La estrategia europea en propiedad intelectual e industrial

La Comisión Europea presentó el pasado 24 de mayo, un importante informe sobre lo que denomina su estrategia en materia propia intelectual (MEMO/11/332). La estrategia comprende tanto lo que encuadramos en ese concepto, como los derechos vinculados con la propiedad industrial. Se trata, por lo tanto, de una previsión de actuación normativa y de impulso de la Comisión Europea que se incardina en tendencias de la actividad empresarial que presentan una enorme pujanza. La necesidad de garantizar la tutela de esos derechos en un ámbito internacional cada vez más amplio y ante posibles ataques que se producen en el marco de la generalización de internet, influyen en las propuestas que hace la Comisión Europea. El documento se refiere a la labor realizada hasta el presente, esboza un diagnóstico de los problemas e incluye el anuncio de futuras medidas a adoptar. En particular, en materia de derechos de propiedad industrial:

“8. What is the IPR Strategy proposing for Industrial property rights?

(1) Patents: It is very costly and complex to obtain and enforce patent protection in Europe. Therefore, the Commission has launched in April proposals for the creation of unitary patent protection in the framework of enhanced cooperation (see IP/11/470). In addition, after the opinion of the EU Court of Justice in March, work has also resumed on the establishment of a unified and specialised patent court for classical European patents and future European patents with unitary effect. A unified patent court will increase legal certainty for business and avoid the same patent cases being dealt with in courts of different Member States, potentially resulting in contradictory judgments. It would also considerably reduce litigation costs and the time it takes to resolve patent disputes.

(2) Trade marks: It’s been over 15 years since the harmonisation of domestic trade mark legislation and the creation of the Community trade mark. A comprehensive revision of the trade mark system in Europe is necessary to modernise this system both at EU and national levels by making it more effective, efficient and consistent as a whole, including through increased cooperation between the OHIM (the Office of Harmonisation for the Internal Market, based in Alicante) and national trade mark offices. The Commission intends to present proposals to revise both the Community Trade Mark Regulation and the Trade Mark Directive in the last quarter of 2011.

(3) Geographical indications (GIs): GIs secure a link between a product’s quality and its geographical origin. Under EU law, agricultural products such as champagne, Feta cheese and Parma ham already enjoy name protection. However, apart from legislation that exists in some Member States, there are no EU-wide rules that ensure name protection for non-agricultural products such as Carrara marble, Solingen knives, Herend porcelain or Calais lace. This fragmentation or absence of protection in a number of Member States means that there is an unlevel playing field in the European Union which could negatively affect the functioning of the Internal Market The Commission is about to launch a feasibility study that will consider an EU-wide protection of GIs for non-agricultural products. Based on the results of this work, an impact assessment analysing different options could be carried out in 2012 followed by eventual proposals”.

A continuación también se formulan previsiones sobre nuevas medidas en materia de copyright:

“9. What is the IPR Strategy proposing concerning copyright?

(1) In 2011, the Commission will present a legislative proposal to simplify the collective management of copyright in the EU. Collecting societies licence the rights of creators and collect and distribute their royalties. The Commission’s focus will be two-fold. First will be the establishment of common rules for collecting societies in order to enhance the governance and transparency of all collectively-managed revenue streams. Clearer rules on the governance and transparency of collecting societies will create a level playing field amongst right holders, commercial users and collecting societies. Second, the creation of a clear and well-functioning legal framework for the multi-territorial licensing of musical works for online services will encourage the take-up of new business models to provide online services to European consumers.

