Article 4 must be transposed into UK national law
FAST responds to European Commission’s public consultation on the Enforcement of IPR
The Federation Against Software Theft has stepped up its calls for Article 4 of the Enforcement Directive to be implemented in UK law. This latest call has been made in its recent submission to the European Commission’s public consultation on the Enforcement of Intellectual Property Rights (IP Enforcement Directive (2004/48/EC)).
In the submission, FAST states: “We are arguing that the Commission, in the interests of efficient IP enforcement in the UK, consider making it clear that Article 4 must be transposed into UK National law.”
The European Commission has stated that current intellectual property rights’ laws are not strong enough to combat online IP infringement effectively and has published a report on the effectiveness of its own 2004 ‘Directive on Intellectual Property Rights’ to highlight the extent of today’s online piracy activity.
The European Commission has stated that despite an overall improvement of enforcement procedures, the sheer volume and financial value of intellectual property rights infringements is alarming.
According to the Report itself: “A first evaluation of the impact of the Directive shows that noteworthy progress has been made since it was adopted and implemented in the Member States,”
“The Directive created high European legal standards to enforce different types of rights that are protected by independent legal regimes (such as copyright, patents, trademarks and designs, but also geographical indications and plant breeders’ rights).”
“However, despite an overall improvement of enforcement procedures, the sheer volume and financial value of intellectual property rights infringements is alarming,” it said. “One reason is the unprecedented increase in opportunities to infringe intellectual property rights offered by the Internet. The Directive was not designed with this challenge in mind.”
Julian Heathcote Hobbins, General Counsel at FAST, commented: “Whilst FAST is a supporter of positive updates to the Enforcement Directive on effective enforcement of intellectual property rights on the internet (including the need for credible dissuasive/deterrent damages in English copyright law), our central message is the need for the implementation of Article 4 of the Enforcement Directive in the UK.”
The Enforcement Directive was implemented into UK law on 29th April 2006. It was transposed by Statutory Instrument; 2006 No. 1028 “The Intellectual Property (Enforcement, etc.) Regulations 2006.”
The Directive contains a key provision in Article 4. Article 4 enables representative bodies, such as FAST, to sue as claimant in the shoes of a single as well as a number of member copyright owners securing remedies against the infringer. This is not provided for by the Civil Procedure Rules; a representative body does not have the same interest in copyright law as its members and therefore is not entitled to bring a representative action under the CPR in its own name.
“At the eleventh hour, after an impromptu informal consultation subsequent to the closure of the formal consultation procedure in 2004, Article 4 was not transposed into UK law,” added Julian.
“The implementation of Article 4 of the Directive in the UK would empower professional defence bodies including anti-piracy organisations such as FAST, to apply itself for remedies at court. In short, locus standi for FAST to sue when it must with the consent of a FAST member who may not have the financial muscle or enforcement profile to do so,” he concluded.