Follow-up On IPR-II Enforcement Directive

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The Berkman Center’s wonderful Executive Director John Palfrey was kind enough to comment on my earlier post regarding the IPR-Enforcement Directive No. 2. It doesn’t come as a surprise that I share John’s fear that the vague “attempting, aiding or abetting and inciting”-standard as set forth in the proposed directive is very likely to cause much headache by increasing legal uncertainty in the current quicksilver technological environment. I’m convinced that it would have negative impacts on entrepreneurship and innovation for exactly the reasons JP mentions. In an email, our friend Mike McGuire at GartnerG2 points out that this sort of legislation – also causing uncertainty among VCs – could imperil the efforts of innovative technologies and services such as Weed, PeerImpact, playlist services, etc. that are just starting to hit the market.

However, it’s also important to note that the Commission’s proposal is only the beginning of a long conversation. Given the success of our colleagues in fighting criminal provisions in the context of the IPR Enforcement Directive No. 1 and, most recently and more generally (although not directly linked), in the case of the Software Patents Directive, I’m still hopeful that the proposed standard will not become law in Europe. Fingers crossed.

As to John’s question about the “health and safety”-rhetoric: This goes back to the 1998 Green Paper on the fight against counterfeiting and piracy in the single market (at p. 5):

“The counterfeiting and piracy phenomenon also has implications in terms of the protection of consumers who are the victims of deliberate deception as to the quality they are entitled to expect from a product bearing, say, a well known brand name. It may even have much more serious consequences where products are involved which endanger the health or safety of consumers.”

Obviously, the authors had different things in mind than online piracy of digital content. Consider, for instance, counterfeiting of pharmaceutical products or the like. Indeed, the proposed directive and framework decision would apply to any infringement of any IP rights as provided by EU legislation and/or by member state laws, including:

  • copyright,
  • rights related to copyright,
  • sui generis right of a database maker,
  • rights of the creator of the topographies of a semiconductor product,
  • trademark rights,
  • design rights,
  • patent rights, including rights derived from supplementary protection certificates,
  • geographical indications,
  • utility model rights,
  • plant variety rights,
  • trade names, in so far as these are protected as exclusive property rights in the national law concerned.

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