(2) In order to promote the dissemination of Europe’s intellectual and cultural heritage, the Commission has today tabled a legislative proposal to facilitate the digitisation and making available of “orphan works” (see MEMO/11/333). Orphan works are works such as books, newspapers or films that are still protected by copyright but the copyright holders are not known or locatable. Therefore, they cannot be contacted to give their permission to libraries and archives to digitise their works and make them available online. The lack of a common EU framework on orphan works is impeding the development of European large-scale digital libraries and the functioning of the European a portal (see for example IP/09/1544). As part of its efforts in the creation of digital libraries, the Commission is also supporting efforts for the conclusion of an agreement between authors, publishers, libraries and collecting societies to enable the online access to out-of commerce books through licensing models. The agreement is expected to be adopted in mid-2011. Out-of-commerce books are works that are in copyright but that are no longer commercially available in traditional or new electronic formats. They differ from orphan works in that their right holders (authors and publishers) are known and locatable.

(3) The proper functioning of the Internal Market requires the development of a durable approach to private copying levies. Remuneration for private copying of copyright-protected works is collected in the form of levies on recording media or recording equipment (photocopiers, printers, Mp3 players, CDs and DVDs etc.). However, different rules and tariffs apply across Member States. This impedes the smooth cross-border flow of goods that are subject to levies. The Commission will appoint a high-level mediator, tasked with resolving differences amongst relevant stakeholders to find workable solutions to improve the administration of levies and which will be used as the basis for legislative action. The issues that will be looked at specifically are the methodology used to impose set tariffs, which equipment should be subject to levies, and ways to improve the cross-border functioning of disparate national levy systems.

(4) In the audio-visual sector, the Commission will launch a public consultation on the online distribution of audiovisual works. A consultative Green Paper is due for adoption in October 2011. On the basis of the results, the Commission will determine whether any follow-up action needs to be taken in order to stimulate the European audiovisual sector as regards issues such as video-on-demand (VoD) services and cross-border broadcast services.

(5) In October 2011, the Commission will present its report on the application of the Artists’ Resale Right Directive as required by Article 11 of the Directive. One aspect of the report is to quantify the impact that the resale right has had on the sale of works whose authors have deceased (“hereditary resale right”). Five of the 27 Member States (the United Kingdom, the Netherlands, Austria, Malta and Ireland) currently benefit from an exemption to apply the hereditary resale right which expires on 1 January 2012. The Commission is currently analysing the results of a public consultation on the Directive’s implementation in order to quantify the impact of the hereditary resale right on the Internal Market.

(6) As part of its long-term strategy on copyright, the Commission will assess the feasibility of creating a European Copyright Code. A future Code could envisage a comprehensive codification of the EU copyright directives and provide an opportunity to examine the feasibility of an optional “unitary” copyright title to provide right holders with the flexibility to choose whether to license and enforce their copyrights nationally or on a multi-territory basis. Given its far-reaching implications, the creation of a European Copyright Code requires further study and analysis”.

En cuanto a las medidas de protección ante la “piratería”:

10. Concerning enforcement in the Strategy, what is the Commission’s position regarding illegal downloading?

The Strategy promotes an approach aimed at tackling infringements at their source. Illegal file sharing is a complex phenomenon and involves several different parties all playing a specific role, the Internet Access Provider being one of them.

The follow-up work announced in the Strategy will focus on service providers who either infringe copyright themselves or who systematically and knowingly facilitate or sustain the piracy activities of others, and profit there from. Such an approach will target the corrosive forces driving online piracy, while respecting at the same time the innovative powers of broadband internet without prejudging the legitimate interest of consumers, including those who download. All service providers concerned have to respect an appropriate level of care in their commercial operations.

This approach fully complies and does not alter the existing rules on limited liability for certain types of ISP activities, such as laid down in the e-Commerce Directive. It also does not change the current possibility in the EU acquis to have injunctions imposed by courts upon internet intermediaries who are not infringing themselves but whose networks are used by third parties to infringe.

Along the lines set out in the Strategy and in compliance with the Commission’s Better Regulation approach, the Commission services are currently preparing, in full consultation with all stakeholders concerned, an Impact Assessment on the different potential options for action, on the basis of which the Commission will decide on the way forward. All options are on the table”. 

Madrid, 6 de junio de 2011