FICPI continues its activity as a private sector stakeholder in the meetings that the Observatory of the EUIPO holds twice a year, together with Trade Associations, other NGOs, governmental representatives of the different EU countries and International Organisations.

During the last EU Observatory Working Group meeting held in Brussels in November 2019, it was made clear that the tag “going digital” entails a number of enormous challenges for the IP community. 

These challenges are growing at a much faster pace than the capacity of legal reaction of our regulatory framework. This is why much of the EU institutional efforts are channelled into the assessment of the impact that this reality is going to have, not only from the IP users’ perspective but for society as a whole.

The digital society is without doubt transforming the way that IP rights are being used, exploited and (indeed) infringed. This is having a direct impact on anything that happens on the internet, but it is also seriously affecting the more conventional physical side of IP rights, or at least as we have understood them so far.

IP in the digital world 

At this point in the game nobody is discussing that the digital era means a continuous and exponential acceleration of global trade, however, when it comes to IP, the same efficiency that technology fuels is also unlawfully overexploited by all sorts of illicit activities linked to IP infringements. The number of actors and resources that in one way or another are involved in the unvalue chain, pose a huge challenge for the IP ecosystem.

The EUIPO Observatory got hands-on last year and published the studyOnline IPR infringements” which is now moving forward to Phase II, aimed at assessing the legislative measures and the international judicial cooperation that would be required to achieve a more efficient level of harmonisation. 

The EU Commission has also duly taken note of the conclusions of this work, namely the huge gaps that still remain over essential questions like website blocking, tracking accounts information and the criminal enforcement thereof.

If this was not enough, a major change is now on the way for the Domain Name System; the advent of the new technical resolution system, DNS over HTTPS; nicknamed DoH

For those readers less familiar with telecoms jargon, this is a cutting-edge technology, currently being tested in the US by major platforms like Google®, Mozilla® and Cloudflare®. The system is based on the use of the HTTPS protocol and cloud resolution of the DNS on browsers, providing an encryption of DNS queries made by users. This standard (theoretically much safer, in terms of privacy) will, in the not too distant future, replace the role performed up to now by Internet Service Providers (ISPs) as DNS resolvers.

The impact that this shift may have on IP is not negligible at all, since cloud providers are, in a way, virtual and therefore much more difficult to track by courts and administrative authorities than ISPs are, with the latter having physical premises and being subject to a particular jurisdiction. The delocalisation of the DoH system would allow these platforms to take any DNS to third jurisdictions for many varied reasons (such as safety or privacy…) and then turn the execution of court rulings into a kind of chimera. 

As for the copyright front, theAgorateka Project” is another milestone in the digital arena for the EU, based on the assumption that there is a positive correlation effect between the increase of legal and accessible sources of contents, and the decrease of the use of illegal downloading sites. This seems to be the lesson learned with the eruption of streaming platforms (such as Netflix® or HBO® ).

Image: see FICPI editor/newsletter articles/02-20/ Report EU Observatory JSF Article – use for images only

The project will mature into the EU reference portal for legal access to digital contents, with currently more than 100 legal sites listed and will also include all other national databases. The EU Commission estimates that 100 sites only represents a small share of the real number of websites with legal copyrighted contents: their calculations show around 1,500 websites. 

IP enforcement

One major movement in the digital area has been Regulation (EU) 2019/1020 on Market Surveillance and Compliance of Products on June 25, 2019. This established some cooperation mechanisms to combat the movement of unsafe goods, including in this generic concept counterfeits. 

In parallel to its adoption, EU Commission DG Grow conducted a survey among 350 market surveillance authorities (MSA) to assess the IP capacities that this base of national entities may have. The results show severe limitations in both the scope of IP competences or attributions (only 7% of MSA), and the allocation of resources. 

Some key figures to keep in mind here are that only 30% of counterfeits are detained at EU borders vs. 70% inside. The value of items intercepted in the period 2013-17 was €12 billion; the equivalent of Malta’s GDP, with the list being topped by clothing, watches and recorded CDs.

But the EU is not the only international institution taking action against illegal trade, last year the United Nations commissioned a study that exposes how such illicit trade may undermine sustainable development efforts. 

The bottom line behind all these figures is that, contrary to what one may think, the countries more at risk of these practices are those facing more pressure to create jobs, increase growth or erode the informal economy.

Again, all these challenges derived from the world’s transformation into a digital society are  evidence of how much we have at a stake. Indeed, it is not only the IP owners’ interests that are at stake but rather we as a society, as we start to understand that no innovation or creation will be sustainable over time without a basic compromise that guarantees a stronger and more efficient IP system.

FICPI’s view and involvement 

FICPI representation at key working groups such as the EUIPO meetings ensures that members gain a wider perspective and insights direct from the leaders of the meetings as well as other attendees such as trade associations and other NGOs. FICPI also has the opportunity to put members’ views to those bodies. These direct representations and collaborations also help FICPI members stay at the forefront of IP law as it develops and to demonstrate professional excellence as they help clients drive economic growth.

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