Audiovisual Sector Social Dialogue Committee The application of Directive 2004/48/EC on enforcement of intellectual property rights Audiovisual Sector Social Dialogue Committee 01/03/2011 Enforcement of Intellectual Property Rights Unit DG Internal Market and Services European Commission

Overview Report on the application of the Directive of 22 December 2010 Transposition process Issues addressed in the Report: Internet Intermediaries and Injunctions Right of Information Evidence Scope Damages Corrective measures Next steps

Report on the application of Directive 2004/48/EC Two documents. Commission Report containing conclusions on the analysis (COM(2010) 779 Commission Staff Working Document with article-by-article analysis (SEC(2010)1589) Report and SWD based on reports of 25 MS – One report received after publication of the COM Report At least six reports with very limited information (in some cases reports consisted of only a few paragraphs)

Transposition process Only 5 MS transposed in time (by 26/04/2006): DK, HU, IT, SI and the UK 20 non-communication cases, 5 referrals to the Court of Justice Last MS transposed the Directive in June 2009, one infringement procedure for incomplete transposition is still ongoing Conclusion: In order to assess the size of the existing problems with the Directive and to identify possible solutions we need your help.

Issues related to the Internet Unprecedented possibilities for mass-scale infringements

THE TRADITIONAL COUNTERFEIT SUPPLY CHAIN

THE COUNTERFEIT SUPPLY CHAIN IN THE DIGITAL ENVIRONMENT 7

Issues related to the Internet Quickly changing technical environment and services (P2P, streaming etc) Technically easier to target consumers than the sources of the infringement

Intermediaries and Injunctions Should intermediaries be asked to play a stronger role in combating infringements? Currently often not clear which intermediaries may be injuncted Contractual relation with the infringer as pre-condition? Liability of an intermediary as a pre-condition? No preliminary injunctions in some MS, only permanent ones Scope of injunctions: 2 referrals to the Court of Justice (C-324/09 (L'Oréal v eBay), C-70/10 (Scarlet v SABAM))

Right of Information Protection of Personal Data (interpretation of “without prejudice” clauses) - Promusicae case See also Hunton & Williams studies of 2009/2010, available at http://ec.europa.eu/internal_market/iprenforcement/documents_en.htm Data Retention Laws Commercial scale (e.g. with a view to the right to ask information from intermediaries)

Evidence Search (description) orders not available in all Member States (MS option) Cross-border taking of evidence seems not to be functioning Evidence taking in the Internet Environment environment difficult: e. g. screenshots

Scope Commission Statement of 2005: minimum list of IPR covered IPR vs. unfair competition: Trade Secrets? Parasitic copying? Outside study about to be commissioned on legal protection of trade secrets and against parasitic copying

Damages and corrective measures Infringers’ profits often higher than rightholder’s lost profits Moral damages & damages for negative economic consequences: not requested as a matter of course, if granted, normally low Corrective measures Unclear distinction between “recall” and “definitive” removal from the channels of commerce Goods which are longer in the possession of the infringer Secondary Use of the Infringing Goods Costs of Destruction

Next steps Public consultation until 31 March Discussions with stakeholders in the context of the Stakeholders‘ Dialogue on online copyright infringements IA to be drawn up in the course of 2011 Legislative proposal (if needs be) not before end 2011/beginning 2012

Documents on-line and more information available on http://ec.europa.eu/internal_market/iprenforcement/directives_en.htm 15