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The dataset generation failed
Error code: DatasetGenerationError
Exception: TypeError
Message: Couldn't cast array of type
struct<source: string, title: string, language: string, celex: string, form: string, author: string, date: string, latest: string, pages: string, path2html: string, path2md: string, path2pdf: string>
to
{'source': Value('string'), 'title': Value('string'), 'language': Value('string'), 'celex': Value('string'), 'form': Value('string'), 'author': Value('string'), 'date': Value('string'), 'latest': Value('string'), 'pages': Value('string'), 'path2html': Value('string'), 'path2md': Value('string')}
Traceback: Traceback (most recent call last):
File "/usr/local/lib/python3.12/site-packages/datasets/builder.py", line 1887, in _prepare_split_single
writer.write_table(table)
File "/usr/local/lib/python3.12/site-packages/datasets/arrow_writer.py", line 675, in write_table
pa_table = table_cast(pa_table, self._schema)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
File "/usr/local/lib/python3.12/site-packages/datasets/table.py", line 2272, in table_cast
return cast_table_to_schema(table, schema)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
File "/usr/local/lib/python3.12/site-packages/datasets/table.py", line 2224, in cast_table_to_schema
cast_array_to_feature(
File "/usr/local/lib/python3.12/site-packages/datasets/table.py", line 1795, in wrapper
return pa.chunked_array([func(chunk, *args, **kwargs) for chunk in array.chunks])
^^^^^^^^^^^^^^^^^^^^^^^^^^^^
File "/usr/local/lib/python3.12/site-packages/datasets/table.py", line 2092, in cast_array_to_feature
raise TypeError(f"Couldn't cast array of type\n{_short_str(array.type)}\nto\n{_short_str(feature)}")
TypeError: Couldn't cast array of type
struct<source: string, title: string, language: string, celex: string, form: string, author: string, date: string, latest: string, pages: string, path2html: string, path2md: string, path2pdf: string>
to
{'source': Value('string'), 'title': Value('string'), 'language': Value('string'), 'celex': Value('string'), 'form': Value('string'), 'author': Value('string'), 'date': Value('string'), 'latest': Value('string'), 'pages': Value('string'), 'path2html': Value('string'), 'path2md': Value('string')}
The above exception was the direct cause of the following exception:
Traceback (most recent call last):
File "/src/services/worker/src/worker/job_runners/config/parquet_and_info.py", line 1342, in compute_config_parquet_and_info_response
parquet_operations, partial, estimated_dataset_info = stream_convert_to_parquet(
^^^^^^^^^^^^^^^^^^^^^^^^^^
File "/src/services/worker/src/worker/job_runners/config/parquet_and_info.py", line 907, in stream_convert_to_parquet
builder._prepare_split(split_generator=splits_generators[split], file_format="parquet")
File "/usr/local/lib/python3.12/site-packages/datasets/builder.py", line 1736, in _prepare_split
for job_id, done, content in self._prepare_split_single(
^^^^^^^^^^^^^^^^^^^^^^^^^^^
File "/usr/local/lib/python3.12/site-packages/datasets/builder.py", line 1919, in _prepare_split_single
raise DatasetGenerationError("An error occurred while generating the dataset") from e
datasets.exceptions.DatasetGenerationError: An error occurred while generating the datasetNeed help to make the dataset viewer work? Make sure to review how to configure the dataset viewer, and open a discussion for direct support.
format string | source string | language string | content string | metadata dict |
|---|---|---|---|---|
md | EURLEX | en | | | | | |
| --- | --- | --- | --- |
| 16.5.2012 | EN | Official Journal of the European Union | L 129/1 |
---
REGULATION (EU) No 386/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 19 April 2012
on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 and the first paragraph of Article 118 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee [(1)](#ntr1-L_2012129EN.01000101-E0001),
Acting in accordance with the ordinary legislative procedure [(2)](#ntr2-L_2012129EN.01000101-E0002),
Whereas:
| | |
| --- | --- |
| (1) | The economic well-being of the Union relies on sustained creativity and innovation. Therefore, measures for their effective protection are indispensable in ensuring its future prosperity. |
| | |
| --- | --- |
| (2) | Intellectual property rights are vital business assets that help to ensure that creators and innovators get a fair return for their work and that their investment in research and new ideas is protected. |
| | |
| --- | --- |
| (3) | A sound, harmonised and progressive approach to intellectual property rights is fundamental in the endeavour to fulfil the ambitions of the Europe 2020 Strategy including A Digital Agenda for Europe. |
| | |
| --- | --- |
| (4) | The constant increase in infringements of intellectual property rights constitutes a genuine threat not only to the Union economy, but also, in many cases, to the health and safety of Union consumers. Therefore, effective, immediate and coordinated action at national, European and global levels is needed to successfully combat this phenomenon. |
| | |
| --- | --- |
| (5) | In the context of the overall intellectual property rights strategy envisaged by the Council Resolution of 25 September 2008 on a comprehensive European anti-counterfeiting and anti-piracy plan [(3)](#ntr3-L_2012129EN.01000101-E0003), the Council called on the Commission to set up a European Observatory on Counterfeiting and Piracy. The Commission therefore formed a network of experts from the public and the private sectors and described the tasks of that network in its Communication entitled ‘Enhancing the enforcement of intellectual property rights in the internal market’. The name of the European Observatory on Counterfeiting and Piracy should be changed to the European Observatory on Infringements of Intellectual Property Rights (‘the Observatory’). |
| | |
| --- | --- |
| (6) | That Communication stated that the Observatory should serve as the central resource for gathering, monitoring and reporting information and data related to all infringements of intellectual property rights. It should be used as a platform for cooperation between representatives from national authorities and stakeholders to exchange ideas and expertise on best practices and make recommendations to policymakers for joint enforcement strategies. The Communication specified that the Observatory would be hosted and managed by the services of the Commission. |
| | |
| --- | --- |
| (7) | In its Resolution of 1 March 2010 on the enforcement of intellectual property rights in the internal market [(4)](#ntr4-L_2012129EN.01000101-E0004), the Council invited the Commission, the Member States and industry to provide the Observatory with available reliable and comparable data on counterfeiting and piracy and to jointly develop and agree, in the context of the Observatory, on plans to collect further information. The Council also invited the Observatory to publish each year a comprehensive annual report covering the scope, scale and principal characteristics of counterfeiting and piracy as well as its impact on the internal market. That annual report should be prepared using the relevant information provided in that regard by the authorities of the Member States, the Commission and the private sector within the limits of data protection law. The Council also recognised the importance of developing new competitive business models enlarging the legal offer of cultural and creative content and at the same time preventing and combating infringements of intellectual property rights as necessary means for fostering economic growth, employment and cultural diversity. |
| | |
| --- | --- |
| (8) | In its Conclusions of 25 May 2010 on the future revision of the Trade Mark system in the European Union [(5)](#ntr5-L_2012129EN.01000101-E0005), the Council called on the Commission to establish a legal basis for the involvement of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (‘the Office’) in enforcement-related activities, including the fight against counterfeiting, in particular through fostering its cooperation with the national trade mark offices and the Observatory. In that respect, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights [(6)](#ntr6-L_2012129EN.01000101-E0006) provides, inter alia, for certain measures to promote cooperation, including the exchange of information, among Member States and between Member States and the Commission. |
| | |
| --- | --- |
| (9) | In its Recommendation of 26 March 2009 on strengthening security and fundamental freedoms on the internet [(7)](#ntr7-L_2012129EN.01000101-E0007), the European Parliament recommended that the Council preserve full and safe access to the internet while encouraging private/public cooperation in enhancing law enforcement cooperation. |
| | |
| --- | --- |
| (10) | In its Resolution of 22 September 2010 on enforcement of intellectual property rights in the internal market [(8)](#ntr8-L_2012129EN.01000101-E0008), the European Parliament called on the Member States and the Commission to extend the cooperation between the Office and national intellectual property offices so as to include the fight against infringements of intellectual property rights. |
| | |
| --- | --- |
| (11) | In its Resolution of 12 May 2011 on unlocking the potential of cultural and creative industries [(9)](#ntr9-L_2012129EN.01000101-E0009), the European Parliament urged the Commission to take into account the specific problems encountered by small and medium-sized enterprises when it comes to asserting their intellectual property rights and to promote best practice and effective methods to respect those rights. |
| | |
| --- | --- |
| (12) | In its Resolution of 6 July 2011 on a comprehensive approach on personal data protection in the European Union [(10)](#ntr10-L_2012129EN.01000101-E0010), the European Parliament called on the Commission to ensure full harmonisation and legal certainty, providing a uniform and high level of protection of individuals in all circumstances. |
| | |
| --- | --- |
| (13) | In view of the range of tasks assigned to the Observatory, a solution is needed to ensure an adequate and sustainable infrastructure for the fulfilment of its tasks. |
| | |
| --- | --- |
| (14) | Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark [(11)](#ntr11-L_2012129EN.01000101-E0011) provides for administrative cooperation between the Office and the courts or authorities of the Member States, and the exchange of publications between the Office and the central industrial property offices of the Member States. On that basis, the Office has established cooperation with national offices that are active in the field of protection of intellectual property rights. Consequently, the Office already possesses, to a considerable extent, the necessary experience and expertise to provide an adequate and sustainable infrastructure in the field of the Observatory’s tasks. |
| | |
| --- | --- |
| (15) | The Office is therefore well placed to be entrusted with carrying out those tasks. |
| | |
| --- | --- |
| (16) | Those tasks should relate to all intellectual property rights covered by Directive 2004/48/EC, since in many cases, infringing acts affect a bundle of intellectual property rights. Furthermore, data and the exchange of best practices are needed on the entire abovementioned range of intellectual property rights, in order to obtain a complete picture of the situation and to enable comprehensive strategies to be devised with a view to reducing infringements of intellectual property rights. |
| | |
| --- | --- |
| (17) | The tasks that the Office should carry out can be linked to the enforcement and reporting measures laid down by Directive 2004/48/EC. Thus, the Office should provide services to national authorities or operators which affect, in particular, the homogenous implementation of the Directive and which are likely to facilitate its application. The Office’s tasks should therefore be considered as closely linked to the subject matter of acts approximating the laws, regulations and administrative provisions of the Member States. |
| | |
| --- | --- |
| (18) | Assembled by the Office, the Observatory should become a centre of excellence on information and data relating to infringements of intellectual property rights, by benefiting from the Office’s expertise, experience and resources. |
| | |
| --- | --- |
| (19) | The Office should offer a forum that brings together public authorities and the private sector, ensuring the collection, analysis and dissemination of relevant objective, comparable and reliable data regarding the value of intellectual property rights and infringements of those rights, identifying and promoting best practices and strategies to enforce intellectual property rights, and raising public awareness of the impact of infringements of intellectual property rights. Furthermore, the Office should fulfil additional tasks, such as improving the understanding of the value of intellectual property rights, fostering the exchange of information on new competitive business models which enlarge the legal offer of cultural and creative content, enhancing the expertise of persons involved in the enforcement of intellectual property rights by appropriate training measures, increasing knowledge of techniques to prevent counterfeiting, and improving cooperation with third countries and international organisations. The Commission should be associated with the activities undertaken by the Office under this Regulation. |
| | |
| --- | --- |
| (20) | The Office should thus facilitate and support the activities of national authorities, the private sector and the Union institutions relating to the enforcement of intellectual property rights and in particular their activities in the fight against infringements of those rights. The exercise by the Office of its powers under this Regulation does not prevent Member States from exercising their competences. The Office’s tasks and activities under this Regulation do not extend to participation in individual operations or investigations carried out by the competent authorities. |
| | |
| --- | --- |
| (21) | In order to fulfil those tasks in the most efficient manner, the Office should consult and cooperate with other authorities at national, European and, where appropriate, international levels, create synergies with the activities carried out by such authorities and avoid any duplication of measures. |
| | |
| --- | --- |
| (22) | The Office should implement the tasks and activities relating to the enforcement of intellectual property rights by making use of its own budgetary means. |
| | |
| --- | --- |
| (23) | With regard to representatives of the private sector, the Office should, when assembling the Observatory in the context of its activities, involve a representative selection of the economic sectors — including the creative industries — most concerned by or most experienced in the fight against infringements of intellectual property rights, in particular representatives of right holders, including authors and other creators, as well as internet intermediaries. Also, a proper representation of consumers and of small and medium-sized enterprises should be ensured. |
| | |
| --- | --- |
| (24) | The information obligations imposed by this Regulation on the Member States and on the private sector should not create unnecessary administrative burdens and should endeavour to avoid duplication as regards data already provided by Member States and private-sector representatives to Union institutions under existing Union reporting requirements. |
| | |
| --- | --- |
| (25) | Since the objective of this Regulation, namely to entrust the Office with tasks related to the enforcement of intellectual property rights, cannot be sufficiently achieved by the Member States and can therefore, by reason of its effect, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective, |
HAVE ADOPTED THIS REGULATION:
Article 1
Subject matter and scope
This Regulation entrusts the Office for Harmonization in the Internal Market (Trade Marks and Designs) (‘the Office’) with tasks aimed at facilitating and supporting the activities of national authorities, the private sector and the Union institutions in the fight against infringements of the intellectual property rights covered by Directive 2004/48/EC. In carrying out these tasks the Office shall organise, administer and support the gathering of experts, authorities and stakeholders assembled under the name ‘European Observatory on Infringements of Intellectual Property Rights’ (‘the Observatory’).
The tasks and activities of the Office under this Regulation do not extend to participation in individual operations or investigations carried out by the competent authorities.
