Year Ahead: Copyright Issues Rank High On EU To-Do List This Year

Copyright, copyright and more copyright tops Europe’s intellectual property agenda for 2017. With the EU institutions mulling major reforms to copyright laws, publishers are pushing for a right to bar unauthorised copying or reuse of their content for commercial purposes, audiovisual authors for fair remuneration for use of their works on platforms like YouTube. The European Commission will begin reviewing the enforcement of IP rights as well as delving further into issues related to liability of platforms for infringement.

On the patent front, the big story may be the entry into force of the unitary patent, and further developments on the unified patent court (UPC). In addition, the Community Plant Variety Office (CPVO) wants to raise its profile as a key player in the evolving IP and plant variety sphere; and the European Commission (EC) is reviewing patent incentives and rewards.

This year could also see final approval of the Comprehensive Economic and Trade Agreement with Canada (CETA), and some possibility of developments on the Transatlantic Trade and Investment Partnership (TTIP) accord with the United States. And the EU says it has many other trade negotiations still active this year.

Copyright Reform

The EC is looking to update copyright law as part of its digital single market strategy. In December 2015, it proposed a new regulation to ensure that consumers can access across borders online content services such as films and music to which they subscribe in their home countries. In September 2016, the EC proposed a directive to reform copyright rules.

The reform package aims to enable more cross-border access to online content, for example, by creating favourable conditions for distribution of TV and radio programs online; broader opportunities to use copyrighted materials in education, research and cultural heritage; and a better-functioning copyright marketplace, the EC said.

It also seeks to implement the Marrakesh Treaty to make more content available for people with visual impairments or other print disabilities. Information about the modernisation proposals are here.

The legislative process is ongoing, the EC said. Adoption of the cross-border portability proposal is expected by the end of this year, and of copyright reform next year, it said.

In May 2016, the EC also proposed regulation barring geoblocking – unjustified blocking of content and other forms of discrimination on the grounds of nationality, residence or establishment, the Commission said. A draft European Parliament report responding to the EC proposal is due this January, with a vote planned for April, the EC said. It expects EU member states to reach political agreement under the Maltese Presidency, whose term runs until July 1. Information on this proposal is here.

Another piece of the digital single market puzzle is contained in a May 2016 communication on online platforms (available here). The Commission will study business-to-business practices in online platforms early this year, with a separate study – on national provisions applicable to the liability of platforms and notice and action procedures – in 2018. This will be followed by a review of policy for online platforms, the EC said. Among other issues, the EC is considering how revenues for use by platforms of copyrighted content should be allocated and how to clarify platforms’ exemption from liability as intermediaries under the E-Commerce Directive.

Also on the Commission’s plate this year is a review of EU intellectual property rights enforcement. It will take a “follow the money” approach, with the intent of depriving commercial-scale infringers of revenue rather than chasing individuals for infringing IPRs, it said. The review is expected in Q2 2017.

Malta, which holds the EU Presidency from 1 January to 30 June 2017, said priorities for its term include the e-commerce package and the proposed regulation on cross-border portability of online content services in the internal market. Malta will “also take forward discussions on the copyright reform.”

Publisher’s Right, Platform Liability Controversial

Copyright reform is a huge issue for content owners as well as for digital rights activists and researchers.

The European Publishers Council (EPC) and other publishers is pressing for adoption of an EC proposal for a publisher’s right (also called a “neighbouring” or “ancillary” right) that would “make it clear that publishers’ content cannot be copied or reused for commercial benefit without their permission, whilst consumers could continue to share content with friends and family,” it said. Opponents, including European Digital Rights (EDRi), however, say it’s a “Google tax” that would allow news publishers to charge online news sites for posting news snippets or short extracts.

Fair remuneration through the addition of an unwaivable right to remuneration tops the wish list for the Society of Audiovisual Authors, a spokesman told Intellectual Property Watch. SAA also wants platforms such as YouTube to shoulder more responsibility for protecting copyrighted works, an issue that “will be one of the most controversial points” of the discussion on the copyright directive, he said.

EDRi, on the other hand, is concerned about the “destruction of liability safe harbours and obligatory mass filtering that includes the mandatory deletion of legal content,” Executive Director Joe McNamee told Intellectual Property Watch.

European research organisations are lobbying for changes to the copyright reform proposal’s provisions on text and data mining as well as the exception for use of works in digital and cross-border teaching, the Association of European Research Libraries, Conference of European Schools for Advanced Engineering Education and Research, European University Association, League of European Research Universities and Science Europe said (IPW, Copyright, 10 January 2017).

