Directive 2004/48 / EC (protection of intellectual property rights)

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Directive 2004/48 / EC

Title: Directive 2004/48 / EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (text with EEA relevance)
Designation:
(not official) 		Enforcement Policy
Scope: EEA
Legal matter: Copyright , related rights
Basis: Article 95 of the EC Treaty
Procedure overview: European Commission
European Parliament
IPEX Wiki
Come into effect: May 20, 2004
To be
implemented in national law by: 		April 29, 2006
Reference: OJ L 157 of April 30, 2004, pp. 45-86
Full text Consolidated version (not official)
basic version
The regulation must have been implemented in national law.
Please note the information on the current version of legal acts of the European Union !

The Directive 2004/48 / EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (a common informal short title Enforcement Directive , in English, the short title Intellectual Property Rights Enforcement Directive , abbreviated to IPR Enforcement Directive ( IPRED) or just the enforcement directive common, also partially Germanised to the enforcement directive ) is a legal act of the European Community in the field of industrial property protection . Its primary aim is to ensure equivalent protection of intellectual property in the Member States. It serves to implement the requirements of Article 44 ff. Of the TRIPS Agreement . Its purpose is to make the fight against product piracy more effective by means of civil law, in particular those of civil procedure law . Above all, the gathering of information in advance of any process, the preliminary legal protection and the evidence procedure are recorded. In addition, however, it also contains specifications for material civil and criminal law.

Content of the policy

aims

According to the European legislator, the directive pursues the following objectives:

  • Alignment of the rules for the protection of intellectual property in the member states of the EU
  • Promote innovation and business competitiveness
  • Preservation of jobs in Europe
  • Prevention of tax shortfalls and destabilization of the markets
  • Consumer protection
  • Maintaining public order

scope of application

In principle, the directive is applicable to all violations of intellectual property law that have been defined by the EU or the member states. Not affected are u. a .:

  • Provisions on the enforcement of rights in the field of copyright and related fields
  • Obligations of the member states through multilateral agreements, such as B. the TRIPS agreement
  • National regulations of the member states on criminal proceedings and penalties for infringements of intellectual property.

Directive 2004/48 / EC is supplemented by Directive 2016/943 / EU on the protection of trade secrets .

Requirements of the directive

The member states of the EU are obliged to introduce measures and procedures that guarantee the protection of intellectual property rights. However, these measures are not intended to make lawful trade more difficult. These measures are requested by the rights holder or his representative. The following standards should be observed in legal proceedings for violations of intellectual property law:

  • Parties to a legal dispute about violations of intellectual property law can be obliged to surrender evidence. By order of a court, this can also mean the surrender of bank, financial or business documents. The courts may also order provisional measures to secure the evidence.
  • Courts may oblige a person to provide information about the origin and distribution channels of goods (or services) if there is a suspicion of a violation of intellectual property law and the rights holder has made a corresponding application.
  • Upon request, courts may issue temporary injunctions against the alleged infringer in order to put an end to another infringement of intellectual property law.
  • Courts have the option of ordering the recall of infringing goods and the destruction of black copies and imitations. You can issue an injunction against the infringer, the disregard of which u. a. may result in a fine.

Implementation into national law

The German implementation was significantly delayed due to some controversial issues; it should actually have taken place by the end of April 2006. The European Court of Justice stated in a infringement proceedings at the request of the European Commission finds on 5 June 2008 that Germany had failed to fulfill its obligation to implement. According to the case law of the Federal Court of Justice , the directive was therefore directly applicable in the period from the expiry of the implementation period to the entry into force of the implementation law in Germany, at least in individual questions .

The guideline was implemented in German law by the law for the improvement of the enforcement of intellectual property rights of July 7, 2008. This changed and added a number of provisions of the copyright , patent , utility model , trademark and plant variety protection law as well as individual provisions of the semiconductor protection law , the law on international patent agreements and the cost structure .

The proposal from jurisprudence to separate the respective procedural regulations into a “general part” of intellectual property law was not followed, but the individual special laws of intellectual property were adjusted horizontally and largely in parallel. In contrast to the guideline with its strong procedural tendency, the German legislature has mainly standardized substantive legal claims during implementation. This is in conformity with European Community law, since with directives the member states have a leeway in the choice of means, as long as they achieve the specified goal.