Article 2
Tasks and activities
1. The Office shall have the following tasks:
| | |
| --- | --- |
| (a) | improving understanding of the value of intellectual property; |
| | |
| --- | --- |
| (b) | improving understanding of the scope and impact of infringements of intellectual property rights; |
| | |
| --- | --- |
| (c) | enhancing knowledge of best public and private sector practices to protect intellectual property rights; |
| | |
| --- | --- |
| (d) | assisting in raising citizens’ awareness of the impact of infringements of intellectual property rights; |
| | |
| --- | --- |
| (e) | enhancing the expertise of persons involved in the enforcement of intellectual property rights; |
| | |
| --- | --- |
| (f) | enhancing knowledge of technical tools to prevent and tackle infringements of intellectual property rights, including tracking and tracing systems which help to distinguish genuine products from counterfeit ones; |
| | |
| --- | --- |
| (g) | providing mechanisms which help to improve the online exchange, between Member States’ authorities working in the field of intellectual property rights, of information relating to the enforcement of such rights, and fostering cooperation with and between those authorities; |
| | |
| --- | --- |
| (h) | working, in consultation with Member States, to foster international cooperation with intellectual property offices in third countries so as to build strategies and develop techniques, skills and tools for the enforcement of intellectual property rights. |
2. In the fulfilment of the tasks set out in paragraph 1, the Office shall carry out the following activities in accordance with the work programme adopted pursuant to Article 7, and in line with Union law:
| | |
| --- | --- |
| (a) | establishing a transparent methodology for the collection, analysis and reporting of independent, objective, comparable and reliable data relating to infringements of intellectual property rights; |
| | |
| --- | --- |
| (b) | collecting, analysing and disseminating relevant objective, comparable and reliable data regarding infringements of intellectual property rights; |
| | |
| --- | --- |
| (c) | collecting, analysing and disseminating relevant objective, comparable and reliable data regarding the economic value of intellectual property and its contribution to economic growth, welfare, innovation, creativity, cultural diversity, the creation of high-quality jobs and the development of high quality products and services within the Union; |
| | |
| --- | --- |
| (d) | providing regular assessments and specific reports by economic sector, geographic area and type of intellectual property right infringed, which evaluate, inter alia, the impact of infringements of intellectual property rights on society and the economy, including an assessment of the effects on small and medium-sized enterprises, as well as on health, the environment, safety and security; |
| | |
| --- | --- |
| (e) | collecting, analysing and disseminating information regarding best practices between the representatives meeting as the Observatory, and, if applicable, making recommendations for strategies based on such practices; |
| | |
| --- | --- |
| (f) | drawing up reports and publications to raise awareness amongst Union citizens of the impact of infringements of intellectual property rights and to that end, organising conferences, events and meetings at European and international levels as well as assisting national and Europe-wide actions, including online and offline campaigns, principally by providing data and information; |
| | |
| --- | --- |
| (g) | monitoring the development of new competitive business models which enlarge the legal offer of cultural and creative content, and encouraging the exchange of information and raising consumer awareness in this respect; |
| | |
| --- | --- |
| (h) | developing and organising online and other forms of training for national officials involved in the protection of intellectual property rights; |
| | |
| --- | --- |
| (i) | organising ad hoc meetings of experts, including academic experts and relevant representatives of civil society, to support its work under this Regulation; |
| | |
| --- | --- |
| (j) | identifying and promoting technical tools for professionals and benchmark techniques, including tracking and tracing systems which help to distinguish genuine products from counterfeit ones; |
| | |
| --- | --- |
| (k) | working with national authorities and the Commission to develop an online network facilitating the exchange of information on infringements of intellectual property rights between public administrations, bodies and organisations in the Member States dealing with the protection and enforcement of those rights; |
| | |
| --- | --- |
| (l) | working in cooperation with, and building synergies between, the central industrial property offices of the Member States, including the Benelux Office for Intellectual Property and other Member States’ authorities working in the field of intellectual property rights, with a view to developing and promoting techniques, skills and tools relating to the enforcement of intellectual property rights, including training programmes and awareness campaigns; |
| | |
| --- | --- |
| (m) | developing, in consultation with the Member States, programmes for the provision of technical assistance to third countries as well as developing and delivering specific training programmes and events for officials from third countries who are involved in the protection of intellectual property rights; |
| | |
| --- | --- |
| (n) | making recommendations to the Commission on issues falling within the scope of this Regulation, on the basis of a request from the Commission; |
| | |
| --- | --- |
| (o) | carrying out similar activities necessary in order to enable the Office to fulfil the tasks set out in paragraph 1. |
3. In carrying out the tasks and activities referred to in paragraphs 1 and 2, the Office shall comply with existing provisions of Union law on data protection.
Article 3
Financing
The Office shall at all times ensure that the activities entrusted to it by this Regulation are carried out by making use of its own budgetary means.
Article 4
Meetings of the Observatory
1. In order to carry out the activities referred to in Article 2(2), the Office shall at least once per year invite to meetings of the Observatory representatives from public administrations, bodies and organisations in the Member States dealing with intellectual property rights and representatives from the private sector, for the purpose of their participation in the Office’s work under this Regulation.
2. Private-sector representatives invited to meetings of the Observatory shall include a broad, representative and balanced range of Union and national bodies representing the different economic sectors, including the creative industries, most concerned by or most experienced in the fight against infringements of intellectual property rights.
Consumer organisations, small and medium-sized enterprises, authors and other creators shall be properly represented.
3. The Office shall invite each Member State to send at least one representative from its public administration to meetings of the Observatory. In that context, Member States shall ensure continuity in the Observatory’s work.
4. The meetings referred to in paragraph 1 may be complemented by working groups within the Observatory made up of representatives from Member States and representatives from the private sector.
5. Where appropriate, and in addition to the meetings referred to in paragraph 1, the Office shall organise meetings consisting of:
| | |
| --- | --- |
| (a) | representatives from the public administrations, bodies and organisations in the Member States; or |
| | |
| --- | --- |
| (b) | private-sector representatives. |
6. Members or other representatives of the European Parliament and representatives from the Commission shall be invited to any of the meetings covered by this Article, either as participants or observers, as appropriate.
7. The names of the representatives attending, the agenda and the minutes of the meetings referred to in this Article shall be published on the Office’s website.
Article 5
Information obligations
1. As appropriate, in accordance with national law, including the law governing the processing of personal data, Member States shall, at the request of the Office or on their own initiative:
| | |
| --- | --- |
| (a) | inform the Office of their overall policies and strategies on the enforcement of intellectual property rights and any changes thereto; |
| | |
| --- | --- |
| (b) | provide available statistical data on infringements of intellectual property rights; |
| | |
| --- | --- |
| (c) | inform the Office of important case-law. |
2. Without prejudice to the law governing the processing of personal data and to the protection of confidential information, private-sector representatives meeting as the Observatory shall, when possible, at the request of the Office:
| | |
| --- | --- |
| (a) | inform the Office of policies and strategies in their field of activity on the enforcement of intellectual property rights and any changes thereto; |
| | |
| --- | --- |
| (b) | provide statistical data on infringements of intellectual property rights in their field of activity. |
Article 6
The Office
1. The relevant provisions of Title XII of Regulation (EC) No 207/2009 shall apply to the carrying-out of the tasks and activities provided for under this Regulation.
2. Using the powers conferred by Article 124 of Regulation (EC) No 207/2009, the President of the Office shall adopt the internal administrative instructions and shall publish the notices that are necessary for the fulfilment of all the tasks entrusted to the Office by this Regulation.
Article 7
Content of the work programme and of the management report
1. The Office shall draw up an annual work programme that appropriately prioritises the activities under this Regulation and for the meetings of the Observatory, in line with the Union’s policies and priorities in the field of protection of intellectual property rights and in cooperation with the representatives referred to in point (a) of Article 4(5).
2. The work programme referred to in paragraph 1 shall be submitted to the Office’s Administrative Board for information.
3. The management report provided for in point (d) of Article 124(2) of Regulation (EC) No 207/2009 shall contain at least the following information concerning the Office’s tasks and activities under this Regulation:
| | |
| --- | --- |
| (a) | a review of the main activities carried out during the preceding calendar year; |
| | |
| --- | --- |
| (b) | the results achieved during the preceding calendar year, accompanied, where appropriate, by sectoral reports analysing the situation in the different industry and product sectors; |
| | |
| --- | --- |
| (c) | an overall assessment of the fulfilment of the Office’s tasks as provided for in this Regulation and in the work programme drawn up in accordance with paragraph 1; |
| | |
| --- | --- |
| (d) | an overview of the activities that the Office intends to undertake in the future; |
| | |
| --- | --- |
| (e) | observations on the enforcement of intellectual property rights and potential future policies and strategies, including on how to enhance effective cooperation with and between Member States; |
| | |
| --- | --- |
| (f) | an overall assessment of the proper representation in the Observatory of all the actors mentioned in Article 4(2). |
Before submitting the management report to the European Parliament, the Commission and the Administrative Board, the President of the Office shall consult the representatives referred to in point (a) of Article 4(5) on the relevant parts of the report.
Article 8
Evaluation
1. The Commission shall adopt a report evaluating the application of this Regulation by 6 June 2017.
2. The evaluation report shall assess the operation of this Regulation, in particular as regards its impact on the enforcement of intellectual property rights in the internal market.
3. The Commission shall, when preparing the evaluation report, consult the Office, the Member States and the representatives meeting as the Observatory on the issues referred to in paragraph 2.
4. The Commission shall transmit the evaluation report to the European Parliament, the Council and the European Economic and Social Committee and shall undertake a broad consultation among stakeholders on the evaluation report.
Article 9
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 19 April 2012.
For the European Parliament
The President
M. SCHULZ
For the Council
The President
M. BØDSKOV
---
---
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md | EURLEX | en | | | | | |
| --- | --- | --- | --- |
| 30.4.2004 | EN | Official Journal of the European Communities | L 157/45 |
---
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)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Economic and Social Committee[(1)](#ntr1-L_2004157EN.01004501-E0001),
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty[(2)](#ntr2-L_2004157EN.01004501-E0002),
Whereas:
| | |
| --- | --- |
| (1) | The achievement of the Internal Market entails eliminating restrictions on freedom of movement and distortions of competition, while creating an environment conducive to innovation and investment. In this context, the protection of intellectual property is an essential element for the success of the Internal Market. The protection of intellectual property is important not only for promoting innovation and creativity, but also for developing employment and improving competitiveness. |
| | |
| --- | --- |
| (2) | The protection of intellectual property should allow the inventor or creator to derive a legitimate profit from his invention or creation. It should also allow the widest possible dissemination of works, ideas and new know-how. At the same time, it should not hamper freedom of expression, the free movement of information, or the protection of personal data, including on the Internet. |
| | |
| --- | --- |
| (3) | However, without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied effectively in the Community. In this respect, the means of enforcing intellectual property rights are of paramount importance for the success of the Internal Market. |
| | |
| --- | --- |
| (4) | At international level, all Member States, as well as the Community itself as regards matters within its competence, are bound by the Agreement on Trade-Related Aspects of Intellectual Property (the "TRIPS Agreement"), approved, as part of the multilateral negotiations of the Uruguay Round, by Council Decision 94/800/EC[(3)](#ntr3-L_2004157EN.01004501-E0003) and concluded in the framework of the World Trade Organisation. |
| | |
| --- | --- |
| (5) | The TRIPS Agreement contains, in particular, provisions on the means of enforcing intellectual property rights, which are common standards applicable at international level and implemented in all Member States. This Directive should not affect Member States' international obligations, including those under the TRIPS Agreement. |
| | |
| --- | --- |
| (6) | There are also international conventions to which all Member States are parties and which also contain provisions on the means of enforcing intellectual property rights. These include, in particular, the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. |
| | |
| --- | --- |
| (7) | It emerges from the consultations held by the Commission on this question that, in the Member States, and despite the TRIPS Agreement, there are still major disparities as regards the means of enforcing intellectual property rights. For instance, the arrangements for applying provisional measures, which are used in particular to preserve evidence, the calculation of damages, or the arrangements for applying injunctions, vary widely from one Member State to another. In some Member States, there are no measures, procedures and remedies such as the right of information and the recall, at the infringer's expense, of the infringing goods placed on the market. |
| | |
| --- | --- |
| (8) | The disparities between the systems of the Member States as regards the means of enforcing intellectual property rights are prejudicial to the proper functioning of the Internal Market and make it impossible to ensure that intellectual property rights enjoy an equivalent level of protection throughout the Community. This situation does not promote free movement within the Internal Market or create an environment conducive to healthy competition. |
| | |
| --- | --- |
| (9) | The current disparities also lead to a weakening of the substantive law on intellectual property and to a fragmentation of the Internal Market in this field. This causes a loss of confidence in the Internal Market in business circles, with a consequent reduction in investment in innovation and creation. Infringements of intellectual property rights appear to be increasingly linked to organised crime. Increasing use of the Internet enables pirated products to be distributed instantly around the globe. Effective enforcement of the substantive law on intellectual property should be ensured by specific action at Community level. Approximation of the legislation of the Member States in this field is therefore an essential prerequisite for the proper functioning of the Internal Market. |
| | |
| --- | --- |
| (10) | The objective of this Directive is to approximate legislative systems so as to ensure a high, equivalent and homogeneous level of protection in the Internal Market. |
| | |
| --- | --- |
| (11) | This Directive does not aim to establish harmonised rules for judicial cooperation, jurisdiction, the recognition and enforcement of decisions in civil and commercial matters, or deal with applicable law. There are Community instruments which govern such matters in general terms and are, in principle, equally applicable to intellectual property. |
| | |
| --- | --- |
| (12) | This Directive should not affect the application of the rules of competition, and in particular Articles 81 and 82 of the Treaty. The measures provided for in this Directive should not be used to restrict unduly competition in a manner contrary to the Treaty. |
| | |
| --- | --- |
| (13) | It is necessary to define the scope of this Directive as widely as possible in order to encompass all the intellectual property rights covered by Community provisions in this field and/or by the national law of the Member State concerned. Nevertheless, that requirement does not affect the possibility, on the part of those Member States which so wish, to extend, for internal purposes, the provisions of this Directive to include acts involving unfair competition, including parasitic copies, or similar activities. |
| | |
| --- | --- |
| (14) | The measures provided for in Articles 6(2), 8(1) and 9(2) need to be applied only in respect of acts carried out on a commercial scale. This is without prejudice to the possibility for Member States to apply those measures also in respect of other acts. Acts carried out on a commercial scale are those carried out for direct or indirect economic or commercial advantage; this would normally exclude acts carried out by end-consumers acting in good faith. |
| | |
| --- | --- |
| (15) | This Directive should not affect substantive law on intellectual property, Directive 95/46/EC of 24 October 1995 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data[(4)](#ntr4-L_2004157EN.01004501-E0004), Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures[(5)](#ntr5-L_2004157EN.01004501-E0005) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market[(6)](#ntr6-L_2004157EN.01004501-E0006). |
| | |
| --- | --- |
| (16) | The provisions of this Directive should be without prejudice to the particular provisions for the enforcement of rights and on exceptions in the domain of copyright and related rights set out in Community instruments and notably those found in Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs[(7)](#ntr7-L_2004157EN.01004501-E0007) or in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society[(8)](#ntr8-L_2004157EN.01004501-E0008). |
| | |
| --- | --- |
| (17) | The measures, procedures and remedies provided for in this Directive should be determined in each case in such a manner as to take due account of the specific characteristics of that case, including the specific features of each intellectual property right and, where appropriate, the intentional or unintentional character of the infringement. |
| | |
| --- | --- |
| (18) | The persons entitled to request application of those measures, procedures and remedies should be not only the rightholders but also persons who have a direct interest and legal standing in so far as permitted by and in accordance with the applicable law, which may include professional organisations in charge of the management of those rights or for the defence of the collective and individual interests for which they are responsible. |
| | |
| --- | --- |
| (19) | Since copyright exists from the creation of a work and does not require formal registration, it is appropriate to adopt the rule laid down in Article 15 of the Berne Convention, which establishes the presumption whereby the author of a literary or artistic work is regarded as such if his name appears on the work. A similar presumption should be applied to the owners of related rights since it is often the holder of a related right, such as a phonogram producer, who will seek to defend rights and engage in fighting acts of piracy. |
| | |
| --- | --- |
| (20) | Given that evidence is an element of paramount importance for establishing the infringement of intellectual property rights, it is appropriate to ensure that effective means of presenting, obtaining and preserving evidence are available. The procedures should have regard to the rights of the defence and provide the necessary guarantees, including the protection of confidential information. For infringements committed on a commercial scale it is also important that the courts may order access, where appropriate, to banking, financial or commercial documents under the control of the alleged infringer. |
| | |
| --- | --- |
| (21) | Other measures designed to ensure a high level of protection exist in certain Member States and should be made available in all the Member States. This is the case with the right of information, which allows precise information to be obtained on the origin of the infringing goods or services, the distribution channels and the identity of any third parties involved in the infringement. |
| | |
| --- | --- |
| (22) | It is also essential to provide for provisional measures for the immediate termination of infringements, without awaiting a decision on the substance of the case, while observing the rights of the defence, ensuring the proportionality of the provisional measures as appropriate to the characteristics of the case in question and providing the guarantees needed to cover the costs and the injury caused to the defendant by an unjustified request. Such measures are particularly justified where any delay would cause irreparable harm to the holder of an intellectual property right. |
| | |
| --- | --- |
| (23) | Without prejudice to any other measures, procedures and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe the rightholder's industrial property right. The conditions and procedures relating to such injunctions should be left to the national law of the Member States. As far as infringements of copyright and related rights are concerned, a comprehensive level of harmonisation is already provided for in Directive 2001/29/EC. Article 8(3) of Directive 2001/29/EC should therefore not be affected by this Directive. |
| | |
| --- | --- |
| (24) | Depending on the particular case, and if justified by the circumstances, the measures, procedures and remedies to be provided for should include prohibitory measures aimed at preventing further infringements of intellectual property rights. Moreover there should be corrective measures, where appropriate at the expense of the infringer, such as the recall and definitive removal from the channels of commerce, or destruction, of the infringing goods and, in appropriate cases, of the materials and implements principally used in the creation or manufacture of these goods. These corrective measures should take account of the interests of third parties including, in particular, consumers and private parties acting in good faith. |
| | |
| --- | --- |
| (25) | Where an infringement is committed unintentionally and without negligence and where the corrective measures or injunctions provided for by this Directive would be disproportionate, Member States should have the option of providing for the possibility, in appropriate cases, of pecuniary compensation being awarded to the injured party as an alternative measure. However, where the commercial use of counterfeit goods or the supply of services would constitute an infringement of law other than intellectual property law or would be likely to harm consumers, such use or supply should remain prohibited. |
| | |
| --- | --- |
| (26) | With a view to compensating for the prejudice suffered as a result of an infringement committed by an infringer who engaged in an activity in the knowledge, or with reasonable grounds for knowing, that it would give rise to such an infringement, the amount of damages awarded to the rightholder should take account of all appropriate aspects, such as loss of earnings incurred by the rightholder, or unfair profits made by the infringer and, where appropriate, any moral prejudice caused to the rightholder. As an alternative, for example where it would be difficult to determine the amount of the actual prejudice suffered, the amount of the damages might be derived from elements such as the royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. The aim is not to introduce an obligation to provide for punitive damages but to allow for compensation based on an objective criterion while taking account of the expenses incurred by the rightholder, such as the costs of identification and research. |
| | |
| --- | --- |
| (27) | To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions in intellectual property infringement cases. |
| | |
| --- | --- |
| (28) | In addition to the civil and administrative measures, procedures and remedies provided for under this Directive, criminal sanctions also constitute, in appropriate cases, a means of ensuring the enforcement of intellectual property rights. |
| | |
| --- | --- |
| (29) | Industry should take an active part in the fight against piracy and counterfeiting. The development of codes of conduct in the circles directly affected is a supplementary means of bolstering the regulatory framework. The Member States, in collaboration with the Commission, should encourage the development of codes of conduct in general. Monitoring of the manufacture of optical discs, particularly by means of an identification code embedded in discs produced in the Community, helps to limit infringements of intellectual property rights in this sector, which suffers from piracy on a large scale. However, these technical protection measures should not be misused to protect markets and prevent parallel imports. |
| | |
| --- | --- |
| (30) | In order to facilitate the uniform application of this Directive, it is appropriate to provide for systems of cooperation and the exchange of information between Member States, on the one hand, and between the Member States and the Commission on the other, in particular by creating a network of correspondents designated by the Member States and by providing regular reports assessing the application of this Directive and the effectiveness of the measures taken by the various national bodies. |
| | |
| --- | --- |
| (31) | Since, for the reasons already described, the objective of this Directive can best be achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. |
| | |
| --- | --- |
| (32) | This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of that Charter, |
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
Objective and scope
Article 1
Subject-matter
This Directive concerns the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights. For the purposes of this Directive, the term "intellectual property rights" includes industrial property rights.
