Thursday, May 6, 2010

European Union agenda concerning intellectual property rights

I participated in the KnowRi§ht conference in Vienna, Austria, where I was invited on ultrashort notice to give a speech on "Software Patents, Standards & Competition".

The big controversy at that conference clearly related to the future of the European patent (and patent court) system. I will report on that in a later post. Previously I'd like to summarize the outline of intellectual property rights matters on the EU agenda that a European Commission official gave at the conference.

Before I get into details of Dr. Jens Gaster's comments, I have to mention that he pointed out at the beginning of his speech that he was not acting as a spokesman of the institution that employs him (the European Commission) but instead in a personal capacity as a lecturer. It was an academic conference and Dr. Gaster continues to pursue an academic career in addition to his work for the Commission.

Dr. Gastner mentioned the fact that the EU's data retention directive had been considered "at least indirectly unconstitutional" by certain national courts of EU member states, which raises interesting questions.

Without mentioning Google Street View by name, he hinted that there may be a need for related legislation at the EU level to define everyone's rights.

He outlined various intellectual property issues with a competition dimension, describing the current phase as "the aftermath of the Microsoft case" and mentioning an impact assessment concerning pharmaceutical patents.

Concerning open standards, Dr. Gaster's take was that royalty-free standards are "fine" if all of the right holders agree.

The EU's broadbased Digital Agenda initiative was launched only recently, which is why Dr. Gaster could not offer a prediction as to what its outcome would be.

There might be a Commission initiative related to online content, possibly as part of the Commission's next working program. Rights management per se has been under examination by the Commission "for decades". According to Dr. Gaster, the Google Books case has "repercussions" throughout all of Europe, not only its mainly English-speaking countries.

Dr. Gaster was a driving force behind two Intellectual Property Rights Enforcement Directives (IPRED 1 and 2). The first one related to civil law and was passed. The second one, related to criminal law, fell through. Apparently the entry into force of the new European treaty, which gives the EU broader competencies and may lead to a revival of that initiative to harmonize rules for criminal prosecution of intellectual property rights violations.

With a view to ACTA (on which I commented recently, Dr. Gaster admitted that the initiative "has been criticized" and that "there was a lack of transparency". He believes there is now transparency "on the substance of the negotiations" (this probably meant to state that there would still not be complete transparency, such as a disclosure of the positions taken by different countries or procedural steps). Dr. Gaster claimed that ACTA would not go beyond IPRED 1, the existing EU directive on enforcement of IPRs under civil law.

On trademarks, the Commission has just launched a study concerning trademark law and its application by national trademark offices and the EU's own trademark authority, the Alicante, Spain-based OHIM.

Still in the trademark context, Dr. Gaster referred to the March 23 ruling by the European Court of Justice on Internet advertising links related to trademarked keywords (Google AdWords case). The highest-level French court, the Cour de Cassation, had referred this question to the ECJ. The result was that under the EU's E-Commerce Directive the search engine (in that particular case, Google) would be liable for trademark infringement while Internet access providers would benefit from a liability exemption.

After those other topics, Dr. Gaster then turned to what he called his "favorite subject": patent reform. As I said before, I will address this in my next post.