Kalen Lumsden is a JD candidate at Osgoode Hall Law School.
On 24 May 2011 the European Commission released a communication to the European Parliament addressing the shortcomings and challenges of the current intellectual property rights regime. It proposes that a single, unified market address fragmentation problems and regulatory barriers in the European Intellectual Property Rights (IPR) landscape.
It recommends that a single, unified system be created to ensure the optimal balance between creators, service and content providers, and consumers while incentivizing creation, investment, innovation, cultural diversity and broad dissemination. Key policy reforms in the proposal are far-reaching and intersect with many aspects of the current intellectual property regime. They are summarized below:
Patents
- Create unitary patent protection to simplify administrative procedures and reduce costs associated with obtaining a patent and resolving disputes through specialized courts.
Trade Marks
- Simplify and update registration procedures consistent with modern electronic requirements. More concrete proposals to come later.
Copyright
- In 2011 proposals will be released to “create a legal framework for the collective management of copyright to enable multi-territorial and pan-European licensing,” particularly in the digital marketplace for cultural goods, possibly through the creation of a European Copyright Code.
- Explore further solutions to user-generated content that integrates copyrighted works.
- Appoint independent mediator to explore new approaches to harmonizing private copying levies.
- Preserve and disseminate Europe’s cultural heritage through innovative licensing solutions.
- Facilitate cross-border exchanges of special-format materials for the visually impaired.
- Examine journalists’ rights in light of new legal and technical developments.
- Bring performer’s rights more in line with those of authors.
- Consult on audiovisual works, rights and licences.
- Release a report on the implementation and effect of the Artists’ Resale Right.
Complementary Protection of Intangible Assets
- The Commission began to study the economic impact of inconsistent protections for trade secrets and parasitic copies between member states.
- Launch a feasibility study on the issue of Geographical Indicators for non-agricultural and non-food products, specifically the fragmented legal frameworks of the Member States.
The Fight Against Counterfeiting and Piracy
- Continue successful civil law measures allowing rights-holders to enforce their rights, such as the detention of goods suspected of infringement at the EU’s external borders.
- Review EU Customs Regulations.
- Foster public awareness and appreciation for the value of intellectual property, especially among “young people.”
- Continue to collect and report data through the European Observatory on Counterfeiting and Piracy created in 2009. Also, extend its assigned tasks to include public awareness campaigns, training of enforcement authorities and making licit offers as attractive as possible. To this end, they will require more resources and will be entrusted to the Office for Harmonisation of the Internal Market where it will improve cooperation between enforcement authorities and private stakeholders.
- Review the IPR Enforcement Directive in Spring 2012, which will examine methods of combating internet infringement more effectively and at the source while fostering the cooperation of internet service providers.
International Dimensions
- Continue support for the wide-scale ratification of the 1996 WIPO Internet Treaties.
- Following WIPO best practices when trading with the least developed countries to encourage growth while supporting their fight against intellectual property infringement.
While many of the proposals are far from fully defined and rely on a committee being formed or a future report being released, the report implicitly acknowledges that presently the system does not sufficiently address current technological developments. It acknowledges end-user interests, though it advocates changing consumer behaviour patterns rather than adapting the legal framework to accommodate those behaviours.
The lack of concrete proposals may indicate the lack of consensus within the member states on the many intellectual property issues discussed. None of the proposals are radical or new. Mostly, they advocate scaling-up already existing intellectual property mechanisms. This is unsurprising as focusing on a unified market is the raison d’être of the European Union.