Jurisdictions

Under the date of May 26, 2011, the EU Council has published Document 10629/11 titled Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection including a Proposal for a Council Regulation implementing enhanced cooperation in the area of unitary patent protection with regard to the applicable translation arrangements. The text is said to facilitate discussions on political orientation as well as an exchange of views.

As reported earlier on this Blog, on April 14, 2011,  the European Commission had published Document COM(2011) 215/3 titled Proposal for a Regulation of the European Parliament an of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection. Council Decision 2011/167/EU. Meanwhile, the Mertens group has examined the proposals of the EU Commission on four occasions: on April 14, May 03, 10 May and May 19, 2011.The general gist of the deliberations was as follows:

"The delegations of the participating Member States unanimously argued in favour of rapid progress in the negotiations and advocated not to reopen issues where consensus was found during the Swedish Presidency and which were widely supported under the Belgian Presidency, in particular on the translation arrangements.

All delegations from the participating Member States expressed their general support for the Commission's proposals. The delegations of the two non-participating Member States were opposed and argued in favour of working towards a compromise between the 27 Member States."

Of course, those non-participating Member States are Italy and Spain.

However, despite the fact that the general outlines were agreed on, a number of issues were discovered which need to be resolved:

Galaxy of IP rights ... as seen by EU Commission

Today the EU Commission has published a provisional version of Document COM(2011) 287 titled Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe. In its own words this Communication presents the Commission's overall strategic vision for delivering the true Single Market for intellectual property that is currently lacking in Europe – a European IPR regime that is fit for tomorrow's new economy, rewarding creative and inventive efforts, generating incentives for EU-based innovation and allowing cultural diversity to thrive by offering additional outlets for content in an open and competitive market.

OHIM, Alicante (soon to be augmented into an enforcement agency)

Today, the EU Commission has published a Proposal for a Regulation of the European parliament and the Council on entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Counterfeiting and Piracy (COM(2011) 288).

In the paper, EU Commission proposes to entrust the Office for Harmonisation in the Internal Market with the tasks and activities relating to the management of the European Observatory on Counterfeiting and Piracy, including those concerning copyright, rights related to copyright and patents.

Today, the EU Commission has adopted a strategy intended to to revamp the legal framework in which Intellectual Property Rights (IPR) operate.See also this Draft here.

The IPR Strategy sets out a series of short- and long-term key policy actions in various areas which include:

Patents: the Commission already launched proposals in April for a unitary patent protection under enhanced cooperation (see IP/11/470). Meanwhile, work will continue on proposals relating to the creation of a unified and specialised patent court for the classical European patents and the future European patents with unitary effect. This would considerably reduce litigation costs and the time it takes to resolve patent disputes. It would also increase legal certainty for business.

Trade marks: while trade mark registration in the EU has been harmonised in Member States for almost 20 years and the Community trade mark was established 15 years ago, there is an increasing demand for more streamlined, effective and consistent registration systems. The Commission intends to present proposals in 2011 to modernise the trade mark system both at EU and national levels and adapt it to the Internet era.

Geographical indications (GIs): GIs secure a link between a product's quality and its geographical origin. However, there is currently no such system available at EU level for the protection of non-agricultural products such as Carrara marble or Solingen knives. This leads to an unlevel playing field in the Single Market. The Commission will therefore carry out an in-depth analysis of the existing legal framework in the Member States as well as the potential economic impact of protection for non-agricultural GIs in 2011 and 2012. Depending on the outcome of an impact assessment, these could eventually be followed up by legislative proposals.

Multi-territorial copyright licensing: While the substantive scope of copyright has been largely harmonised, rights are still licensed on a national basis. In view of the digital Single Market, streamlining copyright licensing and revenue distribution is one of the most important challenges that must be addressed. In the 2nd half of 2011, the Commission will submit a proposal to create a legal framework for the efficient multi-territorial collective management of copyright, in particular in the music sector. It will also establish common rules on the transparent governance and revenue distribution. In the second half of 2011, the Commission will also launch a consultation on the various issues related to the online distribution of audiovisual works.

Digital libraries: The creation of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage is key to the development of the knowledge economy. To facilitate this, the Commission is also tabling today a legislative proposal that will enable the digitisation and online availability of so-called "orphan works" (works like books and newspaper or magazine articles that are still protected by copyright but where the right holders are not known or cannot be located to obtain copyright permissions) – see MEMO/11/333. Concurrently, the Commission looks forward to concluding a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books.

