41-671: Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (also known as "(IPR) Enforcement Directive" or "IPRED") is a European Union directive in the field of intellectual property law, made under the Single Market provisions of the Treaty of Rome . The directive covers civil remedies only—not criminal ones. Under Article 3(1), Member States can be censured in
82-508: A directive in theory but has failed to abide by its provisions in practice. If a Member State fails to implement a Directive timely or correctly, the Directive itself becomes binding on the Member States, meaning that parties in proceedings against the state may rely on provisions of the untimely or incorrectly transposed Directive. An example of a case in which the applicant was able to invoke
123-472: A party who is found to be guilty of disposing of assets will be held to be in contempt of court. Like Anton Piller orders, their use is confined mostly to the UK. Article 9(2) provides that, in the case of an infringement on a commercial scale, judicial authorities may order a precautionary seizure of "movable and immovable property " which includes freezing the bank accounts and other assets. This may only be done if
164-527: A user can upload data. The second proposed that news publishers should benefit financially when links to their articles are posted on a commercial platform. Responding to criticism, Axel Voss admitted that the law was "maybe not the best idea" but went on to support its passage and draft some of the language being used to amend Article 11. The update has been widely derided as a link tax . Its critics include German former MEP Felix Reda , Internet company Mozilla and copyright reform activists associated with
205-581: Is Article 288 of the Treaty on the Functioning of the European Union (formerly Article 249 TEC ). Article 288 To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to
246-685: Is a directive in European Union law that was enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions . The directive was first enacted in 2001 under the internal market provisions of the Treaty of Rome . The draft directive was subject to unprecedented lobbying and was considered a success for Europe's copyright laws. The 2001 directive gave EU Member States significant freedom in certain aspects of transposition . Member States had until 22 December 2002 to transpose
287-489: Is not prohibited) would have to do it themselves since no equipment would lawfully be marketed for that purpose. Under the Copyright Directive, this possibility would not be available since circumvention of copy protection is illegal. Member States had until 22 December 2002 to implement the Copyright Directive into their national laws. However, only Greece and Denmark met the deadline, while Italy, Austria, Germany and
328-690: Is presented to the Parliament and the Council —composed of relevant ministers of member governments, initially for evaluation and comment and then subsequently for approval or rejection. There are justifications for using a directive rather than a regulation: (i) it complies with the EU's desire for "subsidiarity" ; (ii) it acknowledges that different member States have different legal systems, legal traditions and legal processes; and (iii) each Member State has leeway to choose its own statutory wording, rather than accepting
369-539: The Court of Genoa , Italy, the Dutch company Philips , owner of patents on CD-R technology, requested and obtained an order of precautionary seizure over all Princo's movable and immovable property, including its bank accounts, with a view to ensuring the recovery of damages to be awarded at the end of the liability proceedings. A judgement in the case of Tommy Hilfiger Licensing LLC and others v Delta Center A. S. (2016) extends
410-630: The Digital Millennium Copyright Act , which only prohibits circumvention of access control measures, the Copyright Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both the DMCA and the Copyright Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under the DMCA, potential users who want to avail themselves of an alleged fair use privilege to crack copy protection (which
451-616: The European Court of Justice if their civil procedures on the infringement of intellectual property rights are "unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays". Otherwise the Directive harmonises the rules on standing , evidence , interlocutory measures, seizure and injunctions , damages and costs and judicial publication . The Directive requires all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy. Thus,
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#1732891523428492-632: The Information Society Directive and are, in principle, subject to national law. Apart from the ordinary injunctions of the previous paragraph there also exist the so-called Mareva injunctions in Article 9(2). In common law, these are ex parte and in personam orders used to freeze assets (including bank accounts) to prevent abuses of process. They can be issued as worldwide injunctions, preventing worldwide dispersal. In that case, their effectiveness depends on their in personam character, as
533-452: The Brussels' official " Eurospeak " terminology. For example, while EU Directive 2009/20/EC (which simply requires all vessels visiting EU ports to have P&I cover) could have been a regulation (without requiring member states to implement the directive), the desire for subsidiarity was paramount, so a directive was the chosen vehicle. The legal basis for the enactment of directives
574-670: The Directive is defined in Article 2. It applies to all infringements of IP rights in Community and national law, without precluding more stringent protection that the Community or national law may otherwise grant. The general obligation in the Directive is to provide for remedies necessary to enforce intellectual property rights. These shall be "fair and equitable" and must not be "complicated or costly, or entail unreasonable time-limits or unwarranted delays". They must furthermore be effective, proportionate and dissuasive and must not act as barriers to trade. The persons who are entitled to apply for
