Enforcement Directive - Subject-matter and Scope

Subject-matter and Scope

The Directive requires all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy. Thus, the purpose of the instrument is to regulate enforcement of intellectual property rights, not the rights themselves. The Directive leaves unaffected the substantive provisions on intellectual property, international obligations of the Member States and national provisions relating to criminal procedure and criminal enforcement. In short, the Directive adds extra measures on enforcement of digital copyright while leaving national law in other areas unaffected.

The subject-matter of the Directive is defined in Article 1. It applies to enforcement of intellectual property rights which include industrial property rights. The scope of the Directive is defined in Article 2. It applies to all infringements of IP rights in Community and national law, without precluding more stringent protection that the Community or national law may otherwise grant.

The general obligation in the Directive is to provide for remedies necessary to enforce intellectual property rights. These shall be “fair and equitable” and must not be “complicated or costly, or entail unreasonable time-limits or unwarranted delays”. They must furthermore be effective, proportionate and dissuasive and must not act as barriers to trade.

The persons who are entitled to apply for the remedies are primarily the holder of intellectual property right, but also any person authorized to use it, such as licensees and intellectual property rights. Collective rights management and professional defense bodies may also have the right under certain circumstances.