Fordham International Intellectual Property Conference, Plenary Session: IP Policy and the EU - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fordham International Intellectual Property Conference, Plenary Session: IP Policy and the EU

Fordham International Intellectual Property Conference, Plenary Session: IP Policy and the EU

Fordham International Intellectual Property Conference
“Plenary Session: IP Policy and the EU”

[Moderator: Prof. Hugh Hansen]

[9:15] Margaret Frohlinger:
Discussing domestic EU policy initiatives. Copyright, trademarks, patents, and enforcement.
Copyright: directive for extending the term of protection to 95 years. There is a lot of criticism and skepticism, especially in the academic word.
But, it is good. aligns with other nations. Combined with other provisions that strengthens rights of musicians. Session musicians would get compensation — this is groundbreaking. Thinks there is a good chance for passage.
Consultation clauses launched by Green Paper, Copyright in the Knowledge Based Economy. Exemption & Limitation of copyright, also subject of work in WIPO. Issues such as orphan works, makeing available of segments of copyrightd works such as news headlines. Big question is: How to reconcile rights of publishs with the research and economic communities, and the public? Publishers strugling to defend old brick & mortar business. Should reconcile the different interests. Currently analyzing the replies.
Dialog on Copyright levies. Most Members states have this on devices that copy. What has to be negotiated is the amount of levies between states. How caluclated, how cross border trade regulated, what devices lavied?
Not realistic to address in a legislative manner. Instead try to bring together the parties and come to an inter-industry agreement.

Trademark: Major success of reducing registration fee by 44%. Two reasons: (1) the continuous increase in revenues of OHIM resulting from continuous rise of applications. (2) decreasing costs from efficiency gains by office.
Launched major evaluation of community trademark regulation. Issues that must be addressed: Relationship between national trademark and community trademark system. Use of community trademark? Should it be sufficient to use in one member state, for validity in whole community?

Patents: Patent fight is older than the European Union. More difficult to create a community-wide patent system than creating the EU itself! Trying to give it a new push, because of its importance to EU business.
Two fights on table. Community patent. Result in a significant reduction of cost, because it would do away with translation cost, and individual review by each national office. This is supported by business interests, but not supported by every member states. Language issue for a few member states. We may have to get to a system that involves not all of the member states.
Draft proposal, and draft agreement on European patent court system. Between EU, its member states, and 3d party countries who are part of the EC and who want to join th epatent syatem. Local and regional divisions. One single appeal court. ECJ would be permitted to answer questions put to it about the interpretation of the patent laws. The EC has formally adopted a proposal which would allow amendment to be adopted. But first the ECJ must weigh in. Hope that with ECJ approval, the hold-out member states will come to the table and agree.

Enforcement: Enforcment Directive in Europe deals with civila measures. A directive dealing with criminal measures is blocked so far. Now trying to focus on practical measures aimed on increasing enforcement. European observatory launched two weeks ago — collect and present data on economic and societal impact of counterfeiting and piracy. Hoping to sway public opinion and policy-makers. We have to show the implications.
Also, launched another stakeholder dialog about counterfeit products on the internet. Rapid changes in technology. the right approach is not legislative — rather a soft approach, bringing together parties and trying to reach inter-industry cooperation agreements. If reached, could operate on an international level, which would be most effective.
Intending to launch a second dialog dealing with illegal downloading over the internet. Intent to broker an inter-industy cooperation agreement.

[4:40] [Hansen] How much do you speak with other people in commission like DG Comp?

[Margot] There is a misperception that the segments don’t speak with one another. But, there is a dialog internally. There has been a request to nominate an IP czar, following the example of the US. This is not necessary. What is better is coordination between existing structures, not new ones, new beurocracy.
DG Comp we talk to a lot. Not the case that there is infighting with DG Markets trying to strengthen protection, DG Comp trying to weaken.

[8:50] [Panelists: Prof. Dr. Reto Hilty, Tilman Luder, Hon. Paul Maier, Prof. Dr. Peter Meir-Beck, Ted Shapiro]

[Hansen] Positive about the state of trademark protection?
[] Still a lot to do.

[Hansen] What extent is OHIM’s interaction — how much do you try to be consistent through the board of appeal, ECJ — how do you manage it all and still have examiners do day to day jon?

[Paul] There is room for interpretation of the judgments. Everything is not always consistent. There is a depertment of Intellectual Property policy — instruction could be issued. Also if there needs to be communication with public. there are levels of discussion. No absolute consistency, but some judgments obviously subverted to others.
There are people who think the review done by CFI is strange … Truth is, there are enough TM specialists in the CFI, but that does not mean they connot produce consistent and good judgments.
[MArgot] Aware with problems with the ECJ and trademarks. There are no trademark specialists. that is why responsive by businesses etc not to leave patents up to the ECJ, instead to create separate court an dleave ECJ for certified questions.

[Peter Meier-Beck] Court should be able to harmonize traditional practice of patent law and the existing body of law. Build the new system on the base of existing structures. Possible to conclude this proposal will be very good.
[Hansen] Isn’t it radical, the proposal to go ahead without all of the member states?
[Peter] Reluctant to go ahead without all of them, but possible.

[Hansen] what are the issues with exceptions? Is it possible that instead of specific exemptions & limitations, just go to a flexible fair-use system?
[Hilty] No one is talking about a fair use syatem.
[Margot] We may have to consider this is the future. Because the EU lawmaking process is so slow and complicated. the lawmaking cycle takes at least 6 years! It is more and more inept to keep up with technological development. May need a more plexible system.
[Hilty] But then you need to take a step back — the idea was to collect all of the limitations from the member states, and then stop there. Difficulty with harmonization.

[Hansen] What is going on?
[Ted Shapiro] The environment, especially in the EU perilament is not favorable for IP. so it will take a long time to open up to fair use. It simply won’t work in the EU. It is not necessary because of the three-step test implemented in the majority of member states! It is flexible enough. They are having enough trouble with term extension, should open up the directive for this change. The three-step test does work, like the US fair use you apply the factors and see if the use fits.
[Hansen] Isn’t there a negative public reaction? It fuels the fire that things that should be allowed aren’t.
[Ted] In the realm of exceptions, there is room for agreements between groups. Publishers should meet with groups for the blind, to facilitate the exceptions, etc. Various dialogs. Must assure that the voices are coming from all the groups together.

[Hansen] What will happen in copyright?
[Tilman Luder] Parliament will not allow the technological issues debated behind closed doors with stakeholders. What will happen is that there will be a fair about of stakeholder negotiation, but not giving up on legislation!
there will be something in the near future on the reproduction right. The broad interpretation — what happens inside the machine — there will be quite a lot of jurisprudence, then follow-up legislation to codify. Quite an open field.
A lot of people who want the commission to write interpretive guidelines on the 3-step test. But the task of brokering agreements, is that all we will do? Or are we going to actually open up and pass legislation?

[Question] [Knomf] How come you have disregarded the recommendation against term extension and pushed ahead?
[Tilman] We have good reasons for doing this. there may be an intermediate outcome that puts term more at the time of life of performer only. But if parliament goes along with it, it must be a major success in itself, must lend some credence to the idea.

Jason Lunardi