615-672: The European Court of Justice developed the doctrine of direct effect where unimplemented or badly implemented directives can actually have direct legal force. In the important case of Francovich v. Italy , the ECJ extended the principle of Van Gend en Loos to provide that Member States who failed to implement a directive could incur liability to pay damages to individuals and companies who had been adversely affected by such non-implementation. Information Society Directive The Copyright and Information Society Directive 2001 ( 2001/29 )
656-544: The European Court of Justice's decision in the L’Oréal v eBay 2011 case (relating to online marketplaces). The Tommy Hilfiger case held that under the third sentence of Article 11 of the Directive, operators of physical marketplaces, in this case Prague Market Halls, who sublet pitches to market-traders, may be forced to stop concluding contracts with market-traders selling counterfeit goods within their facilities, in order to prevent infringements of intellectual property rights by
697-533: The Intellectual Property (Enforcement, etc.) Regulations 2006. The Directive has been implemented into Dutch law, and came into force on 1 May 2007. It has been implemented in France on 27 June 2008. The Swedish parliament voted to implement the Directive on 26 February 2009, and it went into force on 1 April 2009. The Directive has been widely criticised for what opponents called a draconian approach similar to
738-620: The UK implemented the directive in 2003. The remaining eight Member States (Belgium, Spain, France, Luxembourg, The Netherlands, Portugal, Finland and Sweden) were referred to the European Court of Justice for non-implementation. In 2004 Finland, the UK (with regards to Gibraltar ), Belgium and Sweden were held responsible for non-implementation. National implementation measures include: In 2016, leaked documents revealed that two new provisions were under consideration. The first, aimed at social media companies, sought to make automated screening for copyrighted content mandatory for all cases in which
779-502: The United States' Digital Millennium Copyright Act (DMCA). In fact, the criticism was so strong—especially from the telecommunications industry and parts of computer industry—that the original draft was substantially modified. A number of problems still remain in the final document, according to the international civil liberties organisation IP Justice . In the 2007 Princo Corporation, Ltd v Koninklijke Philips Electronics case before
820-445: The applicant demonstrates that it is likely that recovery of damages will be endangered. Further to that, documents relating to banking and other financial transaction may be communicated. The provisions of the Directive were due to be implemented in all member states of the European Union by 29 April 2006. However, a number of states have not completed the necessary steps. The Directive has been implemented into United Kingdom law by
861-437: The appropriate legislative procedure, both institutions can seek to make laws. There are Council directives and Commission directives. Article 288 does not clearly distinguish between legislative acts and administrative acts, as is normally done in national legal systems. Directives are binding only on the member states to whom they are addressed, which can be just one member state or a group of them. In general, however, with
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#1732891523428902-432: The data they transmit, even if it infringes copyright. The other limitations are optional, with Member States choosing which they give effect to in national laws. Article 5(2) allows Member States to establish copyright exceptions to the Article 2 reproduction right in cases of: Article 5(3) allows Member States to establish copyright exceptions to the Article 2 reproduction right and the Article 3 right of communication to
943-439: The directive into their national laws, although only Greece and Denmark met the deadline. Articles 2–4 contain definitions of the exclusive rights granted to under copyright and related rights . They distinguish the "reproduction right" (Article 2) from the right of "communication to the public" or "making available to the public" (Article 3): the latter is specifically intended to cover publication and transmission on
984-486: The directive to be implemented correctly. This is done in approximately 99% of the cases. If a member state fails to pass the required national legislation, or if the national legislation does not adequately comply with the requirements of the directive, the European Commission may initiate legal action against the member state in the European Court of Justice . This may also happen when a member state has transposed
1025-572: The exception of directives related to the Common Agricultural Policy , directives are addressed to all member states. When adopted, directives give member states a timetable for the implementation of the intended outcome. Occasionally, the laws of a member state may already comply with this outcome, and the state involved would be required only to keep its laws in place. More commonly, member states are required to make changes to their laws (commonly referred to as transposition ) in order for
1066-472: The hands of the other party to be presented. The only requirement is for that party to present "reasonably available evidence sufficient to support its claim" to courts. In case of an infringement on a commercial scale, Member States must also take steps to ensure that "banking, financial or commercial documents" of the opposing party are presented. In both cases confidential information shall be protected. Measures for preserving evidence are available even before
