State of play of the legal enforcement system

AuthorPanella, Lauro
EPRS | European Parli amentary Re search Servic e
3. State of play of the legal enforcement system
As the cha pter abov e highlights, the current legal fra mework fo r IPRs hampers the harmonised and
efficient fig ht against onlin e piracy. F urthermore, r ightsh olders lack an ef fici ent enforcement
system and need the constant support of their licensees, with duplication of costs and risks.
Since 2004, the EU has put in place a harmonised framework for IPR enfor cement employing the
'Enforcemen t Directive'. However , it is now evident that this legal regi me needs to be upd ated to
tackle technolog ically advanced fo rms of online pir acy in the field o f sports events (see Annex I
Chapt er 3.1).
In terms of enforcement m easures, the En forcement Directive was h istor ically mea nt to solve
critica l iss ues aris ing fr om differ ences in national systems; however, it could not g ive explicit
cons ideratio n to mor e modern and technological instruments, such as 'li ve blocki ng orders' and
'dynamic i njunctions'.5
These meas ures have proved to be particul arly eff icient in digital enfo rcement; however,
national legislators and courts ha ve updated their instruments and measu res to respond to digital
reality in a fragmented and non-syst ematic way, c ausin g disp arities am ong the m.
Indeed, while 'dynamic injunctions' seem to be ordinar ily ado pted across the E U in t he form of
catalogue-wide in junctio ns and s ervice-targeted injunctions, 'liv e blo ckin g ord ers' are available only
in the UK and Ireland, notwithstanding their proven efficacy in fighting illegal use o f internet
protocol televis ion ( IPTV)6.
In conclusion, by m apping the av ailable enforcement measures deriving from national
implementation of the Enforcement D irecti ve, the E-commerce Di rective, and the In foS oc
Directive, it is clear that t he EU enforcement sy stem is far f rom fully harmo nised, to the detriment
of a fast an d efficient 'cros s-b or der' fight a gainst online piracy . The possib ility of adopting a sp ecific
legal ins tru ment to tack le onli ne pira cy aggressively therefore merits careful examination.
3.1. Legal b arriers and limitations
When it comes to the current legal enf orcement system , the barr iers to effective cro ss-border
implem entatio n can be div ided into technical and legal aspects (see Annex I, Chapter 3.4.2 and
4). The first group, te chnical a spects, includes the ti me constraint deter mined by the lengt h of
matches, the volatility of streams, and t he difficulty in identifying infringers and tracking them
to hold them accountable without involving internet service providers (ISPs ).
In p art icular, specific a tten tion should be given to the need t o adopt an enforcement syst em that
enables an immed iate response ('blocking orders'). In particular, o rders need to be adopted before
- or immediately a fter the beginning of a sports event. An updated regime of t his k ind wou ld also
be able to tackle the problem of the 'volatility7 of onli ne pirated s treams', by enabling the
adoption of dynamic blocking orders.
5 European Commission, Summary of re sponses to the publi c consult ation on the evaluat ion and modernisati on of the
legal framework for the enforcement of intellectual property rights, 2016, p.36.
6 Use of I PTV m eans broadcasting of a programme, from a legitimate or pirate copy, without permission from the
copyright holder, e.g. illegal internet protocol television.
7 In order not to be tracke d, indeed, pir ates constantly change the ir 'location' on the internet , thus rende ri ng it
necessary to start judicial proceedings anew.

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