Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004)
Date: 2004-06-02
Institutions: Council of the European Union, European Parliament
Subjects: TRIPS, approximation of laws, industrial property, intellectual property

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Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the
enforcement of intellectual property rights

(Official Journal of the European Union L 157 of 30 April 2004)

Directive 2004/48/EC should read as follows:

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,

(3)

Having regard to the Treaty establishing the European Commu-
nity, 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),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251
of the Treaty (2),

Whereas:

(1)

(2)

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 suc-
cess 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.

The protection of intellectual property should allow the
inventor or creator to derive a legitimate profit from his/
her 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 pro-
tection of personal data, including on the Internet.

(4)

(5)

(6)

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 para-
mount importance for the success of the internal market.

At international level, all Member States, as well as the
Community itself as regards matters within its compe-
tence, 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) and concluded
in the framework of the World Trade Organisation.

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.

There are also international conventions to which all Mem-
ber 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 Protec-
tion of Industrial Property, the Berne Convention for the
Protection of Literary and Artistic Works, and the
Rome Convention for the Protection of Performers, Pro-
ducers of Phonograms and Broadcasting Organisations.

(1) OJ C 32, 5.2.2004, p. 15.
(2) Opinion of the European Parliament of 9 March 2004 (not yet pub-
lished in the Official Journal) and Council Decision of 26 April 2004.

(3) OJ L 336, 23.12.1994, p. 1.

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(7)

(8)

(9)

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 mea-
sures, 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.

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 Inter-
nal Market and make it impossible to ensure that intellec-
tual property rights enjoy an equivalent level of protection
throughout the Community. This situation does not pro-
mote free movement within the internal market or create
an environment conducive to healthy competition.

The current disparities also lead to a weakening of the sub-
stantive law on intellectual property and to a fragmenta-
tion 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 enforce-
ment of the substantive law on intellectual property should
be ensured by specific action at Community level. Approxi-
mation of the legislation of the Member States in this field
is therefore an essential prerequisite for the proper func-
tioning of the internal market.

(10) The objective of this Directive is to approximate legislative
systems so as to ensure a high, equivalent and homoge-
neous level of protection in the internal market.

(13)

It is necessary to define the scope of this Directive as widely
as possible in order to encompass all the intellectual prop-
erty 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 possibil-
ity, on the part of those Member States which so wish, to
extend, for internal purposes, the provisions of this Direc-
tive to include acts involving unfair competition, includ-
ing 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 possibil-
ity 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 intel-
lectual property, Directive 95/46/EC of 24 October 1995
of the European Parliament and of the Council on the pro-
tection of individuals with regard to the processing of per-
sonal data and on the free movement of such data (1),
Directive 1999/93/EC of the European Parliament and of
the Council of 13 December 1999 on a Community
framework
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 com-
merce, in the internal market (3).

signatures (2)

electronic

for

(16) The provisions of this Directive should be without preju-
dice 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 nota-
bly those found in Council Directive 91/250/EEC of
14 May 1991 on the legal protection of computer pro-
grams (4) or in Directive 2001/29/EC of the European Par-
liament and of the Council of 22 May 2001 on the har-
monisation of certain aspects of copyright and related
rights in the information society (5).

(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 instru-
ments which govern such matters in general terms and are,
in principle, equally applicable to intellectual property.

(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 characteris-
tics of that case, including the specific features of each
intellectual property right and, where appropriate, the
intentional or unintentional character of the infringement.

(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 competition unduly in a manner
contrary to the Treaty.

(1) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

(2) OJ L 13, 19.1.2000, p. 12.
(3) OJ L 178, 17.7.2000, p. 1.
(4) OJ L 122, 17.5.1991, p. 42. Directive as amended by Directive

93/98/EEC (OJ L 290, 24.11.1993, p. 9).

(5) OJ L 167, 22.6.2001, p. 10.

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(18) The persons entitled to request application of those mea-
sures, 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 accor-
dance with the applicable law, which may include profes-
sional 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 Con-
vention, which establishes the presumption whereby the
author of a literary or artistic work is regarded as such if
his/her 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 impor-
tance for establishing the infringement of intellectual prop-
erty rights, it is appropriate to ensure that effective means
of presenting, obtaining and preserving evidence are avail-
able. The procedures should have regard to the rights of
the defence and provide the necessary guarantees, includ-
ing the protection of confidential
information. For
infringements committed on a commercial scale it is also
important that the courts may order access, where appro-
priate, to banking, financial or commercial documents
under the control of the alleged infringer.

(21) Other measures designed to ensure a high level of protec-
tion 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 ser-
vices, 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 propor-
tionality 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 possibil-
ity 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 infringe-
ments 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 cir-
cumstances, 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 com-
merce, or destruction, of the infringing goods and,
in
appropriate cases, of the materials and implements princi-
pally used in the creation or manufacture of these goods.
These corrective measures should take account of the inter-
ests 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 dispro-
portionate, Member States should have the option of pro-
viding for the possibility, in appropriate cases, of pecuni-
ary 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 con-
stitute an infringement of law other than intellectual prop-
erty 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 reason-
able 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 appropri-
ate, 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

(28)

(29)

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introduce an obligation to provide for punitive damages
but to allow for compensation based on an objective cri-
terion while taking account of the expenses incurred by the
rightholder, such as the costs of identification and research.

HAVE ADOPTED THIS DIRECTIVE:

(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.

