Intellectual property law and the Single Market: the way ahead

ERA Forum, Jul 2014

Florence Hartmann-Vareilles

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Intellectual property law and the Single Market: the way ahead

Florence Hartmann-Vareilles 0 0 F. Hartmann-Vareilles, Head of Section for Business Law ( 1 Introduction: Intellectual property as a tool to reach the goals of the single market The value of intellectual property as a way for companies to generate income through the licensing, sale, or commercialisation of products or services protected as intellectual property is now well established. At the macro-economic level, the importance of intellectual property is also recognised. As underlined in the 2011 Communication from the European Commission,1 appropriate protection of intellectual property is an essential factor for sustainable and integrative growth in the European Union and for the competitiveness of the European economy. Intellectual property is therefore seen as a key element in order to reach the targets of growth and employment of the Single Market. According to the study carried out in 2013 by the European Patent Office (EPO) and by the Office for Harmonization in the Internal Market (OHIM), acting through the European Observatory on Infringements of Intellectual Property rights, IPR-intensive industries2 are shown to have generated almost 26 % of all jobs in the 1Communication from the European Commission, COM(2011) 287 final from 24.5.2011 on A Single Market for Intellectual Property Rights: Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe. 2IPR-intensive industries are defined as those having an above-average use of IPR per employee. See for more information: Study on Intellectual property rights intensive industries: contribution to economic performance and employment in the European Union, Industry-Level Analysis Report, September 2013; A joint project between the EPO and the OHIM, at: http://ec.europa.eu/internal_market/ intellectual-property/docs/joint-report-epo-ohim-final-version_en.pdf. - EU during the period 20082010 and almost 39 % of total economic activity (GDP) in the EU. It comes, therefore, as no surprise that the protection of intellectual property rights has been the subject of major EU and national legislative developments within the last couple of years. Recent EU initiatives include, among others, the adoption in 2012 of a Directive setting out common rules on the digitisation and online display of so-called orphan works,3 a Regulation in 2013 reinforcing customs enforcement of intellectual property rights4 and, in 2014, a Directive on collective rights management and multi-territorial licensing of rights in musical works for online uses.5 Recent activities aimed at adapting the EU legal framework for copyright to the development of new technologies are still ongoing. Two well-advanced initiatives in the area of industrial property law are worthy of further elaboration in this editorial. The first concerns the creation of a unitary patent protection in the European Union and the second is the reform of the trade mark system. 2 The breakthrough on the patent package: between flexibility and asymmetry 2.1 The unitary patent with unitary effect: bringing new opportunities for patent protection in the European Union Up to now, inventions can be protected in Europe either by national patents granted by the competent national authorities, or by European patents granted centrally by the European Patent Office. The most remarkable, innovative EU political development for industrial property rights is undoubtedly the adoption of a legal framework6 for the creation, of a unitary patent title within the European Union. Two Regulations adopted in 2012 under Article 118 TFEU will soon ensure uniform protection for an invention across the Member States on a one-stop shop basis. This ground-breaking new system, adopted at the end of last year after lengthy and often contentious discussions on language regime and translation costs, creates an innovative but asymmetric legal construction. This complex legal scheme is characterised by a unitary patent title created by the European Union, which will be granted by the European Patent Office (EPO) as a non-EU institution, the validity of which will be put under the scrutiny of a centralised supra-national Court, created on the basis of an international Agreement. 4Regulation (EU) No. 608/2013 of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No. 1383/2003 (OJEU, L 181, 29.06.2013). 5Directive 2014/26/EU on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJEU, L 84, 20.03.2014). 6Regulation (EU) No. 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (OJEU L 361, 31.12.2012) and Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the cr (...truncated)


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Florence Hartmann-Vareilles. Intellectual property law and the Single Market: the way ahead, ERA Forum, 2014, pp. 159-168, Volume 15, Issue 2, DOI: 10.1007/s12027-014-0349-9