Have your say!… on the EU Intellectual Property Action Plan.

The European Commission would like to hear your views.

Article 11 of the Treaty on European Union states the duty of the European Commission to consult citizens and stakeholders, representing EU Member States, businesses and civil society organisations in all areas of Union action. It aims at increasing the EU’s democratic legitimacy and accountability in the EU law making process.

Public consultations collect information and views when the Commission is preparing a policy initiative or while running evaluations. Since 2001 White Paper on ‘European Governance’, more than 100 public consultations are run in average each year¹.

The EU Intellectual Property (IP) Action Plan is aimed at promoting a more coherent EU-wide approach trying also to ensure a global fair play². It will be the basis for subsequent legislative and non-legislative initiatives at the EU level, and its alignment with Member States measures. New Industrial Strategy for Europe, Small and Medium Enterprises (SMEs) Strategy as well as European Green Deal and Digital Agenda are the cornerstones of the IP Action Plan configuration².

Five principal EU IP policy challenges² are listed to be addressed.

• EU IP system fragmentation, in geographical terms across the particular legislation in different countries, which implies unequal trade conditions, as well as in terms of different formats of the IP protection, such as geographical indication or new designs protection in what regards 3D printing and AI.
• Another point relates to Small & Medium Enterprises (SMEs) role as the ‘backbone’ of the EU economy in terms of business, employment and job creation. It is relevant, even if at the very beginning of the roadmap the leading companies or other entities (such as historically well founded, ‘excellent’ research institutions) are stated as the main IP policy objective, implying de facto role of the IP rights as the defence of already strong positions³. IP rights system should not be ‘too costly, complex and difficult to navigate’ for other actors than the leading entities. At the same time this difficulties should not be evoked by the big corporations as the argument for buy-out, upfront pay erasing effectively the rights stemming from the IP rights exploitation for smaller actors, especially in copyright arena.
• The tools for IP sharing are also seen as insufficiently developed, including here licensing standard-essential patents (SEPs) and data sharing.
• Counterfeiting, piracy and cybertheft are a standard concern to be addressed.
• Global fair play implying fight against abusive practices such as cybersquatting are also acknowledged by initiative.

In general, IP Action Plan brings no doubts regarding the positive field role in innovation and social and economic progress. It aims at further promoting the IP protection spread. IP thickets formation as in the case of nascent nanotechnology sector³ or Future of Work (platforms vs creators) impacts are not acknowledged.

This feedback option, in English only, is open for 5 weeks, till August 14^th, 2020 (CEST). It can be accessed here.

The roadmap with brief and subject to changes orientation and further sources of information can be downloaded there. For the opinion input, it requires an easy and straightforward registry as well as an adherence to sensible feedback rules.

It could be especially relevant to state Francis Snyder’s ⁴ vision of the EU law in context balance, including there: the organised value chains power of participation (also SMEs), protection and redistribution towards losers in innovation process of market economies as the winners the most probably can take care of themselves, the need of focus towards the development of social solidarity ethics, i.e. respect for the social justice and natural environment.

In this sense, blockchain systems could be used to trace the participation of the authors as rightful holders of IP, avoiding the abuse of position of intermediary and powerful actors in the value chain. Collective Management Organizations of IP rights (CMOs) have yet to overcome the territorial collaboration model and begin real integration processes in which they do not lose their mission of service for the rightful holders of IP.

The improvement of content and publicity strategies of public consultations, outreach activities, the criteria for categorising initiatives, implementation of general questionnaires for the public and specific questionnaires for specialists as well as timely feedback on the outcome of the consultation are seen as some of the main recommendations. However, as stated by the European Court of Auditors¹, in general Commission’s public consultations and the participants’ perception thereof are considered overall satisfactory, so that, please join here!

References:

1. European Court of Auditors. “Have Your Say!”: Commission’s Public Consultations Engage Citizens, but Fall Short of Outreach Activities.; 2019.
2. European Commission. Consultation Roadmap to Intellectual Property Action Plan. 2020:4.
3. Vaidhyanathan S. Intellectual Property: A Very Short Introduction. Oxford University Press; 2017.
4. Snyder F. Better Regulation in EU Law: Variations on a Theme. In: Colloque International Sur ‘La Fabrication Du Droit de l’Union Européenne: Du Modèle à La Réalité.’ Vol 6-7. Aix-en-Provence; 2016:8.

Authors:

Renata Kubus from CID-N Collective Intelligence Development Network
César Casares from ConARTE (FIA Member).