EU Patent and Copyright Reform Professor David C Musker Centre for Commercial Law Studies Queen Mary University of London

Major EU Patent Law Reform Two major EU reform measures: The Unitary Patent – single patent for whole EU, significant cost reduction The Unified Patent Court – harmonisation of infringement, central court These have been European policy objectives for 60 years However, they are currently stalled because of: German Constitutional Court challenge, and UK Withdrawal from the EU Under the present text, both UK and Germany must ratify – UK has done so Amendment or abandonment will be required. The first would prevent German ratification and participation The second will prevent UK future participation

Minor Patent Reforms 1 - Biological products and processes Conflict of interpretation between the European Patent Office (EPO) and the EU EU adopted a Biotechnology Directive, implemented by the EPO as a rule change only In 2015, the EPO Enlarged Board of Appeal held that although biological processes were excluded, products of such processes were not. Double-protection of plants by patent and by Plant Variety thus arose The EU Commission sent a Notice to the EPO requesting change The EPO Rules were changed in 2016.

Minor Reforms 2 – IT and AI patents New EPO Guidelines were issued in October 2018 Sympathetic to AI and modelling inventions; also “low-level” software Claiming use of AI per se unlikely to be “technical”, but “Where a classification method serves a technical purpose, the steps of generating the training set and training the classifier may also contribute to the technical character of the invention if they support achieving that technical purpose” “The computer-implemented simulation of the behaviour of an adequately defined class of technical items, or specific technical processes, under technically relevant conditions qualifies as a technical purpose”

Minor Patent Reforms 3 - Collaborations The EPO now has “Validation Agreements”, recognising European Patents with local effect, with Cambodia, Tunisia, Morocco and the Republic of Moldova Very similar to “Extension States” Bosnia-Herzegovina and Montenegro, but these are EU-applicant states Similar effect to re-registration in HK(SAR), except that fees are paid to the EPO There is an increasing rollout of “Fast-Track” agreements with other Patent Offices worldwide – essentially a limited form of de facto mutual recognition

The EU Copyright Statute Book Date Jnstument Number Short name 27-Sep-93 Directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission 93/83/EEC Satellite and Cable Directive 11-Mar-96 Directive on the legal protection of databases 96/9/EC Database Directive 20-Nov-98 Directive on the legal protection of services based on or consisting of conditional access 98/84/EC Conditional Access Directive 08-Jun-00 Directive on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market 2000/31/EC E-commerce Directive 22-May-01 Directive on the harmonisation of certain aspects of copyright and related rights in the information society 2001/29/EC InfoSoc Directive 27-Sep-01 Directive on the resale right for the benefit of the author of an original work of art 2001/84/EC Resale Right Directive 29-Apr-04 Directive on the enforcement of intellectual property rights 2004/48/EC IPRED 12-Dec-06 Directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property (recast version of 92/100/EEC) 006/115/EC Rental and Lending Directive 23-Apr-09 Directive on the legal protection of computer programs (re-cast version of 91/250/EEC) 2009/24/EC Software Directive 27-Sep-11 Directive on the term of protection of copyright and certain related rights (re-cast version of 93/98/EEC) 2006/116/EC Term Directive 25-Oct-12 Directive on certain permitted uses of orphan works 2012/28/EU Orphan Works Directive 26-Feb-14 Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market 2014/26/EU CRM Directive 14-Jun-17 Regulation on cross-border portability of online content services in the internal market (EU) 2017/1128 Portability Regulation 13-Sep-17 Directive on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind visually impaired or otherwise print-disabled (EU) 2017/1564 Directive implementing the Marrakech Treaty Regulation on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind visually impaired or otherwise print-disabled (EU) 2017/1563 Regulation implementing the Marrakech Treaty

Copyright Reform – Objectives Increase cross-border access to digital content for consumers Remove trade barriers to digital single market within the EU Increase access to protected material for education, research, cultural heritage and disability Provide suitable cross-cutting exceptions to infringement Support EU investment in creating high-quality content Increase remuneration of creators and publishers

Copyright Reform – Strands “Portability Regulation” Allows subscribers to watch content in other EU countries as from 1 April 2018 Marrakesh Treaty, Directive and Regulation Introduces an exception to infringement for accessible versions of books for the blind Review of Database Protection Directive Study concludes – No evidence of economic impact, positive or negative EU concludes – No change needed at this time Review of IP obstacles and opportunities re: free movement of data Study concludes – no significant IP obstacles EU concludes – no need to introduce ownership regime for data Proposed Directive on Copyright in the Digital Single Market Addresses exceptions Addresses remuneration Proposed in 2016, currently in progress

Copyright Reform - Players EU Commission Parliament Traditional parties Data Policy and Innovation (Unit G.1) Green Party, Pirate Party Copyright (Unit I.2) Council National Governments Proposal Amendments New law

Content of the Draft Copyright Directive - 1 Exceptions for: Article 3 Text and data mining for the purposes of scientific research Article 3a Optional exception or limitation for text and data mining Article 4 Use of works and other subject-matter in digital and cross-border teaching activities Article 5 Preservation of cultural heritage

Content of the Draft Copyright Directive - 2 Collective rights management: Article 7 Use of out-of-commerce works by cultural heritage institutions Article 9a Collective licensing with an extended effect (can represent non-members too) Article 10 Impartial mediation to be available for audiovisual works on video-on-demand platforms

Content of the Draft Copyright Directive - 3 Improved rights for performers and authors Article 14 Transparency obligation - annual statements Article 15 Contract adjustment mechanism - unduly low amounts may be renegotiated Improved rights for publishers of press publications Article 11 Publishers to have the same rights as against e-commerce service providers as authors, for one (calendar) year from publication

Content of the Draft Copyright Directive - 4 Content-sharing sites (e.g. Youtube): Article 13 Use of protected content by online content sharing service providers Controversial proposal to make content sharers either: Seek permission, or Take steps to prevent unauthorised upload, and Take down works on complaint

Status of the Draft Copyright Directive Amendments from Council in May 2018 Parliament rejection in July 2018 Parliament acceptance with amendments in September 2018 WATCH THIS SPACE!

Questions? Thank you! d.musker@qmul.ac.uk