Article 2
Scope
1. Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as those means may be more favourable for rightholders, the measures, procedures and remedies provided for by this Directive shall apply, in accordance with Article 3, to any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned.
2. This Directive shall be without prejudice to the specific provisions on the enforcement of rights and on exceptions contained in Community legislation concerning copyright and rights related to copyright, notably those found in Directive 91/250/EEC and, in particular, Article 7 thereof or in Directive 2001/29/EC and, in particular, Articles 2 to 6 and Article 8 thereof.
3. This Directive shall not affect:
| | |
| --- | --- |
| (a) | the Community provisions governing the substantive law on intellectual property, Directive 95/46/EC, Directive 1999/93/EC or Directive 2000/31/EC, in general, and Articles 12 to 15 of Directive 2000/31/EC in particular; |
| | |
| --- | --- |
| (b) | Member States' international obligations and notably the TRIPS Agreement, including those relating to criminal procedures and penalties; |
| | |
| --- | --- |
| (c) | any national provisions in Member States relating to criminal procedures or penalties in respect of infringement of intellectual property rights. |
CHAPTER II
Measures, procedures and remedies
Section 1
General provisions
Article 3
General obligation
1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
Article 4
Persons entitled to apply for the application of the measures, procedures and remedies
1. Member States shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Chapter:
| | |
| --- | --- |
| (a) | the holders of intellectual property rights, in accordance with the provisions of the applicable law, |
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| --- | --- |
| (b) | all other persons authorised to use those rights, in particular licensees, in so far as permitted by and in accordance with the provisions of the applicable law, |
| | |
| --- | --- |
| (c) | intellectual property collective rights management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law, |
| | |
| --- | --- |
| (d) | professional defence bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law. |
Article 5
Presumption of authorship or ownership
For the purposes of applying the measures, procedures and remedies provided for in this Directive,
| | |
| --- | --- |
| (a) | for the author of a literary or artistic work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings, it shall be sufficient for his name to appear on the work in the usual manner; |
| | |
| --- | --- |
| (b) | the provision under (a) shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter. |
Section 2
Evidence
Article 6
Evidence
1. Member States shall ensure that, on application by a party which has presented reasonably available evidence sufficient to support its claims, and has, in substantiating those claims, specified evidence which lies in the control of the opposing party, the competent judicial authorities may order that such evidence be presented by the opposing party, subject to the protection of confidential information. For the purposes of this paragraph, Member States may provide that a reasonable sample of a substantial number of copies of a work or any other protected object be considered by the competent judicial authorities to constitute reasonable evidence.
2. Under the same conditions, in the case of an infringement committed on a commercial scale Member States shall take such measures as are necessary to enable the competent judicial authorities to order, where appropriate, on application by a party, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.
Article 7
Measures for preserving evidence
1. Member States shall ensure that, even before the commencement of proceedings on the merits of the case, the competent judicial authorities may, on application by a party who has presented reasonably available evidence to support his claims that his intellectual property right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information. Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto. Those measures shall be taken, if necessary without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the rightholder or where there is a demonstrable risk of evidence being destroyed.
Where measures to preserve evidence are adopted without the other party having been heard, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the parties affected with a view to deciding, within a reasonable period after the notification of the measures, whether the measures shall be modified, revoked or confirmed.
2. Member States shall ensure that the measures to preserve evidence may be subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant as provided for in paragraph 4.
3. Member States shall ensure that the measures to preserve evidence are revoked or otherwise cease to have effect, upon request of the defendant, without prejudice to the damages which may be claimed, if the applicant does not institute, within a reasonable period, proceedings leading to a decision on the merits of the case before the competent judicial authority, the period to be determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer.
4. Where the measures to preserve evidence are revoked, or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures.
5. Member States may take measures to protect witnesses' identity.
Section 3
Right of information
Article 8
Right of information
1. Member States shall ensure that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities 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:
| | |
| --- | --- |
| (a) | was found in possession of the infringing goods on a commercial scale; |
| | |
| --- | --- |
| (b) | was found to be using the infringing services on a commercial scale; |
| | |
| --- | --- |
| (c) | was found to be providing on a commercial scale services used in infringing activities; or |
| | |
| --- | --- |
| (d) | was indicated by the person referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services. |
2. The information referred to in paragraph 1 shall, as appropriate, comprise:
| | |
| --- | --- |
| (a) | the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers; |
| | |
| --- | --- |
| (b) | information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question. |
3. Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which:
| | |
| --- | --- |
| (a) | grant the rightholder rights to receive fuller information; |
| | |
| --- | --- |
| (b) | govern the use in civil or criminal proceedings of the information communicated pursuant to this Article; |
| | |
| --- | --- |
| (c) | govern responsibility for misuse of the right of information; or |
| | |
| --- | --- |
| (d) | afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit to his own participation or that of his close relatives in an infringement of an intellectual property right; or |
| | |
| --- | --- |
| (e) | govern the protection of confidentiality of information sources or the processing of personal data. |
Section 4
Provisional and precautionary measures
Article 9
Provisional and precautionary measures
1. Member States shall ensure that the judicial authorities may, at the request of the applicant:
| | |
| --- | --- |
| (a) | issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by national law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the rightholder; an interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right; injunctions against intermediaries whose services are used by a third party to infringe a copyright or a related right are covered by Directive 2001/29/EC; |
| | |
| --- | --- |
| (b) | order the seizure or delivery up of the goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce. |
2. In the case of an infringement committed on a commercial scale, the Member States shall ensure that, if the injured party demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of his bank accounts and other assets. To that end, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information.
3. The judicial authorities shall, in respect of the measures referred to in paragraphs 1 and 2, have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the rightholder and that the applicant's right is being infringed, or that such infringement is imminent.
4. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 may, in appropriate cases, be taken without the defendant having been heard, in particular where any delay would cause irreparable harm to the rightholder. In that event, the parties shall be so informed without delay after the execution of the measures at the latest.
A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable time after notification of the measures, whether those measures shall be modified, revoked or confirmed.
5. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 are revoked or otherwise cease to have effect, upon request of the defendant, if the applicant does not institute, within a reasonable period, proceedings leading to a decision on the merits of the case before the competent judicial authority, the period to be determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer.
6. The competent judicial authorities may make the provisional measures referred to in paragraphs 1 and 2 subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant as provided for in paragraph 7.
7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures.
Section 5
Measures resulting from a decision on the merits of the case
Article 10
Corrective measures
1. Without prejudice to any damages due to the rightholder by reason of the infringement, and without compensation of any sort, Member States shall ensure that the competent judicial authorities may order, at the request of the applicant, that appropriate measures be taken with regard to goods that they have found to be infringing an intellectual property right and, in appropriate cases, with regard to materials and implements principally used in the creation or manufacture of those goods. Such measures shall include:
| | |
| --- | --- |
| (a) | recall from the channels of commerce, |
| | |
| --- | --- |
| (b) | definitive removal from the channels of commerce, or |
| | |
| --- | --- |
| (c) | destruction. |
2. The judicial authorities shall order that those measures be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
3. In considering a request for corrective measures, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account.
Article 11
Injunctions
Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.
Article 12
Alternative measures
Member States may provide that, in appropriate cases and at the request of the person liable to be subject to the measures provided for in this Section, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in this Section if that person acted unintentionally and without negligence, if execution of the measures in question would cause him disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Section 6
Damages and legal costs
Article 13
Damages
1. Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him as a result of the infringement.
When the judicial authorities set the damages:
| | |
| --- | --- |
| (a) | they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement; or |
| | |
| --- | --- |
| (b) | as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. |
2. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, Member States may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established.
Article 14
Legal costs
Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.
Section 7
Publicity measures
Article 15
Publication of judicial decisions
Member States shall ensure that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part. Member States may provide for other additional publicity measures which are appropriate to the particular circumstances, including prominent advertising.
CHAPTER III
Sanctions by Member States
Article 16
Sanctions by Member States
Without prejudice to the civil and administrative measures, procedures and remedies laid down by this Directive, Member States may apply other appropriate sanctions in cases where intellectual property rights have been infringed.
CHAPTER IV
Codes of conduct and administrative cooperation
Article 17
Codes of conduct
Member States shall encourage:
| | |
| --- | --- |
| (a) | the development by trade or professional associations or organisations of codes of conduct at Community level aimed at contributing towards the enforcement of the intellectual property rights, particularly by recommending the use on optical discs of a code enabling the identification of the origin of their manufacture; |
| | |
| --- | --- |
| (b) | the submission to the Commission of draft codes of conduct at national and Community level and of any evaluations of the application of these codes of conduct. |
Article 18
Assessment
1. Three years after the date laid down in Article 20(1), each Member State shall submit to the Commission a report on the implementation of this Directive.
On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society. That report shall then be transmitted to the European Parliament, the Council and the European Economic and Social Committee. It shall be accompanied, if necessary and in the light of developments in the Community legal order, by proposals for amendments to this Directive.
2. Member States shall provide the Commission with all the aid and assistance it may need when drawing up the report referred to in the second subparagraph of paragraph 1.
Article 19
Exchange of information and correspondents
For the purpose of promoting cooperation, including the exchange of information, among Member States and between Member States and the Commission, each Member State shall designate one or more national correspondents for any question relating to the implementation of the measures provided for by this Directive. It shall communicate the details of the national correspondent(s) to the other Member States and to the Commission.
CHAPTER V
Final provisions
Article 20
Implementation
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...[(9)](#ntr9-L_2004157EN.01004501-E0009). They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive.
Article 21
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 22
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg, 29.4.2004.
