Every Lidl helps? A blueprint for Europe's IP

Sacré bleu! 

Merciless to the end, the European Commission waited till every Kat was out at work, toiling on other pressing projects, before releasing today's bombshell -- the announcement of a new blueprint for IP rights to boost innovation. This was a subject that cried out for a rapid response, but no Kats were there to rapidly respond (or, says the ever-pedantic Merpel, to respond rapidly in the case of those readers who are squeamish about split infinitives).  The Commission's press release, duly annotated by this Kat, is reproduced here and reads like this:

"IP/11/630

Brussels, 24 May 2011

Commission sets out "blueprint" for

IP Rights to boost creativity and innovation

[Cringeworthy introduction deleted in its entirety, together with quotes from  Internal Market Commissioner Michel Barnier and Algirdas Šemeta, Commissioner responsible for Customs].

The IPR Strategy sets out a series of short- and long-term key policy actions in various areas which include:

Patents: the Commission already launched proposals in April for a unitary patent protection under enhanced cooperation (see IP/11/470). Meanwhile, work will continue on proposals relating to the creation of a unified and specialised patent court for the classical European patents and the future European patents with unitary effect. This would considerably reduce litigation costs and the time it takes to resolve patent disputes. It would also increase legal certainty for business [Nothing new and unexpected here, though the Kat continues to ask how there is more business certainty for a patent owner whose patent is either valid or invalid, or infringed or non-infringed, in the entire EU, rather than on a country-by-country basis: he still has to make business decisions before he knows the outcome of these questions].

Trade marks: while trade mark registration in the EU has been harmonised in Member States for almost 20 years and the Community trade mark was established 15 years ago, there is an increasing demand for more streamlined, effective and consistent registration systems. The Commission intends to present proposals in 2011 to modernise the trade mark system both at EU and national levels and adapt it to the Internet era [No surprise here either, given the recent publication of the Max Planck's study, commissioned by the Commission, on these very issues.  The point to note is that proposals are expected this year. The rumour at INTA this month was that proposals were more likely in the Spring of 2012 than in the previously-touted October 2011].

Geographical indications (GIs): GIs secure a link between a product's quality and its geographical origin. However, there is currently no such system available at EU level for the protection of non-agricultural products such as Carrara marble or Solingen knives [Indeed there isn't]. This leads to an unlevel playing field in the Single Market. The Commission will therefore carry out an in-depth analysis of the existing legal framework in the Member States as well as the potential economic impact of protection for non-agricultural GIs in 2011 and 2012 [This is important since, while the playing field is unlevel, there's not a lot of anecdotal evidence that people are playing on it. Evidence-based proposals would be good]. Depending on the outcome of an impact assessment, these could eventually be followed up by legislative proposals.

Multi-territorial copyright licensing: While the substantive scope of copyright has been largely harmonised, rights are still licensed on a national basis. In view of the digital Single Market, streamlining copyright licensing and revenue distribution is one of the most important challenges that must be addressed. In the 2nd half of 2011, the Commission will submit a proposal to create a legal framework for the efficient multi-territorial collective management of copyright, in particular in the music sector. It will also establish common rules on the transparent governance and revenue distribution. In the second half of 2011, the Commission will also launch a consultation on the various issues related to the online distribution of audiovisual works [A couple of points to note here: (i) any changes must comply with the Berne Convention requirements, or Berne itself must change; (ii) given the role of the internet in the sale and supply of musical and audiovisual products, the Commission must be mindful of the interface between EU licensing provisions and those of the rest of the world, given the fact that the internet remains doggedly international].

Digital libraries: The creation of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage is key to the development of the knowledge economy. To facilitate this, the Commission is also tabling today a legislative proposal that will enable the digitisation and online availability of so-called "orphan works" (works like books and newspaper or magazine articles that are still protected by copyright but where the right holders are not known or cannot be located to obtain copyright permissions) – see MEMO/11/333. Concurrently, the Commission looks forward to concluding a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books [Merpel notes how carefully crafted this is, referring to old-fashioned things like newspapers and books which are heading for archives: the words 'photograph' and 'photographer' don't appear. Is there a reason why this might be so ...?].

IPR violations: [Usual statistics on infringement deleted] The Commission is set to intensify its efforts in this area. Firstly, the Commission has tabled a regulation today that is to reinforce the European Observatory on Counterfeiting and Piracy, which it launched in 2009, by entrusting its tasks to the Office for Harmonisation in the Internal Market (OHIM). This will allow the Observatory to benefit from OHIM's intellectual property expertise and strong record of delivery in trade marks and designs. [The Kat remains totally baffled as to what the fact that OHIM delivers trade marks has to do with the war against infringements.  Midwives are great at delivering babies, but that doesn't qualify them to bring up children. Also, he has often heard businesses complaining about deficiencies in the way rights are enforced, by them by in the public sector, but in 15 years he has yet to hear any business say "If only we had a European Observatory!"] The Regulation now passes to the European Parliament and the Council for consideration. Secondly, in Spring 2012, the Commission will propose to revise the IPR Enforcement Directive (see IP/04/540). The Directive provides for civil law measures allowing right holders to enforce their intellectual property rights but should be adapted, in particular to meet the specific challenges of the digital environment.

IPR enforcement by customs: Customs supervise all trade crossing EU external borders: they carry out controls for many purposes and have an essential role in fighting the trade in IPR infringing goods. [Horror statistics omitted] Whilst the majority of goods intercepted are counterfeit or pirated, customs' unique position at the border allows for the enforcement of a wide range of intellectual property rights. As part of today's overall IPR strategy, the Commission also proposes a new customs regulation, to further reinforce the legal framework for customs' actions. The proposal also aims to tackle the trade in small consignments of counterfeit goods sent by post as the overwhelming majority of these goods results from internet sales." [The Kats struggle to see in these words anything like "The Commission proposes to make it possible for customs to seize counterfeit goods which are passing through the territory of the EU, even if the people who profit from this trade and those who purchase such goods have the good fortune to be outside the EU, especially where it's not that difficult for such goods to slip undetected into the European marketplace"].

Says Merpel, other proposals which are missing, in no particular order, are

• Making the level playing field of the single European market even more level by annexing Switzerland;
• Enabling providers of intellectual property legal services throughout the EU to compete more fairly with one another by ensuring that Court of Justice rulings and opinions, as well as OHIM Board of Appeal decisions, were available in all the major languages of the European Union;
• Judicial decisions should be made uniform throughout the EU: French judgments should be more reasoned; German judgments should be less reasoned; English judgments should be shorter, and so on;
• The Directorate-General for Competition should be disbanded and the control of all competition matters placed in the hands of Tesco or Lidl, these being among the few enterprises in Europe that really know about competition ...