COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Making the most of the EU’s innovative potential An intellectual property action plan to support the EU’s recovery and resilience
Date: 2020-11-25
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: EU action, European patent, designation of origin, designs and models, economic recovery, industrial counterfeiting, patent law, patents licence, plant variety right, trade mark

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 25.11.2020  COM(2020) 760 final  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Making the most of the EU’s innovative potential              An intellectual property action plan to support the EU’s recovery and resilience                
 
 
1.  THE 

CHALLENGE 

AHEAD: 

CAPITALISING 

ON 

EUROPE’S 

INTELLECTUAL ASSETS TO BOOST RECOVERY AND RESILIENCE  

Intangible assets such as inventions, artistic and cultural creations, brands, software, know-
how, business processes and data are the cornerstones of today’s economy. Over the last 
two  decades,  the  volume  of  annual  investments  in  such  ‘intellectual  property  products’1 
increased  by  87%  in  the  EU,  while  the  volume  of  tangible  (non-residential)  investments 
increased by only 30%.  Investments  in  intangibles were also  significantly  less affected by 
the 2008 economic crisis2.  

Intellectual  property  rights  (IPRs),  i.e.  patents,  trade  marks,  designs,  copyright  and 
neighbouring rights, geographical indications and plant variety rights, as well as trade secret 
protection  rules,  help  entrepreneurs  and  companies  valorise  their  intangible  assets.  In 
today’s  economy,  industrial  products  and  processes  increasingly  rely  on  intangibles 
protected  by  IPRs,  and  sound  intellectual  property  (IP)  management  has  become  part  and 
parcel of any successful business strategy.  Industries that make intensive use of IP  play 
an  essential  role  in  the  EU  economy  and  offer  valuable  and  sustainable  jobs  to  society. 
IPR-intensive  industries  currently  account  for  almost  45%  of  Europe’s  GDP  and  directly 
contribute  to  the  creation  of  almost  30%  of  all  jobs3.  Many  of  Europe’s  industrial 
ecosystems  cannot  thrive  without  effective  IP  protection  and  effective  tools  to  trade 
intangible assets.  

IP is a key asset to be able to compete globally. World-wide, the number of IP filings is on 
the  rise.  The  same  trend  can  be  noted  in  the  EU.  Between  2010  and  2019,  the  number  of 
European patents granted rose from 58 000 to 137 000, approximately - although the rise is 
less  marked  than  in  other  parts  of  the  world,  notably  Asia,  where  economies  are  quickly 
catching up on IP generation.  

The EU has the means to remain competitive in the global race for technological leadership. 
It  also  has  a  robust  IP  framework.  For  instance,  a  single  application  mechanism  makes  it 
possible  to  obtain  and  enforce  trade  mark,  designs  and  plant  variety  protection  across 
Europe.  The  quality  of  patents  granted  in  Europe  is  among  the  highest  in  the  world4. 
European  innovators  are  frontrunners  in  green  technologies5.  Globally,  they  hold  a  major 
portion of green patents6 and have particularly strong IP portfolios in technologies such as 
climate  change  adaptation,  carbon  capture  and  storage,  water  and  waste  treatment7. 
European  companies  are  also  leaders  in  specific  digital  technologies,  such  as  connectivity 
technologies.  

There is a need to further build on our strengths by upgrading the EU’s framework, where 
needed, and putting in place well-calibrated IP policies to help companies capitalise on their 
inventions and creations, whilst at the same time ensuring that inventions and creations are 
serving economy and society at large. There is plenty of inventiveness and creativity in the 
EU: it is therefore necessary to maximise the incentives to bring out this potential and to put 

1  According  to  the  SNA2008/ESA2010  standards,  the  Systems  of  National  Accounts  captures  a  range  of 
specific  intangible  assets  under  the  'intellectual  property  products'  asset  category,  such  as  R&D,  mineral 
exploration, computer software and databases, entertainment, and literary and artistic originals. 
2 Unlocking investment in intangible assets, DG ECFIN discussion paper 047, May 2017. 
3 Intellectual property rights intensive industries and economic performance in the EU, EUIPO-EPO, 2019. 
4  “Hidden  treasures.  Mapping  Europe’s  sources  of  competitive  advantage  in  doing  business”,  D.  Kalff,  A. 
Renda, Centre for European Policy Studies (CEPS), Brussels 2019, p. 59; see also EPO quality report 2018. 
5 2019 EU Industrial R&D Investment Scoreboard. 
6 Share of PCT applications in relation to societal challenges. See the section on climate and environment in 
the Report on Science, Research and Innovation Performance of the EU 2020.   
7  See:  Climate  change  mitigation  technologies  in  Europe  –  evidence  from  patent  and  economic  data,  EPO 
2015. 

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our  companies  on  track  towards  economic  recovery8  and  Europe’s  global  green  and 
digital leadership.  

Some of the most important social challenges of our times, such as making green transition 
possible  or  ensuring  proper  healthcare  for  all,  cannot  be  addressed  without  innovative 
solutions. The development of the renewable energy and low carbon energy ecosystems for 
instance hinges on the rapid development and deployment of cutting edge technologies, as 
well  as  effective  tools  for  sharing  critical  intangibles,  such  as  data.  The  development  of  a 
flourishing  health  ecosystem  in  Europe  requires  a  transparent  system  of  IP  incentives, 
boosting  innovation  whilst  ensuring  effective  access  to  affordable  medicines.  The  cultural 
and creative sectors cannot thrive without effective IP protection9. 

The  COVID-19  crisis  has  illustrated  EU’s  dependence  on  critical  innovations  and 
technologies,  and  reminded  Europe  of  the  importance  of  effective  IP  rules  and  tools  to 
secure a fast deployment of critical IP. IPRs, and their role in a competitive and innovative 
European  pharmaceutical  industry,  are  also  part  of  the  new  Pharmaceutical  Strategy  for 
Europe10. 

The  technological  revolution  –  the  data  economy  and  society,  the  turn  to  artificial 
intelligence  (AI),  the  growing  importance  of  new  technologies  such  as  blockchain,  3D-
printing and the Internet of Things (IoT) as well as the development of new business models 
such as the platform economy, and the data and circular economy - offers a unique window 
of  opportunity  to  modernise  our  approach  to  protecting  our  intangible  assets.  In  recent 
decades,  there  has  been  significant  progress  in  creating  a  single  market  for  IP,  yielding 
many  benefits  for  the  EU  economy.  An  array  of  tools  is  available  to  bring  innovative 
solutions to society11. Yet many gaps and weaknesses still exist in the way EU companies 
protect intangible capital and lead it to bear fruit for European society.  

We have identified five challenges: 

  First, despite a lot of progress, part of the EU’s IP system remains too fragmented, 

with procedures that are complex and costly and that sometimes lack clarity. 

European  patents  are  subject  to  expensive  national  validation  procedures  and  parallel 
litigation in multiple EU countries. For pharmaceuticals, protection through supplementary 
protection  certificates  (SPCs)  is  only  available  at  national  level.  Design  and  geographical 
indication  (GI)  protection  should  be  improved.  Where  registration  is  necessary  to  protect 
one’s IPRs, one-stop shop procedures, offering the right coverage, should be the norm, not 
the exception.  

As  part  of  the  digital  transformation,  well-calibrated  protection  of  designs  in  the  digital 
environment  becomes  even  more  pressing.  For  instance  to  ensure  a  smooth  uptake  of  3D 
printing  technologies,  we  need  clarity  on  the  protection  of  3D  printing  files  and  on  the 
limitations for the private use of designs. We need clear answers to new questions, such as 
how  to  protect  inventions  developed  or  implemented  using  AI,12  and  how  to  ensure  that 

8  Studies  show  that  small  and  medium-sized  enterprises  using  IPRs  grow  faster  and  are  more  resilient  to 
economic crises – High-growth firms and intellectual property rights, EUIPO-EPO, 2019. 
9 Appendix I contains a map presenting the role of IPR-intensive industries in the ecosystems. 
10 COM(2020) 761 
11 For instance, a single application makes it possible today to protect a trade mark an industrial design or a 
plant variety across the whole EU, and there is a common set of rules on the protection of trade secrets.  
12  Study  on  trends  and  developments  in  Artificial  Intelligence  –  Challenges  to  the  IPR  framework,  study 
conducted by IVIR and JIPP, November 2020.  

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repair and re-use are not blocked by unfair or excessively restrictive  IP practices13. At the 
same time, we need to make more of the potential offered by new technologies such as AI 
and blockchain to increase the effectiveness of our IP systems.  

  Second, too many companies, in particular SMEs, and too many researchers do not 

make full use of the opportunities offered by IP protection. 