For the European Parliament
The President
P. COX
For the Council
The President
M. McDOWELL
---
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md | EURLEX | en | | | | | |
| --- | --- | --- | --- |
| 29.6.2013 | EN | Official Journal of the European Union | L 181/15 |
---
REGULATION (EU) No 608/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 12 June 2013
concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure [(1)](#ntr1-L_2013181EN.01001501-E0001),
Whereas:
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| (1) | The Council requested, in its Resolution of 25 September 2008 on a comprehensive European anti-counterfeiting and anti-piracy plan, that Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights [(2)](#ntr2-L_2013181EN.01001501-E0002), be reviewed. |
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| (2) | The marketing of goods infringing intellectual property rights does considerable damage to right-holders, users or groups of producers, and to law-abiding manufacturers and traders. Such marketing could also be deceiving consumers, and could in some cases be endangering their health and safety. Such goods should, in so far as is possible, be kept off the Union market and measures should be adopted to deal with such unlawful marketing without impeding legitimate trade. |
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| (3) | The review of Regulation (EC) No 1383/2003 showed that, in the light of economic, commercial and legal developments, certain improvements to the legal framework are necessary to strengthen the enforcement of intellectual property rights by customs authorities, as well as to ensure appropriate legal certainty. |
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| (4) | The customs authorities should be competent to enforce intellectual property rights with regard to goods, which, in accordance with Union customs legislation, are liable to customs supervision or customs control, and to carry out adequate controls on such goods with a view to preventing operations in breach of intellectual property rights laws. Enforcing intellectual property rights at the border, wherever the goods are, or should have been, under customs supervision or customs control is an efficient way to quickly and effectively provide legal protection to the right-holder as well as the users and groups of producers. Where the release of goods is suspended or goods are detained by customs authorities at the border, only one legal proceeding should be required, whereas several separate proceedings should be required for the same level of enforcement for goods found on the market, which have been disaggregated and delivered to retailers. An exception should be made for goods released for free circulation under the end-use regime, as such goods remain under customs supervision, even though they have been released for free circulation. This Regulation should not apply to goods carried by passengers in their personal luggage provided that those goods are for their own personal use and there are no indications that commercial traffic is involved. |
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| (5) | Regulation (EC) No 1383/2003 does not cover certain intellectual property rights and certain infringements are excluded from its scope. In order to strengthen the enforcement of intellectual property rights, customs intervention should be extended to other types of infringements not covered by Regulation (EC) No 1383/2003. This Regulation should therefore, in addition to the rights already covered by Regulation (EC) No 1383/2003, also include trade names in so far as they are protected as exclusive property rights under national law, topographies of semiconductor products and utility models and devices which are primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of technological measures. |
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| (6) | Infringements resulting from so-called illegal parallel trade and overruns are excluded from the scope of Regulation (EC) No 1383/2003. Goods subject to illegal parallel trade, namely goods that have been manufactured with the consent of the right-holder but placed on the market for the first time in the European Economic Area without his consent, and overruns, namely goods that are manufactured by a person duly authorised by a right-holder to manufacture a certain quantity of goods, in excess of the quantities agreed between that person and the right-holder, are manufactured as genuine goods and it is therefore not appropriate that customs authorities focus their efforts on such goods. Illegal parallel trade and overruns should therefore also be excluded from the scope of this Regulation. |
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| (7) | Member States should, in cooperation with the Commission, provide appropriate training for customs officials, in order to ensure the correct implementation of this Regulation. |
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| (8) | This Regulation, when fully implemented, will further contribute to an internal market which ensures right-holders a more effective protection, fuels creativity and innovation and provides consumers with reliable and high-quality products, which should in turn strengthen cross-border transactions between consumers, businesses and traders. |
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| (9) | Member States face increasingly limited resources in the field of customs. Therefore, the promotion of risk management technologies and strategies to maximise resources available to customs authorities should be supported. |
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| (10) | This Regulation solely contains procedural rules for customs authorities. Accordingly, this Regulation does not set out any criteria for ascertaining the existence of an infringement of an intellectual property right. |
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| (11) | Under the ‘Declaration on the TRIPS Agreement and Public Health’ adopted by the Doha WTO Ministerial Conference on 14 November 2001, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all. Consequently, in line with the Union’s international commitments and its development cooperation policy, with regard to medicines, the passage of which across the customs territory of the Union, with or without transhipment, warehousing, breaking bulk, or changes in the mode or means of transport, is only a portion of a complete journey beginning and terminating beyond the territory of the Union, customs authorities should, when assessing a risk of infringement of intellectual property rights, take account of any substantial likelihood of diversion of such medicines onto the market of the Union. |
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| (12) | This Regulation should not affect the provisions on the competence of courts, in particular, those of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [(3)](#ntr3-L_2013181EN.01001501-E0003). |
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| (13) | Persons, users, bodies or groups of producers, who are in a position to initiate legal proceedings in their own name with respect to a possible infringement of an intellectual property right, should be entitled to submit an application. |
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| (14) | In order to ensure that intellectual property rights are enforced throughout the Union, it is appropriate to allow persons or entities seeking enforcement of Union-wide rights to apply to the customs authorities of a single Member State. Such applicants should be able to request that those authorities decide that action be taken to enforce the intellectual property right both in their own Member State and in any other Member State. |
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| (15) | In order to ensure the swift enforcement of intellectual property rights, it should be provided that, where the customs authorities suspect, on the basis of reasonable indications, that goods under their supervision infringe intellectual property rights, they may suspend the release of or detain the goods whether at their own initiative or upon application, in order to enable a person or entity entitled to submit an application to initiate proceedings for determining whether an intellectual property right has been infringed. |
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| (16) | Regulation (EC) No 1383/2003 allowed Member States to provide for a procedure allowing the destruction of certain goods without there being any obligation to initiate proceedings to establish whether an intellectual property right has been infringed. As recognised in the European Parliament Resolution of 18 December 2008 on the impact of counterfeiting on international trade [(4)](#ntr4-L_2013181EN.01001501-E0004), such procedure has proved very successful in the Member States where it has been available. Therefore, the procedure should be made compulsory with regard to all infringements of intellectual property rights and should be applied, where the declarant or the holder of the goods agrees to destruction. Furthermore, the procedure should provide that customs authorities may deem that the declarant or the holder of the goods has agreed to the destruction of the goods where he has not explicitly opposed destruction within the prescribed period. |
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| (17) | In order to reduce the administrative burden and costs to a minimum, a specific procedure should be introduced for small consignments of counterfeit and pirated goods, which should allow for such goods to be destroyed without the explicit agreement of the applicant in each case. However, a general request made by the applicant in the application should be required in order for that procedure to be applied. Furthermore, customs authorities should have the possibility to require that the applicant covers the costs incurred by the application of that procedure. |
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| (18) | For further legal certainty, it is appropriate to modify the timelines for suspending the release of or detaining goods suspected of infringing an intellectual property right and the conditions in which information about detained goods is to be passed on to persons and entities concerned by customs authorities, as provided for in Regulation (EC) No 1383/2003. |
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| (19) | Taking into account the provisional and preventive character of the measures adopted by the customs authorities when applying this Regulation and the conflicting interests of the parties affected by the measures, some aspects of the procedures should be adapted to ensure the smooth application of this Regulation, whilst respecting the rights of the concerned parties. Thus, with respect to the various notifications envisaged by this Regulation, the customs authorities should notify the relevant person, on the basis of the documents concerning the customs treatment or of the situation in which the goods are placed. Furthermore, since the procedure for destruction of goods implies that both the declarant or the holder of the goods and the holder of the decision should communicate their possible objections to destruction in parallel, it should be ensured that the holder of the decision is given the possibility to react to a potential objection to destruction by the declarant or the holder of the goods. It should therefore be ensured that the declarant or the holder of the goods is notified of the suspension of the release of the goods or their detention before, or on the same day as, the holder of the decision. |
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| (20) | Customs authorities and the Commission are encouraged to cooperate with the European Observatory on Infringements of Intellectual Property Rights in the framework of their respective competences. |
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| (21) | With a view to eliminating international trade in goods infringing intellectual property rights, the TRIPS Agreement provides that WTO Members are to promote the exchange of information between customs authorities on such trade. Accordingly, it should be possible for the Commission and the customs authorities of the Member States to share information on suspected breaches of intellectual property rights with the relevant authorities of third countries, including on goods which are in transit through the territory of the Union and originate in or are destined for those third countries. |
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| (22) | In the interest of efficiency, the provisions of Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs or agricultural matters [(5)](#ntr5-L_2013181EN.01001501-E0005), should apply. |
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| (23) | The liability of the customs authorities should be governed by the legislation of the Member States, though the granting by the customs authorities of an application should not entitle the holder of the decision to compensation in the event that goods suspected of infringing an intellectual property right are not detected by the customs authorities and are released or no action is taken to detain them. |
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| (24) | Given that customs authorities take action upon application, it is appropriate to provide that the holder of the decision should reimburse all the costs incurred by the customs authorities in taking action to enforce his intellectual property rights. Nevertheless, this should not preclude the holder of the decision from seeking compensation from the infringer or other persons that might be considered liable under the legislation of the Member State where the goods were found. Such persons might include intermediaries, where applicable. Costs and damages incurred by persons other than customs authorities as a result of a customs action, where the release of goods is suspended or the goods are detained on the basis of a claim of a third party based on intellectual property, should be governed by the specific legislation applicable in each particular case. |
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| (25) | This Regulation introduces the possibility for customs authorities to allow goods which are to be destroyed to be moved, under customs supervision, between different places within the customs territory of the Union. Customs authorities may furthermore decide to release such goods for free circulation with a view to further recycling or disposal outside commercial channels including for awareness-raising, training and educational purposes. |
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| (26) | Customs enforcement of intellectual property rights entails the exchange of data on decisions relating to applications. Such processing of data covers also personal data and should be carried out in accordance with Union law, as set out in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [(6)](#ntr6-L_2013181EN.01001501-E0006) and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by Community institutions and bodies and on the free movement of such data [(7)](#ntr7-L_2013181EN.01001501-E0007). |
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| (27) | The exchange of information relating to decisions on applications and to customs actions should be made via a central electronic database. The entity which will control and manage that database and the entities in charge of ensuring the security of the processing of the data contained in the database should be defined. Introducing any type of possible interoperability or exchange should first and foremost comply with the purpose limitation principle, namely that data should be used for the purpose for which the database has been established, and no further exchange or interconnection should be allowed other than for that purpose. |
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| (28) | In order to ensure that the definition of small consignments can be adapted if it proves to be impractical, taking into account the need to ensure the effective operation of the procedure, or where necessary to avoid any circumvention of this procedure as regards the composition of consignments, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amending the non-essential elements of the definition of small consignments, namely the specific quantities set out in that definition. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. |
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| (29) | In order to ensure uniform conditions for the implementation of the provisions concerning defining the elements of the practical arrangements for the exchange of data with third countries and the provisions concerning the forms for the application and for requesting the extension of the period during which customs authorities are to take action, implementing powers should be conferred on the Commission, namely to define those elements of the practical arrangements and to establish standard forms. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [(8)](#ntr8-L_2013181EN.01001501-E0008). For establishing the standard forms, although the subject of the provisions of this Regulation to be implemented falls within the scope of the common commercial policy, given the nature and impacts of those implementing acts, the advisory procedure should be used for their adoption, because all details of what information to include in the forms follows directly from the text of this Regulation. Those implementing acts will therefore only establish the format and structure of the form and will have no further implications for the common commercial policy of the Union. |
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| (30) | Regulation (EC) No 1383/2003 should be repealed. |
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| (31) | The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 12 October 2011 [(9)](#ntr9-L_2013181EN.01001501-E0009), |
HAVE ADOPTED THIS REGULATION:
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter and scope
1. This Regulation sets out the conditions and procedures for action by the customs authorities where goods suspected of infringing an intellectual property right are, or should have been, subject to customs supervision or customs control within the customs territory of the Union in accordance with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code [(10)](#ntr10-L_2013181EN.01001501-E0010), particularly goods in the following situations:
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| (a) | when declared for release for free circulation, export or re-export; |
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| (b) | when entering or leaving the customs territory of the Union; |
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| (c) | when placed under a suspensive procedure or in a free zone or free warehouse. |
2. In respect of the goods subject to customs supervision or customs control, and without prejudice to Articles 17 and 18, the customs authorities shall carry out adequate customs controls and shall take proportionate identification measures as provided for in Article 13(1) and Article 72 of Regulation (EEC) No 2913/92 in accordance with risk analysis criteria with a view to preventing acts in breach of intellectual property laws applicable in the territory of the Union and in order to cooperate with third countries on the enforcement of intellectual property rights.
3. This Regulation shall not apply to goods that have been released for free circulation under the end-use regime.
4. This Regulation shall not apply to goods of a non-commercial nature contained in travellers’ personal luggage.
5. This Regulation shall not apply to goods that have been manufactured with the consent of the right-holder or to goods manufactured, by a person duly authorised by a right-holder to manufacture a certain quantity of goods, in excess of the quantities agreed between that person and the right-holder.
6. This Regulation shall not affect national or Union law on intellectual property or the laws of the Member States in relation to criminal procedures.
Article 2
Definitions
For the purposes of this Regulation:
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| (1) | ‘intellectual property right’ means: | | | | --- | --- | | (a) | a trade mark; | | | | | --- | --- | | (b) | a design; | | | | | --- | --- | | (c) | a copyright or any related right as provided for by national or Union law; | | | | | --- | --- | | (d) | a geographical indication; | | | | | --- | --- | | (e) | a patent as provided for by national or Union law; | | | | | --- | --- | | (f) | a supplementary protection certificate for medicinal products as provided for in Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products [(11)](#ntr11-L_2013181EN.01001501-E0011); | | | | | --- | --- | | (g) | a supplementary protection certificate for plant protection products as provided for in Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products [(12)](#ntr12-L_2013181EN.01001501-E0012); | | | | | --- | --- | | (h) | a Community plant variety right as provided for in Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights [(13)](#ntr13-L_2013181EN.01001501-E0013); | | | | | --- | --- | | (i) | a plant variety right as provided for by national law; | | | | | --- | --- | | (j) | a topography of semiconductor product as provided for by national or Union law; | | | | | --- | --- | | (k) | a utility model in so far as it is protected as an intellectual property right by national or Union law; | | | | | --- | --- | | (l) | a trade name in so far as it is protected as an exclusive intellectual property right by national or Union law; | |
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| (2) | ‘trade mark’ means: | | | | --- | --- | | (a) | a Community trade mark as provided for in Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark [(14)](#ntr14-L_2013181EN.01001501-E0014); | | | | | --- | --- | | (b) | a trade mark registered in a Member State, or, in the case of Belgium, Luxembourg or the Netherlands, at the Benelux Office for Intellectual Property; | | | | | --- | --- | | (c) | a trade mark registered under international arrangements which has effect in a Member State or in the Union; | |
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| (3) | ‘design’ means: | | | | --- | --- | | (a) | a Community design as provided for in Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs [(15)](#ntr15-L_2013181EN.01001501-E0015); | | | | | --- | --- | | (b) | a design registered in a Member State, or, in the case of Belgium, Luxembourg or the Netherlands, at the Benelux Office for Intellectual Property; | | | | | --- | --- | | (c) | a design registered under international arrangements which has effect in a Member State or in the Union; | |
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| (4) | ‘geographical indication’ means: | | | | --- | --- | | (a) | a geographical indication or designation of origin protected for agricultural products and foodstuff as provided for in Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs [(16)](#ntr16-L_2013181EN.01001501-E0016); | | | | | --- | --- | | (b) | a designation of origin or geographical indication for wine as provided for in Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) [(17)](#ntr17-L_2013181EN.01001501-E0017); | | | | | --- | --- | | (c) | a geographical designation for aromatised drinks based on wine products as provided for in Council Regulation (EEC) No 1601/91 of 10 June 1991 laying down general rules on the definition, description and presentation of aromatized wines, aromatized wine-based drinks and aromatized wine-product cocktails [(18)](#ntr18-L_2013181EN.01001501-E0018); | | | | | --- | --- | | (d) | a geographical indication of spirit drinks as provided for in Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks [(19)](#ntr19-L_2013181EN.01001501-E0019); | | | | | --- | --- | | (e) | a geographical indication for products not falling under points (a) to (d) in so far as it is established as an exclusive intellectual property right by national or Union law; | | | | | --- | --- | | (f) | a geographical indication as provided for in Agreements between the Union and third countries and as such listed in those Agreements; | |
