The celebration late last year of the 50th anniversary of the Centre de Études Internationales de la Propriété Intellectuelle (CEIPI) at the Université de Strasbourg, France, brought together leading figures in the European IP community. Speakers hailed the origin and successes of the IP system in Europe, and had suggestions for what do better going forward.
The event, organised by CEIPI (Centre for International Intellectual Property Studies in English), was called “Perspectives for the Intellectual Property System in a Globalized World.” It was held on 27-28 November 2014, at the Council of Europe in Strasbourg.
The event information and webcast are available here.
The subjects of the event were: perspectives for the development of the IP system in the European Union; the future of the EU patent system; and the international IP system. Three roundtables were held. This article looks at the remarks of several of the speakers.
Francis Gurry
Francis Gurry, the director general of the World Intellectual Property Organization, divided his remarks into three main areas: innovation, the creative economy, and agriculture.
Innovation
“There is a consensus around the world about the value of innovation,” he remarked. From corporations to governments, “innovation is increasingly the basis for competition in the world economy.” As the innovation ecosystem develops, there will be many implications for intellectual property, since it has a major role in “protect[ing] the competitive advantage that is secured by innovation,” he said.
Gurry noted that there has been a surge in filings for patents, trademarks, and industrial designs. This means not only an increase generally, but in particular, there has been greater activity coming from Asia. For example, Japan, China, South Korea accounted for 39 percent of all applications under the WIPO-managed Patent Cooperation Treaty, with 30 percent for all of Europe and 27 percent for the United States.
In order to manage this surge, Gurry pointed to WIPO’s strategic goal of creating “truly global systems” of intellectual property protection, with greater quality of service and a simplification of the legal framework.
Trade secrets, sometimes considered the “neglected member of the IP family,” said Gurry, are becoming more important as globalisation increases. Gurry cited four reasons for this: increased open innovation; greater mobility of skilled persons; data being produced by science without clear values (i.e., not yet eligible for protection); and the vulnerability of IP systems to espionage.
Based on these examples, the term “trade secret” is increasingly vague and “not particularly helpful,” he said. Instead, Gurry suggested we move to discussing this information in terms of “confidentiality […] which is, of course, closer to privacy and thus closer to public sympathy.”
Creative Works
Gurry then turned his attention to “the evolution of a global digital content marketplace.” Most copyright agendas have aimed at dealing with this marketplace for the past 15 years. There are two main challenges: “reproduce-ability” and “escape-ability.” That is, the disjunction between cost of production and re-production; and that works can be distributed at zero cost over the internet. We are now entering a “revolution within a revolution” where dominant models have shifted from ownership to access. For example, he said, instead of buying songs from iTunes, we are buying subscriptions from Spotify.
Gurry predicts that we will enter a fourth phase: the “seamless global digital content marketplace.” In fact, he believes an illegal marketplace of the sort already exists. Making a legal one will be challenging because the issues that compose it (data, metadata, and interoperability) do not belong to governments. This represents an enormous shared opportunity that will require a multi-stakeholder process of the sort “we don’t normally do internationally.”
Agriculture
The discussions surrounding agriculture represent “a classic example of the complexity problem as a consequence of the higher status of IP and globalisation.” With so many multilateral and bilateral agreements and negotiations, Gurry outlined two challenges moving forward: timing (“how do you get anything done with so many agreements going on?”) and coherence (“how to find a coherent view of IP when you have so many different trade approaches to the same question”).
António Campinos
António Campinos, president of the European Office for Harmonization in the Internal Market (OHIM), dedicated his time to discussing how to address the changes in the European Union’s intellectual property system to make an “IP system fit for the 21st century.” He said such a system will require not only structural changes, but greater public outreach.
Structural Changes
The EU’s two- tier system (national and EU levels) faces three specific challenges. First, there needs to be a strong understanding of who has what rights already protected. To do so is “vital, because millions of rights have been registered and we need to make sure that society and industry know what is already there.”
Citing databases such as TM View, Campinos believes that better search mechanisms are “an investment in the future of the EU trademark and design system.”
