The Digital Single Market is starting to take shape. A central part of this project is the reform of the European Copyright framework. But while it is apparent that the Directive 2004/48 on the enforcement of intellectual property rights is outdated and in dire need of an update there has not been much progress regarding the enforcement of IP rights. Even though a revision had been announced by the EU Commission in 2015 in its strategy paper on the Digital Single Market, the discussions on this have come to a halt.
Recently a letter of the Director General of the Commission Lowri Evans to Thomas Husak and the cabinet of Commissioner Elżbieta Bieńkowska (Internal Market, Industry, Entrepreneurship and SMEs) Head of Cabinet dated 22 March 2017 has leaked. It offers a glimpse into the progress of the reform and the discrepancies between the different camps about the further strategy.
Effective enforcement as key element
In the action plan “Towards a modern, more European copyright framework” published by the EU Commission already on 9 December 2015, the EU Commission highlighted the need for an effective enforcement of IP rights. It is not only necessary to modernize IP rights itself – right holders also need effective measure for the enforcement of their rights. In December 2015 the Commission published a public consultation on the modernization of the enforcement of IP rights. Since then, however, nothing has happened. The leaked internal letter now gives some insights to the background of the halt.
A revealing Leak
In the letter Lowri Evans first discusses the current state of the debate on the Enforcement Directive and highlights the need for reform. Her personal provisional conclusion is that the review has reached a “deadlock”. A reason for this might be that certain members of the commission thought of the review of the Enforcement Directive as a “trade-off”. In order to get certain restrictions on copyright protection to pass they wanted to strengthen the enforcement of IP rights in return. In the light of the latest drafts for regulations and directives – which did not lead to as many restrictions – the parties apparently do not believe such a “trade-off” is necessary anymore.
However, the deficiencies of the current Enforcement Directive are apparent to Lowri Evans. To her they were especially caused by the vastly different interpretations of the Directive by the Member States. It would therefore be necessary to at least work towards clarifying the existing framework. Evans proposes two possible options for further proceeding: (1) A new legislative proposal for a fundamental reform of the Directive or (2) the formulation of an evaluation report with clear recommendations on the interpretation and implementation of the existing Directive.
According to Evans a legislative draft would only be successful if everyone in the Commission would genuinely be supportive of a reform. Otherwise, resources would be wasted. If this were not possible it might be better to concentrate on a detailed evaluation resulting in corresponding guidelines and recommendations by the Commission. However, Evans also mentions that certain aspects – such as the role of intermediaries and cross-border enforcement – cannot be tackled by the Enforcement Directive. Those issues should be integrated into other existing initiatives. An especially careful approach should be taken regarding the liability of intermediaries, like online platforms. This would be especially true in the context of the latest communication “Online Platforms and the Digital Single Market Opportunities and Challenges for Europe” published on 25 May 2016.
When looking at the leaked document, it has to be kept in mind that it was drafted already in March. In it the month of May is named as a possible date for a decision of the cabinet. However, nothing has been announced yet. Hopefully there will be a decision on this matter in the coming weeks as there is definitely a need for reform in this area.