The European Commission's Report on a Single market for Intellectual Property Rights: an analysis of the key points
This article was first published in IP Magazine in May 2011
Following hot on the heels of the Hargreaves report which recommended changes to the intellectual property rights (IPR) system from an English standpoint, the European Commission has published a report on its proposals to modernise the legal framework in which IPR operate. The report takes into account the fragmentation of the IPR landscape in Europe which leads to complex licensing arrangements and the growing importance of online activities.
The Commission’s stated aim for its IPR strategy is "to release the potential of European inventors and creators and empower them to turn ideas into high quality jobs and economic growth".
The main points highlighted in the report are as follows:
- Patents: The Commission recognises that the current European patent system is complex and costly. Therefore it intends to continue work on measures for the creation of unitary patent protection under enhanced cooperation as quickly as possible, and proposals to create a specialised European patents court regime following the recent opinion of the Court of Justice of the EU that the existing draft agreement on the European and EU Patents Court was not compatible with the EU Treaties.
- Trade Marks: There are proposals to revise both the Community Trade Mark Regulation and Trade Marks Directive in the last quarter of 2011 with a view to adapting them to the internet era to provide faster, more streamlined, publicly accessible trade mark registration systems. The report indicates that the Commission’s review will include considering whether to increase legal certainty by, for example, redefining what may constitute a trade mark; clarifying the scope of trade mark rights throughout the EU customs territory, encouraging increased cooperation between the OHIM and national trade mark offices, including harmonising administrative practice and developing common priority searches and watching tools, and aligning the different EU trade mark legislation.
- Multi-territorial copyright licensing: The Commission will submit proposals in the second half of 2011 to create a legal framework for the efficient collective management of copyright to enable multi-territorial and pan-European licensing, in particular in the music sector by encouraging the development of one authoritative database on the ownership of rights in music. The Commission is also considering whether to create a European Copyright Code which could codify the present EU copyright directives and examining whether the current exceptions and limitations to copyright under the Information Society Directive 2001/29/EC should be updated or harmonised at EU level. Another proposal being considered by the Commission is to create an optional “unitary” copyright title. Also, an independent mediator will be appointed in 2011 with the task of exploring options for harmonising the rules and practice behind private copying levies with a view to legislative action at EU level by 2012. The Commission will also launch a consultation on issues relating to the online distribution of audiovisual works in the second half of 2011.
- Digital libraries: Legislation is proposed that will enable the digitisation and online availability of orphan works (namely works where the author is not known or cannot be located). The Commission also hopes to conclude a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books.
- IPR violations: It is proposed that the remit of the European Observatory on Counterfeiting and Piracy be extended to include organising public-awareness campaigns and training for enforcement authorities, conducting research on innovative enforcement and detection systems and coordinating international cooperation. To enable it to meet its new remit, the tasks of the Observatory will be entrusted to the OHIM. In parallel with this, the Commission will propose amendments to the IPR Enforcement Directive in spring 2012 to meet specific challenges of the digital environment, including to combat IPR infringement over the internet more effectively.
- IPR enforcement by Customs: There are proposals for a new customs regulation to replace the existing one with a view to reinforcing the legal framework for customs’ actions and streamline procedure, and to tackle the trade in small consignments of counterfeit goods sent by post.
The report ends with a list of 19 steps to be taken by the European Commission either this year or in 2012. This long action list demonstrates the importance the Commission gives to IPR and its role in providing economic growth, high quality jobs and first class products and services in Europe. The report represents a comprehensive review of IPR in Europe. It does not herald any major changes to policy for patent law, but in other areas, the proposed changes could be more far-reaching, including its proposals regarding collective copyright management and to widen the list of possible IPR infringements to be controlled by customs at the border.