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

2. 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

3. 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.

4. 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”

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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!

15. Questions?
Thank you!