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Relationship between intellectual property laws and the EU regulation

October 25, 2021

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This article is written by Vanya Verma from O.P. Jindal Global University. This article talks about the intellectual property laws in Europe and their recent developments while covering the relationship between the IPRs and the European Union Regulation.

Table of Contents

Introduction

Intellectual property rights (IPRs) are rights that give their owners the ability to prevent others from using an intangible item they own. Examples of IP rights include patents, copyrights, trademarks, trade secrets, industrial designs, databases, and other sorts of intellectual property rights. The exclusive rights given to the IPR owner are defined by specific legislation. A copyright holder, for example, can prevent others from copying a creative work such as a book or a photograph. Similarly, the owner of a patent right has the authority to prevent others from exploiting the invention described in the patent.

IPRs in Europe and recent developments

Patents

Patent reform: the unitary patent

The European Commission is working on putting together a patent package. It will establish a European patent with unitary effect and a new patent court when it comes into force. The unitary patent is a legal title that will provide uniform protection in all participating nations in a single step, resulting in significant cost savings and reduced administrative difficulties. A Unified Patent Court will be established as part of the package, which will provide a single, specialised patent court with exclusive jurisdiction over European patent litigation.

Utility model

A utility model is a registered right that allows the owner to utilise a technical invention exclusively. Utility models are frequently referred to as “petty patents” or “innovation patents” in various nations. The Commission examines the economic impact of utility model legislation, even though there is no EU-wide utility model protection. Utility model protection is not available across the EU, unlike trademark and design protection.

The Commission published a proposal for a Directive on the Protection of Utility Models in 1997, following multiple consultations. The proposal was updated in 1999, however, due to difficulties in obtaining an agreement, work on the proposal was halted in March 2000. A Community patent was granted priority. In 2006, the Commission finally withdrew the proposal.

Supplementary protection certificates

Supplementary protection certificates (SPCs) are a type of intellectual property that act as an add-on to a patent right. SPCs were formed by EU legislation to compensate for the loss of patent protection for pharmaceutical and plant protection products as a result of the extensive testing and clinical studies required before regulatory marketing approval. In the interests of public health, the EU wants to ensure adequate protection for these items while also encouraging innovation in these areas to produce smart growth and jobs.

Biotechnological inventions

Directive 98/44/EC on the legal protection of biotechnological inventions harmonises the rules on the scope and restrictions of patent protection for biotechnological inventions in the EU. Biotechnological inventions are items that contain or are made up of biological material, or processes that produce, process, or use biological material. Patentable inventions meet the general requirements for patentability, which include novelty, inventiveness, and industrial applicability.

Enhancing patent exploitation

A promise to strengthen the economic exploitation of intellectual property rights is included in the Innovation Union Communication, which provides a medium-term plan for innovation in the EU. A Staff Working Document titled “Towards enhanced patent valorisation for growth and jobs” was published to fulfil this commitment.

IP for industrial innovation

The ‘Exploitation of IP for Industrial Innovation’ study examined the design of a policy instrument that increases the chance of new business development based on the acquisition of external IP, such as unused patented inventions. It was shown that by focusing on awareness and transaction costs, a policy instrument may be established to boost the usage of external IP by small and medium-sized firms (SMEs).

The proposed policy aims to:

Help SMEs acquire external IP.

Raise awareness, and give tools to SME advisory and support organisations.

Raise awareness among SMEs.

Recent developments in patents in the EU

Patent systems are under pressure, not only in Europe but also in other countries. Patent applications and patent grants at the European Patent Office (EPO) have increased far faster than R&D inputs in the OECD countries, just as they did in the US.

In a report (FTC 2003) published by the US Federal T rade Commission, some of the welfare implications of these developments were examined. Patents have become an impediment to innovations in certain sectors, according to the findings of the investigation. Given the likelihood of such consequences, it is not surprising that patent reform has risen to the top of the public policy agenda in the United States. Changes to the US patent system have also been advocated by several other advisory bodies. To address the difficulties, the US Patent and Trademark Office (2003) published a Strategic Plan. Several large firms and Small and Medium-Sized Enterprises (SMSEs) have joined these organisations in their quest for patent reform.