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| (5) | ‘counterfeit goods’ means: | | | | --- | --- | | (a) | goods which are the subject of an act infringing a trade mark in the Member State where they are found and bear without authorisation a sign which is identical to the trade mark validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such a trade mark; | | | | | --- | --- | | (b) | goods which are the subject of an act infringing a geographical indication in the Member State where they are found and, bear or are described by, a name or term protected in respect of that geographical indication; | | | | | --- | --- | | (c) | any packaging, label, sticker, brochure, operating instructions, warranty document or other similar item, even if presented separately, which is the subject of an act infringing a trade mark or a geographical indication, which includes a sign, name or term which is identical to a validly registered trade mark or protected geographical indication, or which cannot be distinguished in its essential aspects from such a trade mark or geographical indication, and which can be used for the same type of goods as that for which the trade mark or geographical indication has been registered; | |
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| (6) | ‘pirated goods’ means goods which are the subject of an act infringing a copyright or related right or a design in the Member State where the goods are found and which are, or contain copies, made without the consent of the holder of a copyright or related right or a design, or of a person authorised by that holder in the country of production; |
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| (7) | ‘goods suspected of infringing an intellectual property right’ means goods with regard to which there are reasonable indications that, in the Member State where those goods are found, they are prima facie: | | | | --- | --- | | (a) | goods which are the subject of an act infringing an intellectual property right in that Member State; | | | | | --- | --- | | (b) | devices, products or components which are primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of any technology, device or component that, in the normal course of its operation, prevents or restricts acts in respect of works which are not authorised by the holder of any copyright or any right related to copyright and which relate to an act infringing those rights in that Member State; | | | | | --- | --- | | (c) | any mould or matrix which is specifically designed or adapted for the manufacture of goods infringing an intellectual property right, if such moulds or matrices relate to an act infringing an intellectual property right in that Member State; | |
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| (8) | ‘right-holder’ means the holder of an intellectual property right; |
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| (9) | ‘application’ means a request made to the competent customs department for customs authorities to take action with respect to goods suspected of infringing an intellectual property right; |
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| (10) | ‘national application’ means an application requesting the customs authorities of a Member State to take action in that Member State; |
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| (11) | ‘Union application’ means an application submitted in one Member State and requesting the customs authorities of that Member State and of one or more other Member States to take action in their respective Member States; |
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| (12) | ‘applicant’ means the person or entity in whose name an application is submitted; |
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| (13) | ‘holder of the decision’ means the holder of a decision granting an application; |
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| (14) | ‘holder of the goods’ means the person who is the owner of the goods suspected of infringing an intellectual property right or who has a similar right of disposal, or physical control, over such goods; |
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| (15) | ‘declarant’ means the declarant as defined in point (18) of Article 4 of Regulation (EEC) No 2913/92; |
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| (16) | ‘destruction’ means the physical destruction, recycling or disposal of goods outside commercial channels, in such a way as to preclude damage to the holder of the decision; |
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| (17) | ‘customs territory of the Union’ means the customs territory of the Community as defined in Article 3 of Regulation (EEC) No 2913/92; |
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| (18) | ‘release of the goods’ means the release of the goods as defined in point (20) of Article 4 of Regulation (EEC) No 2913/92; |
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| (19) | ‘small consignment’ means a postal or express courier consignment, which: | | | | --- | --- | | (a) | contains three units or less; or | | | | | --- | --- | | (b) | has a gross weight of less than two kilograms. | For the purpose of point (a), ‘units’ means goods as classified under the Combined Nomenclature in accordance with Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff [(20)](#ntr20-L_2013181EN.01001501-E0020) if unpackaged, or the package of such goods intended for retail sale to the ultimate consumer. For the purpose of this definition, separate goods falling in the same Combined Nomenclature code shall be considered as different units and goods presented as sets classified in one Combined Nomenclature code shall be considered as one unit; |
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| (20) | ‘perishable goods’ means goods considered by customs authorities to deteriorate by being kept for up to 20 days from the date of their suspension of release or detention; |
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| (21) | ‘exclusive licence’ means a licence (whether general or limited) authorising the licensee to the exclusion of all other persons, including the person granting the licence, to use an intellectual property right in the manner authorised by the licence. |
CHAPTER II
APPLICATIONS
SECTION 1
Submission of applications
Article 3
Entitlement to submit an application
The following persons and entities shall, to the extent they are entitled to initiate proceedings, in order to determine whether an intellectual property right has been infringed, in the Member State or Member States where the customs authorities are requested to take action, be entitled to submit:
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| (1) | a national or a Union application: | | | | --- | --- | | (a) | right-holders; | | | | | --- | --- | | (b) | intellectual property collective rights management bodies as referred to in point (c) of Article 4(1) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights [(21)](#ntr21-L_2013181EN.01001501-E0021); | | | | | --- | --- | | (c) | professional defence bodies as referred to in point (d) of Article 4(1) of Directive 2004/48/EC; | | | | | --- | --- | | (d) | groups within the meaning of point (2) of Article 3, and Article 49(1) of Regulation (EU) No 1151/2012, groups of producers within the meaning of Article 118e of Regulation (EC) No 1234/2007 or similar groups of producers provided for in Union law governing geographical indications representing producers of products with a geographical indication or representatives of such groups, in particular Regulations (EEC) No 1601/91 and (EC) No 110/2008 and operators entitled to use a geographical indication as well as inspection bodies or authorities competent for such a geographical indication; | |
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| (2) | a national application: | | | | --- | --- | | (a) | persons or entities authorised to use intellectual property rights, which have been authorised formally by the right-holder to initiate proceedings in order to determine whether the intellectual property right has been infringed; | | | | | --- | --- | | (b) | groups of producers provided for in the legislation of the Member States governing geographical indications representing producers of products with geographical indications or representatives of such groups and operators entitled to use a geographical indication, as well as inspection bodies or authorities competent for such a geographical indication; | |
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| (3) | a Union application: holders of exclusive licenses covering the entire territory of two or more Member States, where those licence holders have been authorised formally in those Member States by the right-holder to initiate proceedings in order to determine whether the intellectual property right has been infringed. |
Article 4
Intellectual property rights covered by Union applications
A Union application may be submitted only with respect to intellectual property rights based on Union law producing effects throughout the Union.
Article 5
Submission of applications
1. Each Member State shall designate the customs department competent to receive and process applications (‘competent customs department’). The Member State shall inform the Commission accordingly and the Commission shall make public a list of competent customs departments designated by the Member States.
2. Applications shall be submitted to the competent customs department. The applications shall be completed using the form referred to in Article 6 and shall contain the information required therein.
3. Where an application is submitted after notification by the customs authorities of the suspension of the release or detention of the goods in accordance with Article 18(3), that application shall comply with the following:
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| (a) | it is submitted to the competent customs department within four working days of the notification of the suspension of the release or detention of the goods; |
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| --- | --- |
| (b) | it is a national application; |
| | |
| --- | --- |
| (c) | it contains the information referred to in Article 6(3). The applicant may, however, omit the information referred to in point (g), (h) or (i) of that paragraph. |
4. Except in the circumstances referred to in point (3) of Article 3, only one national application and one Union application may be submitted per Member State for the same intellectual property right protected in that Member State. In the circumstances referred to in point (3) of Article 3, more than one Union application shall be allowed.
5. Where a Union application is granted for a Member State already covered by another Union application granted to the same applicant and for the same intellectual property right, the customs authorities of that Member State shall take action on the basis of the Union application first granted. They shall inform the competent customs department of the Member State where any subsequent Union application was granted, which shall, amend or revoke the decision granting that subsequent Union application.
6. Where computerised systems are available for the purpose of receiving and processing applications, applications as well as attachments shall be submitted using electronic data-processing techniques. Member States and the Commission shall develop, maintain and employ such systems in accordance with the multi-annual strategic plan referred to in Article 8(2) of Decision No 70/2008/EC of the European Parliament and of the Council of 15 January 2008 on a paperless customs environment for customs and trade [(22)](#ntr22-L_2013181EN.01001501-E0022).
Article 6
Application form
1. The Commission shall establish an application form by means of implementing acts. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 34(2).
2. The application form shall specify the information that has to be provided to the data subject pursuant to Regulation (EC) No 45/2001 and national laws implementing Directive 95/46/EC.
3. The Commission shall ensure that the following information is required of the applicant in the application form:
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| --- | --- |
| (a) | details concerning the applicant; |
| | |
| --- | --- |
| (b) | the status, within the meaning of Article 3, of the applicant; |
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| --- | --- |
| (c) | documents providing evidence to satisfy the competent customs department that the applicant is entitled to submit the application; |
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| --- | --- |
| (d) | where the applicant submits the application by means of a representative, details of the person representing him and evidence of that person’s powers to act as representative, in accordance with the legislation of the Member State in which the application is submitted; |
| | |
| --- | --- |
| (e) | the intellectual property right or rights to be enforced; |
| | |
| --- | --- |
| (f) | in the case of a Union application, the Member States in which customs action is requested; |
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| --- | --- |
| (g) | specific and technical data on the authentic goods, including markings such as bar-coding and images where appropriate; |
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| --- | --- |
| (h) | the information needed to enable the customs authorities to readily identify the goods in question; |
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| --- | --- |
| (i) | information relevant to the customs authorities’ analysis and assessment of the risk of infringement of the intellectual property right or the intellectual property rights concerned, such as the authorised distributors; |
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| --- | --- |
| (j) | whether information provided in accordance with point (g), (h) or (i) of this paragraph is to be marked for restricted handling in accordance with Article 31(5); |
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| --- | --- |
| (k) | the details of any representative designated by the applicant to take charge of legal and technical matters; |
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| --- | --- |
| (l) | an undertaking by the applicant to notify the competent customs department of any of the situations laid down in Article 15; |
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| --- | --- |
| (m) | an undertaking by the applicant to forward and update any information relevant to the customs authorities’ analysis and assessment of the risk of infringement of the intellectual property right(s) concerned; |
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| --- | --- |
| (n) | an undertaking by the applicant to assume liability under the conditions laid down in Article 28; |
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| --- | --- |
| (o) | an undertaking by the applicant to bear the costs referred to in Article 29 under the conditions laid down in that Article; |
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| --- | --- |
| (p) | an agreement by the applicant that the data provided by him may be processed by the Commission and by the Member States; |
| | |
| --- | --- |
| (q) | whether the applicant requests the use of the procedure referred to in Article 26 and, where requested by the customs authorities, agrees to cover the costs related to destruction of goods under that procedure. |
SECTION 2
Decisions on applications
Article 7
Processing of incomplete applications
1. Where, on receipt of an application, the competent customs department considers that the application does not contain all the information required by Article 6(3), the competent customs department shall request the applicant to supply the missing information within 10 working days of notification of the request.
In such cases, the time-limit referred to in Article 9(1) shall be suspended until the relevant information is received.
2. Where the applicant does not provide the missing information within the period referred to in the first subparagraph of paragraph 1, the competent customs department shall reject the application.
Article 8
Fees
The applicant shall not be charged a fee to cover the administrative costs resulting from the processing of the application.
Article 9
Notification of decisions granting or rejecting applications
1. The competent customs department shall notify the applicant of its decision granting or rejecting the application within 30 working days of the receipt of the application. In the event of rejection, the competent customs department shall provide reasons for its decision and include information on the appeal procedure.
2. If the applicant has been notified of the suspension of the release or the detention of the goods by the customs authorities before the submission of an application, the competent customs department shall notify the applicant of its decision granting or rejecting the application within two working days of the receipt of the application.
Article 10
Decisions concerning applications
1. A decision granting a national application and any decision revoking or amending it shall take effect in the Member State in which the national application was submitted from the day following the date of adoption.
A decision extending the period during which customs authorities are to take action shall take effect in the Member State in which the national application was submitted on the day following the date of expiry of the period to be extended.
2. A decision granting a Union application and any decision revoking or amending it shall take effect as follows:
| | |
| --- | --- |
| (a) | in the Member State in which the application was submitted, on the day following the date of adoption; |
| | |
| --- | --- |
| (b) | in all other Member States where action by the customs authorities is requested, on the day following the date on which the customs authorities are notified in accordance with Article 14(2), provided that the holder of the decision has fulfilled his obligations under Article 29(3) with regard to translation costs. |
A decision extending the period during which customs authorities are to take action shall take effect in the Member State in which the Union application was submitted and in all other Member States where action by the customs authorities is requested the day following the date of expiry of the period to be extended.
Article 11
Period during which the customs authorities are to take action
1. When granting an application, the competent customs department shall specify the period during which the customs authorities are to take action.
That period shall begin on the day the decision granting the application takes effect, pursuant to Article 10, and shall not exceed one year from the day following the date of adoption.
2. Where an application submitted after notification by the customs authorities of the suspension of the release or detention of the goods in accordance with Article 18(3) does not contain the information referred to in point (g), (h) or (i) of Article 6(3), it shall be granted only for the suspension of the release or detention of those goods, unless that information is provided within 10 working days after the notification of the suspension of the release or detention of the goods.
3. Where an intellectual property right ceases to have effect or where the applicant ceases for other reasons to be entitled to submit an application, no action shall be taken by the customs authorities. The decision granting the application shall be revoked or amended accordingly by the competent customs department that granted the decision.
Article 12
Extension of the period during which the customs authorities are to take action
1. On expiry of the period during which the customs authorities are to take action, and subject to the prior discharge by the holder of the decision of any debt owed to the customs authorities under this Regulation, the competent customs department which adopted the initial decision may, at the request of the holder of the decision, extend that period.
2. Where the request for extension of the period during which the customs authorities are to take action is received by the competent customs department less than 30 working days before the expiry of the period to be extended, it may refuse that request.
3. The competent customs department shall notify its decision on the extension to the holder of the decision within 30 working days of the receipt of the request referred to in paragraph 1. The competent customs department shall specify the period during which the customs authorities are to take action.
4. The extended period during which the customs authorities are to take action shall run from the day following the date of expiry of the previous period and shall not exceed one year.
5. Where an intellectual property right ceases to have effect or where the applicant ceases for other reasons to be entitled to submit an application, no action shall be taken by the customs authorities. The decision granting the extension shall be revoked or amended accordingly by the competent customs department that granted the decision.
6. The holder of the decision shall not be charged a fee to cover the administrative costs resulting from the processing of the request for extension.
7. The Commission shall establish an extension request form by means of implementing acts. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 34(2).
Article 13
Amending the decision with regard to intellectual property rights.
The competent customs department that adopted the decision granting the application may, at the request of the holder of that decision, modify the list of intellectual property rights in that decision.
Where a new intellectual property right is added, the request shall contain the information referred to in points (c), (e), (g), (h) and (i) of Article 6(3).
In the case of a decision granting a Union application, any modification consisting of the addition of intellectual property rights shall be limited to intellectual property rights covered by Article 4.
Article 14
Notification obligations of the competent customs department
1. The competent customs department to which a national application has been submitted shall forward the following decisions to the customs offices of its Member State, immediately after their adoption:
| | |
| --- | --- |
| (a) | decisions granting the application; |
| | |
| --- | --- |
| (b) | decisions revoking decisions granting the application; |
| | |
| --- | --- |
| (c) | decisions amending decisions granting the application; |
| | |
| --- | --- |
| (d) | decisions extending the period during which the customs authorities are to take action. |
2. The competent customs department to which a Union application has been submitted shall forward the following decisions to the competent customs department of the Member State or Member States indicated in the Union application, immediately after their adoption:
| | |
| --- | --- |
| (a) | decisions granting the application; |
| | |
| --- | --- |
| (b) | decisions revoking decisions granting the application; |
| | |
| --- | --- |
| (c) | decisions amending decisions granting the application; |
| | |
| --- | --- |
| (d) | decisions extending the period during which the customs authorities are to take action. |
The competent customs department of the Member State or Member States indicated in the Union application shall immediately after receiving those decisions forward them to their customs offices.
3. The competent customs department of the Member State or Member States indicated in the Union application may request the competent customs department that adopted the decision granting the application to provide them with additional information deemed necessary for the implementation of that decision.
4. The competent customs department shall forward its decision suspending the actions of the customs authorities under point (b) of Article 16(1) and Article 16(2) to the customs offices of its Member State, immediately after its adoption.
