IP in CEE: harmony and disharmony
Intellectual property (IP) and unfair commercial practices have taken big leaps towards EU-wide harmonisation over the last decades. But crucial aspects have yet to be fully harmonised, leaving room for discussion under national laws and even on the question of whether or not certain aspects are covered by harmonisation. Read on to learn about recent developments and what is coming.
Trademarks. The revised Trademark Directive brought several changes in national trademark law and practice, leading to even more harmonisation of the laws on trademarks across the EU, e.g. by abolishing ex officio examination by national offices on relative grounds for refusal (i.e. conflicts with earlier marks), bringing big changes in the Czech Republic, for example, where trademark owners now also should engage in monitoring and oppositions. Other changes concerned the mandatory implementation of opposition proceedings, which now can also be based on famous marks protection and further grounds, and the calculation of renewal periods, which is now 10 years from the application date. Despite the unitary character of EU Trademarks and the high degree of harmonisation as regards national trademarks, there are still considerable differences in relevant national legislation and practice. Regarding the formalities of registration procedures, national IP offices still follow different approaches. For example, some offices allow for fast-track applications which may mature to registration within a tremendously short time. But even when it comes to enforcing decisions of the EU Intellectual Property Office (which are based on a directly applicable EU Regulation), parties and counsels are struggling with the still surprisingly high level of disharmony within the generally harmonised system.
Copyright in the Digital Single Market. Following intense discussions, the EU Parliament finally passed the Directive on Copyright in the Digital Single Market (DSM) in 2019, pushing the harmonisation of certain copyright aspects into the digital age, as part of the EU Commission's broader DSM strategy. Among other things, the Directive foresees specific rules on online platforms and defence mechanisms for press publications. However, despite these EC initiatives towards making harmonised copyright law fit for the digital age, many other aspects of the copyright protection system still lack harmonisation. It remains to be seen whether the newly appointed EC will attempt to open up discussions even on a unitary EU-wide copyright system – a major task which would severely impact the current territorial content licensing practice (which anyway already has been jeopardised by the EU Portability Regulation on subscription on demand content). And new challenges, such as AI creations, are already appearing on the horizon, raising the question of whether this should be dealt with under national copyright law or whether it would be more beneficial to agree on an EU-wide copyright framework.
Know-how protection. 2019 has seen the implementation of the EU Trade Secrets Directive into national laws, bringing harmony into the so far scattered landscape of trade secret protection. This allows businesses to develop and implement regional know-how and trade secret protection regimes. But this (minimum) harmonisation comes with a price, as according to the new legal framework, trade secrets now must be subject to appropriate confidentiality measures, which still will have to be determined under national law and legal practice, at least until the CJEU may give its initial guidance in a few years.
Unfair commercial practices and advertising. A growing number of cases are decided by the CJEU based on the Unfair Commercial Practice Directive (UCPD), which fully harmonised regulations on B2C advertising and commercial practices. In 2019, the CJEU had the chance to outline the boundaries of the UCPD, clarifying that while it quite broadly regulates how services are provided by businesses, it does not regulate the requirements authorising such businesses to provide the services, which remain to be determined by national legislation (Case C-393/17, Kirschstein). The future likely will bring further harmonisation in this area as part of the "New Deal for Consumers" propagated by the EC.
Patents. Unlike national patents or even the filing facilitation of the European Patent, the Unified Patent system would allow applicants to obtain one single patent with unitary effect. To ensure proper and unitary enforcement, the system even ties a unitary court system to it. Austria was the front runner in ratifying the Unitary Patent Court (UPC) agreement back in 2013. However, for the Unified Patent to enter into force, the UPC agreement must be ratified inter alia by the UK and Germany. In 2019, all eyes were on Germany, which did not ratify the agreement due to a pending German Constitutional Court complaint. Further uncertainties came with the Brexit discussions, as it remains unclear whether and how the UK leaving the EU might jeopardise the UK's ability to maintain part of the Unitary Patent system. It will be seen in 2020 whether, when and where the Unitary Patent finally will enter into force. Other challenges in the patent sector continue to be the different national systems on employee inventions and particularly the remunerations to be paid to inventors and new issues arising from artificial intelligence – both on the question of whether and how AI and self-learning algorithms could be protected and on whether and how inventions made by such algorithms could be protected (and whom they should be attributed to). On the other hand, the EU Enforcement Directive already harmonises certain aspects of IP rights enforcement. Thus, the still rather scattered enforcement practice in EU Member States is indeed heading towards common standards. In 2019, the CJEU had a chance to give guidance in a patent case on the liability regimes for (un)justified preliminary injunctions (Case C-688/17, Bayer Pharma/Richter Gedeon), leading to the question of whether existing legislation and case law in several EU Member States (including Hungary and Austria) would be in line with the Directive. Furthermore, the proximity to harmonised EU competition law brought some more harmonisation, but also more room for discussion, over standard essential patents (SEPs).
Media law & personality rights. While personality rights and large parts of media law are still governed by national legislation, in the digital age, platform operators such as Facebook and YouTube are increasingly the focus of public and legal discussions on their liability for third-party content posted on the platforms. Based on the E-Commerce Directive, the CJEU, in a 2019 hate speech case involving the former Austrian Green party leader, clarified that platform operators can be ordered to remove not only identical but in some cases even equivalent infringing content posted by third parties, and that EU law does not prevent national courts from ordering the removal of infringing content worldwide (Case C-18/18, Glawischnig-Piesczek/Facebook Ireland Ltd). This certainly will not be the end of the discussion, as further requests for preliminary rulings on the liability of platform operators are pending at the CJEU. These developments are shaping and harmonising the methods to enforce personality rights in an online world, which of course need to be balanced against the interests of intermediary platform operators that often do not have the means to check third-party content posted on their platforms.