1107-460: The intentional circumvention of "effective technological measures" designed to prevent or restrict acts of copying not authorised by the rightholders of any copyright, related right or the sui generis right in databases ( preamble paragraph 47). Member States must also provide "adequate legal protection" against the manufacture, import, distribution, sale, rental, advertisement, or possession "for commercial purposes of devices, products or components or
1148-534: The internet. The two names for the right derive from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (Arts. 8 & 10 respectively). The related right for authors to authorise or prohibit any form of distribution to the public by sale or otherwise is provided for in Article 4 ( exhaustion rights ). Article 5 lists the copyright exceptions which Member States may apply to copyright and related rights. The restrictive nature of
1189-465: The judicial authorities may issue an interlocutory injunction to prevent an "imminent infringement" of intellectual property rights or to prevent a continuing infringement. In the latter case, the order may be followed with a recurring penalty payment or lodging of a guarantee intended to compensate the rights holder (paragraph a). An injunction can also be issued, under the same conditions, against an intermediary, but these are covered in Article 8(2) of
1230-459: The list was one source of controversy over the directive: in principle, Member States may only apply exceptions which are on the agreed list, although other exceptions which were already in national laws on 2001-06-22 may remain in force [Article 5(3)(o)]. The Copyright Directive makes only one exception obligatory: transient or incidental copying as part of a network transmission or legal use. Hence internet service providers are not liable for
1271-409: The market-traders. European Union directive A directive is a legal act of the European Union that requires member states to achieve particular goals without dictating how the member states achieve those goals. A directive's goals have to be made the goals of one or more new or changed national laws by the member states before this legislation applies to individuals residing in
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1312-497: The member states. Directives normally leave member states with a certain amount of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of legislative procedures depending on their subject matter. The text of a draft directive (if subject to the co-decision process, as contentious matters usually are) is prepared by the Commission after consultation with its own and national experts. The draft
1353-452: The other party having been heard, in particular where any delay is likely to cause irreparable harm to the rights holder or where there is a demonstrable risk of evidence being destroyed". These are interlocutory , ex parte and in personam orders known in the English and Irish jurisdictions as Anton Piller orders and in France as " saisie-contrefaçons ". At the request of an applicant,
1394-446: The proceedings commence. Article 7 provides that such measures may be granted under the same conditions as under Article 6 and include provisional measures such as "the detailed description, with or without the taking of samples, or the physical seizure" not only of the infringing goods (such as hard drives ) but also materials used in the production and distribution (e.g., French saisie-contrefaçon ). Such measures may be taken "without
1435-445: The provision of services which": In the absence of rightsholders taking voluntary measures the Directive provides that Member States must ensure that technological measures do not prevent uses permitted under Article 5 on copyright exceptions , see Article 6(4). Article 7 requires that Member States must provide "adequate legal protection" against the removal of rights management information metadata . Unlike Section 1201 of
1476-711: The provisions of an untimely transposed Directive is the Verkooijen case, in which the European Court of Justice rendered a judgement on 6 June 2000 (case no. C-35/98). The United Kingdom passed a statutory instrument , the Unfair Terms in Consumer Contracts Regulations 1994 , to implement the EU Unfair Terms in Consumer Contracts Directive 1993 . For reasons that are not clear, the 1994 SI
1517-518: The public in cases of: According to Article 5(5) copyright exceptions may only be "applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder", therefore the directive confirms the Berne three-step test . Article 6 of the Copyright Directive requires that Member States must provide "adequate legal protection" against
1558-505: The purpose of the instrument is to regulate enforcement of intellectual property rights, not the rights themselves. The Directive leaves unaffected the substantive provisions on intellectual property, international obligations of the Member States and national provisions relating to criminal procedure and criminal enforcement. The subject-matter of the Directive is defined in Article 1. It applies to enforcement of intellectual property rights which include industrial property rights. The scope of
1599-444: The remedies are primarily the holder of intellectual property right, but also any person authorised to use it, such as licencees and intellectual property rights. Collective rights management and professional defence bodies may also have the right under certain circumstances. Section 2 of the Directive deals with the evidence. Article 6 gives the power to the interested party to apply for evidence regarding an infringement that lies in
1640-453: The result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force. The Council can delegate legislative authority to the Commission and, depending on the area and
1681-437: Was deemed inadequate and was repealed and replaced by the Unfair Terms in Consumer Contracts Regulations 1999 . The Consumer Rights Act 2015 , a major United Kingdom statute consolidating consumer rights, then abolished the 1999 SI; so presumably the 2015 Act complies with the 1993 EU directive, which remains extant. Even though directives were not originally thought to be binding before they were implemented by member states,