RD347 - ETNO Reflection Document on the Application of Directive 2004/48/EC on the Enforcement of Intellectual Property Rights

Directive 2004/48/EC regarding the enforcement of intellectual property rights (hereinafter “IPRED”) played and continues to play a crucial role in providing Europe’s right holders with a high level of intellectual property right protection. The IPRED is based upon principles that remain valid today and that should be maintained.

It is premature to propose any revision of the current Directive as the information available on the impact of the Directive is too limited and its effectiveness at this stageis sufficient. Any future eventual revisions must be coherent with the current ISP liability regime.

Enforcement of IPRs should not be seen as the sole solution of illegal downloading by itself: a more holistic view is necessary, focusing on how to increase offers and consumption of legal content. Measures established and applied in accordance with the IPRED must be viable for all parties concerned, must be proportionate to the gravity of infringement, must also respect the fundamental rights to a presumption of innocence, the right to a fair trial, the right to privacy and the right to the confidentiality of communications.

Executive Summary:

ETNO is pleased to provide input to the European Commission (EC) on the possible revision of Directive 2004/48/EC regarding the enforcement of intellectual property rights (hereinafter “IPRED”) and welcome the current analysis as a necessary due step provided for by the Directive itself.

The IPRED played and continues to play a crucial role in providing Europe’s right holders with a high level of intellectual property right protection. The IPRED is based upon principles that remain valid today and that should be maintained.

It is premature to propose any revision of the current Directive: the Commission recognizes in the Report and the Staff Working Document that “the information available on the impact of the Directive is too limited to allow for a full assessment of its effectiveness at this stage”. Instead, in the Staff Working Document the Commission brings many examples demonstrating the good functioning of the Directive throughout Europe.

Any future eventual revisions must be coherent with the current ISP liability regime. It is also crucial to recognize that counterfeiting and online IP infringements are different in nature, and require different approaches.

Enforcement of Intellectual Property Rights should not be seen as the sole solution of illegal downloading by itself: a more holistic view is necessary, focusing on how to increase offers and consumption of legal content and not just on facilitating current infringement claims by rights holders.
 
Measures established and applied in accordance with the IPRED must be viable for all parties concerned and must be proportionate also to the gravity of infringement. They must also respect the fundamental rights to a presumption of innocence, the right to a fair trial, the right to privacy and the right to the confidentiality of communications.

To conclude, measures to protect online intellectual property (“IP”) must be flexible and should not stifle innovation while granting creators of that IP a fair return on their investment.