment, also (and even more) during the current economic crisis. However, says the EC, “the high numbers of infringements of intellectual property rights (IPR) can harm this positive trend. In 2012 alone, EU border control agencies registered 90,000 cases of goods suspected of infringing intellectual property rights (compared to fewer than 27,000 in 2005). The OECD estimates that the annual loss from IPR infringements to the world economy is around €200 billion“. Hence the need for an enhanced enforcement of IPRs, which must also take into account the changes that occurred and which will occur in the EU and at a global level.

The Communication on the Action Plan for the enforcement of IPRs in the EU (text is available here) sets out ten specific actions providing for new enforcement policy tools. Among them, we find the so-called “follow the money” approach, which aims at depriving commercial-scale infringers of their revenue flows, rather than penalizing the individuals for infringing IPRs.

Here below are summarized the ten actions:

  • Action 1: The Commission intends to promote the efforts of the Observatory on infringements of Intellectual Property Rights and national authorities to launch and monitor a new generation of targeted communication campaigns. This should include campaigns to raise awareness amongst citizens, especially young people on the economic harm caused by commercial scale IP infringements and on the potential health and safety risks associated with IPR-infringing products, as well as campaigns to highlight the benefits for consumers from choosing IP respecting products and to facilitate access to such products.
  • Action 2: The Commission will launch a series of consultation actions with all relevant stakeholders including civil society on applying due diligence throughout supply chains as a means to prevent commercial scale IP infringements. On the basis of the information collected it intends to develop an EU due-diligence scheme for this purpose. It will, in the first instance, seek to encourage the voluntary take-up of the scheme that it will monitor closely to determine if further initiatives are required.
  • Action 3: The Commission will facilitate the development of further voluntary Memoranda of Understanding to reduce the profits of commercial scale IP infringements in the online environment, following Stakeholder Dialogues involving advertising service providers, payment services and shippers.
  • Action 4: The Commission intends to analyse and report on existing national initiatives seeking to improve IP civil enforcement procedures for SMEs, in particular in respect of low value claims and consider possible action in this field.
  • Action 5: The Commission will issue a Green Paper to consult stakeholders on the need for future EU action based on the best practice found in nationally financed schemes assisting SMEs to enforce their IP rights.
  • Action 6: The Commission will issue a Green Paper to consult stakeholders on the impact of chargeback and related schemes to tackle commercial scale IP infringements. On this basis, it will explore the need and scope for taking concrete action in this field.
  • Action 7: The Commission will establish a Member State Expert Group on IP Enforcement, where Member States could share best practice on the work within the EU of all their concerned authorities and be informed on the delivery of this Action Plan.
  • Action 8: The Commission will support the Observatory in the development of a comprehensive set of sectoral IP enforcement related training programmes for Member State authorities in the context of the Single Market.
  • Action 9: The Commission intends to develop, promote and publish a guide on best practice for public authorities to avoid purchasing counterfeit products.
  • Action 10: The Commission shall publish a biennial report on the economic impact of the EU’s IP policy that could serve as a more effective monitoring tool for the EU’s new IP enforcement policy as set out in this Communication.

The Action Plan does not cover the review of copyright rules, which is the subject of another ongoing work, following the conclusion of the Public Consultation on the review of the EU copyright rules, and covering a broad analysis of the existing legislative framework for copyright in the EU’s digital single market.

As regards the international protection of intellectual property rights (the Communication setting out the Strategy for the protection and enforcement of intellectual property rights  is available here), the European Commission considered it appropriate to review and update the 2004 strategy to take account of the insights from the 2010 evaluation and pursue the new challenges for the future. Changes and challenges to be considered in the new strategy include the success of the internet and related increasing IPR infringements, research and innovation as a tool to face the new global challenges (climate change and sustainable development), access to affordable, safe and effective medicines.

In order to tackle the above-mentioned issues, the following action points will be taken up by the European Commission:

  • Ensure regular interaction with all stakeholders to raise awareness and guide policy;
  • Enhance data collection and reporting, so as to improve the understanding of the role of IPR and the impact of infringement; conduct regular surveys in order to maintain a list of ‘priority countries’ for focused EU efforts;
  • Ensure a strong and coherent role for the EU in international IPR fora in line with the Lisbon Treaty;
  • Continue multilateral efforts to improve the international IPR framework, including by encouraging further ratification of existing treaties; promote ratification of relevant IPR treaties by all EU Member States;
  • Ensure that IPR chapters in bilateral trade agreements offer adequate and efficient protection for right-holders and address key weaknesses in partner countries’ IPR systems while calibrating commitments to third countries’ level of development;
  • Ensure the Commission can make recourse to dispute settlement mechanisms or other remedies where the EU’s rights under international agreements are infringed;
  • Continue and where possible enhance ‘IP Dialogues’ with key third countries; leverage high-level trade and political dialogues to ensure progress on identified IPR issues;
  • Provide and promote awareness of appropriate IP-related technical assistance programmes to third countries, including on the possible use of IP flexibilities; leverage the expertise of relevant international organisations in implementing technical assistance programmes;
  • Establish a stronger relationship between the Commission, Member States and EU business to directly support economic operators in overcoming concrete difficulties on IP issues; enhance networking and coordination of actions between EU and Member States representations in third countries;
  • Aim at better coherence between IPR and other policies, e.g. consider restricting participation or funding in specific EU-funded programmes in sufficiently serious and clearly targeted cases, and to improve coherence between the Commission and Member States in third countries in this goal;
  • Continue assistance to right-holders (through projects such as IPR Helpdesks) and consider their possible expansion; consider further posting of IPR experts to key EU delegations.

The actions set out in these Communications should be launched and carried out in 2014 and 2015. The Commission will then consider whether further measures (including new regulations) are necessary on the basis of the outcome of these actions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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