Only 9% of EU SMEs have registered IP rights. In the current crisis, IP registration numbers 
have  dropped,  to  the  detriment  of  companies’  competitiveness  and  resilience.  Recent 
analysis shows that SMEs’ reluctance to use IP rights is largely due to lack of knowledge 
about IP14. Even if they use IPRs, they find the system too costly, complex and difficult to 
navigate.  

In addition to the low levels of protection of their IP, SMEs are not taking full advantage of 
its commercial exploitation. Financial analysts and investors recognise IP as a key asset in 
the  value  of  a  firm  and  as  an  indicator  of  its  technological  and  growth  capabilities. 
Nevertheless,  knowledge-intensive  SMEs  seeking  to  finance  their  operations  often  do  not 
adopt  appropriate  IP  strategies  that  would  help  valorise  their  intangible  capital.  For  the 
financial sector, the valuation of a patent or trade mark is crucial; as the lender or investor is 
mainly interested in fungible collaterals15 and less attracted by the monopoly right itself.  

Sound  IP management is  also  needed to  support the valorisation  and deployment of R&D 
results  in  Europe.  For  example,  although  26%  of  high-value  research  publications  on  AI  
comes  from  Europe,  only  4  out  of  the  top  30  applicants  (13%)  and  7%  of  businesses, 
engaged in AI patenting worldwide, are European16.   

  Third, tools to facilitate access to IP (and therefore allow the take up and diffusion 

of technologies) are insufficiently developed. 

The  COVID-19  crisis  illustrated  our  dependence  on  critical  innovations  and  technologies, 
particularly  in  the  health  sector.  The  EU  should  further  enhance  its  tools  to  make  such 
innovations  and  technologies  available,  where  needed,  whilst  ensuring  a  fair  return  on 
investment.  

The  licensing  of  standard-essential  patents  (SEPs)  is  often  a  cumbersome  and  costly 
exercise  for  both  patent  holders  and  technology  implementers.  Given  the  growing 
importance  of  SEPs  (for  instance,  there  are  over  95  000  unique  patents  and  patent 
applications  supporting  5G17),  there  is  a  need  for  a  much  clearer  and  more  predictable 
framework, incentivising good faith negotiations rather than recourse to litigations.  

Although  data  sharing  is  gaining  importance  in  many  sectors,  the  implications  of  the  IP 
framework for data sharing remain to be clarified.  

  Fourth, in spite of continued efforts to turn the tide, counterfeiting and piracy are 

still thriving, including by taking advantage of digital technologies. 

Imports of counterfeit and pirated goods into the EU amount to as much as EUR 121 billion, 
representing  up  to  6.8%  of  EU  imports  in  2016  (against  5%  of  EU  imports  in  2013)18. 

13  See  the  relevant  requirements  under  the  Eodesign  implementing  regulations  introduced  in  October  2019 
C(2019) 2120-7, C(2019) 5380, C(2019) 6843 
14 SMEs that did  not own IP rights reported lack of  knowledge about IP as the  main reason  for not seeking 
registration (38% of respondents). Intellectual property SME scoreboard, EUIPO 2019. 
15 Its aim is often to sell or license it, thus monetizing the intangibles. 
16 Report Science, Research and Innovation Performance of the EU 2020.   
17 Fact finding study on patents declared to the 5G standard, IPlytics, 2020. 
18 Trends in Trade in Counterfeit and Pirated Goods, OECD and EUIPO, 2019. 

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Annually, this results in direct lost sales of EUR 50 billion and direct employment losses of 
416  000  jobs19.    Cyber  theft  of  trade  secrets  accounts  for  an  estimated  EUR  60  billion  of 
losses in the EU20.  

  Finally, there is lack of fair play at global level and EU businesses often lose out 

when operating abroad.  

Certain non-EU countries do not sufficiently protect IP, often to the harm of EU companies. 
The EU must harness its potential to act as a global norm-setter. It must step up efforts 
to fight abusive practices, such as bad-faith IP-registrations and other misappropriations of 
IP.  Above  all,  it  should  lead  by  example:  develop  state-of-the  art  regulatory  solutions  to 
global issues such as the licensing of SEPs or the way data can be shared.   

In response to these five challenges, and building on input provided by Member States and 
stakeholders21, this  action plan identifies  five key focus areas,  with  specific proposals  for 
action to: 

  upgrade the system for IP protection, 

 

 

incentivise the use and deployment of IP, notably by SMEs,  

facilitate access  to  and sharing of intangible assets  while guaranteeing a fair return 
on investment, 

  ensure better IP enforcement, and 

 

improve fair play at global level.  

2.  BETTER PROTECTION OF IP   

A  first  priority  is  to  ensure  that  EU  innovators  have  access  to  fast,  effective  and 
affordable  protection  tools.  To  this  end,  we  need  to  go  for  the  extra  mile  to  address  the 
remaining fragmentation and reduce complexity. We must also make sure that our rulebook 
is fully in line with the needs of the new green and digital economy.  

To make this happen, we need to secure the launch of the unitary patent system. This will 
create  a  one-stop  shop  for  businesses,  considerably  simplifying  patenting  in  the  EU, 
boosting transparency and facilitating licensing. Obtaining a unitary patent (covering up to 
25 Member States)22 and maintaining it for a typical duration will cost around EUR 10 000, 
about six times less than obtaining and maintaining equivalent protection today. In addition, 
centralised litigation before the new Unified Patent Court will improve legal certainty and 
avoid  parallel  proceedings  in  multiple  Member  States,  considerably  reducing  litigation 
costs.  The  unitary  patent  system  will  thus  be  a  key  tool  for  the  EU's  industrial  recovery, 
especially  for  the  renewable  energy,  electronics,  aerospace  and  defence,  and  mobility 
ecosystems.  

The  main  missing  step  in  ensuring  the  launch  of  the  unitary  patent  system  is  Germany's 
ratification of the Unified Patent Court Agreement, now made possible as a result of a recent 
decision of the German Constitutional Court23. Once the ratification process is  completed, 

19 Status Report on IPR infringement, EUIPO, 2020: average annual figures, 2013-2017. 
20 The scale and impact of industrial espionage and theft of trade secrets through cyber, 2018. 
21  This  action  plan  builds  on  feedback  received  on  its  roadmap  and  input  provided  by  Member  States  and 
stakeholders, both in writing and through discussions held during conferences  on future IP policy, as well as 
targeted discussions within the Parliament and Council. 
22 The unitary patent system is implemented through enhanced cooperation of 25 participating Member States 
(all EU Member States except for Spain and Croatia). 
23 Order of 13 February 2020, 2 BvR 739/17, published on 20 March 2020. 

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the  Commission  will  work  together  with  the  European  Patent  Office  (EPO)  and  Member 
States  to  make  the  unitary  patent  system  operational  among  the  contracting  Member 
States24. It will also encourage the Member States that have not yet engaged to join the new 
system.  

Closely linked to patents are supplementary protection certificates (SPCs), which offer an 
additional period of IP protection for patented medicinal and plant protection products that 
are subject to lengthy clinical trials and market authorisation processes. After introducing an 
SPC  “manufacturing  waiver”  in  201925,  the  Commission  has  recently  finalised  a  detailed 
evaluation  of  the  SPC  regime26.  It  demonstrates  that,  while  the  SPC  system  remains 
relevant,  it suffers from  fragmented implementation across Member States.  This  translates 
into inefficiencies and a lack of transparency and predictability, which hampers innovators 
and generic producers, and eventually harms patients. The Commission is assessing ways to 
address these pitfalls, including the possibility to introduce a unified SPC grant mechanism 
and/or create a unitary SPC title.  

