Year Ahead: Copyright, Unified Patent Court Remain High On EU Priority List 16/01/2018 by Dugie Standeford for Intellectual Property Watch 3 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Plans to update European Union copyright rules advanced in 2017 but remain contentious heading into the new year. The proposal for a directive on copyright in the digital single market is the subject of intense debate between the EU Presidency and the European Parliament, with no clear end in sight to the negotiations. Several issues, including a possible “ancillary right” for news publishers and a plan to force online platforms to filter all uploads to combat copyright infringement, remain unresolved. Other copyright matters, such as a regulation on broadcasting and a review of the EU database directive, are in the works. On the patent side, a pressing question is whether – and when – the EU unified patent and patent court (UPC) might finally launch. Several EU comprehensive trade agreements, which include provisions on intellectual property rights, are under negotiation. Cases to watch in the European Court of Justice include a referral from the Netherlands on the issue of whether the taste of cheese can be copyrighted. Copyright Reform EC copyright reform is part of its digital single market strategy. In December 2015, it proposed a new regulation to enable consumers to access across borders content services such as films and music to which they subscribe in their home countries. The Portability Regulation was approved in June 2017 and will enter into force in all member states beginning 1 April 2018. The EC in September 2016 proposed a directive to reform copyright rules. The package aims to enable more cross-border accesses to online content by, for example, creating favourable conditions for distribution of TV and radio programs online; broader opportunities to use copyright-protected materials in education, research and cultural heritage; and a better-functioning copyright marketplace, the EC said. In 2017, several parts of the proposal were approved and will become effective this year. The proposal for a regulation on broadcasting (known as the SatCab Regulation), part of the copyright package, seeks to make it easier for people to access more television and radio programs online from other EU countries, the EC said. The European Parliament and the Council firmed up their negotiating positions in December, and “trialogue” talks with the EC are expected to start under the Bulgarian EU Presidency, which began on 1 January, the EC said. Discussion dates haven’t yet been set, it said. The copyright reform package also included proposals for a directive and regulation implementing the World Intellectual Property Organization Marrakesh Treaty on exceptions to copyright for people with print disabilities into EU law. The instruments won approval from the European Parliament and Council last year, and will apply as of 12 October 2018, the EC said. In May 2016, the EC also proposed regulation barring geoblocking – unjustified blocking of content or other types of discrimination on the grounds of nationality, residence or establishment – as part of an e-commerce legislative package. EU institutions announced on 20 November 2017 that they reached political agreement on the proposal, which will come into force nine months from the publication in the EU Official Journal. Another part of the digital single market plan was set out in a May 2016 communication on online platforms (available here). Since then, the EC has, among other things, adopted guidelines for tackling illegal content online. The communication is a “first step” and follow-up initiatives will depend on whether platforms act, the EC said. It is monitoring progress and will determine by May 2018 if additional measures are needed, it said. On 29 November, the EC proposed a flurry of IP rights enforcement-related measures to boost the fight against counterfeiting and piracy and to create a fair, balanced system for standards-essential patents. It said it will “closely monitor the progress on the proposed measures and assess the need for further steps.” Publishers’ Right, Platform Monitoring Issues Still Rankle The copyright reform debate rages on, with several key actions in European institutions due this year, but no clear end in sight. The two most contentious issues are still whether news publishers should have a “neighbouring” or ancillary right to prohibit the copying or reuse of snippets or excerpts of their content for commercial purposes (Article11); and how to deal with the “value gap” created when consumers upload content which is then commercialised by platforms such as YouTube (Article 13). The European Publishers Council (EPC) is one of several organisations which strongly supports a neighbouring right, saying in an update to members that the controversy surrounding fake news and of premium brand advertising being shown alongside hateful and illegal content has shown European Parliament members and national governments “the key differences between investment in professional journalism, editorial responsibility and legal liability whether advertising or subscription funded, and on the other hand the click-bait of fake news, and illegal content fuelling the ad revenues of the platforms and search engines.” Conversely, European Digital Rights (EDRi) repeated its argument, in a 10 January article on the state of play in copyright reform (available here), that giving ancillary rights to press publishers has been tried before and failed in Spain and Germany, to the detriment of smaller press publishers and news aggregators. The second hot issue is Article 13, which deals with how to better protect and remunerate rights owners of content uploaded to platforms directly by consumers and then commercialised by the platforms. So far, said the EPC, it doesn’t tackle all copyright content, which “logically should include images and press publishers’ content.” The provision is supposed to address “a so-called ‘value gap’” by forcing online platforms to use upload filters on all content to check for copyrighted material, said EDRi. This would be very costly and detrimental to small companies and start-ups, and contradicts the EU E-Commerce Directive’s approach to intermediary liability, it said. The neighbouring right is still on the table, with the right intact, after four European Parliament committees voted their opinions, the EPC said. When the reform proposal will see a vote in the lead committee, Legal Affairs, is unclear, with the committee saying it’s expected on 21 or 22 