The implementation of the directive in Germany has had the greatest practical impact in the area of ​​third-party information claims, in particular against Internet providers in cases of the use of file sharing services.

criticism

The directive has been widely criticized, including for its allegedly draconian approach, which imitates the US Digital Millennium Copyright Act (DMCA). The criticism from the telecommunications industry and parts of the computer industry was so great that the original draft was heavily modified. A number of problems can still be found in the directive , according to the international civil rights organization IP Justice .

See also

Web links

literature

  • Dennis Amschewitz: The enforcement guideline and its implementation in German law. Mohr Siebeck, Tübingen 2008; also dissertation, University of Tübingen, 2008.
  • Reto M. Hilty, Thomas Jaeger, Volker Kitz (eds.): Intellectual property. Challenge enforcement. Springer, Berlin / Heidelberg 2008.

Individual evidence

  1. ↑ a b c d e f Protection of intellectual property rights. In: Summaries of EU Legislation. European Union, August 16, 2010, accessed December 8, 2010 .
  2. ^ Burkhard Hess : European civil procedure law. CF Müller, Heidelberg 2010, p. 627.
  3. ↑ Judgment of the European Court of Justice of June 5, 2008, Case C ‑ 395/07 (Commission v Germany)
  4. ↑ Thomas Heymann: The law to improve the enforcement of intellectual property rights. ( Memento of the original from October 28, 2014 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.heylaw.de archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Computer and Law. (CR) 2008, pp. 568-575, here p. 569.
  5. ↑ Bundesgesetzblatt, Volume 2008 Part 1 No. 28, pp. 1191–1211 Archived copy ( memento of the original from October 28, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bmjv.de
  6. ↑ E.g. Hans-Jürgen Ahrens : Do we need a general part of intellectual property rights? In: Commercial legal protection and copyright. (GRUR) 2006, p. 617 ff.
  7. ↑ Florian Schwab: Combating product piracy. In: Achenbach, Ransiek: Handbuch Wirtschaftsstrafrecht. 3. Edition. CF Müller, Heidelberg 2012, Rn 88 (p. 1423)
  8. ^ Schwab, in: Handbuch Wirtschaftsstrafrecht. 2012, Rn 89 (p. 1423)
  9. ^ William R. Cornish, Josef Drexl, Reto Hilty, Annette Kur: Procedures and Remedies for Enforcing IPRS. The European Commission's Proposed Directive. ( Memento of November 23, 2005 in the Internet Archive ) In: European Intellectual Property Review. (EIPR) 2003, Vol. 25, No. 10, pp. 447-449.
  10. ^ Association Electronique Libre (AEL) ( Memento of April 5, 2006 in the Internet Archive )
  11. ↑ Munir Kotadia: Copyright directive 'will stifle EU competition' . In: ZDNet. August 5, 2003.
  12. ^ Bill Thompson: A continent full of criminals , BBC News , Nov. 7, 2003.
  13. ^ Ross Anderson, The Draft IPR Enforcement Directive - A Threat to Competition and to Liberty. Foundation for information policy research (FIPR).
  14. ^ Ross Anderson, The Draft IP Enforcement Directive - A Threat to Competition and to Liberty. Foundation for Information Policy Research.
  15. ↑ Nicola Lucchi: Intellectual Property Rights in Digital Media: A Comparative Analysis of Legal Protection, Technological Measures and New Business Models Under EU And US Law. In: Buffalo Law Review. Volume 53, No. 4, Fall 2005.
  16. ↑ http://www.europarl.europa.eu/omk/omnsapir.so/cre?FILE=0309ma&LANGUE=EN&LEVEL=TOC2&CHAP=3&LEG=L5 ( Memento of December 13, 2006 in the Internet Archive ) and page no longer available , search in web archives:@1@ 2Template: Dead Link / www.europarl.europa.eu
  17. ↑ Campaign for an Open Digital Environment (CODE): EU Passes Dangerous IP Law, Despite MEP's Conflict of Interest - “Midnight Knocks” by Recording Industry Executives Get Go-Ahead. ( Memento of the original from October 28, 2014 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.ipjustice.org archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. IP Justice, March 9, 2004.