In  the  context  of  its  new  pharmaceutical  strategy  for  Europe,  the  Commission  is  also 
looking  closely  at  how  to  further  optimise  incentives  and  rewards  to  boost  innovation, 
address  unmet  needs,  foster  affordability  by  ensuring  a  swift  market  launch  as  well  as  a 
continuous supply of medicines, including generics and biosimilars. Innovation in this area 
should  match  needs  and  become  available  to  all  patients  that  can  benefit  from  it.  In  this 
context, it looks among others at the regime for orphan and paediatric medicines27 and the 
Bolar exemption28. 
Following  the  successful  reform  of  the  EU  trade  mark  legislation29,  the  Commission  will 
revise the EU legislation on design protection. The aim is to improve the accessibility and 
affordability  of  design  protection  in  the  EU,  especially  for  the  textile,  furniture  and 
electronics  ecosystems,  and to ensure that the design protection regime better supports the 
transition  to  the  digital  and  green  economy.  Design  makes  a  product  appealing  and  well-
designed products give producers a significant competitive advantage. Results of the recent 
evaluation30  of  the  EU  legislation  on  design  protection31  show  that,  although  EU  design 
systems  are  functioning  well  overall,  there  are  still  shortcomings.  Registration  procedures 
are  partly  outdated  and  in  some  cases  involve  an  unnecessary  administrative  burden.  The 
protection of new forms of design (e.g. animated designs,  graphical  user interfaces) is  not 
sufficiently  clear.  Also,  a  lack  of  clarity  on  the  scope  of  design  rights  poses  challenges, 

24 Beyond Germany's ratification of the Agreement on the Unified Patent Court, Member States’ agreement to 
launch  the  'period of provisional application'  will also be  required. This  will  make  it possible to  finalise the 
institutional  and  practical  set-up  of  the  Court,  ahead  of  the  full  launch  of  the  unitary  patent  system.  In 
accordance  with  Regulation  (EU)  N°  1257/2012  implementing  enhanced  cooperation  in  the  area  of  the 
creation  of  unitary  patent  protection,  the  Commission  and  the  EPO  will  also  need  to  conclude  a  working 
agreement  providing  for  close  cooperation  on  the  operation  of  unitary  patent  system.  The  UK's  withdrawal 
from the EU is not expected to hamper the launch of the unitary patent system. 
25  Regulation  (EU)  N°  2019/933  amending  Regulation  (EC)  N°  469/2009  concerning  the  supplementary 
protection certificate for medicinal products. 
26 Evaluation of the EU Supplementary Protection Certificate system – SWD/2020/8508 
27  A  New  Industrial  Strategy  for  Europe,  COM/2020/102  final,  p.14;  “Roadmap  Pharmaceuticals  –  safe  and 
affordable medicines (new EU strategy)”. 
28 The  Bolar exemption is a defence for patent infringement especially relevant  to drugs  wherein a patented 
invention can be exploited  - for a limited time before the end of the patent term  - by a third party solely for 
research and testing purposes and to obtain the required regulatory approvals. 
29 The European Parliament approved the trade mark reform package on 15 December 2015: 
https://ec.europa.eu/growth/industry/policy/intellectual-property/trade-mark-protection_en. 
30 Report on the evaluation of EU legislation on design protection. 
31  Directive  98/71/EC  on  the  legal  protection  of  designs  and  Council  Regulation  (EC)  N°  6/2002  on 
Community Designs.  

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particularily in relation to the increasing use of 3D printing or for the enforcement of design 
rights against infringing goods transiting the EU. Finally, as a consequence of only partial 
harmonisation  of  design  protection  for  component  parts  used  for  the  repair  of  complex 
products,  the  economically  important  spare  parts  market  continues  to  be  strongly 
fragmented, severely distorting competition and hampering transition to a more sustainable 
and greener economy.  

Europe  also  needs  a  new  approach  to  the  way  geographical  indications  (GIs)  are 
protected. GIs are names of products linked to the natural environment and the know-how 
of local producers. They are part of Europe's cultural heritage and contribute to the social, 
environmental and economic sustainability of the rural economy32, sometimes also referred 
to as the ‘rural IPR’. GIs have major economic value in the agriculture sector. In 2017, agri-
food and drink products, whose names are protected by the EU as GIs, represented a sales 
value of EUR 74.76 billion within the EU, 7% of total sales in the European food and drink 
sector. Furthermore, GIs represent 15.5% of total EU agri-food exports, with a higher sales 
premium for protected product names33. However, there is still untapped potential. Current 
protection and enforcement rules could be more precise and the roles of Member States and 
the Commission in the registration process could be better identified. In addition, there are 
different  GI systems for different types of agricultural products. Building on the results of 
the  ongoing  evaluation34,  the  Commission  will  look  at  ways  to  strengthen,  modernise, 
streamline and better enforce GIs for agricultural products, food, wines and spirits.35  

Only  some  Member  States  have  currently  in  place  rules  to  ensure  GI  protection  for  non-
agricultural  products  (such  as  handicrafts).  At  EU  level,  there  is  currently  no  uniform 
mechanism  for  the  protection  of  such  non-agricultural  GIs,  which  are  often  an  important 
part of local identity, attract tourism, retain unique skills and contribute to job creation. A 
recent  study36  shows  that  a  harmonised  system  for  non-agricultural  products  would  be 
beneficial  for  the  EU  economy.  It  would  provide  consumers  with  better  visibility  and 
authenticity  indications  for  these  products.  It  could  help  producers  stay  competitive  and 
work  together  in  niche  markets,  and  give  a  boost  to  less  developed  regions37.  For  these 
reasons, as part of the overall reform of the GI system, the Commission will, on the basis of 
a thorough impact assessment of its potential costs and benefits, consider the feasibility of 
creating  an  efficient  and  transparent  EU  GI  protection  system  for  non-agricultural 
products. This would also enable the EU to fully benefit from the opportunities offered by 
the international system of appellations of origin and GIs38. Generally, it would give more of 
a head start when promoting the recognition of EU GIs worldwide.  

The  Community  Plant  Variety  Rights  (CPVR)  system  plays  a  crucial  role  for  the  EU 
economy  as well. A robust  plant variety rights  system incentives  breeders to  develop  new 
varieties, thus  contributing to  the achievement of the European Green Deal  objectives and 

32 See the ‘Farm to Fork’ strategy announced by the Commission to reinforce the sustainability of criteria for 
GI indications. 
33 Evaluation of (agricultural) GI and Traditional Specialities Guaranteed protected in the EU, 2019. 
34 Evaluation of (agricultural) GIs and Traditional Specialities Guaranteed protected in the EU, 2019.  
35 Revision of the EU geographical indications (GI) system in agricultural products and foodstuff, wines and 
spirit drinks (IIA consultation). 
36 Economic aspects of geographical indication protection at the EU level for non-agricultural products, 2020. 
37 More precisely, introducing  EU-wide GI protection for non-agricultural products could  in the  longer term 
yield an overall expected increase in intra-EU trade of about 4.9-6.6 % of current intra-EU exports (EUR 37.6-
50 billion). Predictions show that, with a uniform system, regional employment could rise by 0.12-0.14% and 
that 284 000-338 000 new jobs could be created in the EU as a whole. See Geographical indications for non-
agricultural products. Cost of non-Europe report, 2019. 
38  Based  on  the  Lisbon  system  for  the  international  registration  of  appellations  of  origin  and  geographical 
indications managed by World Intellectual Property Organisation. 

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the  United  Nations  sustainable  development  goals.  The  Commission  will  continue  to 
monitor  the  proper  application  of  the  system  and  seek  to  bring  in  further 
improvements,  where  needed39.  The  2011  evaluation  of  the  CPVR  legislation  concluded 
that the system, which functions well overall, should be retained, albeit with some carefully 
identified 
targeted  adjustments.  This  conclusion 
shortcomings40  which  could  be  tackled,  after  an  evaluation,  in  a  targeted  revision  of  the 
legislation in the medium term. 

is  supported  by  more  recently 

In addition to the aforementioned reforms, the Commission will, together with stakeholders 
and IP offices, explore the use of new technologies such as AI and blockchain to further 
improve the effectiveness of our IP systems. In fact, new technologies can help facilitate 
the  protection  of  IP41,  improve  transparency,  allow  for  a  smoother  distribution  of  license 
fees,42 and more effectively tackle counterfeiting and piracy. To explore the full potential of 
new  technologies  and  promote  the  uptake  thereof,  the  Commission  will  encourage  an 
industry  dialogue  to  act  as  a  sounding  board  and  to  accompany  the  many  ongoing 
initiatives in this area.  

In addition, the digital revolution requires reflection on how and what is to be protected. 
AI technologies are creating new works and inventions. In some cases, for instance in the 
cultural  sector, the use of inventive machines may  become the norm. These developments 
raise the question of what protection should be given to products created with the help of AI 
technologies.  Discussions  on  the  impact  of  AI  on  IPRs  are  ongoing  both  in  Europe  and 
internationally  (see  section  6).  A  study  published    today43  stresses  the  need  to  distinguish 
between inventions and creations  generated with the help  of AI technologies and the ones 
solely created by AI technologies. Whilst inventions and creations autonomously created by 
AI technologies are still mostly a matter for the future, the Commission takes the view that 
AI systems should not be treated as authors or inventors. This is also supported by the line 
taken by the EPO in the Dabus case.44 The study also shows that current EU IP framework 
and the European Patent Convention appear broadly suitable to address the challenges raised 
by  AI-assisted  inventions  and  creations.  However,  harmonisation  gaps45  and  room  for 
improvement  remain.46  These  should  be  addressed  in  order  for  European  excellence  to 
blossom in AI. As a first step, the Commission will map and  analyse all issues and engage 
in stakeholder discussions. The aforementioned industry dialogue could offer a useful forum 
in this context.  

Finally,  the  Commission  will    ensure  a  coherent  and  cutting-edge  application  of  the 
rules, in co-operation with Member States and stakeholders. 