Second, Campinos stressed the importance of convergence in processes and practise. For example, it is essential that everybody agrees to the same definitions. To do otherwise is to create “negative externalities.”
Third, an IP system must provide “high quality rights,” he said, adding, “Quality is not an empty word.” Concrete examples include consistency and timeliness of decisions, efficient application processes, and robust protections. He also mentioned that convergence and greater harmonisation are closely interlinked to quality because they enable greater predictability in decisions and allow for new projects such as the European Patent Office’s Fast Track application.
Campinos cautioned that any proposed changes “will have an impact that needs to be properly assessed.” Proper impact assessment is key to being sure that any changes “contribute to building an EU IP system that is fit for the 21st century.”
Greater Outreach
Campinos reminded the audience that “IP operates in a world filled with ordinary citizens and younger people. Without their support it will be very difficult – if not impossible – to maintain an effective and efficient IP system which continues to contribute to social well-being.”
Bringing IP awareness to young people is “a critical issue,” he said, noting that the Pan-European Seal is one example of a traineeship program pursuing this goal. Such programmes “will bring major benefits whether or not [the trainees] go on to pursue careers in IP,” he said.
Campinos closed his talk by saying, “while we have become used to the freedom of people, goods, service, and capital in the EU, we still have borders in the digital arena.” He said the “digital single market” is essential for bringing the EU’s IP system into the 21st century.
Antony Taubman
Antony Taubman, director of the World Trade Organization Intellectual Property Division, provided some reflections on the 1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
“As TRIPS comes of age, I think it’s time to reflect on it as a broader framework, one that does enable that kind of diversity that we have been talking about, while also ensuring that kind of broad interoperability that certainly is part of the framework if not the workings of global seamless digital economy,” he said.
On TRIPS, he noted that while intellectual property standards are now part of the deal in trade negotiations, some key questions remain unresolved. He mentioned “non-violation” disputes, bringing up questions like “is TRIPS a ‘market access’ agreement, and what are the legitimate expectations.”
“Non-violation” disputes arise when one country challenges the legality of another’s actions, if it feels it is deprived of an expected benefit, even if no WTO agreement or commitment has been violated.
WTO members are working to resolve the non-violation issue in the TRIPS Council, “but it will not be resolved before the next year,” he said.
Taubman discussed concerns about TRIPS, starting with the initial ones when the TRIPS agreement was negotiated, such as the fragmentation of international IP law, and looking at how concerns have evolved over time to include debates on TRIPS and other issues, such as human rights, biodiversity, food security, development and public health.
Regarding the present day, Taubman said, “The theme we see now is, on the one hand, multilateral coherence, a strong effort to work towards greater coherence multilaterally, while at the same time we see bilateral diversity. We see the centre of gravity of norm-setting elsewhere well beyond the multilateral system.”
But, he said, “It is interesting to see TRIPS emerging as a kind of benchmark of legitimacy, recognition that it is a framework for a balanced coherent system.”
He referred to the WTO Council for TRIPS as “the best place to go to for a full multilateral discussion on the record between governments about how to make intellectual property work to deal with challenges of climate,” for instance.
In his concluding remarks, Taubman mentioned two challenges, the challenge of coherence, that is, how to frame TRIPS within the broader public policy context, and the challenge of legitimacy, that is, whether the TRIPS provisions are effective.
Yves Lapierre
Yves Lapierre, director general of the French National Institute of Industrial Property (INPI), in his welcome address underlined the necessary evolution of the IP system in the context of globalisation. In particular, he mentioned the implementation of the European Unitary Patent, “for which we have been waiting for the last 40 years,” and which he said is expected to happen in 2016.
Lapierre underlined the role of CEIPI and said it is at the centre stage of the international IP system. He also said “whole areas remain to be explored” to face the challenges of the IP system in the modern environment.
Today, investments in physical capital are unable to satisfy the need for innovation and some 80 percent of the value of companies is intangible, he said, with IP at the core of this value. He also stressed the fact that IP lawyers and advisers have a key role in innovation, with a cross-cutting vision of the challenges of innovation. They are essential actors, he said, and not implicated enough in the innovation cycle. They could have a stronger role in the IP strategy of companies, he said.
