What changed, Directive 2004/48/EC

+ ## 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 infrin…
+ 
+ **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 …
+ 
+ **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 oblig…
+ 
+ ## 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…
+ 
+ **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
+ 
+ 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;
+ 
+ (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/her 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.
+ 
+ ## CHAPTER II — MEASURES, PROCEDURES AND REMEDIES / 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 or…
+ 
+ **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 com…
+ 
+ ### 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/her claims that his/her intellectual property right has been…
+ 
+ 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 …
+ 
+ **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 deci…
+ 
+ **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 auth…
+ 
+ **5.** Member States may take measures to protect witnesses' identity.
+ 
+ ## CHAPTER II — MEASURES, PROCEDURES AND REMEDIES / 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 ne…
+ 
+ **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 quantit…
+ 
+ **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…
+ 
+ ## CHAPTER II — MEASURES, PROCEDURES AND REMEDIES / 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, …
+ 
+ **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 o…
+ 
+ **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…
+ 
+ **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 informe…
+ 
+ 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…
+ 
+ **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 paragra…
+ 
+ **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 o…
+ 
+ ## CHAPTER II — MEASURES, PROCEDURES AND REMEDIES / 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 t…
+ 
+ **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-com…
+ 
+ ### 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 i…
+ 
+ ## CHAPTER II — MEASURES, PROCEDURES AND REMEDIES / 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…
+ 
+ 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 ca…
+ 
+ (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 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.
+ 
+ ## CHAPTER II — MEASURES, PROCEDURES AND REMEDIES / 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 d…
+ 
+ ## 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 orig…
+ 
+ (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 b…
+ 
+ **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 thi…
+ 
+ ## 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 29 April 2006. 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 20th day following that of its publication in the *Official Journal of the European Union*.
+ 
+ ### Article 22 — Addressees
− ### document
+ This Directive is addressed to the Member States.
− 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 re…