39 Intellectual property rights intensive industries and economic performance in the EU, EUIPO-EPO, 2019. 
40  Identified  notably  from  stakeholder  inputs,  analysis  of  EUCJ  decisions,  interinstitutional  working  group 
recommendations. 
41 For example, by speeding up novelty searches and registration procedures. 
42 Copyright metadata, as regards both IP ownership and licensing. 
43  Study  on  trends  and  developments  in  Artificial  Intelligence  –  Challenges  to  the  IPR  framework  –  Study 
conducted by IVIR and JIPP, November 2020.  
44  In  2018  two  European  patent  applications  were  filed  at  the  EPO.  Both  of  them  designated  the  “DABUS” 
machine  as  inventor.  The  two  patent  applications  were  refused  by  the  EPO.  The  EPO  considered  that  the 
inventor    designated  in  a  European  patent  must  be  a  natural  person.  The  EPO  further  understood  the  term 
inventor  as  referring  to  a  natural  according  to  an  internationally  applicable  standard.  These  decisions  have 
been appealed. 
45 For instance, the study underlines the lack of harmonisation of rules on authorship and copyright ownership 
which can lead to divergent national solutions as regards AI-assisted works. 
46  For  instance,  the  study  provides  recommendations  to  adjust  concepts  of  patent  law,  such  as  the  inventive 
step and the disclosure obligation, to AI-assisted inventions.  

7 

 
 
                                                           
In the area of copyright, the Commission is focusing on supporting the timely and effective 
transposition and implementation of the two newly adopted directives on the modernisation 
of the EU's copyright framework47. A crucial part of this work concerns the implementation 
of Article 17 of the Copyright Directive, which sets out a specific legal regime for the use of 
copyright-protected  content  by  user-uploaded  content  sharing  platforms.  The  Commission 
has  carried  out  an  extensive  stakeholder  dialogue  to  gather  the  views  of  relevant 
stakeholders on the main topics related to this article's application. Taking into account the 
results of the dialogue, the Commission will soon issue guidance to support Member States 
in  implementing  this  provision.  In  relation  to  the  existing  EU  copyright  framework,  the 
Commission will also work on a number of reports stemming from specific provisions such 
as  review  clauses  set  out  in  several  EU  copyright  instruments,  including  the  Term  of 
the  so-called 
Protection  Directive, 
“Marrakesh” Directive, and the Portability Regulation48. 
For  the  quickly  developing  biotech  market,  the  application  of  the  Biotech  Directive49  is 
key. Biotech patents offer crucial incentives, but should be issued in justified circumstances. 
The Biotech Directive offers a balanced framework in  this respect,  whose application will 
continue to be monitored by the Commission.50 

the  Collective  Rights  Management  Directive, 

To improve the way IPRs are protected in the EU, the Commission will: 

  support a rapid roll out of the unitary patent system, to create a one-stop-shop for patent 

protection and enforcement across the EU (2021), 

  optimise the supplementary protection certificates system, to make it more transparent 

and efficient (Q1 2022),  

  modernise  the  EU  legislation  on  industrial  designs,  to  make  it  more  accessible  and 

better support the transition to the digital and green economy (Q4 2021), 

  strengthen  the  protection  system  for  geographical  indications  for  agricultural 
products to make it more effective and consider, on the basis of an impact assessment, 
whether  to  propose  an  EU  protection  system  for  non-agricultural  geographical 
indications (Q4 2021),  

  evaluate the plant variety legislation (Q4 2022). 

3.  PROMOTING AN EFFECTIVE USE AND DEPLOYMENT OF IP, IN PARTICULAR 

BY SMES  

47  Directive  (EU)  2019/790  on  copyright  and  related  rights  in  the  digital  single  market  and  amending 
Directives 96/9/EC and 2001/29/EC; Directive (EU) 2019/789 laying down rules on the exercise of copyright 
and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions 
of  television  and  radio  programmes,  and  amending  Council  Directive  93/83/EEC.  Member  States  must 
transpose these Directives by 7 June 2021. 
48 Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain 
related  rights;  Directive  2014/26/EU  on  collective  management  of  copyright  and  related  rights  and  multi-
territorial licensing of rights in musical works for online use;  Directive (EU) 2017/1564 on certain permitted 
uses  of  certain  works  and  other  subject  matter  protected  by  copyright  and  related  rights  for  the  benefit  of 
persons  who  are  blind,  visually  impaired  or  otherwise  print-disabled;  Regulation  (EU)  2017/1128  on  cross-
border portability of online content services. 
49 Directive 98/44/EC on the legal protection of biotechnological inventions. 
50  Notably  with  a  view  to  ensuring  full  implementation  of  the  Commission’s  Notice  on  certain  articles  of 
Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological 
inventions  of  3  November  2016,  as  endorsed  by  Parliament  and  Council,  clarifying  that  products  resulting 
from essentially biological processes cannot be patented. 

8 

 
 
                                                           
While smart IP strategies can act as a catalyst for growth, European innovators and creators 
often  fail  to  grasp  the  benefits  of  IP.  This  critically  undermines  the  EU’s  capacity  to 
innovate  and  bolster  its  resilience  in  key  areas  of  the  economy.  Europe  should  further 
capitalise  on  the  value  of  the  knowledge  our  companies  constantly  create,  develop  and 
share, by helping them manage these assets more actively, and facilitating better access to 
equity and financing. 

To achieve this, the Commission will:  

 

 

In the short-term, together with the EUIPO, offer financial support or  IP vouchers 
for  SMEs  impacted  by  the  COVID-19  crisis,  helping  them  to  manage  their  IP 
portfolios.  The  scheme,  with  a  budget  of  EUR  20  million51  for  one  year,  should 
become  operational  as  from  1  January  2021  and  will  cover  partial  reimbursements 
for trade mark and design registration and for an IP scan (a review of the intangible 
assets  of  a  company  by  a  professional  and  some  initial  advice  on  how  to  manage 
those assets strategically).  
In  parallel,  it  will  further  roll  out52  tailor-made  IP  advice  in  the  Horizon  Europe 
programme, assisting innovative businesses at different stages of the R&I process. It 
will  also  explore  possibilities  to  expand  IP  advice  to  other  EU  research  and 
investment programmes, including the advisory hub under InvestEU. For a selected 
group of very innovative companies, the Commission will combine strategic advice 
with financial support to develop IP portfolios53. 

  More broadly, and in cooperation with the EUIPO, provide one-stop shop access to 
information  and  advice  about  IP54.The  EUIPO55  will  develop  a  platform,  the 
European  IP  Information  Centre,  which  will  be  linked  to  the  Single  Digital 
Gateway and will offer access to all relevant information not only on IP formalities 
but  also  on  related  services  (e.g.  filing  for  domain  name  protection,  registration  of 
company names), while at the same time offer easy-to-use filing systems for SMEs. 
The  Commission  will  also  mainstream  IP  support  and  advice  through  its  various 
SME support networks56 to reach out more effectively to small businesses. 

  Finally, make it easier for SMEs to leverage their IP when trying to get access to 
finance. Although intangibles are often amongst the most valuable assets, a survey 
shows  that  not  many  SMEs  benefit  from  their  IP  when  trying  to  get  access  to 
finance.57 Banks and venture capital are reluctant to finance relying on IP as an asset 
and the COVID-19 crisis further increased this risk aversion. A recent study shows a 
clear  gap  in  relation  to  financing  SMEs  using  their  intellectual  assets58.  The 
Commission will discuss with the financial community how IP valuation could help 

51 From the COSME programme and mainly financed by the EUIPO surplus.  
52 See for the current programme IPA4SME. 
53 The Commission will test the concept in the project “Closing the finance gap for IPR-driven start-ups and 
SMEs”.  
54 So that every SME has easy access to advice, as stressed in the SME strategy. 
55 This is an  initiative under the EUIPOs SME programme  which  will be developed in cooperation  with the 
European Union Intellectual Property Network (EUIPN) composed of the EUIPO and national IP offices of the 
EU Member States. 
56  Such  advisors  are  working  through  networks  or  advice  providers  in  the  Enterprise  Europe  Network,  the 
Innovation  Hubs,  Cluster  Networks  or  the  InvestEU  advisory  hub  (evolving  from  the  current  European 
Investment Advisory Hub). 
57 According to the EUIPO SME scoreboard, 2019, only 13% of SMEs owning IP rights tried to use intangible 
assets to obtain finance: 9% successfully and 4% unsuccessfully.  
58 Study on “Financing intangibles: Is there a market failure?”, EC 2020. 

9 

 
 
                                                           
them to better take into account SMEs’ intellectual assets59. The ‘tech due diligence’ 
pilot project announced in the SME strategy will be a way to test IP evaluation in a 
broader  technology-related  context60.  Building  upon  the  experience  with  existing 
bank guarantee mechanisms61, the Commission will also explore how guarantees to 
support SMEs and creators in projects based on IP can be better used. 

