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Catherine Stihler’s opinion on EU IPR enforcement action plan

Enforcement of intellectual property rights (IPRs) is not merely a driver for jobs and growth across the Union but is essential for the proper functioning of the single market, especially in view of factors such as share of EU GDP, employment, and the range of industries which benefit from and exploit IPRs, and plays a key role in stimulating innovation, creativity, competitiveness and cultural diversity.

IPRs are not just copyrights but also trademarks and patents, among others, and that each of these is vital to the value of Europe’s goods and services. Counterfeit and IPR infringing physical goods are increasingly being traded and sold via online marketplaces, where Member State authorities have limited abilities to control sales. Commission should also consider the effectiveness of existing initiatives and possible future activities with regard to the role of intermediaries in tackling IPR infringement.

IPR infringing products not only cause a direct loss of revenue to legitimate businesses and the European economy but also lead to direct and indirect job losses, to reputational damage and to increased enforcement costs, whilst often having links with organised crime, in addition to posing a potential threat and being a potential source of damage to consumer health and safety. Product quality and safety is not automatically linked to product authenticity. IPR status and the possible infringement thereof are governed by a different set of rules than consumer product safety and quality.

Consumers should be better able to identify infringing offers so that they can decide not to proceed with a given purchase. Commission’s action plan does not include any action designed to improve consumers’ ability to identify infringing goods and contents. For SMEs, clear and manageable structures for enforcement of their IPRs are crucial.

The duty of the Office for Harmonisation in the Internal Market (OHIM) to obtain data documenting IPR infringements from the industry and to generate reliable data and analysis of the real impact of infringements on economic actors should be part of the ten-point action plan and of the basis for further actions in the different sectors most affected.

In order to achieve a meaningful enforcement of IPR, full information should be available and accessible regarding the type of IP rights (patent, trademark and copyright, for example) concerned in each situation, the status of the validity of these rights and the identity of the owners, including in the form of metadata in the case of digital files.

Any IPR-related legislation needs to reflect the development of the digital era, taking into account the online environment and various means of distribution, guaranteeing a balanced approach representing the interests of all stakeholders involved, and in particular of consumers and their right of access to content, whilst at the same time promoting artists, creators and innovation in Europe.

Enforcement of intellectual property rights should (de) fully respect the principle of proportionality, balancing the rights of content owners with those of the users, which need to be fully compatible with the Charter of Fundamental Rights of the European Union and data protection rules, namely the protection of personal data, respect for private life and the right of access to justice.