[et_pb_section bb_built=”1″ _builder_version=”3.19.5″][et_pb_row][et_pb_column type=”2_5″][et_pb_image _builder_version=”3.19.5″ src=”https://vidalquadrasramon.com/wp-content/uploads/2020/12/VQR_LAW_NEW31.jpg” /][/et_pb_column][et_pb_column type=”3_5″][et_pb_post_title _builder_version=”3.19.5″ comments=”off” featured_image=”off” /][et_pb_text _builder_version=”3.19.5″]
On 25 November last, the EU released its ‘IP Action Plan‘. A programme of major objectives for the Union in the coming years. The Roadmap, published on 10 July, opened a public consultation period of less than two months, until 31 August (when the EU citizenship is on Summer holiday and at the height of the pandemic). It stated that “The EU needs to better protect & manage IP if it is to assume leadership in key industrial areas & improve resilience to health & economic crises, while moving towards a greener, more digital economy“.
The publication of this ‘IP Action Plan‘ comes just one year after the appointment of Ursula von der Leyen as President of the European Commission. At that time, the European Union was living in a time that has changed dramatically in twelve months.
The Commission’s programme, in what seems to be a formal alignment with today’s needs, but with a flavour of pre-COVID times, is developed in the following points:
- The challenge ahead: capitalising on Europe’s intellectual assets to boost recovery and resilience
- Better protection of IP
- Promoting an effective use and deployment of IP, in particular by SMEs
- Easier access to and sharing of IP -protected assets
- Fighting IPR infringements
- Fair play at global level
- Working together with member states and stakeholders
In its introduction, the Commission notes that “Intangible assets such as inventions, artistic and cultural creations, brands, software, know-how, business processes and data are the cornerstones of today’s economy“. On this basis, the Commission states in its introduction that “There is a need to further build on our strengths by upgrading the EU’s framework, where needed, and putting in place well-calibrated IP policies to help companies capitalise on their inventions and creations, whilst at the same time ensuring that inventions and creations are serving economy and society at large” and that “it is therefore necessary to maximise the incentives to bring out this potential and to put our companies on track towards economic recovery and Europe’s global green and digital leadership“. Under these premises, the Commission goes deeper into what, in its opinion, should be made to make progress on IP within the European Union, identifying 5 challenges:
- Part of the EU’s IP system remains too fragmented, with procedures that are complex and costly and that sometimes lack clarity: the Commission finds that “one-stop shop procedures, offering the right coverage, should be the norm, not the exception“. It is questionable whether such a simplistic view responds to the statement.
- Too many companies, in particular SMEs, and too many researchers do not make full use of the opportunities offered by IP protection: “[e]ven if they use IPRs, they find the system too costly, complex and difficult to navigate“. Once again in the area of industrial policy, it seems that the Commission makes use SMEs enterprises to make assumptions that do not benefit those undertakings, as we will find out in the coming weeks.
- Tools to facilitate access to IP (and therefore allow the take up and diffusion of technologies) are insufficiently developed: “The EU should further enhance its tools to make such innovations and technologies available, where needed, whilst ensuring a fair return on investment“. As we shall see, this statement is limited to concerns about patents on essential standards (SEPs).
- In spite of continued efforts to turn the tide, counterfeiting and piracy are still thriving, including by taking advantage of digital technologies: the Commission focuses its attention on IP infringement through new technologies, pointing to the growth of infringements in this area and the cost involved. Let us hope that this does not result in an attempt to stem the tide and try to prevent the natural evolution of a growing market with the subsequent industrial cost that this would entail, but rather to meet the challenges by adapting to a technological reality that is the future of the new generations.
- There is lack of fair play at global level and EU businesses often lose out when operating abroad: “The EU must harness its potential to act as a global norm-setter“. This statement is more reminiscent of a position of the mid-1990s than of a world that has changed radically in 25 years. It is not a question of designing the post-TRIPs era, but the post-COVID times.
These programmatic considerations are focused on five policy projects, with their respective implementation dates:
- The first draft is on a non-EU law that is based on another non-EU law: “we need to secure the launch of the unitary patent system” (2021).
- The second programmatic plan concerns Supplementary Protection Certificates (SPCs): “while the SPC system remains relevant, it suffers from fragmented implementation across Member States” (Q1 2022).
- Thirdly, the Commission announces that it will review the EU legislation on design protection: “[t]he aim is to improve the accessibility and affordability of design protection in the EU” (Q4 2021).
- A fourth area of attention is the protection of geographical indications (GIs): “the Commission will look at ways to strengthen, modernise, streamline and better enforce GIs for agricultural products, food, wines and spirits” (Q4 2021).
- Finally, the Plan focuses on the Community Plant Variety Rights (CPVR) system: although it only notes that it “will continue to monitor the proper application of the system and seek to bring in further improvements, where needed” (Q4 2022).
In addition to these areas where legislative action will be required, the Commission sets out two aspects on which it will focus its efforts:
- To facilitate licensing and sharing of IP, the Commission will
- ensure the availability of critical IP in times of crisis, including via new licensing tools and a system to co-ordinate compulsory licensing (2021-22)
- improve transparency and predictability in SEP licensing via encouraging industry-led initiatives, in the most affected sectors, combined with possible reforms, including regulatory if and where needed, aiming to clarify and improve the SEPs framework and offer effective transparency tools (Q1 2022).
- promote data access and sharing, while safeguarding legitimate interests, via clarification of certain key provisions of the Trade Secrets Directive and a review of the Database Directive (Q3 2021).
- To fight against IPR infringements, the Commission will:
- clarify and upgrade the responsibilities of digital services, in particular online platforms, through the Digital Services Act (Q4 2020);
- strengthen the role of OLAF in the fight against counterfeiting and piracy (2022); and
- establish an EU Toolbox against counterfeiting setting out principles for joint action, cooperation and data sharing among right holders, intermediaries and law enforcement authorities (Q2 2022).
In short, an ambitious programme, in which perhaps too much expectation is placed. Whether it is adapted to the reality of the EU’s current needs and whether it meets the expectations placed on it remains to be seen. Perhaps it is too ambitious and lacks a systematic structure in the context of market law and consumer protection, principles which, we should not forget intellectual property must ultimately address.
The Commission’s ‘IP Action Plan‘ is accompanied by a whole series of studies and analyses that need to be analysed carefully and calmly. Over the coming weeks we will be looking at each of these areas in more detail.
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]