In  addition  to  these  SME-oriented  activities,  the  Commission  Communication  on  “A  new 
ERA for Research and Innovation”  62 highlights the need to turn the outcomes of Europe’s 
excellent  research  into  disruptive  innovation  and  promote  better  IP  management  in  the 
wider  R&I  community;  in  this  respect  the  Commission  will  launch  an awareness-raising 
campaign  to  foster  valorisation  of  IP  in  the  valuation  of  companies  by  investors.  For 
instance,  the  Commission  will  update  its  Recommendation  on  the  management  of 
intellectual  property  in  knowledge  transfer  activities  via  the  Guiding  Principles  for 
Knowledge Valorisation. This revision will be accompanied by a Code of Practice for smart 
use of IP and combined with InvestEU support to project holders via technical, financial and 
legal advice including on intellectual property. 

Steps will also be taken to ensure that publicly funded IP is used in a fair and effective 
manner. The Commission has already launched a new platform to favour the valorisation of 
EU-funded R&I results63 and a platform presenting EU-supported R&I to tackle the spread 
of  coronavirus  and  support  preparedness  for  other  outbreaks64.  The  aim  is  to  ensure  that 
results achieved using EU funds are used to the benefit of the EU economy. This is why, 
under  the  Horizon  Europe  programme,  when  IP  on  research  results  is  to  be  exploited 
primarily in non-associated third countries, applicants will need to explain how this is still in 
the EU's interest65.  

Furthermore,  IP  protection  and  broad  diffusion  of  new  technologies  will  continue  to  be  a 
central  element  of  R&I-related  important  projects  of  common  European  interest  (IPCEIs) 
and funding under the European Regional Development Fund. 

There is  also  a need to  improve the  conditions for companies to protect and use IP in 
public  procurement  with  a  view  to  stimulating  innovation  and  boosting  the  economy. 
Member States should consider leaving IP ownership to the contractors where appropriate, 
unless there are overriding public interests at stake or incompatible open licensing strategies 
in place. As announced in the SME strategy, the Commission will clarify issues related to IP 
in public procurement in the update of the guidance on innovation procurement. 

59  This  can  be  done  within  InvestEU  and  will  build  on  experience  gained  through  the  project  “Finance, 
learning,  innovation  and  patenting  for  cultural  and  creative  industries”  and  the  study  on  “Financing 
intangibles: Is there a market failure?”, EC 2020. 
60 Commission communication, SME Strategy for a sustainable and digital Europe, COM(2020) 103 final, 10 
March 2020.   
61 See the InnovFin SME Guarantee Facility or the Culture and Creative Sectors Guarantee Facility. 
62 European Research Area (ERA) Communication. 
63 See the Horizon Results Platform. 
64 See Coronavirus research and innovation platform.  
65  Similarly,  under  the  European  Defence  Fund  (EDF)  dedicated  provisions  have  also  been  introduced  to 
protect  the  results  of  financially  supported  R&D  actions  and  their  availability  in  the  EU.  These  include  an 
obligation to notify ex ante the Commssion in case  of transfer of ownerhip of results and related IP (and of 
granting of exclusive licences for research actions) to non-associated third countries or third country entities, 
and  an  obligation  to  reimburse  the  EU  funding  in  case  such  a  transfer  of  results/IP  would  contravene  the 
security and defence interests of the Union and its Member States or the objectives of the EDF. 

10 

 
 
                                                           
To boost the uptake and use of IP, the Commission will: 

  provide,  with  the  EUIPO,  a  scheme  for  IP  SME  Vouchers  to  finance  IPR  registration 

and strategic IP advice (Q1 2021), 

  roll  out  IP  assistance  services  for  SMEs  in  the  “Horizon  Europe”  programme  and 

expand it to other EU programmes (2020+). 

4.  EASIER ACCESS TO AND SHARING OF IP-PROTECTED ASSETS 

In today’s economy,  easier and faster access to knowledge, data and technologies, including 
IP-protected  ones,  is  crucial.  A  resilient,  green66  and  competitive  economy  needs  tools  to 
facilitate  access  to  critical  IP  protected  technologies  in  times  of  crisis,  to  facilitate  license 
copyright and standard-essential patents, and to promote data sharing.  

  Better tools to facilitate access to critical IP in times of crisis 

The COVID-19 crisis highlights the importance of an effective IP system, offering  strong 
incentives to innovate and easy access to IP for technologies. R&D funding and incentives 
are  needed  to  ensure  the  rapid  development  and  availability  of  new  technologies,  such  as 
vaccines or new treatments. Therefore, we must ensure with better tools that the IP system is 
allowing  access  to  critical  technologies,  where  and  when  necessary,  while  ensuring  an 
adequate return on investment for innovators.  

So  far,  the  COVID-19  crisis  has shown  the  resilience  of  our  IP  system.  This  is  due,  in 
large  part,  to  strong  commitment  and  co-operation  between  the  public  and  private  players 
and the various initiatives taken to boost the development and availability of vaccines and 
other critical supplies.  

The  Commission  supports  voluntary  pooling  and  licensing  of  IP  related  to  COVID-19 
therapeutics  and  vaccines67,  in  line  with  the  resolution  of  the  World  Health  Assembly68. 
Such  schemes  should  be  based  on  a  voluntary  participation,  ensuring  broad  and  equitable 
access and allowing IP owners to recoup investments in a balanced way.  The Commission 
has also  taken steps to  promote cooperation in  the private sector to  efficiently address  the 
shortage of essential products and services69 and to ensure that the results of publicly-funded 
R&I programs in the EU and its Member States are made available, in particular to ramp up 
production of critical materials70.  

Looking  forward,  however,  the  Commission  sees  a  need  to  improve  the  tools  in  place  to 
cope with crisis situations.  

The  Commission  is  looking  into  ways  to  incentivise  the  rapid  pooling  of  critical  IP  in 
times of crisis, for instance through a novel licensing system making critical IP available in 

66 In the field of environmental data (allowing for the development of life-cycle analysis), IPR-controlled data 
should  be  balanced  with  the  public  interest  to  calculate  the  environmental  footprint  of  products  and 
organisations. 
67 Commission communication - EU strategy for COVID-19 vaccines, COM(2020) 245 final, 17 June 2020. 
68 World Health Assembly Resolution 73. 
69  Commission  communication  -  Temporary  Framework  for  assessing  antitrust  issues  related  to  business 
cooperation in response to situations of urgency stemming from the current COVID-19 outbreak C(2020) 3200 
final. 
70 The Manifesto for EU Covid-19 Research, launched to maximise the accessibility of research results in the 
fight  against  COVID-19,  has  to  date  been  supported  by  more  than  600  organisations  (such  as  universities, 
research  institutes,  private  companies  including  SMEs  and  civil  society  organisations)  and  more  than  1800 
individuals from all over Europe and beyond.  

11 

 
 
                                                           
a  controlled  manner  and  on  a  temporary  basis,  so  that  the  production  of  IP-protected 
products can be quickly ramped up including via repurposing manufacturing. 

Finally,  the  Commission  sees  the  need  to  ensure  that  effective  systems  for  issuing 
compulsory  licenses  are  in  place,  to  be  used  as  a  means  of  last  resort  and  a  safety  net, 
when  all  other  efforts  to  make  IP  available  have  failed.  The  WTO  Agreement  on  Trade 
Related Aspects of Intellectual Property Rights (TRIPS) provides for a possibility, under the 
conditions  listed,  to  issue  compulsory  licences,  i.e.  government’s  authority  to  grant 
permission to a party seeking use of a patented invention without the consent of the patent 
owner. The procedure can be fast-tracked in the case of national emergency. In combination 
with the Doha Declaration on the TRIPS Agreement and Public Health, it is clear that each 
WTO Member has not only the right to grant compulsory licences, but also the freedom to 
determine the grounds upon which such licences are granted. 
In  Europe,  compulsory  licensing  is  mainly  governed  by  national  law71.  The  Commission 
calls  on  Member  States  to  ensure  that  the  tools  they  have  are  as  effective  as  possible,  for 
instance,  by  putting  in  place  fast-track  procedures  for  issuing  compulsory  licenses  in 
emergency situations. In addition, it sees a need for a stronger co-ordination in this area, to 
avoid  distortive  effects  on  innovation  and  trade.  Early  co-ordination  and  information 
sharing between Member States, e.g. on the duration of and royalties on any such licenses, 
should  help  secure  maximum  benefits  whilst  at  the  same  time  avoiding  excessive 
distortions. The Commission will explore with Member States the possibility of creating an 
emergency  co-ordination  mechanism,  to  be  triggered  at  short  notice  when  Member  States 
consider issuing a compulsory license. 

