Copyright, counterfeit and privacy

Francisco Marcos. Professor. Instituto de Empresa

19 May 2004

In March, the European Parliament passed a proposal to guarantee compliance with copyright laws. The directive has just been ratified by the Council. What effects will it have?

Member states will have two years to adapt their legislation to the mandates set forth in the new directive, which focuses on harmonizing national regulations of civil and penal remedies on copyright infringement and patent rights.

Its main aim is to stop offenders from taking advantage of the differences between the various national disciplinary systems, which allows them to move their activities to states where legal options for the legitimate holder of these rights are less effective, or where the disciplinary system is less strict. The differences between national laws in these matters not only hinder the fight against counterfeiting and piracy, but also constitute an incentive for organized crime. They likewise distort the traffic of goods and correct functioning of the domestic market, which can endanger public health and safety.

An end to piracy?

The directive seeks to put an end to the substantial business losses resulting from counterfeit goods and piracy. These losses are considerable, and stem from a variety of sources: direct and future sales, costs resulting from trivialization of the originality and reputation of the authentic products, and the costs of protecting copyright and patent rights from infringement.

For this, the directive lays down a general framework, together with guidelines for harmonization of the legal protection of copyright and patent rights at a Community level. This particularly applies to procedural legitimacy, proof, cautionary measures and judicial remedies. It also sets forth certain parameters for determining pecuniary penalties and for the calculation of damages.

Although Spanish legislation already includes most of the instruments set forth in the new directive, the need to modify our legislation to incorporate points not yet covered by Spanish law is an excellent opportunity to update and coordinate the provisions set forth for this purpose in the different laws governing the protection of copyright and patent rights.

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