The EC also last year proposed updates to the Satellite and Cable Directive [corrected], which is generally called the Broadcasting Regulation (available here). There are concerns within the audiovisual sector that the first part of the proposal, which seeks to extend the satellite country of origin principle to certain online services of broadcasters, would further erode the territoriality principle underpinning the funding and distribution of AV works in Europe, SAA’s spokesman said.

The second part of the Broadcasting Regulation proposal, however, is “very positive” as it clarifies that the original directive was intended to be technology neutral, meaning all closed system services are subject to mandatory collective licensing, he said. Internet protocol TV services would thus be under the same regimes as cable companies, guaranteeing royalties for screenwriters and directors, he said.

European Court of Justice

Several advocate general opinions and final rulings are expected from the EU high court this year.

VCAST v. R.T.I. SpA deals with the question of whether the private copying exception under the EU copyright directive applies to cloud services.

Two cases clarifying the right of communication to the public are ITV Broadcasting Limited and others v. TVCatchup Limited and others (C-275/15) and Verwertungsgesellschaft Rundfunk GmbH v. Hettegger Hotel Edelweiss GmbH (C-641/15).

The EU high court is also expected to rule in Stichting Brein v. Filmspeler (C-527/15) on whether add-ons containing hyperlinks to websites provides illegal access to copyrighted works.

Stichting Brein v Ziggo (C-610/15) concerns questions of communication to the public and enforcement of copyright against intermediaries. In addition, the high court is expected to rule in Stowarzyszenie ‘Oławska Telewizja Kablowa’ w Oławie v Stowarzyszenie Filmowców Polskich w Warszawie (C-367/15) on damages for copyright infringements.

Patents

Europe’s unified patent court (UPC) appeared to be in jeopardy last year after the UK voted to leave the European Union. However, the UK government announced in November that it will move toward ratification of the UPC agreement.

In response, the UPC Preparatory Committee said on 16 January that it is “now working under the assumption that the Provisional Application Phase … will start end of spring 2017, presumably in May,” and that UPC court will begin operations in December. The ratification of the UPC by the UK and also Germany means that 2017 will see the launch of the EU unitary patent, a European Patent Office (EPO) spokesman said.

Reforms to the EPO Board of Appeals take effect this year, with the first BoA Unit President taking office on 1 March, the spokesman said. On 30 May, the office will celebrate 10 years of cooperation with its counterparts in Japan, South Korea, China and the US in the IP5, he noted.

The Community Plant Variety Office is updating its strategic plan in order to position itself as a major player in the evolving IP and plant variety landscape. Its draft proposal for 2017-2021 is here. Comments are due 3 February.

In the health arena, the European Commission is reviewing the impact of pharmaceutical incentives and rewards, including Supplementary Protection Certificates, on innovation, availability and accessibility of medicinal products, it said in an information note to the Employment, Social Policy, Health and Consumer Affairs Council (available here, click on “Outcome of the Council Meeting”). The rules review is necessary because of the importance of balanced IP-related incentives in the pharma sector and is part of the EC single market strategy of October 2015, the EC said. The review will run from the end of 2016 until the end of this year.

The review is being closely watched by the European Federation of Pharmaceutical Industries and Associations, a spokesman said: “We will be keen to ensure that a constructive and fact-based discussion will take place, mindful of all the great medicines that this incentive system has delivered so far and is ready to deliver in the upcoming years.”

Other Activities

Legislation introduced in the UK Parliament aims to stop traders or businesses from threatening rivals with IP claims without justification. One example cited of such behaviour was a case where eBay removed bikes from its website after another seller claimed to have registered the design of the bikes, when the designs were not actually registered.

IP-Related Trade Agreements

The future of the Transatlantic Trade and Investment Partnership, which foundered under the Obama Administration, is even more in doubt under President Trump, who has already pulled the US out of the Trans-Pacific Partnership. One TTIP chapter concerns IP rights, including geographical indications.

The EU-Canada CETA was signed in October 2016. The deal, which includes a chapter on IP rights, is working its way through the European Parliament, with a plenary vote expected in February.

The Commission meanwhile says it has many other trade agreements in the works this year. and a variety of bilateral agreements” (IPW, Europe, 24 January 2016).

Events

Mid-June: Malta hosts digital assembly

15 June: European Inventor Award 2017, Venice

November (tbc): Joint conference of the EPO and Community Plant Variety Office

 

Image Credits: EU