  Facilitating licensing of IP via enhanced transparency, notably as regards copyright 

To  facilitate  licensing  and  sharing  of  IP,  there  is  a  need  for  more  transparency  on 
ownership and management of all types of IP. The unitary patent will offer real progress 
in the field of patents.  

Use  of  high  quality  metadata  and  new  technologies  such  as  blockchain  could  also  help 
achieve  more  transparency  and  better  rights  data  management,  notably  with  regard  to 
copyright and an improved identification of rights owners72. 

The Commission is launching a study on copyright and new technologies, which will focus 
on copyright data management and artificial intelligence. The result from this study should 
be  available  in  2021.  The  Commission  will  further  work  with  relevant  stakeholders  to 
promote  the  quality  of  copyright  data  and  achieve  a  well-functioning  “copyright 
infrastructure”73  (e.g.  improve  authoritative  and  updated  information  on  right  holders, 
terms and conditions and licensing opportunities)74. 

 

Standard-essential patents 

Standard-essential patents (SEPs) are patents for technologies incorporated into standards. 
The  amount  of  SEPs  and  the  number  of  SEP  owners  is  increasing  (e.g.,  for  mobile 

71  The  only  exception  is  Regulation  (EC)  N°  816/2006  which  provides  for  a  specific  compulsory  licence 
regime  which  implements  Article  31bis  of  the  TRIPS  Agreement  and  concerns  the  manufacture  of 
pharmaceutical products for export to countries with public health problems. 
72 See also Council document 15016/19 “Developing the Copyright Infrastructure  - Stocktaking of work and 
progress under the Finnish Presidency”. 
73  The  set  of  rules,  technologies  and  institutions  that  frame  data  management  practices  in  the  creative 
industries. 
74  See  “SMART  2019/0038  –  Study  on  Copyright  and  New  technologies:  copyright  data  management  and 
Artificial Intelligence”. 

12 

 
 
                                                           
connectivity standards more than 25000 patent families75 have been declared to ETSI by an 
increasingly  large  group  of  SEP  holders,  and  newly  emerging  technology  standards  often 
contain SEPs as well). SEPs play a crucial role in the development of 5G and the Internet of 
Things  (IoT).  Digital  integration  of  objects,  devices,  sensors,  and  everyday  items,  with 
applications  ranging  from  connected  cars,  health,  energy  to  smart  cities  requires 
interoperable solutions based on standards.  

In that context, it is essential to have stable, efficient and fair rules governing the licensing 
of  SEPs.  Despite  the  guidance  provided  in  the  SEPs  Communication  in  201776,  some 
businesses  continue to find it difficult to agree on SEP licensing. This can frequently lead to 
disputes, in which patent holders claim that their SEP has been infringed and the other party 
complains  that  the  patent  holder  has  imposed  unfair  conditions  on  a  licensing  agreement. 
Although  currently  the  biggest  disputes  seem  to  occur  in  the  automotive  sector,  they  may 
extend further as SEPs licensing is relevant also in the health, energy, smart manufacturing, 
digital and electronics ecosystems77.  

In the short term, the Commission will facilitate industry-led initiatives to reduce frictions 
and litigations among players in specific sectors. 

In parallel, building on the 2017 approach, the Commission will consider reforms to further 
clarify and improve the framework governing the declaration, licensing and enforcement of 
SEPs. The Commission will for instance explore the creation of an independent system of 
third-party essentiality  checks  in  view of improving legal  certainty  and reducing litigation 
costs78.  The  possible  reforms  will  take  into  account  the  experience  with  the  guidance 
provided in the 2017 SEPs Communication and discussions with relevant stakeholders.  

  Promoting data sharing 
Finally, as set out in the Commission’s recent European Strategy for Data79, the EU needs a 
solid framework to allow businesses to create, access, share and use data. Between 2018 
and  2025  the  value  of  the  EU  data  economy  will  almost  triple,  reaching  EUR  829  billion 
and representing 5.8% of  EU GDP80 in 2025. Given that some data can be protected by IP 
rights or as trade secrets, the Commission is currently evaluating the IP framework to ensure 
balance between the need to foster data sharing (e.g. to facilitate access and use of data by 
SMEs, to facilitate repairs) and the need to be able to safeguard legitimate interests.  

Fostering data sharing requires a secure environment where businesses can keep investing in 
data  generation  and  collection,  while  sharing  them  in  a  secure  way,  confident  that  their 
sensitive  business  data  will  not  be  acquired,  used  or  disclosed  unlawfully.  The  Trade 
Secrets Directive81 already provides effective tools for protection, but there may be a need 
to  clarify  its  scope,  e.g.  which  type  of  data  or  datasets  could  qualify  as  ‘trade  secrets’, 
whether the current set of exceptions can support the data and green82 economy and whether 

75 Landscape study of potentially essential patents disclosed to ETSI, 2020.  
76 Commission communication - Setting out the EU approach to Standard Essential Patents, COM(2017) 712 
final, 29 November 2017.  
77 As well as smart health, smart energy and the internet of things. 
78 Pilot study for essentiality assessment of Standard Essential Patents report   
79 Commission communication - A European Strategy for Data, (COM)2020 66 final, 19 February 2020.  
80 See the factsheet on the European Data Strategy. 
81  Directive  (EU)  2016/943  on  the  protection  of  undisclosed  know-how  and  business  information  (trade 
secrets) against their unlawful acquisition, use and disclosure. 
82 In the printers’ ink and toner cartridges sector, for example, a variety of arguments have been put forward 
largely  by  OEMs  against  the  re-manufacture  of  their  products  by  third  parties,  while  independent 
remanufacturers (especially SMEs) do not have the resources available to engage in legal proceedings against 
large  OEMs,  even  when  the  remanufacturer  might  be  operating  legally.    This  perceived  threat  may  have  a 
chilling  effect  on  smaller  companies  wishing  to  enter  the  remanufacturing  business.  See:  study  on  the 

13 

 
 
                                                           
 
and  how  the  tools  offered  by  the  directive  can  be  used  to  efficiently  counter  the  unlawful 
acquisition, use and disclosure of data and datasets. With a view to clarifying these issues 
and identify best practices, the Commission has launched a study, with a specific focus on 
strategic sectors including the healthcare and automotive sectors. Based on the results, and 
as  part  of  the  Data  Act83,  the  Commission  will  consider  the  need  for  further  action,  e.g. 
targeted guidance. 
The Database Directive84 provides for  sui generis protection for databases, which are the 
result  of  substantial  investments.  A  recent  evaluation85  showed  that,  while  the  Database 
Directive  provides  added  value,  it  could  be  revisited  to  facilitate  data  access  and  use. 
Following up on the European Strategy for Data, the Commission will therefore review the 
directive, notably to facilitate the sharing of and trading in machine generated data and data 
generated in the context of rolling out the IoT. The review will take place alongside the Data 
Act86 and take into account initiatives of data sharing in the area of antitrust law87.  

To facilitate licensing and sharing of IP, the Commission will:  

  ensure the availability of critical IP in times of crisis, including via new licensing tools 

and a system to co-ordinate compulsory licensing (2021-22), 

  improve  transparency  and  predictability  in  SEP  licensing  via  encouraging  industry-
led  initiatives,  in  the  most  affected  sectors,  combined  with  possible  reforms,  including 
regulatory if and where needed, aiming to clarify and improve the SEPs framework and 
offer effective transparency tools (Q1 2022). 

  promote  data  access  and  sharing,  while  safeguarding  legitimate  interests,  via 
clarification of certain key provisions of the Trade Secrets Directive and a review of the 
Database Directive (Q3 2021). 

5.  FIGHTING IPR INFRINGEMENTS 

Effective enforcement is part of a well-functioning IP system. The Commission continues to 
closely monitor the application of the Directive on the enforcement of IPRs88 to ensure 
effective  and  balanced  judicial  redress.  It  works  together  with  Members  States  and 
stakeholders to give effect to the recent Commission guidance89, for instance with a view to 
ensuring that – where all conditions are met, including that of proportionality – injunctions 
are applied uniformly and efficiently across Member States. 

implementation  of  product  design  requirements  set  out  in  Article  4  of  the  WEEE  Directive  The  case  of  re-
usability of printer cartridges: final report, Kling et al,  for the European Commission DG ENV, 2018. 
83 The European Data Strategy foresees to explore the need for legislative action on issues that affect relations 
between  actors  in  the  data  economy  to  provide  incentives  for  cross-sector  data  sharing.  Such  issues  (e.g. 
business-to-government data sharing, business-to-business data sharing through usage rights for co-generated 
data) could be taken forward in a Data Act (2021). 
84 Directive 96/9/EC on the legal protection of databases. 
85 Evaluation of Directive 96/9/EC on the legal protection of databases, SWD(2018) 147 final.  
86 Commission Work Programme 2021. 
87 Sharing data constitutes information exchange which must take place in accordance with antitrust rules as 
outlined in the Commission’s Horizontal Guidelines which explain which types of information may be shared. 
The  current  review  of  those  guidelines  will  consider  whether  guidance  is  needed  for  data  sharing  for  new 
forms of R&D collaboration. The Commission will also reflect on whether further guidance is needed on when 
access to data could be compelled under the essential facilities doctrine. 
88 Directive 2004/48/EC on the enforcement of intellectual property rights. 
89  Guidance  on  certain  aspects  of  Directive  2004/48/EC  on  the  enforcement  of  intellectual  property  rights, 
COM(2017) 708 final, 29 November 2017. 

