EU Commission Publishes Communication on the Enforcement of Intellectual Property Rights

BY Heather Greenfield
November 29, 2017

Brussels — The European Commission has published a Communication today, providing guidance on the enforcement of intellectual property rights online and offline across the European Union.

With this Communication, the European Commission clarifies its views in a balanced manner on some provisions of the Directive 2004/48/EC on the enforcement of intellectual property rights (“IPRED”) interpreted differently across the Member States, such as its scope and injunctions.

The European Commission states that “the requirement of ensuring a fair balance between [fundamental] rights, in light of the general principle of proportionality, applies not only in copyright infringement cases, but in cases concerning all the [intellectual property rights] falling within IPRED’s scope”.

“Intermediaries” are defined very broadly, with the European Commission stating that “the possibility to issue an injunction against an intermediary […] does not depend on the intermediary’s liability for the (alleged) infringement in question”. As the Internet ecosystem is now very complex and the issue of involved intermediaries complicated, competent national authorities assessing the necessity and proportionality of granting an injunction against intermediaries on a case by case basis will therefore be key to prevent any unnecessary disruption to the services provided by intermediaries. It is also worth noting that notice and takedown procedures are often less costly and time consuming for rightholders.

On the scope of injunctions, the Computer & Communications Industry Association appreciates the European Commission stressing that “competent judicial authority should not issue injunctions which require the taking of measures that go beyond what is appropriate and necessary in light of the facts and circumstances of the case at hand to prevent an imminent infringement or to forbid the continuation of an infringement” and that an injunction should not unnecessarily affect “internet users who are using the provider’s services in order to lawfully access information.”

The European Commission states as well that, “the addressee of the injunction should not be required to make unbearable sacrifices”, for example by installing and operating  “excessively broad, unspecific and expensive filtering mechanisms”.

The following can be attributed to CCIA Senior Policy Manager, Maud Sacquet:

“The evaluation of the IPR Enforcement Directive (IPRED) by the EU Commission demonstrated that this Directive is still fit for its purpose. The Communication published today provides needed guidance for an harmonized interpretation of this Directive across the European Union.”

“CCIA appreciates the Commission’s statement that intermediaries cannot be required to implement expensive and overly broad filtering mechanisms. At the same time, it is unfortunate that the proposal for a Directive on copyright in the Digital Single Market runs counter to this long-standing principle of EU law.”

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