Patent offices have responded to the challenge of rising workload in a variety of ways. The United States Patent and Trademark Office (USPTO) appears to have prioritised patent processing speed and “patent-granting.” Even while the EPO has permitted longer pendencies to occur, it is now under increasing pressure to reduce them, even though the number of applications is increasing. As the pressure to reduce the backlog of applications has increased, the standards used to evaluate patents in Europe may have dropped, providing even more incentives for applicants to file new applications. To maintain options in an increasingly complicated environment, applications are growing more sophisticated and include more claims. This development appears to have resulted in a vicious cycle of declining quality. Patent examiners and practitioners in patent departments are currently complaining about increased workload.

Copyright

Rights of an individual

Copyright protects your intellectual property in EU countries for 70 years after your death or 70 years after the death of the last surviving author in the case of a joint authorship work.

The duration of copyright protection outside of the EU, in any country that has signed the Berne Convention, might vary, but it must endure at least 50 years after the author’s death.

Registration can be important if one wishes to prove the existence of their work at a certain moment.

The following exclusive rights are granted to an individual as a result of copyright protection:

Economic rights – ensuring that one has control over their work and that they are compensated for its use through the sale or licencing of it.
Moral rights- are typically used to safeguard one’s right to claim authorship (right of attribution) and to reject having one’s work modified (right of integrity).

How to obtain copyright protection

One does not need to go through any formal application process if one generates literary, scientific, or creative work because one automatically has copyright protection that begins the moment one creates their work.

You may, however, need to inform others that you are the author of that piece. One can attach a copyright notice with their work, such as the wording “all rights reserved” or the symbol ©, as well as the year when it was created.

EU copyright legislation

The EU copyright law is made up of 11 directives and two regulations that aim to harmonise the fundamental rights of the writers, performers, producers, and broadcasters.

EU copyright law eliminates national disparities and ensures the level of protection required to stimulate creation and investment in creativity by establishing harmonised standards. Harmonized standards encourage cultural diversity and improve access to digital content and services for consumers and businesses across Europe.

The EU’s regulatory framework for copyright and neighbouring rights (acquis)

Satellite and Cable Directive– Directive on the coordination of certain rules concerning copyrights and rights related to copyright applicable to satellite broadcasting and cable retransmission, 27 September 1993.
Database Directive– Directive on the legal protection of databases, 11 March 1996.
InfoSoc Directive– Directive on the harmonisation of certain aspects of copyright and related rights in the information society, 22 May 2001.
Resale Right Directive– Directive on the resale right for the benefit of the author of an original work of art, 27 September 2001.
Rental and Lending Directive– Directive on rental rights and lending rights and on certain rights related to copyright in the field of intellectual property, 12 December 2006.
IPRED– Directive on the enforcement of intellectual property right, 29 April 2004.
Software Directive– Directive on the legal protection of computer programs, 23 April 2009.
Term Directive– Directive revising the earlier 2006 Directive on the protection of copyright and some related rights, 27 September 2011.
Orphan Works Directive– Directive on certain permissible uses of orphan works, 25 October 2012.
CRM Directive– on collective management of copyright and related rights and multi-territorial licencing of rights in musical works for online usage in the internal market, 26 February 2014.
Directive implementing the Marrakesh Treaty in the EU– Directive on certain permitted uses of certain works and other subject-matter protected by copyright and related rights for the benefit of people who are blind, visually impaired, or otherwise print-disabled, 13 September 2017.
The regulation implementing the Marrakesh Treaty in the EU– Regulation on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject-matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled, 13 September 2017.
Portability Regulation– Regulation on the cross-border portability of online content services in the internal market, 14 June 2017.
DSM Directive– Directive on copyright and related rights in the Digital Single Market, 17 April 2019.
Satellite and Cable II– Directive on the exercise of copyright and related rights in connection with certain online broadcasting organisations, transmissions and retransmissions of television and radio programmes, 17 April 2019.

Recent developments in copyright in the EU

The European Union Copyright Directive, passed in 1993, was a key step toward more harmonisation in Europe. The period of copyright protection was increased to 70 years as a result of this Directive (after the death of the author or creator). This option lasted longer than the Berne Convention’s time limit. The community patent (explained below) also reinstated copyrights that had previously lapsed into the public domain retroactively. The directive substantially prioritised the rights of the content producers over those of the users in this regard.

The European Parliament and Council Directive 2001/29 / EC of May 22, 2001, on the harmonisation of some aspects of copyright and related rights in the information society, represented the next stage in European harmonisation. The Directive was the European application of the WIPO Copyright Treaty, which was signed in 1996. This law, known as the EU Copyright Directive, was once again the topic of extensive and contentious public debate. The Directive includes robust copyright protection as well as a requirement for the EU member countries to establish legal protection for Digital Rights Management (DRM) systems.