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In the area of patents, the launch of the UPC should further facilitate and streamline patent 
right enforcement. 

As regards counterfeiting and piracy, the Commission sees a clear need to step up efforts. In 
2016, imports of  counterfeit and pirated  goods into  the EU  amounted to  as much  as EUR 
121  billion,  which  represents  up  to  6.8%  of  EU  imports  (against  5%  of  EU  imports  in 
2013)90.  The  presence  of  counterfeit  products  in  the  EU  marketplace  results  in  direct  lost 
sales amounting to EUR 50 billion and direct employment losses of 416 000 jobs annually91. 
It  also  constitutes  serious  health,  safety  and  security  threats  to  consumers  (e.g.  fake  face 
masks)92 and negatively impacts the environment93.  

New  forms  of  IP  infringements  have  arisen  on  the  internet,  such  as  cyber  theft  of  trade 
secrets (accounting for an estimated EUR 60 billion of losses in the EU94), illegal internet 
protocol television (IPTV) and other forms of illegal (live) streaming. They raise particular 
challenges  for  manufacturing,  the  creative  and  cultural  industries  as  well  as  the  sports 
sector. 

The Commission already announced that before the end of the year, new rules will  clarify 
and  upgrade  the  responsibilities  of  online platforms  and  remove  disincentives  for  their 
voluntary  actions  to  address  illegal  content  (goods  or  services)  they  intermediate.  The 
forthcoming  proposal  for  the  Digital  Services  Act  package  will  aim  to  harmonise  a  set  of 
specific,  binding  and  proportionate  obligations  for  digital  services,  enforced  by  a 
strengthened supervisory framework95. 

In  addition,  the  capacity  of  law  enforcement  authorities  has  to  be  substantially 
strengthened.  Counterfeiting  and  piracy  must  become  a  higher  priority.  The  Commission 
urges Member States and the Council to include IP crime among the priorities of the next 
EU  Policy  Cycle  –  European  multidisciplinary  platform  against  criminal 
threats 
(EMPACT)96, for the period 2022-2025.  It  plans to strengthen the enforcement  of  IPRs at 
EU level, by broadening the Commission’s mandate and assigning it to the European Anti-
Fraud  Office  (OLAF),  so  that  the  latter  does  not  only  prevent  counterfeit  goods  from 
entering  the  Single  Market  but  can  also  act  against  illicit  production  of  counterfeit  goods 
within  the  EU97.  The  Commission  also  encourages  all  relevant  stakeholders  to  continue 
exchanges  with  Europol  to  further  improve  the  overall  threat  assessment  and  to  foster 
effective and coordinated action against IP crime.  

The  Commission  will  also  support  Member  States’  customs  authorities  in  improving  risk 
management and anti-fraud actions, in particular through the establishment of an EU layer 
of  data  analytics  capabilities,  by  better  equipping  Member  States  with  customs  control 
equipment  and  by  enhancing  cooperation  within  the  EU  and  with  customs  authorities  of 
partner countries98.  

The  Commission  will  reinforce  cooperation  between  all  involved  players  –  right  holders, 
suppliers, various sets of intermediaries (e.g. online platforms, social media, the advertising 

90 Trends in trade in counterfeit and pirated goods, OECD and EUIPO, 2019. 
91 Status report on IPR infringement, EUIPO, 2020: average annual figures, 2013-2017. 
92 Qualitative study on risks posed by counterfeits to consumers, EUIPO 2019. 
93 See operations carried out with the help of the European Anti-Fraud Office, e.g. seizure of 550 tons of illegal 
or counterfeit pesticides in 2019 as part of operation ‘Silver Axe IV’ (see press release). 
94 The scale and impact of industrial espionage and theft of trade secrets through cyber, 2018. 
95 See the public consultation launched on 2 June 2020 and the follow-up. 
96 European multidisciplinary platform against criminal threats. 
97 Commission communication - Long term action plan for better implementation and enforcement of single 
market rules, COM(2020) 94 final, pp. 11-12, 10 March 2020. 
98 See the Customs Action Plan, COM(2020) 581 final, 28 September 2020. 

15 

 
 
                                                           
industry,  payment  services,  domain  name  registrars/registries,  and  transport  and  logistics 
companies)  and  public  enforcement  authorities  (including  administrative  bodies,  customs, 
police,  market  surveillance  authorities  and  public  prosecutors)  to  curb  piracy  and 
counterfeiting. To this end, it will establish an EU Toolbox against counterfeiting, based 
among  others  on  reported  practices  and  principles  developed  in  the  context  of  various 
industry-led  initiatives99.  The  Toolbox  will  clarify  roles  and  responsibilities  and  identify 
ways to work together. A fundamental element is the  sharing of relevant data on products 
and traders, in compliance with EU  data protection law, for which further guidance may be 
necessary100.  The  Toolbox  will  also  promote  the  use  of  new  technologies  such  as  image 
recognition, artificial intelligence and blockchain101. Where appropriate, the Toolbox will be 
accompanied by benchmarks to make it possible to measure progress. 

Building on the success of specific preventive and repressive actions against fake COVID-
19 related products102, the Commission will promote campaigns to combat the entry of the 
most harmful counterfeit goods for consumers103 on the market.  

Finally, the economic impact of the cyber theft of trade secrets could be drastically reduced 
by  promoting  cybersecurity  awareness  and  skilful  IP  management.  In  line  with  its 
cyber-security skills and awareness-raising actions under the Security Union Strategy104, the 
Commission  will,  together  with  the  EUIPO  Member  States  and  the  business  community, 
develop  awareness  tools  and  targeted  guidance  that  will  increase  the  resilience  of  EU 
businesses (and SMEs in particular) against cyber theft of trade secrets. 

To fight IPR infringements, the Commission will: 

  clarify  and  upgrade  the  responsibilities  of  digital  services,  in  particular  online 

platforms, through the Digital Services Act (Q4 2020), 

  strengthen the role of OLAF in the fight against counterfeiting and piracy (2022), 

  establish an EU Toolbox against counterfeiting setting out principles for joint action, 
cooperation  and  data  sharing  among  right  holders,  intermediaries  and  law  enforcement 
authorities (Q2 2022). 

6.  FAIR PLAY AT GLOBAL LEVEL 

IP plays a major role in trade and investment and our relations with non-EU countries. IPR-
intensive  industries  account  for  93%  of  total  EU  exports  of  goods  to  the  rest  of  the 
world105.A  growing  number  of  countries  around  the  world  use  IP  assets  to  bolster  their 

99 See for example the recently published reports on the functioning of the Memorandum of Understanding on 
the sale of counterfeit goods on the internet and the Memorandum of Understanding on online advertising and 
IPR. 
100  Further  expanding  the  IP  enforcement  portal  managed  by  the  EUIPO  will  also  allow  more  effective 
exchange of data between all relevant players. For example, expansion will include the integration of  data on 
IPRs not yet covered by the portal, such as plant variety rights and GIs.  
101  See,  for  instance,  the  Anti-Counterfeiting  Blockathon  Forum  of  the  EUIPO  Observatory,  which  aims  to 
build a common blockchain infrastructure where all parties (intermediaries, right holders and law enforcement 
authorities) can connect and share data to protect the supply chains against infiltration of counterfeit goods. 
102  See:  OLAF  launches  enquiry  into  fake  COVID-19  related  products.  See  also:  Overview  of  the  illegal 
activities and actions, and Scams related to COVID-19. 
103 The European Consumer Centres work on educational material to raise awareness among consumers on the 
risks of counterfeit goods. Tips and tricks to consumers and ECC Report on counterfeiting. 
104 Security Union Strategy, COM(2020) 605 final (page 25). 
105 2019 Status report on IPR infringement, European Observatory on Infringements of IPR, 2019. 

16 

 
 
                                                           
development  and  national  competitiveness.  IP  protection  policies  are  gaining  geo-political 
importance106.  

Our businesses need to rely on a stable, global level playing field when competing abroad. 
However, evidence107 shows that our businesses still face great  challenges when operating 
in non-EU countries, including weak  IP rules and enforcement, forced technology transfer 
and other unfair practices such as limitations in IP ownership of joint research results, very 
broad extraterritorial anti-suit injunctions and cyber theft.  

