ECTA, DAY THREE: On Different Perspectives and Progress
On the final morning of the ECTA Annual Meeting, the first four sessions were all about presenting different points of view on the same topic. One session was on Prior Rights Agreements, introducing the topic from an industry worker’s perspective and a practitioner’s. The parallel session was on Copyrights. The first speaker was Dr. Florian Drücke from German Federation of the Music Industry. He started by admitting that the industry reacted very late to the emerge of the Internet. They did not take it seriously until early 2000, but, after realizing it is a tool that is here to stay, expressly started finding ways to protect copyright online. Their current goal is the development of a sustainable digital market and establishing better offer of legally downloadable goods. However, battling pirate content is proving to be very hard. They are using two methods, “follow the money”, where they are following the money path to the first uploader of the content, and “notice-and-takedown/staydown” strategy, but these fights are taking up a lot of time and effort. The thing that makes it easier is cross-border enforcement and awareness raising initiatives. Although they both still need some refinement, they are proving to be successful in the long run.
Next, we heard about the different debates concerning exceptions and fair use in copyright by Prof. Niklas Bruun. He talked about the WIPO, WTO, EU and US debates and how big of an impact they have on this subject. He summarized by saying the EU uses Berne Convention’s 3-step test and that the author has the exclusive right to authorize reproduction of his work and that the EU Member States decide their own exemptions, while the US approach is inclining towards “fair use” concept.
Finally, we heard about future technology developments and how will legislation and practice have to deal with it. The Internet is now a network including the Internet of people, things and services. Therefore, it is unavoidable, and it is up to us to adjust. All “smart” objects contain a copyrighted software, which is then licensed to the end user. This may be considered as restricting user freedom in the market, and even the courts are in disagreement on this topic. The US Courts find it permissible, while the EU Court does think it is a restriction. The EU Courts have not yet taken (but will soon) a stand towards market dominance that occurs with the network of smart objects. They usually connect with one another, creating a network of compatible products. The next problem we might have to tackle is a smart object as an author of copyrighted work. The famous example the court had to decide on was selfie-taking monkey, but smart object could create works far more sophisticated works than this. Although in concordance that an animal or a machine cannot have copyright, it is debatable if there is a person who is entitled to it and who that person is.
The next two parallel sessions were about filing a global trademark without national objections and IP matters in China. There is a dialogue between the EU and China lasting for over a decade now. This strategy coordination led to many improvements. Some of the current topics discussed are the problems of the 2014 Chinese Trademark Reform (like battling bad faith applications), Patent System amendments, protection of trade secrets, judicial and academic cooperation, and fighting online sale of counterfeit goods. A special problem is the lack of IP Courts in China (only 3 now, all in big cities, but, the problems constantly emerge in the smaller towns and villages). When it comes to the distribution of pirated goods, enforcement has been singled out as the biggest problem. Due to the size of the country, it is very hard to cover all places where fakes are being developed. The European Commission has suggested the “follow the money” approach, but it has not yet marked any success. The biggest problem of the Chinese system still remains its “double track system”. You can choose either the administrative or judicial path for protection, but they do not cooperate. In fact, they tend to deliberately ignore each other.
Talking about the changes in the Chinese trademark system, they can be divided into three categories: procedural, substantial and enforcement changes. Procedural changes include the possibility of registering sound marks (so far, there has not been a single registration), easy e-filing and multiclass applications. However, the latter are not recommended because the possibility of division later is very limited. Also, a good tool in theory are examination notices, which allow for correspondence with the examiner in order to amend the application instead of rejecting it. However, the examiners do not use this because of their huge workload. Further, the right to oppose a trademark is given solely to the owner of prior right and it has to be done within 12 months. If you fail with the opposition, there is no court remedy, and your TM will be deleted automatically. Regarding substantive changes, the most important ones include the definition of use and infringement of a trademark. Also, you can ask for revocation of third party trademark if you can prove the third party knew about your trademark or prove first use, even though you trademark has not yet been registered. From an enforcement standpoint, the penalty has increased to up to five times the illegal turnover and up to 250000 CNY (approximately 35000 EUR). If there are “serious consequences”, the damages triple. A useful tool is that the Court can order a party to disclose account books under the threat of higher damages.
Finally, we received a real example of how the Chinese system works. Thomas Jullien of the Bordeaux Wine Council told us the story of registering a collective mark in China, and all the obstacles they encountered with Chinese administration. In the end, they were successful, but it took a lot of work and strategizing. The future for them is obtaining the status of a well-known mark, which also does not come very easily.
The next session was a very inspiring and modern outlook on all the changes technology brings and the roles of lawyers in it. Titling his presentation “Rogue Waves and Crosswinds: The past and the future of intangible assets in a digital, networked world”, Mr. Mladen Vukmir said that this is the time we are redefining sovereignty. Every technology changes the definition of copyright, and to truly innovate in our profession means more than just to adapt to the change. If we do not embrace it, we cannot control it. The recent movement goes towards the maxim “Authenticity is invaluable, originality is non-existent”. There are not many new things to be discovered, but putting your own mark on someone else’s idea or using it as a starting point, this is where copyright protection is headed towards. How should IP practitioners swim in these new waters? It is important to remember that the law does not come first, people and innovation come first, and law should serve them, and not the other way around.
The closing session of the Meeting was an update on current case law. First from Mr. Justice Arnold, Judge of the Chancery Division of the High Court England and Wales. Reassuring us that Britain’s recent decision to leave the EU will not have an impact for the Court for some time to come, he gave us an overview of case law concerning condition six, Article 9 of the Trademark Regulation. Mr. Christoph Bartos gave us a low-down on EUIPO’ s Board of Appeal’s Case Law, and Mr. Fabio Angelini talked about the strange practice and the “fuzzy logic” of the CJEU when deciding in the case Iron & Smith kft v Unilever NV (case C-125/14).
These were the final words from Dubrovnik. Next year the Meeting will be held in Budapest, Hungary, and there is no doubt it will be just as amazing of an experience as it was this year.
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