In light of the evolution of commercial scale IP infringing behavior, the Commission highlighted in recently adopted Action Plan that it would seek with the MS to re-orientate its policy for IP enforcement towards a better compliance of IP right by all economic actors. Rather than penalizing the citizen for infringing – often unknowingly – IP rights, the non-legislative actions set out in this Action Plan pave the way towards a “follow the money approach”, seeking to deprive commercial scale infringers of the revenue flows that draw them into such activities.
Therefore, and in order to establish a coherent and comprehensive framework of action against online economic crime, two additional elements of IP enforcement could become important building blocks of the DSM, and would play a key role in improving trust and security of IP intensive businesses.
1) a “fair” DSM where all economic agents (not only ISPs) apply due diligence principles in their value chain – thus ensuring compliance and enforcement on the internet. This could be encouraged by clarifying existing injunctive provisions in the IPRED directive. On the basis of Article 11 of IPRED – which already opens the possibility to seek injunctive relief against intermediaries, the aim would be to encourage due diligence to be applied by all (on-line and off-line) intermediaries as a means to avoid commercial scale infringing. This would fulfil the “follow the money approach to IP enforcement”;
2) a “secure” and therefore “fair” EU network on which to build the DSM that could be achieved by the adoption of a revised 2013/0027 proposal. This might include placing commercial scale on-line intellectual property/major economic cybercrime infringements in the scope of the circumstances that the selected network essential service providers would have to notify to public authorities responsible for the security of critical infrastructures;
3) a “fair” and proportionate cross-border redress toolbox in order to protect their investments in innovation and more generally their growth strategies in the digital market place. This follow the money approach to IP enforcement would provide for better respect of IP rights in the DSM allowing it to grow further and be characterised by new innovative entrants.