With its large single market, the EU is in a unique position to act as a global standard-
setter in IP. It can and will continue to fight for a stable and effective global IP framework. 
At  the  same  time,  we  need  to  better  protect  ourselves  against  IP  theft,  espionage  and 
other  misappropriations  of  IP  originating  in  non-EU  countries  but  affecting  our  European 
markets..  Member States should also pay particular attention to the effective protection of 
IP in critical technologies to ensure our resilience in strategic sectors. 

To achieve this, the Commission will undertake the following actions:   

In the context  of Free Trade Agreements (FTAs), the Commission  will continue to  seek 
ambitious IP chapters with high standards of protection, to ensure  a level playing field for 
EU businesses and boost economic growth. It will strive for the full implementation of the 
IP provisions in existing FTAs, including through dispute settlement and where applicable 
the use of the Trade Enforcement Regulation, once amended. 

The Commission  will make full use of  IP dialogues with  main trading  partners  and other 
priority  countries,  such  as  the  United  States,  China,  Republic  of  Korea,  Thailand,  Turkey 
and Brazil to promote reforms, and will further enhance the reach of its IP Key programmes 
offering technical co-operation in China, South East Asia and Latin America.  

Whilst the Commission will continue to promote a global level playing field, it will step up 
efforts  to  protect  EU  companies  against  unfair  practices.  It  will  use  as  leverage  the 
Counterfeit and Piracy Watch List108, which reports marketplaces  and service providers 
allegedly  engaging  in,  facilitating  or  benefiting  from  counterfeiting  and  piracy,  and  the 
Third  Country  Report109,  which  identifies  third  countries  in  which  the  state  of  IPR 
protection and enforcement (online and offline) gives rise to the greatest level of concern. 
Both  the  Watch  List  and  the  Report  will  be  updated  regularly,  and  actions  to  address 
identified shortcomings will be closely monitored.  

In  addition,  the  Commission,  in  its  March  2020  Guidance  concerning  foreign  direct 
investment and the protection of Europe’s strategic assets, called on all EU Member States 
to make full use of their foreign investment screening mechanisms and, for those Member 
States that currently do not have a screening mechanism, to set up a full fledged screening 
mechanism,  in  order  to  address  relevant  aspects  of  security  and  public  order  of  foreign 
direct investments, which may involve critical IP assets in the European Union110.  

The Commission also sees a need to ensure that all non-EU countries and their businesses 
play  by  the  rules,  including  when  engaging  with  European  research  organisations.  To  this 

106 See e.g. Declaration adopted by G7 countries in 2019. 
107  Report  from  the  Commission  on  the  protection  and  enforcement  of  intellectual  property  rights  in  third 
countries, SWD(2019) 452 final/2. 
108 SWD(2018)492.  
109 SWD(2019)452. 
110  Commission  communication  –  Guidance  to  the  Member  States  concerning  foreign  direct  investment  and 
free  movement  of  capital  from  third  countries,  and  the  protection  of  Europe’s  strategic  assets,  ahead  of  the 
application  of  Regulation  (EU)  2019/452  (FDI  Screening  Regulation)  (2020/C  99  I/01).  For  example, 
technologies for the manufacture of PPEs or future vaccines. 

17 

 
 
                                                           
purpose, new framework conditions for international research cooperation with entities 
in non-EU countries will be developed. These will ensure a fair and non-distortive global 
innovation ecosystem based on a level playing field and reciprocity while maintaining high 
ethical  and science integrity standards.  In this  respect,  the Commission  will set  guidelines 
on foreign interference targeting EU Universities and Higher Education Institutions to raise 
awareness of possible IP theft while engaging in international cooperation (2021).  

In  terms  of  foreign  policy,  the  Commission  will,  in  cooperation  with  the  High 
Representative and Member States, stand ready to use the restrictive measures available to 
counter  private  and  government-sponsored  cyber  espionage  aimed  at  acquiring  cutting-
edge European IP assets111.  

It  is  of  utmost  importance  that  the  EU  speaks  with  a  strong  and united  voice  in  global 
fora  such  as  the  World  Intellectual  Property  Organisation  (WIPO),  the  World  Trade 
Organisation (WTO), the International Union for the Protection of New Varieties of Plants 
(UPOV),  the  World  Health  Organisation  (WHO)  and  the  Organisation  for  Economic  Co-
operation  and  Development  (OECD).  The  Commission  will  work  together  with  Member 
States and other stakeholders to find and defend global standards of IP protection and best 
possible  solutions  to  new  challenges,  such  as  the  need  to  ensure  equitable  access  to 
treatments, vaccines and diagnostics in the fight  against COVID-19. The WIPO debate on 
the implications of AI for IP is another unique opportunity for Europe to exercise influence 
at a moment where rule making is still taking place, which can have a long-lasting impact 
on the ongoing digital transformation of the world economy. 

To  protect  the  value  of  brands,  the  Commission  will  consider  EU  accession  to  the 
Singapore  Treaty  on  the  Law  of  Trademarks.  The  Commission  will  work  with 
international  partners  to  protect  GIs  worldwide  through  the  WIPO  multilateral  Lisbon 
Registry. It will also step up its participation in global internet fora so that the international 
domain  name  system  (DNS)  fully  respects  IPRs,  including  GIs,  and  ensure  that  IP 
protection  is  also  reflected  appropriately  in  policies  concerning  the  governance  of  the 
domain name space and access to information on registrants (“Whois” data). In the area of 
copyright, the Commission will continue to be actively involved in WIPO negotiations with 
the objective of reaching an agreement on a new treaty ensuring international protection to 
broadcasting organisations. It will also work towards securing the EU's ratification of the 
WIPO Beijing Treaty (signed by the EU in 2013), which grants international protection to 
audio-visual performances. 

The  Commission  will  continue  to  assist  European  companies  abroad.  In  addition  to  the 
existing international IP SME Helpdesks in China, South East Asia and Latin America112, 
it will launch a new IP SME Helpdesk assisting European companies in India (early 2021).  

Finally,  the  Commission  will  step  up  its  efforts  to  offer  qualified  technical  assistance  to 
help  developing  countries  make  best  use  of  IP  to  support  their  economic  growth.  For 
instance,  as  part  of  the  IPR  action  plan  for  Africa,  the  Commission  will  promote  better 
generation, protection and management of IP (including GIs113) on this continent114.  

111 Council Decision (CFSP) 2020/1127. 
112 International IP SME Helpdesk.  
113 Continental strategy for geographical indications in Africa 2018-2023. 
114 The Africa-EU Partnership.  

18 

 
 
                                                           
7.  WORKING TOGETHER WITH MEMBER STATES AND STAKEHOLDERS  

The  Commission  counts  on  the  European  Parliament  and  the  Council,  as  well  as  on  all 
stakeholders,  to  support  and  help  implement  this  action  plan  and  the  various  actions  it 
includes.  

It also calls on Member States to develop their national IP policies and strategies in line 
with the objectives set out in this action plan, and make better protection and enforcement of 
IP a priority in their own efforts to secure economic recovery. 

The  Commission  will  also  stimulate  debate  among  all  relevant  players,  in  particular  in 
relevant  industrial  ecosystems,  to  better  connect  IP  policy  to  the  changing  realities  and 
needs of EU industry, in line with the Commission's strategic foresight report115 and agenda. 
To  achieve  this  the  Commission  will  hold  regular  discussions  on  IP-related  issues  in  the 
context of existing events and fora in which industrial policy is shaped.  

115 2020 Strategic Foresight Report.  

19 

 
 
 
 
                                                           
APPENDIX I  

CONTRIBUTION OF IPR-INTENSIVE INDUSTRIES TO EMPLOYMENT 
IN INDUSTRIAL ECOSYSTEMS 

Source: EUIPO and EC calculations based on study data IPR-intensive industries and economic performance 
in the European Union, EPO & EUIPO 2019 

This graph presents the IPR-intensive industries’ contribution to employment in each of the 
industrial  ecosystems.  This  explains  for  instance  the  apparent  low  IPR  contribution  to  the 
health  ecosystem.  The  very  IPR-intensive  pharmaceutical  and  medical  devices  sectors 
contribute to only 6% of employment, while the other sectors such as hospitals and medical 
care are not IPR intensive.  

It  is  a  contribution  of  IPR-owning  companies  to  the  employment  in  the  EU.  As  such  it 
shows part of the picture of IPR influence over the economy. It does not reflect  a broader 
impact of intellectual property rights on companies  that may not own themselves  IPR, but 
use IPR protected inputs in their products or services (e.g. franchisees, technology licensees, 
subcontractors, hospitality or retail sector when sharing cultural industries products). 

20