In its recent report about the application of 2004 Directive on the enforcement of intellectual property rights, the European Commission highlights the important progress which has been achieved since it was adopted and implemented in the Member States. However, Commission also points out the important increase in the economic value of IPR infringements and the need to pay attention to certain issues such as the observance of procedures, legal proceedings and protective measures, as well as taking into account the changes introduced by the Internet and digital technologies.

The Report from the European Commission regarding the application of Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (SEC(2010) 1589 final) of 22 December 2010, is the first evaluation of the impact of the Directive since it was adopted and implemented in the Member States. This Directive created high European legal standards to enforce different types of rights that are protected by independent legal regimes, such as copyright, patents, trademarks and designs, but also geographical indications and plant breeders' rights.

In general terms, the European Commission has concluded with the information it received that the Directive has had a substantial and positive effect on protecting intellectual property rights under civil law in Europe, creating a straightforward framework for enforcing intellectual property rights which, broadly, provides comparable protection across national borders. However, due to late transposition of the Directive in many Member States which was not completed until 2009, experience in applying the Directive is limited and only few court cases have been reported. 

The analysis shows that certain provisions of the Directive including the relationship with other Directives are understood in different ways in the different Member States and have given rise to different interpretations and application in practice, and therefore the Commission concludes that these provisions could warrant further clarifications to make the Directive fully effective.

Internet, digital technologies and the protection of intellectual property rights

The report points out that the Internet and digital technologies have added an extra, challenging dimension to enforcing intellectual property rights, an issue which was recently pointed out by the Parliament when calling for armonisation at EU level. On the one hand, the Internet has allowed creators, inventors and their commercial partners to find new ways to market their products. On the other hand, it has also opened the door to new forms of infringements, some of which have proved difficult to combat.

The multi-purpose nature of the Internet makes it easy to commit a wide variety of infringements of intellectual property rights,  such as selling products infringing IPR, file-sharing of copyright-protected content, online sites which are either hosting or facilitating the online distribution of protected works, etc. In this context, Commission suggests that the limitations of the existing legal framework may need to be clearly assessed.

Aspects such as the concept of intermediaries and the workability of injunctions, the right balance between the right of information and privacy laws, or the compensatory and dissuasive effect of damages, among others, have been analysed in the Commission's report.

The main conclusion drawn from this first evaluation of the Directive is that the Directive has had a substantial and positive effect on the protection of intellectual property rights by civil law in Europe, although it has become apparent that the Directive was not designed with the challenge posed by the Internet to the enforcement of intellectual property rights in mind.

In order to inform the Commission's decisions on any future measure that might be envisaged and to feed the thorough impact assessment work that the Commission is launching as concerns the issues mentioned in its Report, the Commission will welcome any feedback from the European Parliament, the Council of Ministers, Member States, the European Economic and Social Committee and all other interested parties on this Report by 31 March 2011.