EU Council’s IP Enforcement Changes: Judicial Systems, Customs, Open Source, WIPO – And An IP Watchlist

The European Council of ministers today adopted a set of conclusions on the enforcement of intellectual property rights in the European Union, aimed at improving protection in the digital era and promoting innovation. This includes a list of suggested actions, including possible changes to national laws and judicial systems, bolstering customs, agreements with industry, encouraging open source, strong representation at the World Intellectual Property Organization, and possibly setting up an IP watch list reminiscent of the one in the United States.

The measures, including communications and a report, build on the 2004 EU Directive on the enforcement of intellectual property rights (IPRED). A recent evaluation of the IPRED measures, procedures and remedies found that they have been effective but “have not been applied in a uniform manner among Member States and that the EU legal framework for IPR enforcement, could benefit from further clarification,” the 8-page conclusions text states.

Today’s conclusions stem from a European Commission package of proposals on IP issued on 29 November 2017 (IPW, Europe, 29 November 2017).

The conclusions contain more than a dozen suggested actions for EU member states, and the Commission. It “invites” member states to “adjust, if necessary, their national civil enforcement systems in line with the provisions of IPRED, as interpreted by the Court of Justice of the European Union.” The Council (which consists of ministers of each country) was careful to note the principal of judicial independence among the EU members.

The Council did encourage the Commission and member states to look into more concrete approaches, and to possibly “fortify the common interpretation of the provisions of IPRED” with additional and more targeted guidelines based on members’ best practices.

Another suggestion is that member states “consider, where appropriate, the specialisation of judges for IPR enforcement and, in cooperation with the European Observatory on Infringements of IPR, the systematic publication of judgements in IPR enforcement cases.”

For industry, they call for more action and voluntary agreements against piracy and counterfeiting, but note that “the Commission will continue assessing the need for future follow-up actions, legislative or non-legislative.”

The ideas also mention new technologies, supply chains, and “urges” the Commission to offer more targeted assistance to national customs authorities.

EU’s Own IP Watch List, Open Source, and Stronger Voice in WIPO

The Council also pushed the Commission to work with third countries to improve IP enforcement, welcoming an upcoming report on the subject from the Commission in the first half of 2018 noting two other efforts: to launch new IP technical cooperation programmes with third countries, and to set up an “IP markets watch-list,” apparently like the US Special 301 watch list.

And the conclusions document goes into some detail with several recommendations on standard-essential patents and licensing practices.

In addition, the Council invited the Commission “to support Open Source projects in Europe in interaction with standardization activities.”

It also stressed the importance of transparency related to the “essentiality” of patents, and called for the Commission along with stakeholders including possibly the IP offices to “develop a system that ensures better scrutiny.”

And finally, it highlights the importance of continuing an active role at the international policy level, stating that it:

“STRESSES the imperative of ensuring the high level representation and effective protection of the EU’s interests in IP matters on international fora, and in particular within WIPO. To this end, RECALLS that it is essential that all relevant EU actors – Member States, the Commission and the EEAS – continue to fully play their respective roles within WIPO.”

The Council press release and documents links are reprinted below:

The Council today adopted conclusions on the enforcement of intellectual property (IP) rights in the EU. The conclusions address the Commission’s package on IP, which is intended to better protect intellectual property rights, promote innovation and adapt the system to the digital era, in particular to internet. The package was published on 29 November 2017 and is made up of: a communication on “A balanced IP enforcement system responding to today’s societal challenges” a communication on “Guidance on certain aspects of directive 2004/48/EC on the enforcement of IP rights” and a report on the evaluation of this directive a communication on “Setting out the EU approach to Standard Essential Patents” a report on the functioning of the memorandum of understanding on the sale of counterfeit goods via the internet Read full text of conclusions Visit the website