In our previous articles we looked at the actions (including review of intellectual property regime, update of copyright and the patents regime) the UK is seeking to take and implement in order to ensure the future of intellectual property. The actions extend to enforcement of intellectual property. As we discussed a number of UK activities will have to be co-ordinateed with the European ones and therefore it is useful to look more closely at the actions regrding intellectual property taken at European level.

In its communication entitled “A Single Market for Intellectual Property Rights” the European Commission has published its new intellectual property strategy. As the title suggests the communication presents the Commission's strategy for delivering a single market for intellectual property rights and that is currently lacking in Europe and that is nevertheless necessary for intellectual property to catch up with technology.

In particular the current intellectual property issues that small businesses and entrepreneurs are facing include, (i) complex rights clearing processes across several territories; (ii) acceleration of technological progress, which changes the way products and services are produced, disseminated and consumed; (iii) challenges in the prevention of the unauthorised use of protected works in the new digital environment; and (iv) need for rigorous application of competition rules in order to prevent the abuse of intellectual property which can hamper innovation or exclude new entrants, and especially SMEs, from markets.

Considering that 1.4 million small and medium-sized enterprises in Europe operate in the creative industries; industries based on intellectual property represent above average potential for growth and job creation; a 2002 survey of the Fortune 500 companies estimated that between 45-75% of their wealth derived from their intellectual property rights, it comes as no surprise that actions must be taken at European level to unify intellectual property rights.

Let’s have now a quick look at some proposed actions and initiatives:

1) Reform of the patent system in Europe

Proposals for regulations on a unitary EU patent and translation arrangements were adopted on 13 April 2011. Commission welcomes and promotes the machine translation programme for patent documents The strategy document says that the current European patent system is complex, fragmented and costly; getting a European patent validated in 13 member states can cost up to ten times more than a US patent.

2) Intellectual property rights valorisation instrument

The strategy says that intangible assets may account for up to three quarters of corporate value and intellectual property rights and intellectual property rights based transactions are gaining more and more importance. As a consequence, companies need to develop appropriate management of such intangible assets and to value intangible assets in accounting terms and to increase the opportunities to get better value out of intellectual property rights and leverage financing.

3) Modernisation of the trademark system

The strategy notes that the trademark system in Europe shows clear successes. However, stakeholders are increasingly demanding faster, higher-quality, more streamlined trademark registration systems, which are more consistent, user friendly, publicly accessible and technologically up-to-date. To meet these demands, the trademark system in Europe needs to be modernised and adapted to the internet era.

Particular focus will be on the possibilities of:

·         Simplifying and speeding up the registration procedure.

·         Increasing legal certainty, such as by redefining what may constitute a trademark.

·         Clarifying the scope of trademark rights inter alia as regards goods in various situations throughout the EU customs territory.

·         Providing a framework for increased co-operation between the Office for Harmonisation in the Internal Market (OHIM) at Alicante and national trademark offices.

·         Making the Trade Mark Directive more coherent with the CTM Regulation, in particular, by further aligning the legal grounds of refusal for registration at European level.

4) Creation of comprehensive framework for copyright in digital single market.

The strategy says that the internet is borderless but Europe remains a patchwork of national online markets and there are cases when Europeans are unable to buy copyright protected works or services electronically across a digital single market. A European governance framework to manage the interface between creators, commercial users and consumers is crucial if Europe is to exploit the full potential that new technologies and the digital marketplace offer. Europe must develop copyright licensing services, combined with web applications and tools, to foster vibrant cultural and creative industries that allow citizens to use and share published knowledge and entertainment easily and legally across the EU.

Such initiatives could include: (i)  the creation of a legal framework for collective management of copyright

The strategy document says that the creation of a European framework for online copyright licensing would help make a wider range of online services available cross-border; (ii) the creation of a European Copyright Code.

In addition, the strategy states that:

-  in light of the fast development of social networking and social media sites, which rely on the creation and upload of online content by end-users, specific attention will be given to possible approaches to deal with User generated content. Users who integrate copyright-protected materials in their own creations which are uploaded on the internet must have recourse to a simple and efficient permissions system. This is particularly pertinent in the case of "amateur" users whose content is created for non-commercial purposes and yet who face infringement proceedings if they upload material without the right holders' consent;

-  the proper functioning of the internal market requires conciliation of private-copying levies with the free movements of goods to enable the smooth cross-border trade in goods that are subject to private copying levies. Among other things, a high-level independent mediator will be appointed in 2011 and tasked with exploring possible approaches with a view to harmonising the methodology used to impose levies, improve the administration of levies, and the inter-operability of the various national systems;

-  the importance of facilitating the preservation and dissemination of Europe's rich cultural and intellectual heritage, and encouraging the creation of European digital libraries. In 2011, to promote the digitisation and making available of the collections of European cultural institutions (libraries, museums and archives), the Commission will (i) promote collective licensing schemes for "out-of-commerce" works, that is works still protected by copyright but no longer commercially available; (ii) establish a European legislative framework to identify and make available so-called "orphan works" that is, works of unknown authorship or works the author of which cannot be traced;

-  in order to achieve a fair and level playing field amongst creators is to bring the term of protection of performers in the music field more in line with that of authors. The Commission has made such a proposal  and says that it expects its adoption in the very near future;

-  getting the conditions right for smooth, easier and technologically-neutral solutions for cross-border and pan-European licensing in the audiovisual sector will help content producers to increase the availability of content. The Commission will launch a consultation on online distribution of audiovisual works with a view to reporting in 2012. The consultation will address copyright issues, video-on-demand services, their introduction in the media chronology, the cross-border licensing of broadcasting services, licensing efficiency and the aspect of promotion of European works. The audiovisual Green Paper will also address the status of audiovisual authors and their participation in the benefits of online revenue streams.

All articles are for general purposes and guidance only and do not constitute legal or professional advice.

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