In several member nations, such as Germany and France, the Directive is still being translated into national legislation. The Finnish Parliament approved the 2005 amendments to the Finnish Copyright Act and the Penal Code. These discussions have also been centred on the concept of “fair use.” In many countries, copyright legislation is accompanied by doctrines that allow specific uses of the copyrighted work to be exempted from protection. Excessive copyright protection can theoretically be used to suppress civil liberties such as the right to free speech, which is why certain exclusions are in place. “Fair use” is relevant, for example, when a critic of a literary work cited passages to comment on the work. The Directive gives EU member countries a lot of latitudes when it comes to defining various kinds of “fair use.”

Trademarks

European Union Trademark

Signs, specific words, designs, letters, numerals, colours, the shape of items, or the packaging of goods or sounds are all included in the EU Trademark.

Your trademark must be distinct and not describe the specifics of what you sell to be effectively registered.

You can register three types of trademarks: individual marks, certificate marks, and collective marks.

Individual marks are used to identify one company’s goods or services from those of its competitors. One or more legal or natural persons can register and own individual marks.
Collective marks are used to identify a collection of firms or members of an association’s goods and services from those of its competitors. Only associations of manufacturers, producers, service providers, or traders, as well as legal persons governed by public law, can register collective marks.
Certificate marks are used to show that goods or services meet the certifying institution’s or organization’s certification requirements. Any natural or legal person, including institutions, agencies, and bodies governed by public law, can register a certification mark.

Need to register an EU Trademark for business

Building a great brand is critical to business success, and preserving that brand is essential for long-term growth. The following are the primary advantages of registering a trademark:

Protect the value of your brand and the money you’ve invested in it.
Defend a trademark against a competitor’s usage;
Establish your rights;
To avoid misunderstandings and fraud;
Create a valuable asset;
Increase the value of your intel
lectual property by monetizing it.

Registration of a trademark in the EU

You can choose from a four-tier system for registering trademarks in the EU, depending on your company’s needs:

Regional level: In Belgium, the Netherlands, and/or Luxembourg, if you want to protect your brand. A trademark application can be filed with the Benelux Office of Intellectual Property (BOIP).
National level: If you wish to protect your brand in just one EU Member State, where your company is already based or where you want to do business in the future, a trademark application can be filed with the relevant national IP agency.
European level: If you wish to protect your brand in more European Union Member States. A trademark application can be filed with the European Union Intellectual Property Office (EUIPO).
International level: If you want to extend your protection to any country that has signed the Madrid Protocol, you can do so. A trademark application can be filed with the World Intellectual Property Organization (WIPO).

EU Trademark reform

A trademark can be registered in the European Union (EU) as a European Union Trade Mark (EUTM) at the European Union Intellectual Property Office (EUIPO) or as a national trademark at the intellectual property offices of the individual EU Member States. With modifications beginning in 2016, the European trademark system underwent a major transformation, which is explained below:

The EUTMR refers to the EU Trade Mark Regulation (Regulation (EU) 2017/1001), which includes EUIPO-related costs. The Regulation became effective on March 23, 2016. (or, for a few provisions, on October 1, 2017).
The European Union’s delegated rule on trademarks (EU) 2018/625.
The European Union Trade Mark Implementation Rule (EU) 2018/626.

The Trade Marks Directive (Directive (EU) 2015/2436) (the Trade Marks Directive) and national legislation of the EU Member States were to implement the Directive at the national level before January 15, 2019, except administrative cancellation proceedings, which must be introduced by January 15, 2023.

Benefits of registering a trademark

Your brand will be protected and enforced throughout the European Union once it has been registered.

In all current and future EU Member States, the owner has an exclusive right to use an EU trademark for ten years.

Recent developments in the trademark in the EU

The European Parliament and the Council adopted Rules (EU) 2015/2424 revising the Community Trademark Regulation (the Amending Regulation) on March 23, 2016.

The Amending Regulation changed the Office’s name to the European Union Intellectual Property Office, as well as the name of the trademark handled by the Office to the European Union trademark and the trademark fee structure. Changes were also made in the examining procedures, absolute grounds, objection and cancellation, relative grounds, and appeals. An overview of the changes is provided here.

The secondary legislation consists of the Delegated Regulation (EU) 2018/625, which supplements the Regulation (EU) 2017/1001, and the Implementing Regulation (EU) 2018/626, which establishes precise regulations for putting Regulation (EU) 2017/1001 into effect.

