Quarterly International Ip Law Update

• Jurisdiction: European Union
• Citation: Vol. 43 No. 4
• Publication year: 2018
• Author: David Tseng
• topic: Trademark,Patent law,Copyright law

Quarterly International IP Law Update

David Tseng

Dorsey & Whitney LLP

Mariana Noli

Noli IP Solutions PC

EU - APPROVAL THE NEW EU COPYRIGHT DIRECTIVE CONCERNS WEB GIANTS

In September 2018, the European Parliament voted in favor of the Copyright Directive. Although the directive still faces a final vote in January 2019, two controversial provisions within the directive have many concerned about the future of online copyright enforcement.

Article 11 requires EU member states to provide publishers or press publications with the "exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part" as well as the "exclusive right to authorize or prohibit any communication to the public of [...] works."

This can be read to require anyone who uses portions of journalistic content online to first get a license from the publisher. This right would apply for 20 years after publication. This provision has often been referred to as the "link tax" because hyperlinks on webpages typically include a portion of the underlying content as part of the link. This may require companies such as Google and Facebook to pay licenses before linking to articles from publishers.

The rationale for this provision comes from the disadvantages that press publications face from news aggregators. Often times, online readers will only read the snippets of content posted from the aggregator sites instead of visiting the press publication's site. This drives a significant amount of traffic and revenue away from the press publications. Critics of the provision, however, are concerned about the impact this provision will have on limiting access to information.

The other provision at issue is Article 13. This provision places the onus on information service providers to proactively work with copyright holders to ensure that there is no copyright infringement. Appropriate measures to be taken include "effective content recognition technologies." This provision has been dubbed as the "upload filter" because it places the burden on web platforms to vet content for copyright issues before being placed on the web.

The rationale behind this measure is to ensure the rights holders receive adequate compensation for all online display of their works. However, critics contend that such provisions will harm community-based platforms such as Wikipedia. Moreover, there are also concerned about the effects of the increased surveillance from content monitoring as well as the suppression of legal uses of content.

These provisions are schedule for a final vote in January 2019 before member states will be compelled to enforce these provisions. If passed, these provisions are expected to have profound impact on the major Internet platforms, giving considerable power to journalistic outlets and content rights holder in controlling the distribution of information on the web.

GERMANY - STRENGTHENING MEDICAL USE PATENTS

In May, 2018, the Düsseldorf Higher Regional Court issued decisions that broadened the potency of second-medical-use patents. Such patents are often referred to as therapeutic use patents and involve claiming the use of already known substances in a therapeutic manner. To comply with the requirements of the European Patent Office, such patents had been drafted as "Swiss-type claims" that are styled as "use of a substance X for the preparation of a medicament for the treatment of the disease Y."

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Infringing such claims have been deemed to be difficult because the infringer must be shown to have "purposefully prepared" the product for the claimed purpose. Although, such information can be gleamed from product packaging or documentation that is received and appreciated by the user of the product, sophisticated parties have generally figured out ways to avoid infringement through careful design of product packaging and advertising.

However, the recent decisions from the Düsseldorf Higher Regional Court have defined the standards for proving infringement of second-medical-use-patents that moves away from the restrictive "purposefully prepared" requirement. Instead, infringement can be found if the substance for the claimed...