Article 15
Notification obligations of the holder of the decision
The holder of the decision shall immediately notify the competent customs department that granted the application of any of the following:
| | |
| --- | --- |
| (a) | an intellectual property right covered by the application ceases to have effect; |
| | |
| --- | --- |
| (b) | the holder of the decision ceases for other reasons to be entitled to submit the application; |
| | |
| --- | --- |
| (c) | modifications to the information referred to in Article 6(3). |
Article 16
Failure of the holder of the decision to fulfil his obligations
1. Where the holder of the decision uses the information provided by the customs authorities for purposes other than those provided for in Article 21, the competent customs department of the Member State where the information was provided or misused may:
| | |
| --- | --- |
| (a) | revoke any decision adopted by it granting a national application to that holder of the decision, and refuse to extend the period during which the customs authorities are to take action; |
| | |
| --- | --- |
| (b) | suspend in their territory, during the period during which the customs authorities are to take action, any decision granting a Union application to that holder of the decision. |
2. The competent customs department may decide to suspend the actions of the customs authorities until the expiry of the period during which those authorities are to take action, where the holder of the decision:
| | |
| --- | --- |
| (a) | does not fulfil the notification obligations set out in Article 15; |
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| --- | --- |
| (b) | does not fulfil the obligation on returning samples set out in Article 19(3); |
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| --- | --- |
| (c) | does not fulfil the obligations on costs and translation set out in Article 29(1) and (3); |
| | |
| --- | --- |
| (d) | without valid reason does not initiate proceedings as provided for in Article 23(3) or Article 26(9). |
In the case of a Union application, the decision to suspend the actions of the customs authorities shall have effect only in the Member State where such decision is taken.
CHAPTER III
ACTION BY THE CUSTOMS AUTHORITIES
SECTION 1
Suspension of the release or detention of goods suspected of infringing an intellectual property right
Article 17
Suspension of the release or detention of the goods following the grant of an application
1. Where the customs authorities identify goods suspected of infringing an intellectual property right covered by a decision granting an application, they shall suspend the release of the goods or detain them.
2. Before suspending the release of or detaining the goods, the customs authorities may ask the holder of the decision to provide them with any relevant information with respect to the goods. The customs authorities may also provide the holder of the decision with information about the actual or estimated quantity of goods, their actual or presumed nature and images thereof, as appropriate.
3. The customs authorities shall notify the declarant or the holder of the goods of the suspension of the release of the goods or the detention of the goods within one working day of that suspension or detention.
Where the customs authorities opt to notify the holder of the goods and two or more persons are considered to be the holder of the goods, the customs authorities shall not be obliged to notify more than one of those persons.
The customs authorities shall notify the holder of the decision of the suspension of the release of the goods or the detention on the same day as, or promptly after, the declarant or the holder of the goods is notified.
The notifications shall include information on the procedure set out in Article 23.
4. The customs authorities shall inform the holder of the decision and the declarant or the holder of the goods of the actual or estimated quantity and the actual or presumed nature of the goods, including available images thereof, as appropriate, whose release has been suspended or which have been detained. The customs authorities shall also, upon request and where available to them, inform the holder of the decision of the names and addresses of the consignee, the consignor and the declarant or the holder of the goods, of the customs procedure and of the origin, provenance and destination of the goods whose release has been suspended or which have been detained.
Article 18
Suspension of the release or detention of the goods before the grant of an application
1. Where the customs authorities identify goods suspected of infringing an intellectual property right, which are not covered by a decision granting an application, they may, except for in the case of perishable goods, suspend the release of those goods or detain them.
2. Before suspending the release of or detaining the goods suspected of infringing an intellectual property right, the customs authorities may, without disclosing any information other than the actual or estimated quantity of goods, their actual or presumed nature and images thereof, as appropriate, request any person or entity potentially entitled to submit an application concerning the alleged infringement of the intellectual property rights to provide them with any relevant information.
3. The customs authorities shall notify the declarant or the holder of the goods of the suspension of the release of the goods or their detention within one working day of that suspension or detention.
Where the customs authorities opt to notify the holder of the goods and two or more persons are considered to be the holder of the goods, the customs authorities shall not be obliged to notify more than one of those persons.
The customs authorities shall notify persons or entities entitled to submit an application concerning the alleged infringement of the intellectual property rights, of the suspension of the release of the goods or their detention on the same day as, or promptly after, the declarant or the holder of the goods is notified.
The customs authorities may consult the competent public authorities in order to identify the persons or entities entitled to submit an application.
The notifications shall include information on the procedure set out in Article 23.
4. The customs authorities shall grant the release of the goods or put an end to their detention immediately after completion of all customs formalities in the following cases:
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| --- | --- |
| (a) | where they have not identified any person or entity entitled to submit an application concerning the alleged infringement of intellectual property rights within one working day from the suspension of the release or the detention of the goods; |
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| --- | --- |
| (b) | where they have not received an application in accordance with Article 5(3), or where they have rejected such an application. |
5. Where an application has been granted, the customs authorities shall, upon request and where available to them, inform the holder of the decision of the names and addresses of the consignee, the consignor and the declarant or the holder of the goods, of the customs procedure and of the origin, provenance and destination of the goods whose release has been suspended or which have been detained.
Article 19
Inspection and sampling of goods whose release has been suspended or which have been detained
1. The customs authorities shall give the holder of the decision and the declarant or the holder of the goods the opportunity to inspect the goods whose release has been suspended or which have been detained.
2. The customs authorities may take samples that are representative of the goods. They may provide or send such samples to the holder of the decision, at the holder’s request and strictly for the purposes of analysis and to facilitate the subsequent procedure in relation to counterfeit and pirated goods. Any analysis of those samples shall be carried out under the sole responsibility of the holder of the decision.
3. The holder of the decision shall, unless circumstances do not allow, return the samples referred to in paragraph 2 to the customs authorities on completion of the analysis, at the latest before the goods are released or their detention is ended.
Article 20
Conditions for storage
The conditions of storage of goods during a period of suspension of release or detention shall be determined by the customs authorities.
Article 21
Permitted use of certain information by the holder of the decision
Where the holder of the decision has received the information referred to in Article 17(4), Article 18(5), Article 19 or Article 26(8), he may disclose or use that information only for the following purposes:
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| --- | --- |
| (a) | to initiate proceedings to determine whether an intellectual property right has been infringed and in the course of such proceedings; |
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| --- | --- |
| (b) | in connection with criminal investigations related to the infringement of an intellectual property right and undertaken by public authorities in the Member State where the goods are found; |
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| --- | --- |
| (c) | to initiate criminal proceedings and in the course of such proceedings; |
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| --- | --- |
| (d) | to seek compensation from the infringer or other persons; |
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| --- | --- |
| (e) | to agree with the declarant or the holder of the goods that the goods be destroyed in accordance with Article 23(1); |
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| --- | --- |
| (f) | to agree with the declarant or the holder of the goods of the amount of the guarantee referred to in point (a) of Article 24(2). |
Article 22
Sharing of information and data between customs authorities
1. Without prejudice to applicable provisions on data protection in the Union and for the purpose of contributing to eliminating international trade in goods infringing intellectual property rights, the Commission and the customs authorities of the Member States may share certain data and information available to them with the relevant authorities in third countries according to the practical arrangements referred to in paragraph 3.
2. The data and information referred to in paragraph 1 shall be exchanged to swiftly enable effective enforcement against shipments of goods infringing an intellectual property right. Such data and information may relate to seizures, trends and general risk information, including on goods which are in transit through the territory of the Union and which have originated in or are destined for the territory of third countries concerned. Such data and information may include, where appropriate, the following:
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| --- | --- |
| (a) | nature and quantity of goods; |
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| --- | --- |
| (b) | suspected intellectual property right infringed; |
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| --- | --- |
| (c) | origin, provenance and destination of the goods; |
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| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |
| (d) | information on movements of means of transport, in particular: | | | | --- | --- | | (i) | name of vessel or registration of means of transport; | | | | | --- | --- | | (ii) | reference numbers of freight bill or other transport document; | | | | | --- | --- | | (iii) | number of containers; | | | | | --- | --- | | (iv) | weight of load; | | | | | --- | --- | | (v) | description and/or coding of goods; | | | | | --- | --- | | (vi) | reservation number; | | | | | --- | --- | | (vii) | seal number; | | | | | --- | --- | | (viii) | place of first loading; | | | | | --- | --- | | (ix) | place of final unloading; | | | | | --- | --- | | (x) | places of transhipment; | | | | | --- | --- | | (xi) | expected date of arrival at place of final unloading; | |
| | | | | | | | | | | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |
| (e) | information on movements of containers, in particular: | | | | --- | --- | | (i) | container number; | | | | | --- | --- | | (ii) | container loading status; | | | | | --- | --- | | (iii) | date of movement; | | | | | --- | --- | | (iv) | type of movement (loaded, unloaded, transhipped, entered, left, etc.); | | | | | --- | --- | | (v) | name of vessel or registration of means of transport; | | | | | --- | --- | | (vi) | number of voyage/journey; | | | | | --- | --- | | (vii) | place; | | | | | --- | --- | | (viii) | freight bill or other transport document. | |
3. The Commission shall adopt implementing acts defining the elements of the necessary practical arrangements concerning the exchange of data and information referred to in paragraphs 1 and 2 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 34(3).
SECTION 2
Destruction of goods, initiation of proceedings and early release of goods
Article 23
Destruction of goods and initiation of proceedings
1. Goods suspected of infringing an intellectual property right may be destroyed under customs control, without there being any need to determine whether an intellectual property right has been infringed under the law of the Member State where the goods are found, where all of the following conditions are fulfilled:
| | |
| --- | --- |
| (a) | the holder of the decision has confirmed in writing to the customs authorities, within 10 working days, or three working days in the case of perishable goods, of notification of the suspension of the release or the detention of the goods, that, in his conviction, an intellectual property right has been infringed; |
| | |
| --- | --- |
| (b) | the holder of the decision has confirmed in writing to the customs authorities, within 10 working days, or three working days in the case of perishable goods, of notification of the suspension of the release or the detention of the goods, his agreement to the destruction of the goods; |
| | |
| --- | --- |
| (c) | the declarant or the holder of the goods has confirmed in writing to the customs authorities, within 10 working days, or three working days in the case of perishable goods, of notification of the suspension of the release or the detention of the goods, his agreement to the destruction of the goods. Where the declarant or the holder of the goods has not confirmed his agreement to the destruction of the goods nor notified his opposition thereto to the customs authorities, within those deadlines, the customs authorities may deem the declarant or the holder of the goods to have confirmed his agreement to the destruction of those goods. |
The customs authorities shall grant the release of the goods or put an end to their detention, immediately after completion of all customs formalities, where within the periods referred to in points (a) and (b) of the first subparagraph, they have not received both the written confirmation from the holder of the decision that, in his conviction, an intellectual property right has been infringed and his agreement to destruction, unless those authorities have been duly informed about the initiation of proceedings to determine whether an intellectual property right has been infringed.
2. The destruction of the goods shall be carried out under customs control and under the responsibility of the holder of the decision, unless otherwise specified in the national law of the Member State where the goods are destroyed. Samples may be taken by competent authorities prior to the destruction of the goods. Samples taken prior to destruction may be used for educational purposes.
3. Where the declarant or the holder of the goods has not confirmed his agreement to the destruction in writing and where the declarant or the holder of the goods has not been deemed to have confirmed his agreement to the destruction, in accordance with point (c) of the first subparagraph of paragraph 1 within the periods referred to therein, the customs authorities shall immediately notify the holder of the decision thereof. The holder of the decision shall, within 10 working days, or three working days in the case of perishable goods, of notification of the suspension of the release or the detention of the goods, initiate proceedings to determine whether an intellectual property right has been infringed.
4. Except in the case of perishable goods the customs authorities may extend the period referred to in paragraph 3 by a maximum of 10 working days upon a duly justified request by the holder of the decision in appropriate cases.
5. The customs authorities shall grant the release of the goods or put an end to their detention, immediately after completion of all customs formalities, where, within the periods referred to in paragraphs 3 and 4, they have not been duly informed, in accordance with paragraph 3, on the initiation of proceedings to determine whether an intellectual property right has been infringed.
Article 24
Early release of goods
1. Where the customs authorities have been notified of the initiation of proceedings to determine whether a design, patent, utility model, topography of semiconductor product or plant variety has been infringed, the declarant or the holder of the goods may request the customs authorities to release the goods or put an end to their detention before the completion of those proceedings.
2. The customs authorities shall release the goods or put an end to their detention only where all the following conditions are fulfilled:
| | |
| --- | --- |
| (a) | the declarant or the holder of the goods has provided a guarantee that is of an amount sufficient to protect the interests of the holder of the decision; |
| | |
| --- | --- |
| (b) | the authority competent to determine whether an intellectual property right has been infringed has not authorised precautionary measures; |
| | |
| --- | --- |
| (c) | all customs formalities have been completed. |
3. The provision of the guarantee referred to in point (a) of paragraph 2 shall not affect the other legal remedies available to the holder of the decision.
Article 25
Goods for destruction
1. Goods to be destroyed under Article 23 or 26 shall not be:
| | |
| --- | --- |
| (a) | released for free circulation, unless customs authorities, with the agreement of the holder of the decision, decide that it is necessary in the event that the goods are to be recycled or disposed of outside commercial channels, including for awareness-raising, training and educational purposes. The conditions under which the goods can be released for free circulation shall be determined by the customs authorities; |
| | |
| --- | --- |
| (b) | brought out of the customs territory of the Union; |
| | |
| --- | --- |
| (c) | exported; |
| | |
| --- | --- |
| (d) | re-exported; |
| | |
| --- | --- |
| (e) | placed under a suspensive procedure; |
| | |
| --- | --- |
| (f) | placed in a free zone or free warehouse. |
2. The customs authorities may allow the goods referred to in paragraph 1 to be moved under customs supervision between different places within the customs territory of the Union with a view to their destruction under customs control.
Article 26
Procedure for the destruction of goods in small consignments
1. This Article shall apply to goods where all of the following conditions are fulfilled:
| | |
| --- | --- |
| (a) | the goods are suspected of being counterfeit or pirated goods; |
| | |
| --- | --- |
| (b) | the goods are not perishable goods; |
| | |
| --- | --- |
| (c) | the goods are covered by a decision granting an application; |
| | |
| --- | --- |
| (d) | the holder of the decision has requested the use of the procedure set out in this Article in the application; |
| | |
| --- | --- |
| (e) | the goods are transported in small consignments. |
2. When the procedure set out in this Article is applied, Article 17(3) and (4) and Article 19(2) and (3) shall not apply.
3. The customs authorities shall notify the declarant or the holder of the goods of the suspension of the release of the goods or their detention within one working day of the suspension of the release or of the detention of the goods. The notification of the suspension of the release or the detention of the goods shall include the following information:
| | |
| --- | --- |
| (a) | that the customs authorities intend to destroy the goods; |
| | |
| --- | --- |
| (b) | the rights of the declarant or the holder of the goods under paragraphs 4, 5 and 6. |
4. The declarant or the holder of the goods shall be given the opportunity to express his point of view within 10 working days of notification of the suspension of the release or the detention of the goods.
5. The goods concerned may be destroyed where, within 10 working days of notification of the suspension of the release or the detention of the goods, the declarant or the holder of the goods has confirmed to the customs authorities his agreement to the destruction of the goods.
6. Where the declarant or the holder of the goods has not confirmed his agreement to the destruction of the goods nor notified his opposition thereto to the customs authorities, within the period referred to in paragraph 5, the customs authorities may deem the declarant or the holder of the goods to have confirmed his agreement to the destruction of the goods.
7. The destruction shall be carried out under customs control. The customs authorities shall, upon request and as appropriate, provide the holder of the decision with information about the actual or estimated quantity of destroyed goods and their nature.
8. Where the declarant or the holder of the goods has not confirmed his agreement to the destruction of the goods and where the declarant or the holder of the goods has not been deemed to have confirmed such agreement, in accordance with paragraph 6, the customs authorities shall immediately notify the holder of the decision thereof and of the quantity of goods and their nature, including images thereof, where appropriate. The customs authorities shall also, upon request and where available to them, inform the holder of the decision of the names and addresses of the consignee, the consignor and the declarant or the holder of the goods, of the customs procedure and of the origin, provenance and destination of the goods whose release has been suspended or which have been detained.
