Out-Law News 3 min. read

Online platforms should play a greater role in enforcement of intellectual property rights, say MEPs


Retail marketplaces like Amazon and other online platforms should play a greater role in tackling counterfeiting, MEPs have said.

In a new resolution on an action plan for intellectual property rights (IPRs) enforcement, the European Parliament called for a "comprehensive legal framework to combat IPR infringement adapted to the online environment" to be developed as part of a broader IPR strategy.

It said that "legal protection is urgently needed for new creations since this will encourage investment and lead on to further innovations".

New legislation would have to accord with people's rights and freedoms, and give recognition to data protection requirements, the resolution said. New rules requiring "online actors" to combat infringements of IPRs would need to "comply with the principles" of the EU's E-Commerce Directive and the Charter of Fundamental Rights of the European Union, it said.

"The European Parliament … believes that all actors in the supply chain have a role to play in the fight against IPR infringement and should be involved in this process," the resolution said. "[It] stresses that an approach involving all actors should be developed both in the online and in the offline context; [and] believes that fundamental rights need to be balanced for this to be successful, as measures that impact fundamental rights cannot be undertaken voluntarily by commercial operators, but need a legal basis and judicial oversight."

MEPs noted that there is an increasing trade of counterfeit goods "via online marketplaces" and that authorities have "limited abilities to control sales" through those channels. The resolution said there is a "need to involve marketplace platform owners in all efforts to enforce IPRs, including efforts to remove counterfeit goods and ban sellers of counterfeit goods from their sites".

The Parliament called on the Commission to "come up with a detailed assessment of the limitations of the current legal framework as regards online activities and, if appropriate, with proposals for adapting the EU legislative framework to the internet environment".

MEPs also gave their backing to "soft-law measures" to combat counterfeiting and online copyright infringement. It said it supports voluntary agreements between rights holders and "their partners", such as internet providers, advertisers and payment service providers, which are aimed at "depriving IPR infringers of their revenues".

"The proposed collaborative approach between brand owners and platform operators will be welcomed by brand owners," intellectual property and brand protection expert Gillian Anderson of Pinsent Masons, the law firm behind Out-Law.com, said. "However, we can expect to see an element of resistance from platform operators to taking on too much responsibility for policing the content on their sites for a variety of reasons, but principally cost and risk." 

Operators of online intermediaries are generally not liable for infringing material that they neither create nor monitor but simply store or pass on to users of their service under the E-Commerce Directive. Under the Directive, service providers are generally not responsible for the activity of those using their service and that member states must not put service providers under any obligation to police illegal activity on its service.

However, service providers can be liable for others' infringements via their services if they obtain "actual knowledge" of the illegal activity. To avoid liability, the online intermediaries must, having obtained such knowledge, act expeditiously to remove or to disable access to the infringing content. The Directive is implemented in the UK by the E-Commerce Regulations.

In a separate resolution adopted by Parliament on the protection and enforcement of IPRs in countries outside of the EU, MEPs called on the European Commission and EU governments to "enter into a structured dialogue with online platforms on how best to identify and tackle the sale of counterfeit goods".

It also said that more steps should be done to strengthen the protections for geographic indications of goods by the EU outside of the trading bloc.

EU laws place restrictions on the sale or production of certain goods that are synonymous with particular areas of Europe. This means that Scotch whisky, Parma ham and champagne, among other products with a geographic indication, can only be referred to as such if they conform to certain "technical specifications".

"[The European Parliament … calls on the Commission to work with the Internet Corporation for Assigned Names and Numbers (ICANN) and the World Intellectual Property Organization (WIPO) to establish a protection mechanism for geographical indications on the internet," the resolution said.

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