EU Report Finds Fault With US Barriers To IP

The European Commission on Monday released a report finding fault with a number of United States practices related to intellectual property rights policy, on copyright, geographical indications, trademarks and patents. The report is an answer, one might say, to the annual US Special 301 report that criticises US trading partners it deems unilaterally to be insufficiently protecting its companies’ IP rights.

In its United States Barriers To Trade And Investment For 2008 [pdf] report, Europe charged that the US has failed to bring its Copyright Act into compliance with World Trade Organization rules on IP. This relates to the so-called Irish music case, and that European producers and performers “do not enjoy broadcasting rights granted to the US” as a result. It noted the US failure to join the Rome Convention of 1961 and its exception to the World Intellectual Property Organization Performances and Phonograms Treaty of 1996. Meanwhile, US rights holders are protected for the same in the EU, it said.

The report covers a wide range of trade topics in addition to IP rights.

The EU also said in the annual report that continuing “difficulties” to protect GIs on food and drink products in the US “is a source of considerable frustration for EU producers.” They find “particularly problematic” the number of European wine names the US considers as “semi-generic.” Negotiations have been ongoing since 2006 on this.

And on patents, the US government frequently fails to comply with Article 31 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires governments that use patents to promptly inform the patent right holders, the EU said. This means the right holders are likely to miss the opportunity to initiate an administrative claim process.

On trademarks, a 1998 US law related to the Havana Club rum mark continues to violate TRIPS obligations by preventing any US court from recognising or enforcing any assertion of the trademark because of its association with a confiscated Cuban entity.

On recognising the first to file a patent application (like the rest of the world) rather than first to invent, the US discussion of patent reform is “going in a good direction,” the EU said.

Other problems cited addressed differences in the treatment of software patentability, US controls over re-export of good and technology, and US provisions on plant varieties in the Plant Patent Act which “seriously impede trade in breeding material for ornamental plants.”