The secondary legislation includes comprehensive transitional provisions that specify when the new procedural rules will apply to cases (Transitional Provisions).

The legislative reform process recognises the European Union Trade Mark (EUTM) system’s success, showing that the system’s basic principles have stood the test of time and continue to satisfy corporate needs and expectations.

Geographical indications

How products are protected

Names of products registered as GIs are legally protected against imitation and misuse within the EU and in non-EU countries where a particular protection agreement has been negotiated as part of the EU’s system of IPRs.

Each EU country’s competent national authorities take the appropriate actions to preserve the registered names within their territory for all quality schemes. They should also take steps to prohibit and stop the illegal manufacture and selling of products with such a brand.

Non-European product names can also be registered as GIs if their country of origin has a bilateral or regional agreement with the EU that includes mutual protection.

eAmbrosia (the official database of EU GI registrations) may be used to look up GIs that have been applied for and entered into Union registers. The GI view portal can be used to look for both EU and non-EU GIs that are protected under agreements.

Geographical indications and the EU Trade Policy

Due to an increase in the number of infractions around the world, the EU supports better international protection of geographical indications. Protecting EU geographical indications is a priority for the EU in international and bilateral negotiations.

Proposals of the Commission with regard to the EU system of geographical indications

A geographical indication (GI) is a distinguishing mark used to identify a product whose quality, reputation, or other attributes are linked to its place of origin.

The Commission has recently opened a public consultation on its proposal to revise the rules on geographical indications (GIs) for agricultural products. While the current GI schemes for agricultural products are fundamentally sound, the Action Plan commits to strengthening the GI system by improving IP enforcement, empowering producer groups to protect their valuable rights, reducing internet theft, improving sustainable production under the GI schemes, and better tailoring schemes to producers in all sectors, as outlined in the Commission’s Farm to Fork Strategy.

In addition, the Commission plans to address the current fragmentation of GI protection for non-agricultural products such as Murano glass, Solingen cutlery, and Donegal tweed. Producers of industrial and handcrafted products in the EU are unable to guarantee the link between product quality and geographical origin, making such products less appealing for investment and more costly to safeguard across borders. It has issued an assessment that includes future possibilities and invites stakeholders to submit feedback.

Other types of IPR’s

As we have covered copyright and patent protection, there have been controversial debates in other areas of IP as well. This decision was made without much debate, and many observers believe that the quick adoption of database protection was a mistake. To date, there is no empirical evidence that the Directive has a favourable impact on database production operations.

Even if a complicated parallel world of national, European, and international systems still exists, trademarks and industrial designs might be considered an area where European harmonisation has been extremely successful. Trademarks are rarely discussed in public policy discussions since they do not pose any specific challenges to competition or innovation policy. With Council Regulation No 40/94 on December 20, 1993, the European Union established the Community Trade Mark Right (CTMR), which grants its owner a uniform right that is valid in all EU Member States. The Office of Harmonization for the Internal Market (OHIM) was also established as the CTMR’s central registration office. Owners of trademarks have access to a unified legal system, which includes a court of the first instance and a final instance for appeals. OHIM also serves as the registration office for unregistered (since 2001) and registered (since 2003) design rights in the EU which have been harmonized as well.

Conclusion

The future design of European IPR regulations faces three significant difficulties. Harmonization is the first among them. There is an obvious need for coming to truly European IPR policies and institutions if the EU is to become a zone where innovation may take place without being hampered by national obstacles. A focus on balance is a second crucial necessity. Scientists have disputed in an empirical and theoretical work the simplistic belief that more and stronger IPRs are always advantageous for innovation. Consumer’s fair use rights must be considered seriously in order to maintain a balance in copyrights. The public domain should be strengthened in an age where user-generated talent is becoming increasingly important. Third, IPRs granted through an assessment procedure should be of high quality, in the sense that they should provide legal certainty rather than uncertainty.

The European Patent Office, in particular, should strive to grant high-quality patent rights that are based on strict standards for novelty and inventive steps. Many users of the system, contrary to certain reports, welcome a move to stricter criteria. A new balance between business and private, non-commercial interests is needed in the realm of copyrights. For Europe to fulfil its high goals in the sphere of innovation, a free flow of ideas and information must be maintained. In the field of patents, a focus on quality and strict standards is essential to counter rising trends toward systematic exploitation. To strengthen both systems, it’s important to remember that they’re designed to serve all European citizens, not just a select group of stakeholders or users.

References

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Relationship between intellectual property laws and the EU regulation

Introduction

IPRs in Europe and recent developments