On 9 March 2004 the European Parliament adopted amendments to the proposal for the "Enforcement Directive", more formally known as the EU Directive on measures and procedures to ensure the Enforcement of Intellectual Property Rights. Two days later, the Council of Ministers decided that they will adopt the Enforcement Directive as amended by the Parliament in the next few weeks, bringing an end to another much lobbied piece of legislation which is ultimately to be welcomed by right holders.

The Enforcement Directive will provide a uniform level of protection in the soon-to-be enlarged European Union by harmonising civil measures in member states. The harmonisation draws on the best practices available throughout the European Union. Even though UK enforcement laws and practice are by and large satisfactory, British Music Rights hopes that the Directive, once adopted, will improve the situation in other member states, particularly those countries which will join the European Union on 1st May, where counterfeiting and piracy are more prevalent. It will also hopefully make enforcement in cross-border scenarios easier for UK composers and publishers.

British Music Rights has been involved in extensive lobbying at European and national level and in cooperation with other right holders such as ICMP, the Motion Picture Association and the IFPI. On balance, we welcome the compromise reached by the European Council, Parliament and Commission, even though it falls short of what right holders would have liked. Given the overall political climate, a more robust legislation for right holders was not achievable. However, the Directive is a first step towards improving measures for the fight against counterfeiting and piracy throughout the European Union.

We are optimistic that further activities will follow at both the European and UK levels. The Commission is currently discussing further activity on criminal sanctions for the infringement of Intellectual Property Rights and the UK Government has announced an IP Crime Strategy for summer 2004 in its Innovation Review (December 2003).

The main achievements of the Directive are as follows:

• Limitation of the "Enforcement Directive"
  The originally proposed general limitation of the Directive to infringements committed for commercial purposes or to those causing significant harm to the right holder has been removed.
• Exclusion of intermediaries
  Intermediaries such as Internet Service Providers are not excluded from the application of the Directive in the area of copyright as had previously been suggested.
• Disposal of goods outside the channel of commerce
  The possibility of disposing infringing material outside the channels of commerce has been removed. We were concerned that goods so disposed could re-enter the channel of commerce and so undermine legitimate sales.

However, there are certain concerns which are not addressed in the Directive. These include:

• Criminal Sanctions
  It is regrettable that the Directive does not harmonise criminal sanctions, in particular in view of the connection between organised crime and counterfeiting and piracy (for more information please visit the website of the Alliance Against Counterfeiting and Piracy: http://www.aacp.org.uk/).
• Partial limitation of available measures
  The Enforcement Directive declares certain measures not applicable if end consumers are acting "in good faith." We are concerned that many commercial pirates, profiting on the back of music creators and publishers, could avoid such measures by claiming to be "end consumers acting in good faith.
• Regulations on damages
  The Directive will introduce a requirement that the infringer has to know, or have reason to believe that he is infringing copyright; currently only a requirement in relation to secondary infringement of copyright in the UK. However, we doubt that this will require a change in UK legislation given that the grant of damages is at the discretion of UK Courts. We will however press for damages to extend to the full benefit to the infringer and not to be limited to an appropriate licence fee, something which a pirate could otherwise build into his business model and a measure which takes no account of the fact that the rightholder might not have been willing to grant a licence.

British Music Rights remains optimistic that the Enforcement Directive will, once adopted, be a signal for further EU measures on enforcement as well as providing much needed support for the enforcement activities in all 25 member states.