9. The customs authorities shall grant the release of the goods or put an end to their detention immediately after completion of all customs formalities where they have not received information from the holder of the decision on the initiation of proceedings to determine whether an intellectual property right has been infringed within 10 working days of the notification referred to in paragraph 8.
10. The Commission shall be empowered to adopt delegated acts in accordance with Article 35 concerning the amendment of quantities in the definition of small consignments in the event that the definition is found to be impractical in the light of the need to ensure the effective operation of the procedure set out in this Article, or where necessary in order to avoid any circumvention of this procedure as regards the composition of consignments.
CHAPTER IV
LIABILITY, COSTS AND PENALTIES
Article 27
Liability of the customs authorities
Without prejudice to national law, the decision granting an application shall not entitle the holder of that decision to compensation in the event that goods suspected of infringing an intellectual property right are not detected by a customs office and are released, or no action is taken to detain them.
Article 28
Liability of the holder of the decision
Where a procedure duly initiated pursuant to this Regulation is discontinued owing to an act or omission on the part of the holder of the decision, where samples taken pursuant to Article 19(2) are either not returned or are damaged and beyond use owing to an act or omission on the part of the holder of the decision, or where the goods in question are subsequently found not to infringe an intellectual property right, the holder of the decision shall be liable towards any holder of the goods or declarant, who has suffered damage in that regard, in accordance with specific applicable legislation.
Article 29
Costs
1. Where requested by the customs authorities, the holder of the decision shall reimburse the costs incurred by the customs authorities, or other parties acting on behalf of customs authorities, from the moment of detention or suspension of the release of the goods, including storage and handling of the goods, in accordance with Article 17(1), Article 18(1) and Article 19(2) and (3), and when using corrective measures such as destruction of goods in accordance with Articles 23 and 26.
The holder of a decision to whom the suspension of release or detention of goods has been notified shall, upon request, be given information by the customs authorities on where and how those goods are being stored and on the estimated costs of storage referred to in this paragraph. The information on estimated costs may be expressed in terms of time, products, volume, weight or service depending on the circumstances of storage and the nature of the goods.
2. This Article shall be without prejudice to the right of the holder of the decision to seek compensation from the infringer or other persons in accordance with the legislation applicable.
3. The holder of a decision granting a Union application shall provide and pay for any translation required by the competent customs department or customs authorities which are to take action concerning the goods suspected of infringing an intellectual property right.
Article 30
Penalties
The Member States shall ensure that the holders of decisions comply with the obligations set out in this Regulation, including, where appropriate, by laying down provisions establishing penalties. The penalties provided for shall be effective, proportionate and dissuasive.
The Member States shall notify those provisions and any subsequent amendment affecting them to the Commission without delay.
CHAPTER V
EXCHANGE OF INFORMATION
Article 31
Exchange of data on decisions relating to applications and detentions between the Member States and the Commission
1. The competent customs departments shall notify without delay the Commission of the following:
| | |
| --- | --- |
| (a) | decisions granting applications, including the application and its attachments; |
| | |
| --- | --- |
| (b) | decisions extending the period during which the customs authorities are to take action or decisions revoking the decision granting the application or amending it; |
| | |
| --- | --- |
| (c) | the suspension of a decision granting the application. |
2. Without prejudice to point (g) of Article 24 of Regulation (EC) No 515/97, where the release of the goods is suspended or the goods are detained, the customs authorities shall transmit to the Commission any relevant information, except personal data, including information on the quantity and type of the goods, value, intellectual property rights, customs procedures, countries of provenance, origin and destination, and transport routes and means.
3. The transmission of the information referred to in paragraphs 1 and 2 of this Article and all exchanges of data on decisions concerning applications as referred to in Article 14 between customs authorities of the Member States shall be made via a central database of the Commission. The information and data shall be stored in that database.
4. For the purposes of ensuring processing of the information referred to in paragraphs 1 to 3 of this Article, the central database referred to in paragraph 3 shall be established in an electronic form. The central database shall contain the information, including personal data, referred to in Article 6(3), Article 14 and this Article.
5. The customs authorities of the Member States and the Commission shall have access to the information contained in the central database as appropriate for the fulfilment of their legal responsibilities in applying this Regulation. The access to information marked for restricted handling in accordance with Article 6(3) is restricted to the customs authorities of the Member States where action is requested. Upon justified request by the Commission, the customs authorities of the Member States may give access to the Commission to such information where it is strictly necessary for the application of this Regulation.
6. The customs authorities shall introduce into the central database information related to the applications submitted to the competent customs department. The customs authorities which have introduced information into the central database shall, where necessary, amend, supplement, correct or delete such information. Each customs authority that has introduced information in the central database shall be responsible for the accuracy, adequacy and relevancy of this information.
7. The Commission shall establish and maintain adequate technical and organisational arrangements for the reliable and secure operation of the central database. The customs authorities of each Member State shall establish and maintain adequate technical and organisational arrangements to ensure the confidentiality and security of processing with respect to the processing operations carried out by their customs authorities and with respect to terminals of the central database located on the territory of that Member State.
Article 32
Establishment of a central database
The Commission shall establish the central database referred to in Article 31. That database shall be operational as soon as possible and not later than 1 January 2015.
Article 33
Data protection provisions
1. The processing of personal data in the central database of the Commission shall be carried out in accordance with Regulation (EC) No 45/2001 and under the supervision of the European Data Protection Supervisor.
2. Processing of personal data by the competent authorities in the Member States shall be carried out in accordance with Directive 95/46/EC and under the supervision of the public independent authority of the Member State referred to in Article 28 of that Directive.
3. Personal data shall be collected and used solely for the purposes of this Regulation. Personal data so collected shall be accurate and shall be kept up to date.
4. Each customs authority that has introduced personal data into the central database shall be the controller with respect to the processing of this data.
5. A data subject shall have a right of access to the personal data relating to him or her that are processed through the central database and, where appropriate, the right to the rectification, erasure or blocking of personal data in accordance with Regulation (EC) No 45/2001 or the national laws implementing Directive 95/46/EC.
6. All requests for the exercise of the right of access, rectification, erasure or blocking shall be submitted to and processed by the customs authorities. Where a data subject has submitted a request for the exercise of that right to the Commission, the Commission shall forward such request to the customs authorities concerned.
7. Personal data shall not be kept longer than six months from the date the relevant decision granting the application has been revoked or the relevant period during which the customs authorities are to take action has expired.
8. Where the holder of the decision has initiated proceedings in accordance with Article 23(3) or Article 26(9) and has notified the customs authorities of the initiation of such proceedings, personal data shall be kept for six months after proceedings have determined in a final way whether an intellectual property right has been infringed.
CHAPTER VI
COMMITTEE, DELEGATION AND FINAL PROVISIONS
Article 34
Committee procedure
1. The Commission shall be assisted by the Customs Code Committee established by Articles 247a and 248a of Regulation (EEC) No 2913/92. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 35
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 26(10) shall be conferred on the Commission for an indeterminate period of time from 19 July 2013.
3. The delegation of power referred to in Article 26(10) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to Article 26(10) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months on the initiative of the European Parliament or of the Council.
Article 36
Mutual administrative assistance
The provisions of Regulation (EC) No 515/97 shall apply mutatis mutandis to this Regulation.
Article 37
Reporting
By 31 December 2016, the Commission shall submit to the European Parliament and to the Council a report on the implementation of this Regulation. If necessary, that report shall be accompanied by appropriate recommendations.
That report shall refer to any relevant incidents concerning medicines in transit across the customs territory of the Union that might occur under this Regulation, including an assessment of its potential impact on the Union commitments on access to medicines under the ‘Declaration on the TRIPS Agreement and Public Health’ adopted by the Doha WTO Ministerial Conference on 14 November 2001, and the measures taken to address any situation creating adverse effects in that regard.
Article 38
Repeal
Regulation (EC) No 1383/2003 is repealed with effect from 1 January 2014.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in the Annex.
Article 39
Transitional provisions
Applications granted in accordance with Regulation (EC) No 1383/2003 shall remain valid for the period specified in the decision granting the application during which the customs authorities are to take action and shall not be extended.
Article 40
Entry into force and application
1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
2. It shall apply from 1 January 2014, with the exception of:
| | |
| --- | --- |
| (a) | Article 6, Article 12(7) and Article 22(3), which shall apply from 19 July 2013; |
| | |
| --- | --- |
| (b) | Article 31(1) and (3) to (7) and Article 33, which shall apply from the date on which the central database referred to in Article 32 is in place. The Commission shall make that date public. |
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 12 June 2013.
For the European Parliament
The President
M. SCHULZ
For the Council
The President
L. CREIGHTON
---
---
ANNEX
Correlation table
| | |
| --- | --- |
| Regulation (EC) No 1383/2003 | This Regulation |
| Article 1 | Article 1 |
| Article 2 | Article 2 |
| Article 3 | Article 1 |
| Article 4 | Article 18 |
| Article 5 | Articles 3 to 9 |
| Article 6 | Articles 6 and 29 |
| Article 7 | Article 12 |
| Article 8 | Articles 10, 11, 12, 14 and 15 |
| Article 9 | Articles 17 and 19 |
| Article 10 | — |
| Article 11 | Article 23 |
| Article 12 | Articles 16 and 21 |
| Article 13 | Article 23 |
| Article 14 | Article 24 |
| Article 15 | Article 20 |
| Article 16 | Article 25 |
| Article 17 | — |
| Article 18 | Article 30 |
| Article 19 | Articles 27 and 28 |
| Article 20 | Articles 6, 12, 22 and 26 |
| Article 21 | Article 34 |
| Article 22 | Articles 31 and 36 |
| Article 23 | — |
| Article 24 | Article 38 |
| Article 25 | Article 40 |
---
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md | EURLEX | en | | | | | |
| --- | --- | --- | --- |
| 27.12.2006 | EN | Official Journal of the European Union | L 376/28 |
---
DIRECTIVE 2006/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 12 December 2006
on rental right and lending right and on certain rights related to copyright in the field of intellectual property
(codified version)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 47(2), 55 and 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee,
Acting in accordance with the procedure laid down in Article 251 of the Treaty [(1)](#ntr1-L_2006376EN.01002801-E0001),
Whereas:
| | |
| --- | --- |
| (1) | Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [(2)](#ntr2-L_2006376EN.01002801-E0002) has been substantially amended several times [(3)](#ntr3-L_2006376EN.01002801-E0003). In the interests of clarity and rationality the said Directive should be codified. |
| | |
| --- | --- |
| (2) | Rental and lending of copyright works and the subject matter of related rights protection is playing an increasingly important role in particular for authors, performers and producers of phonograms and films. Piracy is becoming an increasing threat. |
| | |
| --- | --- |
| (3) | The adequate protection of copyright works and subject matter of related rights protection by rental and lending rights as well as the protection of the subject matter of related rights protection by the fixation right, distribution right, right to broadcast and communication to the public can accordingly be considered as being of fundamental importance for the economic and cultural development of the Community. |
| | |
| --- | --- |
| (4) | Copyright and related rights protection must adapt to new economic developments such as new forms of exploitation. |
| | |
| --- | --- |
| (5) | The creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky. The possibility of securing that income and recouping that investment can be effectively guaranteed only through adequate legal protection of the rightholders concerned. |
| | |
| --- | --- |
| (6) | These creative, artistic and entrepreneurial activities are, to a large extent, activities of self-employed persons. The pursuit of such activities should be made easier by providing a harmonised legal protection within the Community. To the extent that these activities principally constitute services, their provision should equally be facilitated by a harmonised legal framework in the Community. |
| | |
| --- | --- |
| (7) | The legislation of the Member States should be approximated in such a way as not to conflict with the international conventions on which the copyright and related rights laws of many Member States are based. |
| | |
| --- | --- |
| (8) | The legal framework of the Community on the rental right and lending right and on certain rights related to copyright can be limited to establishing that Member States provide rights with respect to rental and lending for certain groups of rightholders and further to establishing the rights of fixation, distribution, broadcasting and communication to the public for certain groups of rightholders in the field of related rights protection. |
| | |
| --- | --- |
| (9) | It is necessary to define the concepts of rental and lending for the purposes of this Directive. |
| | |
| --- | --- |
| (10) | It is desirable, with a view to clarity, to exclude from rental and lending within the meaning of this Directive certain forms of making available, as for instance making available phonograms or films for the purpose of public performance or broadcasting, making available for the purpose of exhibition, or making available for on-the-spot reference use. Lending within the meaning of this Directive should not include making available between establishments which are accessible to the public. |
| | |
| --- | --- |
| (11) | Where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage within the meaning of this Directive. |
| | |
| --- | --- |
| (12) | It is necessary to introduce arrangements ensuring that an unwaivable equitable remuneration is obtained by authors and performers who must remain able to entrust the administration of this right to collecting societies representing them. |
| | |
| --- | --- |
| (13) | The equitable remuneration may be paid on the basis of one or several payments at any time on or after the conclusion of the contract. It should take account of the importance of the contribution of the authors and performers concerned to the phonogram or film. |
| | |
| --- | --- |
| (14) | It is also necessary to protect the rights at least of authors as regards public lending by providing for specific arrangements. However, any measures taken by way of derogation from the exclusive public lending right should comply in particular with Article 12 of the Treaty. |
| | |
| --- | --- |
| (15) | The provisions laid down in this Directive as to rights related to copyright should not prevent Member States from extending to those exclusive rights the presumption provided for in this Directive with regard to contracts concerning film production concluded individually or collectively by performers with a film producer. Furthermore, those provisions should not prevent Member States from providing for a rebuttable presumption of the authorisation of exploitation in respect of the exclusive rights of performers provided for in the relevant provisions of this Directive, in so far as such presumption is compatible with the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (hereinafter referred to as the Rome Convention). |
| | |
| --- | --- |
| (16) | Member States should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down in this Directive in respect of broadcasting and communication to the public. |
| | |
| --- | --- |
| (17) | The harmonised rental and lending rights and the harmonised protection in the field of rights related to copyright should not be exercised in a way which constitutes a disguised restriction on trade between Member States or in a way which is contrary to the rule of media exploitation chronology, as recognised in the judgment handed down in Société Cinéthèque v. FNCF [(4)](#ntr4-L_2006376EN.01002801-E0004). |
| | |
| --- | --- |
| (18) | This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives as set out in Part B of Annex I, |
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
RENTAL AND LENDING RIGHT
Article 1
Object of harmonisation
1. In accordance with the provisions of this Chapter, Member States shall provide, subject to Article 6, a right to authorise or prohibit the rental and lending of originals and copies of copyright works, and other subject matter as set out in Article 3(1).
2. The rights referred to in paragraph 1 shall not be exhausted by any sale or other act of distribution of originals and copies of copyright works and other subject matter as set out in Article 3(1).
Article 2
Definitions
1. For the purposes of this Directive the following definitions shall apply:
| | |
| --- | --- |
| (a) | ‘rental’ means making available for use, for a limited period of time and for direct or indirect economic or commercial advantage; |
| | |
| --- | --- |
| (b) | ‘lending’ means making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public; |
| | |
| --- | --- |
| (c) | ‘film’ means a cinematographic or audiovisual work or moving images, whether or not accompanied by sound. |
2. The principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. Member States may provide for others to be considered as its co-authors.
