IP Enforcement Directive

Late April the European Council of Ministers has finally approved a Directive on the Enforcement of Intellectual Property Rights that will harmonize the remedies and procedures available to right holders throughout the EU. The Council's approval was the last step in the legislative process which was surrounded by fierce debates about the directive's impingement on consumers' and citizens' rights. The Member States will now have two years to implement the IPED.
The directive aims at providing a level playing field for actions brought by right holders against counterfeiting and piracy in any part of the EU. The text compromised among Parliament, Council and Commission is now limited to civil and administrative measures, procedures and remedies. It will be up to the Member States to decide whether they want to impose criminal sanctions against infringers. But what remains is tough enough.
Whereas the Commission holds that the directive contains the necessary safeguards and limitations to protect the interests not only of the defendant "but also of potentially innocent offenders, who have unknowingly been involved in illegal practices", provisions such as Art. 8(1) lit. (c) give rise to serious concerns. It orders Member States to ensure that national courts, on request of the claimant, "may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who was found to be providing on a commercial scale services used in infringing activities". That provides Member States with the legal basis to compel ISPs to disclose subscribers' names. It is not hard to foresee that such disclosing will conflict with the individual's right to privacy and the protection of personal data. The IPED anticipates this when it states in Art. 8(3) lit. (e) that paragraph 1 shall be applied without prejudice to other national provisions governing the protection of confidentiality of information sources or the processing of personal data. But this will not work without a trade-off. So it remains to be seen what sacrifices to individual rights the Member States are willing to make in order to be in line with the requirements of the directive.