Europe’s Outlook For 2011: EU Patent, Digital Content, Innovation And Free Trade

The Digital Agenda’s hoped-for role as a key growth driver for Europe’s flagging economy has pushed intellectual property issues into a high-priority spot on the EU’s policy agenda for 2011. In an effort to boost job creation and innovation, the European Commission is looking to improve online content licensing, access and protection. And despite continuing opposition from several countries, the long-awaited European patent is finally moving forward. Debate is also heating up on new ways to encourage biomedical innovation, and on a proposed EU-India free trade pact.

Flurry of copyright-related activity

One major issue in the copyright arena is how to make “orphan works,” those whose rights owners are unknown or cannot be located, available on the internet. On 10 January, the European Commission-created Comité des Sages (high level reflection group) on Digitisation of Europe’s cultural heritage published its report [pdf] on speeding digitisation. The goal is to provide access to as many people as possible at no cost, committee member Maurice Lévy said at a press briefing.

Among other things, the panel recommended that rights holders take primary responsibility for digitising works still covered by copyright but out of print, and that if they fail to do so, cultural institutions be given a chance to digitise the material and make it available to the public, subject to remuneration of rights owners. The report urged the EU to adopt rules on orphan works quickly and called for increased funding from EU governments for digitisation; public-private partnerships; and making digital library Europeana the central repository for all materials.

The recommendations feed into ongoing EC work on copyright strategy. A legislative proposal for orphan works is expected in the second quarter of this year, the EC said. It will also host a stakeholder forum on digitising out-of-print works in 2011. It is also looking to simplify pan-European licensing for online works, with a legislative proposal due out early in 2011. Also on the agenda is a decision about the need for further measures – which could include more harmonisation of copyright laws, exceptions and limitations – to spur Europe’s online content market.

Proposed new rules for collecting societies are expected in the spring, and a “green paper” due in the summer will consider how to simplify cross-border online distribution of audiovisual and other creative content, the EC said.

The Commission is also reviewing the effectiveness of the intellectual property rights (IPR) enforcement directive and may propose new measures to boost online protections. In a 22 December report to the European Parliament and Council assessing the effectiveness of the law [pdf], the Commission said that while enforcement has improved, “the sheer volume and financial value of intellectual property rights infringements are alarming,” largely due to the unprecedented increase in opportunities offered by the internet.

The enforcement review could lead to several legislative clarifications, the EC said, including a minimal list of the IP rights covered, making internet service providers and other intermediaries more responsible for quashing online infringements, and providing for higher damage awards. Comments on the report are due 31 March 2011.

The Commission is concerned about the slow take-off of cross-border internet trade, and is reviewing the impact of the E-Commerce Directive (2000/31/EC), including provisions concerning the liability of intermediary information society service providers for IP infringement. A communication on how well the electronic commerce market is working is due in the first half of 2011.

The EC’s “overarching view” on copyright appears to be that “enforcement by proxy is the way forward,” said European Digital Rights Advocacy Coordinator Joe McNamee. The focus is on getting ISPs to do the policing and prosecution of digital copyright violations through a mixture of weakened and/or reinterpreted safe harbour principles – which relieve intermediaries from liability for infringement for content that merely passes over their pipes – and their own changing business priorities, he said.

But the Federation of European Publishers said it welcomed EC initiatives to “maintain copyright principles in the digital environment, by establishing best practices and by supporting voluntary arrangements among stakeholders.”

The Digital Agenda offers the “perfect opportunity” for Europe to put itself at the forefront of the digital content economy by creating a “digital copyright” symbol, UK media lawyer Laurence Kaye said in a 12 January presentation to publishers. The symbol, which should be readable by humans and machines, is the first essential in a system able to identify what content is being used and by whom, and who controls the rights to it, he said.

Other EC plans include shifting the tasks of the European Observatory on Counterfeiting and Piracy to the Office of Harmonisation for the Internal Market, Europe’s trademark registration agency, and beginning work on updating and streamlining the trademark system.

EU Patent Gains Momentum

Debate among governments over a unitary European patent has raged since 2000, hampered by squabbles over the costs and time needed for multiple translations of patent documents.

When officials once again failed to agree in November 2010, several countries suggested the use of an “enhanced cooperation” procedure to allow at least some level of unified patent protection, the EC said. It responded to the request by Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the United Kingdom in a 12 December 2010 proposal aimed at breaking the deadlock [pdf].

Details will not be fleshed out until the European Parliament and Council of Ministers agree on the use of enhanced cooperation, but the Commission said any measure should make unitary patent protection optional.

Hungary, which leads the Council as EU Presidency for the first six months of 2011, said it is “committed to carry on the work” for enhanced cooperation and unitary patent protection. The Association for Competitive Technology said enhanced cooperation represents a “step closer to a unified patent system” that will “move critical discussions forward.”

New Medical Innovation Models Coming?

In November 2010, the European Parliament hosted a discussion on biomedical innovation with a view to formulating EU policies, Knowledge Ecology International, TransAtlantic Consumer Dialogue, Health Action International (Europe) and Oxfam said in a joint statement. Proposals included product development partnerships, the medicines patent pool, equitable licensing and innovation inducement prizes for diseases such as cancer, HIV/AIDS and tuberculosis, they said.

The issue is a big one for the EU this year, Knowledge Ecology International Attorney Judit Rius Sanjuan told Intellectual Property Watch. KEI and the others expect the concept of de-linking research and development cost from prices, already part of EU Council conclusions on Europe’s role in global health, and the mandates on new innovation models set out in the EU 2020 strategy to be explored further, she said. Also planned are impact studies on some of the policy proposals and a follow-up meeting in parliament this spring focused on innovation inducement prizes, she said.

In parallel, the World Health Organization and the World Intellectual Property Organization are planning to examine some concrete proposals on innovation inducement prizes, and the position taken by the EU and its members will be “quite important,” Rius Sanjuan said.

Contentious EU-India FTA Talks

Another key IP issue this year is the negotiation of an EU-India free trade agreement, Rius Sanjuan said. A draft of the IP rights chapter discussed at the 12-14 July 2010 talks is here.

The document shows that India rejected many EU proposals, India’s Centre for Internet and Society (CIS) said on 12 January. In particular, it would require India to go beyond its obligations under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) by providing data exclusivity for pharmaceutical products; impose “radical enforcement provisions” such as liability of intermediary service providers; and require legislative changes on data protection and other matters, it said.

The current status of the talks on IP is unclear, CIS said, but from press and other reports it appears that both sides plan to finalise the pact by spring. Hard lobbying by the EU, home to many of the world’s largest pharmaceutical companies, has “struck a chord” with Indian Prime Minister Manmohan Singh, who is pressuring the commerce and industry ministry to include the controversial IPR chapter in the FTA, the Financial Express reported.