Christophe Geiger
Christophe Geiger, director general of CEIPI, said CEIPI is one of the oldest centres in the world dedicated to training and research on IP. The centre is working along three major axes, he said. The first is the European and international dimension of the centre. CEIPI is currently delivering patent law training in 41 cities in Europe.
In addition, CEIPI, in association with the World Intellectual Property Organization and INPI, is providing training for developing country IP professionals, he said. Since 1978, hundreds of IP specialists have been trained at CEIPI in Strasbourg, he said.
The second axis, said Geiger, is research on IP. This area has strongly developed over the last years, he said, with the objective of making CEIPI a think tank on IP. CEIPI has been providing expertise and studies to a number of bodies, such as the European Commission, the Council of Europe, WIPO and others, he said. The CEIPI mission is to share its expertise to improve the IP system, he added.
The third axis is to provide a collaborative platform for IP and innovation, Geiger said. He cited the membership of the CEIPI Administrative Council as being the “who’s who of IP,” including the president of the European Patent Office, the director general of WIPO, and the president of the Office for Harmonization in the Internal Market.
Christoph Ernst
Christoph Ernst, head of Directorate at the Federal Ministry of Justice of Germany, spoke on what outcomes the European Union should ultimately aim to achieve in its intellectual property system. He suggested the system should have three main goals: strong enforcement rights for IP owners; raising awareness with the general public; ensuring appropriate legal bases for enforcement of IP rights such that the general public can benefit from IP to the furthest extent that is fair and reasonable. Overall, he said, it must be recognised that each area of IP is “different and invoke[s] different requirements.”
Trademarks
Ernst said he sees the EU trademark developments as being “extremely positive.” The co-existence of European Community trademarks and national trademarks allows an enterprise to gain the proper protection for its size. There is no need to have all companies applying for Community trademarks.
“We have to be very careful in expanding rights,” he cautions. This diversity is one of “the strengths of the existing EU trademark system.”
With this in mind, Ernst said the current negotiations can be expected to be concluded in the near future with a positive outcome for both users and third parties. Along with co-existence, Ernst expects to see enhanced co-operation between OHIM and national offices, along with a balancing of IPR enforcement rules.
Patents
European users will soon have three options: national patents, the already existing patents under the European Patent Convention, or the new “unitary patent.” Similar to his remarks on trademarks, Ernst sees the increased options for patent seekers as a good thing. Ernst argued that the new European patent with unitary effect will be advantageous in avoiding over-protection, which is “of disadvantage and of no use” to patent holders. Ernst said implementation should be expected soon, as the formal decisions on the European level took place 2-3 years ago.
Also, the Unified Patent Court will help with enforcement of this new patent, though it is a “huge task” and will take some time to be set up, he said.
Copyright
“It is in copyright law that we face the biggest problems,” said Ernst. Copyrights require the most regulations to ensure the balance between strong and enforceable rights against fair and equitable use by third parties. There have not yet been any EU developments in copyright law, so Ernst is “anxious to see what positions the new EU Commission will take on copyright.”
Josef Drexl
Prof.Josef Drexl, honorary professor at the University of Munich and managing director of the Max Planck Institute for Innovation and Competition, spoke about the institutional setting in which European law develops. He brought up issues of rent-seeking, that is, “how much influence do individual citizens have” within the EU institutions, and credibility of the European Union.
Pointing to the issue of lack of transparency, he said “this is not only a problem of European IP law, it is an issue of Europe at large.”
Drexl compared two ways of development of European IP law: the internal one through internal legislation and its interpretation by the European Court of Justice, and the external one through trade agreements, including the Transatlantic Trade and Investment Partnership (TTIP). He said that “trade negotiations are even less transparent than the legislative procedure within the European Union.”
With regard to rent-seeking before different EU institutions, he mentioned two examples: the Commission’s recommendation on multi-territorial licensing of copyright in musical works of 2005, which “did not serve anybody, but was very much influenced by one group of particular right-holders – music publishers organisations, certainly not the authors,” and the harmonisation of national design law in 1998, which was opposed by many member states, mostly protecting the automobile industry.
