Year Ahead: Busy Copyright Schedule As Europe Seeks Economic Recovery

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With European hopes for economic recovery pinned in large part on a more vibrant digital single market, 2012 will likely see a flurry of intellectual property-related legislative activities. Much of it centres on copyright, but the year may also bring movement on a unified European patent and changes in trademark law.

The Danish EU presidency, which took office on 1 January, considers the single market “the largest economic driving force in the EU,” and the digital single market will be one of its top priorities for its term, it said. Denmark and Cyprus, which assumes the presidency in July, will have to tackle a flurry of IP-related initiatives from the European Commission (EC).

Copyright Issues Abound

On 11 January, the EC announced plans for doubling the share of internet services in the EU Gross Domestic Product by 2015. It noted several obstacles to the growth of the digital single market and e-commerce, including an inadequate supply of legal, cross-border online services and uncertainty over the liability of internet intermediaries such as internet service providers (ISPs) and search engines for IP infringement.

To remedy the problems, the EC said it will review the copyright in the information society directive this year, and report on the outcome of a public consultation on online distribution of audiovisual works as well as the implications of the European Court of Justice decision in the “Premier League” case on exclusive broadcasting licences (IPW, European Policy, 6 October 2011).

The Premier League decision “has the potential to shake up the media industry” by prohibiting absolute territorial licensing exclusivity in Europe, said Hogan Lovells communications lawyer Winston Maxwell. He said he hopes the EC will issue guidance this year on how the decision affects current licensing practices such as when geo-blocking is allowed or barred, he said. Until the EC provides more information, rights owners are “in the dark” as to whether their exclusive broadcasting licences are enforceable against consumers who want to shop around for the cheapest content available in Europe, he said.

To combat IP piracy and other illicit online activities, the EC proposed a pan-EU legal framework for notice-and-takedown procedures, and said it will revise the directive on enforcement of IP rights in 2012 to tackle illegal content more effectively.

The idea of new notice-and-takedown measures spooked digital rights and consumer activists. The procedure “must be very carefully framed” because efforts to criminalise consumers have proven “a waste of time,” said European Consumer Organisation Director General Monique Goyens. Notice-and-takedown is “already a big problem in Europe” from a due process, legal certainty and predictability standpoint, and suggesting that it’s appropriate to treat child abuse material and a copyright-infringing photo of a tree the same way seems “bizarre and dangerous,” said European Digital Rights Advocacy Coordinator Joe McNamee. French citizens’ advocacy group La Quadrature du Net urged users to pay close attention to discussions on internet content policing lest vested-interest lobbies “wage an all-out offensive against freedom of communication online.”

The 11 January e-commerce communication followed the EC’s earlier (22 December) annual progress report [pdf] on the European digital agenda. In it, the EC said that within the next 12-24 months, it will focus on: (1) A proposal for a directive on collective rights management to tackle cross-border music licensing. (2) A report on the results of a consultation on a 13 July 2011 “green paper” on audiovisual content. (3) A proposal for speeding copyright clearance of works whose authors are unknown or cannot be found (orphan works). (4) Revision of the IP rights enforcement directive. (5) Jump-starting talks on copyright levies on digital copying media. (6) Rules of IP rights and licensing conditions in standards-setting. (7) Working to improve international trade conditions for digital goods and services, including with regard to IPR protection and enforcement in non-EU countries.

Work Continues on Earlier Measures

Also possibly on tap this year in the copyright arena: The audiovisual media services directive requires the EC to report to the European Parliament and Council of Ministers on how the law is working. The report was due 19 December but has not yet appeared.

With regard to the directive on copyright term of protection, which was amended in September, several issues remain to be resolved, said US entertainment lawyer Michael Sukin. These include updating collection societies’ databases that now show copyright expiration dates that will be incorrect as of 1 November 2013; and determining how royalties on phonograms will be allocated among various “side men” who have performed on a recording, and whether recordings from 1961, ‘62 and 63 are protected, he said.

The European Court of Justice is “taking a more prominent role” in interpreting European copyright law, examining the concepts of public performance, private copying and the responsibility of internet service providers, said Patricia Akester, of the Cambridge University Centre for Intellectual Property and Information Law. One upcoming case, Football Dataco Limited et al. v Sportradar GmbH, involves claims of infringement of copyright and database rights. It is unclear whether it will be decided this year.

One key UK issue is the creation of the “digital copyright exchange” proposed in the May 2011 Hargreaves review of intellectual property and growth (IPW, European Policy, 4 January 2012). The “real value” of this “big idea” will be “driving all the media and technology industries to work collaboratively to develop standards so that all the different rights machines – film, music, publishing, etc. – can speak to each other ‘machine to machine,’” UK copyright lawyer Laurence Kaye wrote in blog predictions for 2012.

EU Patent Edges toward Completion

The long-running debate over a single European patent will continue this year as the European Parliament prepares to vote on a package negotiated and agreed on 1 December by the Parliament, EC and council of ministers (IPW, European Policy, 22 December 2011). EU states, however, have so far failed to agree on where the new unified patent litigation court should be located.

In a tangential initiative, the EC is mulling harmonised protection for trade secrets. A 13 January report [pdf] noted that while trade secrets are not generally viewed as IP rights, “there is, at the very least, a close relationship between them.” The report recommends greater protections, and the EC has now asked for further analysis of the economic relevance of trade secrets as well as their role in complementing patents and in innovation.

A second 13 January report [pdf] considered trade secrets and parasitic copying (“look-alikes”).

During Denmark’s term in the presidency, work will also begin on improving and strengthening Europe’s trademark system, it said.

Dugie Standeford may be reached at info@ip-watch.ch.

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