1. 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

2. 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

3. 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)

4. 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.

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

6. THE TRADITIONAL COUNTERFEIT SUPPLY CHAIN

7. THE COUNTERFEIT SUPPLY CHAIN IN THE DIGITAL ENVIRONMENT7

8. 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

9. 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))

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

11. 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

12. 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

13. 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

14. 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

15. Documents on-line and more information available on 15