According to Drexl, from these two examples we can see that “strong industry interests seem to be more successful than diffuse interests of users.”
While all institutions are potentially affected, “there is a particular risk that the Commission might come up with political proposals,” he said, considering the European Parliament to have “a vital role to oppose unbalanced proposals.”
Responding to the criticism of the European Court of Justice, Drexl said, “We need an institutional reform on the level of the Court, and maybe the Court should also admit errors.”
And according to Drexl, the European Patent Package “was a complete failure of the principle of institutional balance.” He added: “Unified patent has many advantages and would improve the system, but it causes concerns in all different sectors of IP community – industry, law firms, courts and scholarship.”
In his concluding remarks, Drexl noted that “all institutions have to keep the broader picture in mind.” Giving too much scope to rent-seeking can disrupt the credibility of the IP system and the credibility of the European Union, he said.
He suggested that “reform of the institutional setting of the Commission and the working procedures can be very helpful in having less rent-seeking.” Likewise, “creating project teams with different Commissioners will make it much harder to rent-seek and will may be create more balance,” he said.
Robin Jacob
Robin Jacob, Sir Hugh Laddie Chair of Intellectual Property Law at University College London and former Lord Justice of the Court of Appeal of England and Wales, spoke about the unitary patent and the unified patent court.
“Where we are is something like a building under construction,” he said. “We have some foundations and we have a lot of workers trying to build up a structure on top of the foundation.”
Jacob looked back at the history of the common European patent, mentioning the Strasbourg Convention of the Council of Europe, which to him “is the best substantive patent law in the world,” as well as attempts by the European Commission to create a European patent and the history of the European Patent Convention.
With respect to the unified patent court, Jacob said that the Commission “built the foundations of this building. They are not very well thought through and they contain some defects.” According to him, one such defect is the concept of divisions of the court, which “is inherently divisive.” In this regard, he suggested that “the judges should have much more flexibility about where they can be sitting and who should be sitting.”
For Jacob, the unitary patent also raises concerns. “Nobody was really calling for it,” he said. “European industry was much more interested in single adjudication of the bundle patents,” he added. To him, this is an “unnecessary complication at this stage.”
In his concluding remarks on the patent court, Jacob raised specific concerns relating to the uncertainty about the functions of controlling and technical judges as well as the fact that the court will be self-financing, which to him “is the biggest threat to this court and to the system.”
Trevor Cook
Trevor Cook, partner at WilmerHale and chairman of the British Copyright Council, discussed the issue of doubling up of IP rights at the national and EU level.
“I think we can all agree that the achievements of the European Commission in pushing forward the harmonisation of intellectual property rights in the EU and in establishing unitary intellectual property rights in some areas has been formidable,” he said.
He noted that “no area of private law has been europeanised to the extent of IP,” stressing that “the legislative achievements supplemented by the activities of the Court of Justice now reach almost every area of IP.”
However, for Cook, “if we were starting in the EU with a blank sheet of paper, the IP regime that we now have is not one that we would design. No one would ever design one with the same or in practice subtly different types of IP right at both national and EU level,” he said. This situation is only rarely alluded to, he observed.
Cook noted that the current patent system in Europe not only doubles up rights, but results in patents having multiple overlapping rights, including the new European patent with unitary effect, bundle European patents, national patents and national utility models.
“The case for abolishing those national rights that overlap with unitary EU ones is very much stronger today than it was in 2001,” he said.
Discussing the consequences of such doubling up, Cook said he finds it “hard to identify what real benefits such a situation can confer other than the dubious one of flexibility for the rights owner, or that of keeping lawyers and national IP offices busy.”
Suggesting that one approach to such a problem is “to stop granting new IP rights nationally and let all national ones die in natural death over time,” he concluded that “transition will not be easy, but we should at least be giving it a thought.”
“We should be planning for a Europe in which national rights do not double up the unitary rights,” he said.
Image Credits: CEIPI