On 25 November 2020, the European Commission published its Action Plan on Intellectual Property. The wide-ranging Plan promises a number of regulatory changes in the IP sphere in the coming years. It also champions the need to address the technological revolution, both in terms of using IP rights to protect such technology (eg 3D printing and the Internet of Things) and harnessing technology to improve IP systems and procedures (eg blockchain technology).
Among the items being considered in the Action Plan are:
The Plan identifies five key challenges:
The report outlines the difficulties faced by a fragmented EU IP system and stresses the need to prioritise fast, effective and affordable IP protection tools.
In particular, the Commission is looking to modernise EU design protection, which has already been the focus of separate consultation. Key findings include:
There will be a public consultation on the designs system in Q1 2021, with a new draft Regulation likely to follow in late 2021 or early 2022. Overall, we can expect to see changes to substantive and procedural design law with a broader range of designs being protectable. If – as appears to be the intention – there is also greater clarity on the interaction between designs and other forms of IP protection – this will be welcome. Whether this will be sufficient to encourage innovators to rely more heavily on designs (as opposed to other forms of IP protection) remains to be seen.
The Commission also plans to expand the geographical indication (GI) system to non-agricultural products, review the Database Directive (see below) and clarify the use of the Trade Secrets Directive (see below).
More generally, the Plan acknowledges a number of ongoing discussions and initiatives on the protection and use of technology in the IP sphere. For example, it references the need to distinguish between inventions and creations generated with the help of AI technology and those solely created with AI technology and the need to utilise technologies such as blockchain to increase the effectiveness of the IP system. Nothing concrete has been proposed in the Plan.
A 2019 EUIPO survey reported that only 9% of SMEs have registered IP rights. The Action Plan highlights concerns about SME reluctance to register, exploit and enforce IP rights.
The Commission commits to providing the EUIPO with an IP voucher scheme to help finance IP registration by SMEs and to provide them with wider financial support. Commitments are also made to roll out IP assistance services for SMEs to provide them with strategic IP advice.
The Plan highlights the need for the improved sharing of IP, particularly in crisis situations (like the COVID-19 pandemic).
There is much discussion on balancing the need for data sharing (especially to facilitate access and use of data by SMEs) against the risk of theft of trade secrets. The Commission raises the need for clarification of the Trade Secrets Directive, particularly around:
The Commission has launched a study with a specific focus on strategic sectors, such as healthcare and automotive industries. Based on the results of this study, the Commission will consider the need for further action.
Following evaluations of the Database Directive, which concluded that it could be revisited to facilitate data access and use, the Commission will now commence its review of the legislation. This will look at data sharing initiatives in the area of antitrust law and consider how the Directive can facilitate data generated in the roll out of the Internet of Things and machine generated data.
The Commission reports that in 2019 imports into the EU of counterfeit and pirated goods amounted to EUR 121 billion and resulted in lost sales of EUR 50 billion. The Action Plan discusses three main ways in which this can be combated:
The Commission will also promote cybersecurity awareness, to help reduce the growing rate of cyber thefts of trade secrets (especially those affecting SMEs).
According to the Commission, upgrading the responsibilities of online platforms and strengthening the capacity of law enforcement authorities will also assist in tackling other forms of online IP infringement, such as illegal internet protocol television and other forms of illegal live streaming.
IP intensive industries account for 93% of total EU exports of goods to the rest of the world. The EU recognises its role as a global norm setter and acknowledges various ongoing initiatives with WIPO and internationally.
The Action Plan focuses on the need for innovation, the employment of new technologies in the IP industry and the need for sharing data around protected assets. These key elements help to build foundations on which SMEs can develop and grow.
This ambitious Plan suggests a busy time to come across the range of IP protection but focuses particularly on reviews and clarifications on the Database Directive, certain key provisions of the Trade Secrets Directive and a review of EU legislation on industrial designs and GIs.
To discuss any of the issues raised in this article in more detail, please reach out to a member of our Technology, Media & Communications team.
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