On Wednesday 29 November, the European Commission announced several measures to improve the protection of intellectual property in Europe and to fight more effectively at international level against counterfeiting and the piracy of European know-how. No legislative initiative was announced, but a series of reports and guidelines on the 2004 directive on intellectual property were.
European Commissioner for the Internal Market and Industry Elżbieta Bieńkowska stated that the Commissions' goal is to fight against the "big fish" (to use her term) that are at the origin of counterfeit and pirated goods. Its goal is also to make Europe the world leader on patents with a licensing system favouring the development of the internet of things.
The reason for this is that the Commission says counterfeit and pirated goods represent 2.5% of the value of global trade, and that the production of these goods continues to grow. In Europe, around 5% of all imports is reported to be counterfeit goods or services with an estimated value of €85 billon.
The Commission says it wants to adopt a "follow the money" approach that puts the emphasis on financial flows in order to focus on companies that are at the origin of counterfeiting, rather than on private individuals. The objective is to deprive offenders of their income.
The Commission wants these guidelines to clarify the questions of interpretation of the Intellectual Property Rights Enforcement Directive (IPRED) (Directive 2004/48/EC), given that the legislative text is subject to differing interpretations and implementation. Germany would act as the star pupil, whilst the southern member states would be less effective on this. A source says that the guidelines can be applied immediately, unlike a legislative initiative. This is an important point, given that the end of the Commission's mandate is on the horizon.
The guidelines, particularly the technical guidelines, set out the modalities for issuing an injunction to an online platform, and they say that some arrangements in the directive only apply to infringements committed "on a commercial scale" – a notion that the Commission also clarifies in the light of the commercial advantage given by the infringements of intellectual property rights (IPR). The guidelines also say that it is possible to claim damages not only for material damage, but also for moral damage.
The Commission furthermore highlights voluntary cooperation, mentioning the memorandum of understanding on the sale of counterfeit goods on the internet. This was signed by a series of economic actors in June 2016. On this point, the Commission says it is working with representatives from the publicity sector to set up a new sectoral memorandum of understanding, and it adds that a memorandum of understanding on payment services is about to be concluded, as well as another with the transport and shipping sector.
On the international level, the Commission intends to strengthen cooperation programmes with third countries, especially China, South-East Asia and Latin America. In order to do this, the Commission intends to extend "the positive experience" of the IP KEY programme between the EU and China to all member countries of the ASEAN (Association of South-East Asian Nations). Moreover, the Commission wants to create a watch list for markets at risk for the application of IPR in third countries in collaboration with the European Observatory on Infringements of Intellectual Property Rights (EUIPO Observatory). It will thus launch a public sectoral consultation. This list is likely to be presented in the second half of 2018. The Commission intends to assess application of the EU's 2013-2107 customs action plan on infringements of intellectual property, and it wants to bring targeted assistance to national customs authorities.
In addition, the Commission presents its guidelines and recommendations on standard-essential patents (BEN). These are patents that focus on technologies essential for implementing standard or specific technical specifications for interoperable products such as mobile phones or other connected apparatus that use, for example, 3G or 4G networks. The Commission also wants to make licensing more transparent and stable in order to safeguard the economic actors that want to use these technologies, the underlying objective being to facilitate the rise of 5G and the internet of things.
As part of this, the Commission wants to create a group of experts dedicated to IPR by focusing on licensing, the increased status of IPR and the determination of the so-called FRAND conditions (the conditions under which BEN patent-holders make their technology available for users of the standard). The Commission will launch a pilot project to assess BEN patents in order to take further measures if necessary so as to improve licensing.
These initiatives were provided for as part of the single market strategy presented in October 2015 (see EUROPE 11417, 11419). (Original version in French by Pascal Hansens)