[e-privacy] sulla Direttiva Enforcement

[Avv. Barbara Gualtieri]

IP/04/540

Brussels, 26th April 2004
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/0
4/540|0|RAPID&lg=EN&display=

Intellectual property: Commission welcomes adoption of Directive against
counterfeiting and piracy

 ( UE, Consiglio Ministri approva la Direttiva Enforcement


Definitivamente approvata dal Consiglio dei Ministri europei la Direttiva
sull'applicazione del diritto di proprieta' intellettuale e industriale,
presentata in gennaio dalla Commissione. La direttiva prevede l'adozione di
misure piu' rigide contro chi intraprende azioni di contraffazione o di
pirateria di opere protette. Ai primi di marzo, il Parlamento europeo ha
espresso voto favorevole prevedendo, nel contempo, maggiore gradualita' per
chi infrange i diritti di proprieta' intellettuale e l'azione civile in
assenza di finalita' di lucro. La direttiva lascia in pratica agli Stati
membri (che la dovranno recepire entro 2 anni) la decisione finale e la
facolta' di adottare anche sanzioni penali. )


The European Commission has welcomed the definitive adoption by the Council
of Ministers of the Directive on the enforcement of intellectual and
industrial property rights, such as copyright and related rights,
trademarks, designs or patents. The Directive would require all Member
States to apply effective, dissuasive and proportionate remedies and
penalties against those engaged in counterfeiting and piracy and so create a
level playing field for right holders in the EU. It means that in about two
years' time, once the deadline for implementation has been reached, all
Member States will have a similar set of measures, procedures and remedies
available for rightholders to defend their intellectual property rights (be
they copyright or related rights, trademarks, patents, designs, etc) if they
are infringed. The Commission proposed the Directive on 30 January 2003 (see
IP/03/144 and MEMO/03/20) and it was approved by the European Parliament in
March 2004 (IP/04/316) in a form to which the Council has now agreed,
without the need for a second reading by either the Parliament or the
Council.

Internal Market Commissioner Frits Bolkestein said: "I am very pleased that
close cooperation between the European Parliament, the Council and the
Commission has enabled the swift adoption of this crucial Directive. The
Directive will give the Europe of 25 much stronger defences against
counterfeiting and piracy, which are a modern economic plague increasingly
linked to organised crime. When intellectual property rights are not
respected, there is less investment in innovative industries, research and
cultural promotion. That means everyone in Europe loses out. What is more,
counterfeiters create fake medicines, toys, cosmetics, food and drinks and
vehicle spare parts which threaten public health and safety."

The new Directivebrings national legislation across the EU on civil
sanctions and remedies closer into line with 'best practice'. It includes
procedures covering evidence and the protection of evidence and provisional
measures such as injunctions and seizure. Remedies available to right
holders include the destruction, recall or permanent removal from the market
of illegal goods, as well as financial compensation, injunctions and
damages. There will be a right of information allowing judges to order
certain persons to reveal the names and addresses of those involved in
distributing the illegal goods or services, along with details of the
quantities and prices involved.

The Directive also signals to Member States certain measures (such as the
publication of judicial decisions and the development of professional codes
of conduct) that contribute to the fight against counterfeiting and piracy.

Under the Directive, Member States will have to appoint national
correspondents to cooperate and exchange information with other Member
States and with the Commission. As well as benefits for rightholders, the
Directive contains appropriate safeguards against abuse, ensures the rights
of the defence and includes references to the protection of personal data
and confidential information.

Although the Commission still believes that an effective fight against
counterfeiting and piracy requires strong criminal sanctions, the adopted
version of the Directive, unlike the original Commission proposal, does not
contain provisions on criminal sanctions. The issue of including criminal
sanction provisions in an Internal Market measure is currently under
scrutiny by the European Court of Justice. The Directive as adopted is
accompanied by a Commission declaration which indicates that the Commission
"will examine the possibility" of proposing measures providing for criminal
sanctions in the future. Member States are free to implement measures that
go further than the Directive, such as applying criminal sanctions, if they
wish to.

Member States have agreed to implement the Directive within two years after
its publication in the European Union's Official Journal, which will take
place very shortly.

For more information, see:

http://www.europa.eu.int/comm/internal_market/en/indprop/piracy/index.htm

Avv. Barbara Gualtieri