IPR violations: Counterfeiting and piracy are a growing threat for the economy. Between 2005 and 2009, the number of registered cases at the EU borders of goods suspected of infringing IPR increased from 26 704 to 43 572. Meanwhile, the creative industry estimates that piracy has cost the European music, movie, TV and software industry €10 billion and more than 185 000 jobs in 2008 alone. The Commission is set to intensify its efforts in this area. Firstly, the Commission has tabled a regulation today that is to reinforce the European Observatory on Counterfeiting and Piracy, which it launched in 2009, by entrusting its tasks to the Office for Harmonisation in the Internal Market (OHIM). This will allow the Observatory to benefit from OHIM's intellectual property expertise and strong record of delivery in trade marks and designs. The Regulation now passes to the European Parliament and the Council for consideration. Secondly, in Spring 2012, the Commission will propose to revise the IPR Enforcement Directive (see IP/04/540). The Directive provides for civil law measures allowing right holders to enforce their intellectual property rights but should be adapted, in particular to meet the specific challenges of the digital environment.

IPR enforcement by customs: Customs supervise all trade crossing EU external borders: they carry out controls for many purposes and have an essential role in fighting the trade in IPR infringing goods. In 2009 only, customs intercepted over 40 000 suspect shipments involving 118 million articles. Whilst the majority of goods intercepted are counterfeit or pirated, customs' unique position at the border allows for the enforcement of a wide range of intellectual property rights. As part of today's overall IPR strategy, the Commission also proposes a new customs regulation, to further reinforce the legal framework for customs' actions. The proposal also aims to tackle the trade in small consignments of counterfeit goods sent by post as the overwhelming majority of these goods results from internet sales.

Also today, the EU Commission has released MEMO/11/332 on Intellectual Property Strategy – Frequently Asked Questions. Concerning Copyright, the EU Commission announces further steps as follows:

Michel Barnier, EU Commissioner for Internal Market and Services

Mr Michel Barnier is EU Commissioner for Internal Market and Services. The Commission department under his political responsibility is the Internal Market and Services Directorate General (DG MARKT). The Office for Harmonisation in the Internal Market (OHIM) falls also under his authority.

Now there are rumours that Mr Barnier is about to seek sweeping reform of intellectual property regime throughout Europe. Mr Ian Wishart today wrote on europeanvoice.com:

"The European Commission is set to announce a wide-ranging strategy on intellectual property rights (IPR) and to signal its belief that internet service providers (ISPs) should share more of the responsibility for halting illegal downloading. [...]"

An earlier report was published on euractiv.com on May 12, 2011:

"A draft of the EU's upcoming Intellectual Property Rights strategy, due out on 24 April [May], will reportedly announce upcoming amendments to existing EU law that 'should tackle the infringements at their source and, to that end, foster cooperation of intermediaries, such as Internet service providers'."

On November 10, 2010, Official announcement had been made to the effect that Professor Ian Hargreaves shall lead an independent review into how the intellectual property system in the United Kingdom can better drive growth and innovation. UK Intellectual Property Minister Baroness Wilcox had revealed the review would be led by the current chair of Digital Economy at the Cardiff School of Journalism, Media and Cultural Studies and Cardiff Business School. The review had been launched by UK Prime Minister David Cameron during a speech to an audience of high tech businesses and entrepreneurs in London’s East End.

See also my earlier posting here.

Today, the Review has been published.

According to the Report's own wording, the Review’s specific recommendations would support growth of the UK’s increasingly intangibles intensive economy. Mr Hargreaves is convinced this requires:

• An efficient digital copyright licensing system, where nothing is unusable because the rights owner cannot be found;
• an approach to exceptions in copyright which encourages successful new digital technology businesses both within and beyond the creative industries;
• a patent system capable of preventing heavy demand for patents causing serious barriers to market entry in critical technologies;
• reliable and affordable advice for smaller companies, to enable them to thrive in the IP intensive parts of the UK economy;
• refreshed institutional governance of the UK’s IP system which enables it to adapt organically to change in technology and markets.

In Mr Hargreaves' words, IP law must adapt to change. Digital communications technology involves routine copying of text, mages and data, meaning that copyright law has started to act as a regulatory barrier to the creation of certain kinds of new, internet based businesses. If the Review’s recommendations are acted upon, the result will be stronger rates of innovation and increased economic growth. An economic impact assessment conducted by the Review team, and of course subject to the high degree of uncertainty inherent in such projections, estimates that this would add between 0.3 per cent and 0.6 per cent to annual GDP growth. The path laid down in the Review would also, over time, mean that IP law, including copyright law, would become clearer and be observed by most people without controversy.

In summary, the Review appears to be an attempt to restore common sense in IP politics, steering away from IP maximisation extremism as well as from IP abolitionist views.