Draft evaluation and review of the IPR enforcement directive – quo vadis?

In the Digital Single Market and the Single Market Strategies the Commission announced that it will review the EU intellectual property enforcement framework. In response to this announcement DG GROW evaluated the functioning of Directive 2004/48/EC on the enforcement of intellectual property rights and prepared a review of the Directive. Recent discussions between the relevant Cabinets and services involved revealed a fundamental disagreement on the general orientation of the initiative.

While GROW’s evaluation of the Directive identified certain shortcomings of the Directive, the evidence base essentially points to a divergent interpretation and application of the provisions of the Directive across Member States as the major problem, which supports legal clarifications and incremental changes rather than an ambitious, in-depth overhaul of IPRED. This is also reflected in the comments made by other services and SG that so far they do not see that case made for substantial legislative amendments which would need to be demonstrated very clearly in the Impact Assessment.

The evaluation and possible review could be concluded with an evaluation report only. For some of the issues raised in the scoping note alternative measures could be proposed. Clarification on the application of the rules on the identification of the infringer, the proportionality principle, damages and legal costs could be provided in form of Commission guidance on the interpretation of the Directive. A specialisation of the judiciary in IPR matters could be encouraged by a Commission recommendation.

The involvement of intermediaries in IPR enforcement for example is an issue discussed in CNECT’s initiative on helping online platforms tackle illegal content. This initiative looks at the possibility to provide guidance on what proactive actions platforms can take without losing the liability protection of the e-Commerce Directive, to encourage more effective self-regulation. It would be complemented by establishing common rules and criteria (through hard or soft law initiative) for illegal content removal – notice and action.