CHAPTER I

OBJECTIVE AND SCOPE

Article 1

Subject matter

In addition to the civil and administrative measures, pro-
cedures and remedies provided for under this Directive,
criminal sanctions also constitute, in appropriate cases, a
means of ensuring the enforcement of intellectual property
rights.

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.

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 Mem-
ber 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 pro-
duced 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 pro-
tection measures should not be misused to protect markets
and prevent parallel imports.

(30)

In order to facilitate the uniform application of this Direc-
tive, 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 net-
work 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.

Article 2

Scope

1. Without prejudice to the means which are or may be pro-
vided 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 intel-
lectual 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 pro-
visions 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
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;

property, Directive

intellectual

(b) Member States’ international obligations and notably the
TRIPS Agreement, including those relating to criminal pro-
cedures and penalties;

(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,

(c) any national provisions in Member States relating to crimi-
nal procedures or penalties in respect of infringement of
intellectual property rights.

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CHAPTER II

Article 5

MEASURES, PROCEDURES AND REMEDIES

Presumption of authorship or ownership

S e c t i o n 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 intellec-
tual 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

Member States shall recognise as persons entitled to seek appli-
cation 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;

For the purposes of applying the measures, procedures and rem-
edies 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 conse-
quently 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 pro-
tected subject matter.

S e c t i o n 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, speci-
fied 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 con-
fidential information. For the purposes of this paragraph, Mem-
ber States may provide that a reasonable sample of a substantial
number of copies of a work or any other protected object be con-
sidered by the competent judicial authorities to constitute reason-
able 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 docu-
ments under the control of the opposing party, subject to the pro-
tection of confidential information.

Article 7

Measures for preserving evidence

(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.

.1 Member States shall ensure that, even before the com-
mencement of proceedings on the merits of the case, the compe-
tent judicial authorities may, on application by a party who has

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presented reasonably available evidence to support his/her claims
that his/her 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 informa-
tion. 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 evi-
dence 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 pro-
vided 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 rea-
sonable 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 infringe-
ment or threat of infringement of an intellectual property right,
the judicial authorities shall have the authority to order the appli-
cant, upon request of the defendant, to provide the defendant
appropriate compensation for any injury caused by those
measures.

S e c t i o n 3

Right of information

Article 8

Right of information

1.
.Member States shall ensure that, in the context of proceed-
ings 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 infor-
mation 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 com-

mercial scale;

(b) was found to be using the infringing services on a commer-

cial 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 distri-
bution of the goods or the provision of the services.

.The information referred to in paragraph 1 shall, as appro-

2.
priate, 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, deliv-
ered, received or ordered, as well as the price obtained for the
goods or services in question.

.Paragraphs 1 and 2 shall apply without prejudice to other

3.
statutory provisions which:

(a) grant the rightholder rights to receive fuller information;

.Member States may take measures to protect witnesses’

5.
identity.

(b) govern the use in civil or criminal proceedings of the infor-

mation communicated pursuant to this Article;

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(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/her own participation or that of his/her 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.

S e c t i o n 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 intel-
lectual 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 continu-
ation subject to the lodging of guarantees intended to ensure
the compensation of the rightholder; an interlocutory injunc-
tion 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;

The judicial authorities shall, in respect of the measures
3.
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 reason-
able time after notification of the measures, whether those mea-
sures 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 per-
mits 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 provi-
sional 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 suf-
fered 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.

(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.

S e c t i o n 5

Measures resulting from a decision on the merits of the case

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 sei-
zure of the movable and immovable property of the alleged
infringer, including the blocking of his/her 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.

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

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authorities may order, at the request of the applicant, that appro-
priate measures be taken with regard to goods that they have
found to be infringing an intellectual property right and, in appro-
priate cases, with regard to materials and implements principally
used in the creation or manufacture of those goods. Such mea-
sures shall include:

(a)

recall from the channels of commerce;

(b) definitive removal from the channels of commerce;

or

(c) destruction.

S e c t i o n 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 appropri-
ate to the actual prejudice suffered by him/her as a result of the
infringement.

2.
The judicial authorities shall order that those measures be
carried out at the expense of the infringer, unless particular rea-
sons are invoked for not doing so.

When the judicial authorities set the damages:

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.

(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;

Article 11

Injunctions

or

Member States shall ensure that, where a judicial decision is taken
finding an infringement of an intellectual property right, the judi-
cial 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 pay-
ment, 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/her disproportionate harm
and if pecuniary compensation to the injured party appears rea-
sonably satisfactory.

(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.

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S e c t i o n 7

Publicity measures

Article 18

Assessment

Article 15

Publication of judicial decisions

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.

Member States shall ensure that, in legal proceedings instituted for
infringement of an intellectual property right, the judicial authori-
ties 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 appro-
priate 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, pro-
cedures 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 ori-
gin of their manufacture;

On the basis of those reports, the Commission shall draw up a
report on the application of this Directive, including an assess-
ment 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 Eco-
nomic and Social Committee. It shall be accompanied, if neces-
sary 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 des-
ignate 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 cor-
respondent(s) to the other Member States and to the Commission.

CHAPTER V

FINAL PROVISIONS

Article 20

Implementation

(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.

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.

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When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such refer-
ence 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 22

Addressees

This Directive is addressed to the Member States.

Article 21

Entry into force

Done at Strasbourg, 29 April 2004.

This Directive shall enter into force on the 20th day following that
of its publication in the Official Journal of the European Union.

For the European Parliament
The President
P. COX

For the Council
The President
M. McDOWELL