By Joe McNamee

On 11 September, the Italian Presidency of the European Union submitted a discussion paper to the Council (see link below). The paper explains that, following the “review of Directive 2004/48/EC”, the controversial, so-called “Intellectual Property Rights Enforcement Directive” (IPRED) and the public consultation, it is “clear that the current legislative framework is not necessarily fit for purpose”. This is not an unreasonable assessment. It is also not surprising that the Italian Presidency mistakenly believes that there was a review of the Directive, bearing in mind the volume of unproductive European Commission activity (two “roadmaps, one conference, two consultations and an implementation report) that there has been on the topic. Unless the “review” they are referring to is the implementation report which, curiously enough, does not contain the word “review”.

However, having established that the current legislative framework is not fit for purpose, the best thing that the Presidency can think of proposing is to expand and deepen the failed, not fit for purpose enforcement measures that are currently in force. The Italians apparently hope that, if they do the same thing over and over again, different results will be produced.

The document calls for “clarity” on the retention of personal data by intermediaries and the use of such data to identify infringers. They propose this even though the European Court of Justice has ruled that wide-scale retention of personal data for law enforcement purposes, even for serious crime, is contrary to the primary law of the European Union. In order to avoid abuses (that the Italian document helpfully recognises as a real possibility), it proposes that enforcement efforts focus on “commercial scale infringements”. It does this, in apparent ignorance of the fact that the European Commission, in one of its roadmaps for a review of the Directive, indicated that a clearer definition of “commercial scale” is needed in order to avoid individual consumers being unfairly targeted.

Rather than seeking to reform the legal framework, which it describes as not “necessarily” fit for purpose, rather than reforming the definition of “commercial scale”, the Italian Presidency suggests a directionless reflection on the possibility of imposing policing duties on undefined Internet intermediaries. It foresees obligations requiring them to somehow “know” their customers in order to… well, they don’t actually tell us.

In the same vein, the Italian Presidency implicitly supports expanding the range of Internet intermediaries on which injunctions can be imposed. It also supports expanding the range of injunctions that can be imposed and expanding the geographic area covered by them – creating the possibility of cross-border or pan-European injunctions. Unsurprisingly, the document makes no reference whatsoever to any research indicting that such measures would be necessary or proportionate.

Mysteriously, bearing in mind that the currently enforced version of the Directive permits orders “to pay the rightholder damages appropriate to the actual prejudice suffered by him”, the Italian Presidency suggests that action be taken to “ensure that damages awarded are sufficient to cover the prejudice suffered”. This suggests that European courts are not competent enough to work out what appropriate damages might be, under the current legal framework – with, again, no hint of any evidence to back up this position.

In fairness to the Italian Presidency, the incoherence, incompetence and ineptitude of the document echos the failings of the Commission’s recently published Communication on IP Enforcement. Perhaps the Italian Presidency is only guilty of passing off a European Commission document written as its own – in the name of “intellectual property”.

Enforcement of intellectual property rights – Presidency paper (11.09.2014)
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013076%202014%20INIT

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (02.06.2004)
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32004L0048R%2801%29

Report: Application of Directive 2004/48/EC on the enforcement of intellectual property rights (22.12.2010)
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52010DC0779&from=EN

Consultation on the Commission Report on the enforcement of intellectual property rights (2011) http://ec.europa.eu/internal_market/consultations/2011/intellectual_property_rights_en.htm

Proposal for a revision of the Directive on the enforcement of intellectual property rights (2011)
http://ec.europa.eu/smart-regulation/impact/planned_ia/docs/2011_markt_006_review_enforcement_directive_ipr_en.pdf

Commission Communication on civil enforcement of IP within the Internal Market (2013)
http://ec.europa.eu/smart-regulation/impact/planned_ia/docs/2013_markt_036_civil_enforcement_ip_en.pdf

European Commission Communication: Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan (2014)
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52014DC0392

European Commission IP Enforcement page: The Directive on the enforcement of intellectual property rights
http://ec.europa.eu/internal_market/iprenforcement/directive/index_en.htm

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