Year Ahead: Copyright Issues Top EU IP Policy In 2014

Copyright tops the European Union intellectual property agenda this year, with completion of a collective rights management directive, and European Commission statements on IP rights enforcement and possible revisions to EU copyright rules, due this spring. “Steady progress” on rollout of a unified EU patent and patent court system is expected, and trademark and other issues also figure prominently. But with European Parliament elections in May, and a new Commission in November, the timetables for these and other IP-related issues could shift, the EC and others said.

“The biggest European IP issue is of course” the EC consultation on copyright rules, said Olav Stokkmo, chief executive of the International Federation of Reproductive Rights Organisations.

The deadline for comments on the consultation [pdf] is 5 February, and IFFRO is readying a response, he said. The EC expects to take a decision on the “copyright review” in the spring, although the form of the initiative is yet to be decided, Chantal Hughes, spokeswoman for Internal Market and Services Commissioner Michel Barnier, told Intellectual Property Watch.

Adoption of a directive on collective rights management, proposed [pdf] by the EC in July 2012, is expected in February or March, Hughes said. A compromise agreement is awaiting formal approval by the European Parliament and Council of Ministers, she said. The Greek EU Presidency wants to finalise the procedures required for approving the directive before parliamentary elections, said Maria Sinanidou, communications officer for copyright issues for the presidency. The EC has also asked the Council to sign the Marrakesh Treaty on the Visually Impaired, which could happen this spring, Hughes said.

The Presidency also will be looking at the future of copyright, Sinanidou said. Apart from the discussions that will take place during meetings of the EU Working Group on IP (Copyright), the Hellenic Copyright Organisation of the Ministry of Culture and Sports has scheduled a 6 June Athens meeting on “copyright and the digital agenda for Europe: current regulations and challenges for the future.” It will address making content accessible in a digital single market; strengthening and balancing copyright; and further policy recommendations. Scheduled speakers include World Intellectual Property Organization Director General Francis Gurry.

The EC plans to make a statement on IP infringements this year, Hughes said. European Digital Rights initiative (EDRi) Executive Director Joe McNamee said he expects the next Commission to review and revamp the IPR civil enforcement directive as well as to propose criminal penalties for breaches.

The European Consumers’ Organisation will be watching developments on levies on recording media for private copying, said Communications Officer John Phelan. A report [pdf] by French European Parliament member Françoise Castex, of the Socialists and Democrats, is set for plenary vote on 4 February, he said. For consumers, however, this issue is “fairly low profile” as “the belief a way forward can be achieved has largely dissipated.”

Copyright Cases in EU High Court

The European Court of Justice (ECJ) is likely to rule this year in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Munich (Germany), Wega Filmproduktionsgesellschaft mbH (not available in English, but other languages here). The case involves the question of whether an internet service provider can be forced to block websites that breach copyright.

In another copyright-related case, Nintendo v PC Box, the ECJ ruled on 23 January that circumventing technological protection measures used by games and console makers to fight piracy may in some circumstances be legal (press release here [pdf], decision here). Console makers are protected against circumvention only where protection measures seek to prevent illegal use of videogames, not where the devices have commercially significant uses other than flouting copyright, the high court said. The decision gave an “important signal” to EU institutions that will, in the next five years, start to revise copyright laws, independent telecom consultant Innocenzo Genna wrote on his radiobruxelleslibera blog: “Copyright protection should be balanced” and not undermine innovation and business development.

Separately, a conference on EU copyright harmonisation will be held in Brussels on 26 March.

Trade Secrets Protection Coming?

The EC proposed a directive [pdf] against misappropriate of trade secrets in November 2013. Negotiations with the European Parliament and Council start this month, with the first Council working group meeting on 21 January, Hughes said.

The precise timing of the work is hard to predict, Hughes said. European Parliament elections “will affect this timing,” she said. Parliament stops working in April, and won’t have time to take any position on the matter before elections, she said. Instead, the newly elected legislature will have to deal with the proposal.

The Council will be able to move ahead on trade secrets on its own, Hughes said. The Greek Presidency wants to reach political agreement by the end of May, but that depends on how willing other EU countries are to advance, she said. In any case, any position governments take without knowing Parliament’s position “will inevitably be provisional.”

The key question is whether the Council and Parliament will try for a quick compromise on the measure, Hill + Knowlton Strategies (Brussels) CEO Thomas Tindemans said in an interview. Even with an agreement, the directive isn’t likely to be approved before early 2015, he said.

The change of EC in November shouldn’t necessarily affect the trade secrets proposal, Hughes said. The EC doesn’t expect at this stage that the next Commission will withdraw the draft, she said. Tindemans agreed, but said the appointment of a new EC could change the dynamics of talks between Parliament and Council because new commissioners may set different priorities. The current proposal was a key item for Barnier but may not be for his successor, he said.

EU Patent System Remains High on the Agenda

Getting closer to an EU unitary patent and unified patent court is a top issue for the European Patent Office (EPO), which will manage the system, Media Relations Director Rainer Osterwalder told Intellectual Property Watch. This year should see the completion of legal and financial preparations, he said. The EPO focus in 2014, among other things, will be on training judges, preparing arbitration and mediation rules, developing principles for unified patent court fees, and working out the court’s future information technology system.

“Less than a year after the entry into force of the EU Regulations on unitary patent protection and the signing of the Agreement on the Unified Patent Court, it is gratifying to see the steady progress in the preparation and implementation of these two major projects for the benefit of inventors and industry in Europe,” EPO President Benoît Battistelli said in a statement.

Other key agenda items for the EPO include dealing with the rising growth of patent applications, the annual report on which will be published on 6 March, said Osterwalder. The EPO also will continue its close cooperation with patent offices worldwide; efforts to ensure patent quality; and work on harmonising patent law with Denmark, France, Germany, the United Kingdom, Japan and the United States, he said.

There will be an EC report on the development and implications of patent law in the field of biotechnology and genetic engineering, and further work on an economic study of Europe’s utility models system which will be available in early 2015, said Hughes.

New Trademark Rules, Trade Agreements in the Works

On 27 March 2103, the EC proposed to reform Europe’s trademark rules. Talks on the package are taking place in Parliament and Council, with lawmakers expected to complete their first reading before elections, Hughes said. EU governments could arrive at a common position by May, with the package receiving its second reading under the Italian Presidency, which begins on 1 July, she said.

The EC is also looking into whether to extend geographical indication protection in the internal market to non-agricultural products, and may publish a discussion paper on the issue, Hughes said.

An economic review of industrial designs in Europe will emerge early in 2015, Hughes said. This year, however, the EC will launch a study on designs in Europe that will assess the current national and EU legal framework.

Internationally, IP chapters in various free trade agreements, including the EU-US Transatlantic Trade and Investment Partnership, are under negotiation, Hughes said. However, at the same time that the EU is eyeing possible amendments to its IPR enforcement, copyright and other measures, TTIP “is seeking to tie down existing legislation, particularly on flexibilities for copyright, in a way that will prevent legislators from legislating,” said EDRi’s McNamee.