Article 3
Rightholders and subject matter of rental and lending right
1. The exclusive right to authorise or prohibit rental and lending shall belong to the following:
| | |
| --- | --- |
| (a) | the author in respect of the original and copies of his work; |
| | |
| --- | --- |
| (b) | the performer in respect of fixations of his performance; |
| | |
| --- | --- |
| (c) | the phonogram producer in respect of his phonograms; |
| | |
| --- | --- |
| (d) | the producer of the first fixation of a film in respect of the original and copies of his film. |
2. This Directive shall not cover rental and lending rights in relation to buildings and to works of applied art.
3. The rights referred to in paragraph 1 may be transferred, assigned or subject to the granting of contractual licences.
4. Without prejudice to paragraph 6, when a contract concerning film production is concluded, individually or collectively, by performers with a film producer, the performer covered by this contract shall be presumed, subject to contractual clauses to the contrary, to have transferred his rental right, subject to Article 5.
5. Member States may provide for a similar presumption as set out in paragraph 4 with respect to authors.
6. Member States may provide that the signing of a contract concluded between a performer and a film producer concerning the production of a film has the effect of authorising rental, provided that such contract provides for an equitable remuneration within the meaning of Article 5. Member States may also provide that this paragraph shall apply mutatis mutandis to the rights included in Chapter II.
Article 4
Rental of computer programs
This Directive shall be without prejudice to Article 4(c) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs [(5)](#ntr5-L_2006376EN.01002801-E0005).
Article 5
Unwaivable right to equitable remuneration
1. Where an author or performer has transferred or assigned his rental right concerning a phonogram or an original or copy of a film to a phonogram or film producer, that author or performer shall retain the right to obtain an equitable remuneration for the rental.
2. The right to obtain an equitable remuneration for rental cannot be waived by authors or performers.
3. The administration of this right to obtain an equitable remuneration may be entrusted to collecting societies representing authors or performers.
4. Member States may regulate whether and to what extent administration by collecting societies of the right to obtain an equitable remuneration may be imposed, as well as the question from whom this remuneration may be claimed or collected.
Article 6
Derogation from the exclusive public lending right
1. Member States may derogate from the exclusive right provided for in Article 1 in respect of public lending, provided that at least authors obtain a remuneration for such lending. Member States shall be free to determine this remuneration taking account of their cultural promotion objectives.
2. Where Member States do not apply the exclusive lending right provided for in Article 1 as regards phonograms, films and computer programs, they shall introduce, at least for authors, a remuneration.
3. Member States may exempt certain categories of establishments from the payment of the remuneration referred to in paragraphs 1 and 2.
CHAPTER II
RIGHTS RELATED TO COPYRIGHT
Article 7
Fixation right
1. Member States shall provide for performers the exclusive right to authorise or prohibit the fixation of their performances.
2. Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the fixation of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
3. A cable distributor shall not have the right provided for in paragraph 2 where it merely retransmits by cable the broadcasts of broadcasting organisations.
Article 8
Broadcasting and communication to the public
1. Member States shall provide for performers the exclusive right to authorise or prohibit the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.
2. Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.
3. Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
Article 9
Distribution right
1. Member States shall provide the exclusive right to make available to the public, by sale or otherwise, the objects indicated in points (a) to (d), including copies thereof, hereinafter ‘the distribution right’:
| | |
| --- | --- |
| (a) | for performers, in respect of fixations of their performances; |
| | |
| --- | --- |
| (b) | for phonogram producers, in respect of their phonograms; |
| | |
| --- | --- |
| (c) | for producers of the first fixations of films, in respect of the original and copies of their films; |
| | |
| --- | --- |
| (d) | for broadcasting organisations, in respect of fixations of their broadcasts as set out in Article 7(2). |
2. The distribution right shall not be exhausted within the Community in respect of an object as referred to in paragraph 1, except where the first sale in the Community of that object is made by the rightholder or with his consent.
3. The distribution right shall be without prejudice to the specific provisions of Chapter I, in particular Article 1(2).
4. The distribution right may be transferred, assigned or subject to the granting of contractual licences.
Article 10
Limitations to rights
1. Member States may provide for limitations to the rights referred to in this Chapter in respect of:
| | |
| --- | --- |
| (a) | private use; |
| | |
| --- | --- |
| (b) | use of short excerpts in connection with the reporting of current events; |
| | |
| --- | --- |
| (c) | ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; |
| | |
| --- | --- |
| (d) | use solely for the purposes of teaching or scientific research. |
2. Irrespective of paragraph 1, any Member State may provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms, broadcasting organisations and of producers of the first fixations of films, as it provides for in connection with the protection of copyright in literary and artistic works.
However, compulsory licences may be provided for only to the extent to which they are compatible with the Rome Convention.
3. The limitations referred to in paragraphs 1 and 2 shall be applied only in certain special cases which do not conflict with a normal exploitation of the subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.
CHAPTER III
COMMON PROVISIONS
Article 11
Application in time
1. This Directive shall apply in respect of all copyright works, performances, phonograms, broadcasts and first fixations of films referred to in this Directive which were, on 1 July 1994, still protected by the legislation of the Member States in the field of copyright and related rights or which met the criteria for protection under this Directive on that date.
2. This Directive shall apply without prejudice to any acts of exploitation performed before 1 July 1994.
3. Member States may provide that the rightholders are deemed to have given their authorisation to the rental or lending of an object referred to in points (a) to (d) of Article 3(1) which is proven to have been made available to third parties for this purpose or to have been acquired before 1 July 1994.
However, in particular where such an object is a digital recording, Member States may provide that rightholders shall have a right to obtain an adequate remuneration for the rental or lending of that object.
4. Member States need not apply the provisions of Article 2(2) to cinematographic or audiovisual works created before 1 July 1994.
5. This Directive shall, without prejudice to paragraph 3 and subject to paragraph 7, not affect any contracts concluded before 19 November 1992.
6. Member States may provide, subject to the provisions of paragraph 7, that when rightholders who acquire new rights under the national provisions adopted in implementation of this Directive have, before 1 July 1994, given their consent for exploitation, they shall be presumed to have transferred the new exclusive rights.
7. For contracts concluded before 1 July 1994, the unwaivable right to an equitable remuneration provided for in Article 5 shall apply only where authors or performers or those representing them have submitted a request to that effect before 1 January 1997. In the absence of agreement between rightholders concerning the level of remuneration, Member States may fix the level of equitable remuneration.
Article 12
Relation between copyright and related rights
Protection of copyright-related rights under this Directive shall leave intact and shall in no way affect the protection of copyright.
Article 13
Communication
Member States shall communicate to the Commission the main provisions of national law adopted in the field covered by this Directive.
Article 14
Repeal
Directive 92/100/EEC is hereby repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives as set out in Part B of Annex I.
References made to the repealed Directive shall be construed as being made to this Directive and should be read in accordance with the correlation table in Annex II.
Article 15
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 16
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg, 12 December 2006.
For the European Parliament
The President
J. BORRELL FONTELLES
For the Council
The President
M. PEKKARINEN
---
---
ANNEX I
PART A
Repealed Directive with its successive amendments
| | |
| --- | --- |
| Council Directive 92/100/EEC ([OJ L 346, 27.11.1992, p. 61](./../../../legal-content/EN/AUTO/?uri=OJ:L:1992:346:TOC)) | |
| Council Directive 93/98/EEC ([OJ L 290, 24.11.1993, p. 9](./../../../legal-content/EN/AUTO/?uri=OJ:L:1993:290:TOC)) | Article 11(2) only |
| Directive 2001/29/EC of the European Parliament and of the Council ([OJ L 167, 22.6.2001, p. 10](./../../../legal-content/EN/AUTO/?uri=OJ:L:2001:167:TOC)) | Article 11(1) only |
PART B
List of time-limits for transposition into national law
(referred to in Article 14)
| | |
| --- | --- |
| Directive | Time-limit for transposition |
| 92/100/EEC | 1 July 1994 |
| 93/98/EEC | 30 June 1995 |
| 2001/29/EC | 21 December 2002 |
---
ANNEX II
CORRELATION TABLE
| | |
| --- | --- |
| Directive 92/100/EEC | This Directive |
| Article 1(1) | Article 1(1) |
| Article 1(2) | Article 2(1), introductory words and point (a) |
| Article 1(3) | Article 2(1), point (b) |
| Article 1(4) | Article 1(2) |
| Article 2(1), introductory words | Article 3(1), introductory words |
| Article 2(1), first indent | Article 3(1)(a) |
| Article 2(1), second indent | Article 3(1)(b) |
| Article 2(1), third indent | Article 3(1)(c) |
| Article 2(1), fourth indent, first sentence | Article 3(1)(d) |
| Article 2(1), fourth indent, second sentence | Article 2(1), point (c) |
| Article 2(2) | Article 2 (2) |
| Article 2(3) | Article 3(2) |
| Article 2(4) | Article 3(3) |
| Article 2(5) | Article 3(4) |
| Article 2(6) | Article 3(5) |
| Article 2(7) | Article 3(6) |
| Article 3 | Article 4 |
| Article 4 | Article 5 |
| Article 5(1) to (3) | Article 6(1) to (3) |
| Article 5(4) | — |
| Article 6 | Article 7 |
| Article 8 | Article 8 |
| Article 9(1), introductory words and final words | Article 9(1), introductory words |
| Article 9(1), first indent | Article 9(1)(a) |
| Article 9(1), second indent | Article 9(1)(b) |
| Article 9(1), third indent | Article 9(1)(c) |
| Article 9(1), fourth indent | Article 9(1)(d) |
| Article 9(2), (3) and (4) | Article 9(2), (3) and (4) |
| Article 10(1) | Article 10(1) |
| Article 10(2), first sentence | Article 10(2), first subparagraph |
| Article 10(2), second sentence | Article 10(2), second subparagraph |
| Article 10(3) | Article 10(3) |
| Article 13(1) and (2) | Article 11(1) and (2) |
| Article 13(3), first sentence | Article 11(3), first subparagraph |
| Article 13(3), second sentence | Article 11(3), second subparagraph |
| Article 13(4) | Article 11(4) |
| Article 13(5) | — |
| Article 13(6) | Article 11(5) |
| Article 13(7) | Article 11(6) |
| Article 13(8) | — |
| Article 13(9) | Article 11(7) |
| Article 14 | Article 12 |
| Article 15(1) | — |
| Article 15(2) | Article 13 |
| — | Article 14 |
| — | Article 15 |
| Article 16 | Article 16 |
| — | Annex I |
| — | Annex II |
---
[Top](#document1) | {
"source": "https://eur-lex.europa.eu/legal-content/AUTO/?uri=CELEX:32006L0115&qid=1761046312900&rid=4",
"title": "Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version)",
"language": "en",
"celex": "32006L0115",
"form": "Directive",
"author": "European Parliament, Council of the European Union",
"date": "12/12/2006",
"latest": "30/04/2004",
"pages": "8",
"path2html": "./en/html/2025-10/document_32006l0115.html",
"path2md": "./en/md/2025-10/document_32006l0115.md"
} |
md | EURLEX | en | "[**Avis juridique important**](../../../editorial/legal_notice.htm)\n\n*|*\n\n# 32001L0029\n\n**Dir(...TRUNCATED) | {"source":"https://eur-lex.europa.eu/legal-content/AUTO/?uri=CELEX:32001L0029&qid=1761046312900&rid=(...TRUNCATED) |
md | EURLEX | en | "| | | | |\n| --- | --- | --- | --- |\n| 23.12.2015 | EN | Official Journal of the European Unio(...TRUNCATED) | {"source":"https://eur-lex.europa.eu/legal-content/AUTO/?uri=CELEX:32015L2436&qid=1761046312900&rid=(...TRUNCATED) |
md | EURLEX | en | "| | | | |\n| --- | --- | --- | --- |\n| 16.6.2017 | EN | Official Journal of the European Union(...TRUNCATED) | {"source":"https://eur-lex.europa.eu/legal-content/AUTO/?uri=CELEX:32017R1001&qid=1761046312900&rid=(...TRUNCATED) |
md | EURLEX | en | "| | | | |\n| --- | --- | --- | --- |\n| 20.9.2017 | EN | Official Journal of the European Union(...TRUNCATED) | {"source":"https://eur-lex.europa.eu/legal-content/AUTO/?uri=CELEX:32017L1564&qid=1761046312900&rid=(...TRUNCATED) |
md | EURLEX | en | "| | | | |\n| --- | --- | --- | --- |\n| 27.12.2006 | EN | Official Journal of the European Unio(...TRUNCATED) | {"source":"https://eur-lex.europa.eu/legal-content/AUTO/?uri=CELEX:32006L0116&qid=1761046312900&rid=(...TRUNCATED) |
md | EURLEX | en | "| | | |\n| --- | --- | --- |\n| European flag | Official Journal of the European Union | EN Se(...TRUNCATED) | {"source":"https://eur-lex.europa.eu/legal-content/AUTO/?uri=CELEX:32023R2411&qid=1761046312900&rid=(...TRUNCATED) |
End of preview.
📘 ALIA_INTELLECTUAL_PROPERTY Dataset
The ALIA_INTELLECTUAL_PROPERTY dataset is a multilingual resource designed for text generation tasks within the intellectual property (IP) domain, including topics such as copyrights, patents, trademarks, and related legal and institutional information.
The dataset consists of textual documents formatted in Markdown (.md), each provided as structured JSONL entries.
Each entry includes information about the text's source, language, format, text, and metadata.
🧾 Column Descriptions
| Field | Type | Description |
|---|---|---|
format |
string | Indicates the text format. All entries use "md" (Markdown). |
source |
string | Source of the document (institution, website, or project). |
language |
string | Language of the content: "es" (Spanish). |
text |
string | The main textual content in Markdown format. |
metadata |
object | Supplementary information. |
🌍 Dataset Composition
- Languages: Spanish (es)
- Domain: Intellectual Property (copyright, patents, trademarks, and related legal frameworks)
- Format: JSON Lines (
.jsonl)
Each item represents a standalone intellectual-property-related text.
🔎 Sources
eurlex-es-md.jsonl: Filtered content from EUR-Lex (Spanish) using the keyword "intellectual property".
⚠️ Notes
- The dataset is automatically curated from intellectual property–related sources.
- Metadata coverage may vary by entry.
- Content may include Markdown formatting for structure (e.g., headers, lists, emphasis).
💰 Funding
This work is funded by the Ministerio para la Transformación Digital y de la Función Pública, co-financed by the EU – NextGenerationEU, within the framework of the project Desarrollo de Modelos ALIA.
📚 Reference
Please cite this dataset using the following BibTeX format:
@misc{alia2025intellectualproperty,
author = {Espinosa Zaragoza, Sergio and Maestre, Mar{'\i}a Mir{'o} and Mu{~n}oz Guillena, Rafael and Consuegra-Ayala, Juan Pablo},
title = {ALIA_INTELLECTUAL_PROPERTY Dataset},
year = {2025},
institution = {Language and Information Systems Group (GPLSI) and Centro de Inteligencia Digital (CENID), University of Alicante (UA)},
howpublished = {\url{[https://huggingface.co/datasets/gplsi/alia_intellectual_property}}](https://huggingface.co/datasets/gplsi/alia_intellectual_property}})
}
⚠️ Disclaimer
Be aware that the data may contain biases or other unintended distortions. When third parties deploy systems or provide services based on this data, or use the data themselves, they bear the responsibility for mitigating any associated risks and ensuring compliance with applicable regulations, including those governing the use of Artificial Intelligence.
The University of Alicante, as the owner and creator of the dataset, shall not be held liable for any outcomes resulting from third-party use.
📜 License
This work is licensed under a Creative Commons Attribution 4.0 International (CC BY 4.0) licence.
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