February and EPC telling us it has been postponed to 26-27 March. In the EU Council, the Estonian Presidency, which ended on 31 December, summarised the state of play in a report [pdf] which EPC said “creates legal uncertainty and a new safe harbour for platforms by the back door.” Estonia “only managed to find an agreement on the smaller issues like [text and data mining] but could only produce disastrous proposal after disastrous proposal on the most controversial elements elsewhere in the Directive,” said EDRi. It’s now up to the Bulgarian Presidency to try to find common ground. In another copyright matter, the EC is readying an evaluation of the 11 March 1996 Database Directive (Directive 96/9/EC) on the legal protection of databases, it said. An initial summary on the findings of a public consultation is available here. European Court of Justice Two interesting cases are teed up for rulings by the EU high court, the quirkiest of which involves the question of whether the taste of cheese can be copyrighted. An analysis is available on the IPKAT website. A second copyright case is Hutter v Pelham (Case c-476/17), which involves the reuse of small parts of a phonogram (Kraftwerk’s song Metall auf Metall). This “is about the criterion for copyright infringement and the scope of copyright exceptions, taking into account the fundamental rights of the EU Charter,” said Professor Alain Strowel of the Université Catholique de Louvain, who chairs the European Copyright Society. The society is preparing position papers on this and the cheese decision which will be published on its website, he told Intellectual Property Watch: https://europeancopyrightsociety.org. Patents Europe’s unified patent court (UPC) remains in limbo due to a constitutional challenge in Germany. In a 21 December “summing up,” the UPC Preparatory Committee said that the uncertainty of German ratification means “it is difficult to predict a new timeline” for beginning provisional application (in which signatory countries agree provisionally to the institutional, organisational and financial parts of the UPC before it launches). With the provisional application phase likely to last six to eight months, it’s not clear whether the court will begin work this year. This year will see the inauguration of a new European Patent Office (EPO) building in The Hague and possible proposals for introducing more flexibility into the timing of its patent granting process, President Benoît Battistelli said in a 10 January blog posting. The office has a new quality action plan to boost quality control in search, examination and opposition, he said. The EPO on 2 January announced an internal reorganisation it said will make patent processing more efficient. The Staff Union of the EPO, which has been embroiled for several years in a standoff with management, branded the new regime a potential “disaster in the making” in a December memo to members. Battistelli, an unpopular president, will be replaced on 1 July by Antonio Campinos. The office will publish its 2017 annual results at a press conference in Brussels on 7 March, a spokesman said. In the health arena, the EC analysis of IP incentives in the pharmaceutical industry is ongoing and is a key priority for the sector, said a European Federation of Pharmaceutical Industries and Associations spokesman. Industry wants to ensure that the various analyses of incentives being undertaken now don’t undermine biopharmaceutical innovation in general, and in the EU, he said. EFPIA is also waiting to see how the EPO will deal with a proposal to allow postponements of substantive patent examinations for up to three years at the applicant’s request; and hoping for quick resolution of the German challenge to the UPC, he said. Trademarks, Trade Secrets The EU Intellectual Property Office, which manages EU trademarks and registered Community designs, is updating its rules following the adoption of the EU Trademark Directive (2015/2436). Along with the IPOs of EU member states and the EC, the office is developing a common initiative for dealing with new types of trademarks. The first update of the common plan is due in June. The EUIPO’s latest newsletter is here [pdf]. One closely watched UK trademark case is Cartier International AG v British Telecommunications (UKSC 2016/0159), which centres on whether internet service providers should be required to bear the costs of blocking websites that infringe registered trademarks, said Hogan Lovells IP attorney Penelope Thornton. The UK Supreme Court will hear the case in January. With Brexit fast approaching, another UK IP issue is whether the government will want to implement the EU trademark and trade secrets directives, which enter into force this year close to the March 2019 leaving date, Thornton said. IP-Related Trade Agreements While 2017 saw the conclusion of the Comprehensive Economic and Trade Agreement with Canada, other such pacts, all of which include provisions on IP rights, are in the works, said the EC. Those in the most advanced stage of negotiations are agreements with Mexico and South American trade bloc Mercosur, it said. Several trade agreements (Japan, Vietnam and Singapore) have been finalised but must go through the ratification process. Events 22 January: European Commission meeting with industry on possible conclusion of a memorandum of understanding on online advertising and IPR infringements. 23 January: European Commission meeting with national experts to discuss future development in IPR enforcement at the EU level and in member states. 16 February: EC meeting with signatories to discuss progress on the MoU on counterfeit products sold online. 7-8 May: EUIPO IP Case Law Conference. 7 June: EPO European Inventor Award Ceremony Image Credits: EU Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Dugie Standeford may be reached at info@ip-watch.ch."Year Ahead: Copyright, Unified Patent Court Remain High On EU Priority List" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
john e miller says 16/01/2018 at 11:15 pm From above: ” The instruments won approval from the European Parliament and Council last year, and will apply as of 12 October 2018, the EC said.” From Official Journal of the European Union Volume 60 L 242 20SEP2017 on Marrakesh Treaty PDF page 15: “Article 11 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 11 October 2018. They shall immediately inform the Commission thereof.” So have any countries already complied and what happens if a Member State has not yet complied as of October 12, 2018? Reply
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