7 June 2011

A Single Market For Creativity And Innovation?


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Image by Jordanhill School D&T Dept on Flickr

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About two weeks ago the European Commission’s Directorate General for the Internal Market issued its wide-ranging strategy to modernise intellectual property rights.

I could hardly call it a major move, although it claims to present 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.

Sounds pretty much like a bunch of clichés, does it not?
Indeed, while the majority of writers and commenters seem to have ignored the couple of really

Refreshing Statements

thereby choosing to stay focused on the lots of blah-blah, I decided to discuss the document from a slightly different perspective once I had given those 25 pages of text a careful read.

So what was different?

Let me start with the

Copyrights

The Commission has realised two very important things:

First,  Europe remains a patchwork of national online markets. The ongoing lack of a unified European copyright law disables millions of citizens to use and share published knowledge and entertainment easily and legally across the Union and irrespective of their Member State of residence.

Second, creators of user generated content (UGC) need a recourse to a simple and efficient permissions system to use third-party copyright protected content in their own works, provided that their UGC is created for non-commercial purposes.

This sounds promising as an attempt to foster creativity, does it not?

Unfair Competition

I was amazed to read that the Commission has finally found the guts to address the grey area of unfair competition, albeit limiting it to trade secrets and parasitic copying as examples.
Why a grey area? Simply because it is dealt with by Member States using different concepts and providing different levels of protection.
Thus, while some Member States (e.g. Austria, Germany, Czech Republic, Spain, Belgium, Denmark, Finland) have specific provisions on unfair competition, other Member States’ laws rely on their Civil Code, either in specific provisions (Italy), or by the provisions generally applicable to tort (France, The Netherlands).
Finally, in the United Kingdom there is no law on unfair competition and rather the tort of passing off must be used.

The Commission promises to deliver a comprehensive study to assess the economic benefits that would derive from an EU approach in the area of unfair competition.

Parasitic copying rides on others’ creativity and innovation and must be opposed, preferably on an EU level.
So, I am really curious as to this study’s findings.

Trade Marks

Even though national trade mark registration in the EU Member States has been harmonised for almost 20 years and the Community trade mark was established 15 years ago, the Commission is keen to revise both the Trade Mark Directive and the Community Trade Mark Regulation.

To be honest, I support this move. The Commission has figured out that traders need faster, better and tighter registration systems. Further and following the repercussions of the Court of the European Union’s decision in Louis Vuitton vs Google, the Commission has acknowledged that the marketplace needs an Internet suitable definition of a trade mark and what constitutes a use of it.

Everything Else

For the sake of completeness, I should say that the Commission has also addressed issues relating to the unitary patent, non-agricultural geographical indications and the fight against counterfeiting and piracy.

However, those turned out to be nothing else but an “old wine in a new bottle” and I consequently decided not to comment on them.

Conclusion

All in all the Commission has reviewed the current European framework on intellectual property and has come to the only permissible outcome: the European Union lacks either the necessary harmonisation (in the realm of copyright and unfair competition) or clarification (in the realm of trade marks) and is therefore far away from a single market for creativity and innovation.

The proposed actions are capable of providing some relief, provided, however, that they survive the assumed attacks of lobbyists.

How about you?

What do you think should be done to achieve a single market for creativity and innovation?

27 January 2011

All Quiet On The IP Enforcement Front?


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Intellectual Property Zonephoto © 2008 Robert Nunnally | more info (via: Wylio)

As recently as on 22 December last year the European Commission issued its long awaited report on the application of Directive 2004/48/EC that deals with the enforcement of intellectual property rights (“IPRED”). The report represents a very interesting read and is accompanied by another, no less interesting, paper – the Commission staff working document. I strongly recommend reading those two records or, alternatively, the analysis thereof outlined in this very blog post.

If you are still reading this article, I assume you are definitely aware of the IPRED and I will skip its introduction. And since the above documents almost sound a charge against the Internet and its users, I will limit my explanation only to the Internet relevant issues.

Not surprisingly, the Commission stresses on the difficulties rightholders have been experiencing while pursuing IPR infringers on the Internet. Accordingly, those difficulties are attributable to “the relative anonymity of the Internet” as well as to the fact that the IPRED “does not sufficiently address this constantly growing, serious problem”. The latter appears somewhat inconsistent, since the IPRED equipped rightholders with a set of strong weapons – the so called right of information and the specific injunctive relief. The staff working document refers to the right of information as “an important tool for the rightholders to pursue … IPR infringements committed via the Internet such as illegal file-sharing of protected works through peer-to-peer protocol.” Further, and with respect to the injunctive relief the same document reads “Internet service providers, being the intermediaries between all the users of the Internet, on the one hand, and the rightholders, on the other, are often placed in a compromising position due to the infringing acts of their customers….It results from Member States’ reports that injunctions against intermediaries are used relatively often as the infringers are often unknown.

No doubt, these measures were clearly adapted to bring “intermediaries” (mainly Internet service providers, ISP) down to knees so they eventually provide the rightholders with the personal data of infringers on the Internet. So where are the difficulties?

Hmm, let us think about this one: what used to be the shield that (nearly always) managed to block rightholders’ weapons’ attacks?

Bingo, it is the law on privacy and data protection!

Indeed, the Commission notices that in some member states, pointing out Spain and Austria, ISP are practically not in the position to disclose the relevant information  in infringement proceedings. The reason therefor would often lie in that ISP are under data protection obligations resulting in the erasure of the data they might have previously gathered.

This is the point where the Commission touches the sore spot of the IP enforcement on the Internet – the fairly notorious conflict between the fundamental right to property and that to privacy. The Promusicae landmark decision is quoted as Community law’s requirement to fairly balance those two rights. However, this is followed by a caveat stating that “the European legal framework on the protection of personal data/privacy on the one hand and enforcement of intellectual property rights on the other is neutral, in that there is no rule that would imply that the right to privacy should generally take precedence over the right to property or vice versa” . I understand it like Commission’s reluctance to enter the territory of the Court of Justice of the European Union. What do you think?

Interestingly, but the Commission is very careful and even anxious on data retention. Nevertheless, their statement evidences that the purpose of data retention has never been directed to perpetrators of “serious crimes”, but rather to file-sharers.

A word should be dedicated also to the current absence of harmonized protection through criminal law. The Commission submits the fact that almost all member states provide for criminal measures to protect IPR, but the national definitions and level of penalties vary. That is, in the view of the EC, a “serious obstacle and may hinder the cross-border cooperation between the law enforcement agencies.”

All in all: the report has many bad news to tell. What could be its impact on the Internet users? Well, I guess that the Commission will initiate a new legislation to deal with the points and outcomes made in the report. Consequently, we should prepare to face more stringent civil sanctions, data protection undermining information requests and harmonized criminal measures.

Will they be capable to fight “Internet piracy”? I doubt it, unless the entertainment industry comes up with suitable lawful offerings. It is odd, but even the report admits that “file-sharing of copyright-protected content has become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content.”

In the end, is there anything that Internet users can do in order to prevent the impact of the report? Yes, there is! You can all participate in the consultation the Commission set up on the report.

Raise your voice, because it is not all quiet on the IP enforcement front!

 

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