On March 6th, 2012 the opinion of the European Economic and Social Committee (EESC) 1 on the "Communication from the Commission - Towards a single market of intellectual property"2 was published in the Official Journal of the European Union [7]. Representatives of the civil society in the Member States of the European Union to call for an huge overhaul of the law of "intellectual property", starting with criticizing the expression itself3. The proposals also address topics such as ACTA [8] or unitary patents [9], and seek a rebalancing of rights in future european directives.
It therefore suggests to review the legislation framework in which copyright is evaluated.
"The general principle of proportionality between offense and sanction should be effectively implemented. Several national legislations are very intrusive and repressive towards illegal copies of audiovisual products made at a small scale by individuals via the Internet without any trading purpose. They should be revised in this spirit. The legislation should not give the impression that it answers the pressure of the lobbies instead of a fundamental principle of the criminal law."
As a consequence, its proposals imply the revision of what is called "intellectual property rights", emphasizing that "they are assimilated as a right of property, but are in fact incorporeal rights defending their holders against copy and competition". This extremist view of the copyright is what is at work with ACTA, as reminds the EESC:
"In principle, ACTA should not modify community benefits. However, its exclusive orientation towards holders defense strengthening, by customs, police and administrative cooperation measures continues to privilege rigths property. The other human rights, decidedly the most fundamental, such as the right to information, to health, to adequate nutrition, to seeds selection by farmers, to culture are not taken into account; and this will have consequences on future european legislations that will be taken towards Member States legislation harmonization."
The communication also details numerous important points about software patents and unitary patents. Indeed, It criticizes the software patents dangers, which represent, in the countries where they a legal like the USA, "incommensurate legal defense costs". While patents are indeed temporary monopolies, recognized in the public interest and so that the discoveries of the inventor benefit the whole society. And yet, as emphasizes the EESC, "the public interest dimension is no longer present in softwares, which are not constrained to source publication whereas patents are delivered to protect them". Software patents, although, are forbidden in Europe by the European Patent Convention of Munich.
However, some actors try to legalize software patents in Europe, especially thanks to the european unitary patent [10] project. Long time concerns expressed by the April4 are shared and summarized by the EESC:
"The Committee has always strongly supported the move of the Commission towards the establishing of such unitary patent, while expressing reservations about several practices of the EPO, which do not totally observe the dispositions of the European Patent Convention regarding sofware exclusion of patents. And while all patents concerning softwares or business methods were invalidated by national jurisdictions in case of lawsuit; such practices impair on the legal security which must focus on patent obtaining[...]. Such diversions must not impinge future patents.
The April congratulates the EESC for this clear and argued opinion. The Council visibly stood back from the various questions currently being debated in the european institutions and suggests evolutions and worthwhile lines of thought. The April hopes that this call to readjustment will be heard by the Commission, particularly concerning the unitary patent, for which such a sensible position has not been heard enough.
- 1. For more informations on the EESC: http://www.eesc.europa.eu/ [11].
- 2. The communication is available on http://ec.europa.eu/internal_market/copyright/docs/ipr_strategy/COM_2011_287_fr.pdf [12] .
- 3. Regarding the issues raised by this wording, see also http://www.april.org/journee-mondiale-de-la-propriete-intellectuelle-2011 [13].
- 4. For more information, see the website unitary-patent.eu [14].