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21 September 2018Copyright

Marques 2018: The evolving state of EU copyright law

Although the European Parliament voted to modernise copyright law last week, the controversial amendments are unlikely to take effect under member states’ national laws until at least 2021, according to Cristina Duch, partner at Baker McKenzie.

Duch discussed the evolution of EU copyright law yesterday, September 20, at the 2018 Marques Annual Conference in Paris, just one week after the Parliament voted in favour of modernising copyright rules.

Last week’s vote was passed by 438 MEPs to 226 (with 39 abstentions), and has received a mixed reception among brand owners.

Franz Gernhardt, senior counsel at Bird & Bird, noted that Marques had planned the session on copyright reform with the intention that the initial draft of the copyright legislation would be available.

However, as the Parliament initially rejected the draft copyright directive in July, there has not yet been time for the exact text of the legislation to be decided upon.

Duch said that the Parliament will now negotiate with the European Council and the European Commission to determine the final text of the copyright directive.

A “very optimistic” view is that this could occur next year, at which point the Parliament would have a final vote on the adoption of the modernised copyright rules, she explained.

Duch added that, once the legislation is approved, EU member states will probably be given two years to adopt national legislation accordingly.

According to Gernhardt, the main provisions that caused concern for Parliament in July were articles 11 and 13, and “much of the criticism that had been brought has been addressed”.

For example, the so-called “link tax” in article 11, which will force internet platforms to pay publishers before using snippets of journalistic content, will not apply to private and non-commercial use of press publications, he explained.

The language of article 13 was clarified and elaborated on in the draft directive passed by the Parliament last week, Gernhardt said. He added that article 13 is now two or three pages long, making it “one of the largest articles I have ever seen in any legislative act—especially in IP”.

Article 13 will apply to online content-sharing services, rather than other sorts of information-sharing providers, and the redress mechanisms were further explained in the draft directive passed last week, Gernhardt explained.

Also on the panel was Christian Schumacher, partner at Schoenherr.

Schumacher noted that copyright law can have an impact on trademark owners, as branding or a trademark element may well be copyright-protected—such as a logo or a slogan.

Meanwhile, Peter Schramm, partner at Meyerlustenberger Lachenal, said that there is a “high level of uncertainty” for certain industries, such as the furniture sector, due to the lack of harmonisation of certain aspects of copyright law in the EU.

“The furniture industry has design innovations and design classics,” Schramm explained.

Schramm said that design protection covering ‘classic’ furniture (as opposed to modern innovations) has now expired, given that classic models were conceived of more than 25 years ago—the length of time that Community designs last for.

The design of classic furniture must now be protected by copyright to ensure that brands can fight against copycats, Schramm said.

Article 17 of the design directive ( 98/71/EC) enables every design that can be protected under design law to also be eligible for protection under copyright legislation. However, the way this protection is conferred, including the level of originality required, is determined by each member state.

Schramm explained that, as a result, brand owners in the furniture industry struggle to meet the burden of proving originality, as this threshold varies between member states.

The 2018 Marques Annual Conference is taking place between Wednesday, September 19, and Friday, September 21, in Paris.

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