On 1 July the European Commission adopted an action plan to address infringements of intellectual property rights in the EU (COM(2014) 392/2). The action plan intends to shift the attention of enforcement policies and actions from individuals infringing IP rights towards commercial scale infringers as they are viewed as the most harmful according to the Commission.
The EU Commissioner for Internal Market and Services, Michel Barnier commented on the new plan stating: “Rather than penalising the individual for infringing intellectual property rights, often unknowingly, the actions set out here pave the way towards a ‘follow the money’ approach, with the aim of depriving commercial-scale infringers of their revenue flows”.
An action plan is deemed necessary by the Commission due to the high importance of IP-rights for the European market. According to the communication IPR-intensive sectors account for around 39% of EU GDP. The number of new European patent, Community trade marks and Community designs registrations more than doubled between 2003 and 2012. At the same time IP infringements also rose to an all-time high; from less than 27,000 cases of goods suspected of infringing intellectual property rights registered by EU border control in 2005, to 90,000 cases in 2012.
The action plan consists of ten measures, which are summarized in the following link released by the Commission: (http://ec.europa.eu/internal_market/iprenforcement/docs/action-plan/140701-10-actions_en.pdf). The measures are targeted at the private sector as well as at member states and national authorities. They are to be undertaken this year and in 2015. The plan does not yet contain any legislative measures, however additional measures (including legislative) will be considered by the Commission later on.
The action plan centers around the idea that everyone involved in the value-chain for IP intensive products – from right-holders to distributors to end consumers – should apply due diligence to avoid and prevent IP infringements. It further stresses the need for more cooperation between member states and better training for the responsible public authorities.
The first action point named is a campaign to raise awareness amongst consumers, employees and clients on the impact of infringing products. This is reinforced by the second point which encourages the implementation of due diligence best practices in supply chains to prevent an infiltration of distribution chains with IP infringing products.
Moreover the Commission promotes the idea of further cooperation between right-holders and companies that market, distribute and sell the products to make the detection and prosecution of IP-infringements significantly easier. Specifically, the Commission will facilitate further voluntary arrangements to reduce profits of commercial scale online piracy following dialogue with advertising service providers, payment services and shippers.
The Commission further addresses the need to help small and medium-sized enterprises (SMEs) to enforce their IP rights as SMEs are often deterred by the high cost and complexity of IP cases.
Another measure named is the plan to publish a Green Paper concerning the possibility of using chargeback systems for consumers in order to reduce profits from infringement on the internet. Such chargeback systems are already in place in various EU countries in case of fraud. The Commission deems it obvious that such systems could be adapted to also apply in cases where IP-infringing products were sold.
To intensify the cooperation between member states the Commission plans to establish a Member State Expert Group on IP Enforcement where public authorities can share their experiences. This is to be accompanied by intensified training programs for member state authorities concerning IP enforcement. Lastly, the Commission promises to publish a biennial report called “IP in the EU economy” in the future in which economic reports on the field are to be gathered.
This action plan marks an important shift in IP enforcement strategies in the EU towards targeting commercial scale infringers. The shift has the potential to lead to more effective IP enforcement and to a more thorough acceptance of the enforcement of IP rights with end consumers. Whether those goals are achieved must be determined after the first measures of the plan have been executed. All documents concerning the new Action Plan are available here: http://ec.europa.eu/internal_market/iprenforcement/action-plan/index_en.htm#140701