Evaluation and modernisation of the legal framework for the enforcement of intellectual property rights
Eurocadres – the Council of Professional and Managerial Staff, has decided to reply to the public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights by an additional written answer. By doing so, we focus on those issues that are relevant and important for our members. Many of our members are researchers, teachers, journalists, authors, engineers or IT workers who are involved in creative work and are, as a consequence, possible right holders.
Overall, we support the idea to modernise the current directive from 2004. Digitalisation and social platforms have changed the way we work and how innovations are created. It is therefore necessary to keep the legislation up-to-date and clarify the ownership of intellectual property rights (IPR).
The consultation strongly envisages the Commission’s concern about the modernisation of IPR enforcement and puts focus on commercial infringements, its cross-border applicability and the protection of all IPR (e.g. inventions, copyrights, neighbouring rights, computer programmes). The fulfilment of fundamental rights, i.e. privacy, freedom of speech, business freedom, is of extreme importance when regulating IPR.
The directive should be without prejudice to the full exercise of fundamental rights guaranteed by Article 153(5) TFEU, general principles of national contract and labour law, and the rights, where applicable, of the social partners to conclude and enforce collective agreements, in accordance with national law and customs.
Are there any other provisions of the Directive which, in your view, would need to be improved? (C.2.4.)
To improve the coherence of the enforcement directive is necessary. A review and a modernisation of the enforcement regulations is needed to avoid and stop infringements from happening, especially in the commercial scope. Intellectual property rights are a prerequisite for innovation and growth. Highly-skilled professionals actively contribute to research, development and innovation during their work life. A working social dialogue is the best tool available to keep balance and enhance legal protection for all the parties involved: companies, employees and public authorities. Holders, users and consumers benefit from coherent and common enforcement rules on the internal market. The differences between member states in the enforcement of sanctions and procedures can lead to unexpected consequences.
In recent years, there have been efforts in the field of creative work to push authors’ rights to employers. For instance, journalists, academics and teachers face increasing demands to sign contracts that could violate their rights. We see worrying trends, where for example teachers are encouraged to sign contracts where they pass on their IP to their employers without any restrictions and without any compensation: all the works they have created and will create during the employment, including the right to modify the works and surrender the works.
Also, in some cases, especially for freelancers, unfair contracts can lead to losing out on a decent income through creative work. Digitalisation can be seen as a driving force behind this trend, which should instead be replaced by more legal protection. The role of researchers and inventors is worth mentioning as well: they need to be better informed about their rights in case they are considering to create start-ups to avoid any potential IPR violations.
IPR should offer authors and producers incentives in the form of recognition of their created work as well as economic compensation. To guarantee compensation, it is essential to clarify the ownership of intellectual property. With regard to copyrights under an employment contract, agreements on the transfer of copyright should always be held separate. It should not be considered as a prerequisite to transfer all IP on the employer – for example when teachers create teaching material or text books.
Furthermore, SMEs should be able to effectively defend against infringements. Precautionary measures and damages should ensure an efficient and beneficiary defence against infringements. The special courts are worth supporting as they can focus expertise and keep court procedures shorter.
Do you identify any other issue outside the scope of the current legal framework that should be considered in view of the intention to modernise the enforcement of IPR? (D.3.)
Intellectual property rights grant the owners certain exclusive rights to a variety of intangible assets such as copyrights, trademarks, patents and industrial design. Each different legal system refers to another economic environment, and abusive use should be countered by appropriate measures. It is challenging to entirely harmonise IPR in all member states, therefore it would be desirable to establish minimum harmonisation, leaving the member states discretionary power in national legislation.
Enforcement only based on commercial infringements or misuse of trademarks is too restrictive and ignores the concerns of young knowledge workers who are looking for opportunities to develop their professional identity and for whom innovation, creativity and the digital world are crucial corner stones. There are also worrying imbalances between the parties when negotiating the contracts, where unreasonable liabilities and terms are put on the table.
The significance of IPR and its enforcement in case of infringements and counterfeits is strongly based on the so called “follow the money” approach, even if there are social aspects as well. The question arises whether “knowledge” should be shared or masked. We have to consider the impact of technological innovations on employment, labour conditions and environment. The “follow the money approach” is a good starting point for regulating, when the aim is to prevent or stop commercial infringements. The enforcement regulations should pay special attention to such considerable business activity that is built on misusing IPR. For example, the revenue model based on the illicit use of IPR usually stems from internet advertising. By focusing precautionary efforts on the middle hands – advertisers, operators, investors – it is possible to influence on the operational preconditions of illegal service providers.
To restore the coherence between the act of “creating” and the act of “using” or “abusing”, we need to introduce another perception. Enforcement that is only based on coercion will create a limited success. It should be completed by persuasion and a bargaining process among all stakeholders to finally raise more mutual trust, comprehension and responsive behaviour from all the parties involved, from the creative person over the intermediaries to the customers.
Other comments (E.)
A whole range of economic activities are affected by digitalisation, such as protecting databases, privacy and computer programmes. Also, digitalisation affects the way we work, how businesses operate and the way we consume. It is a megatrend that affects all parts of society and it raises questions about taxation, labour law, registration procedures and social security. We call for Europe to not only develop the economic but also the social dimension in the intellectual property rights discussion. The interests of creative and innovative workers need focus.
It is also important to look beyond the traditional employer-employee relationship. Digitalisation enables new forms of employment in the so called collaborative economy. Contractual relationships stemming from the collaborative economy do not give partners an equal standing. There are examples of situations where the person who creates a product or service (the seller) has been left without compensation after the task has been fulfilled. The buyer has decided that the standard of the performed service has not been satisfying, but still keeps the result. In other words, the seller has performed the task but the buyer refuses to pay, claiming that the result was poor and that the agreement therefore has not been fulfilled. It is our view that such an approach constitutes a breach of the agreement on the buyer’s side rather than the seller’s, since the buyer is taking the seller’s intellectual property without paying for it. It must therefore be much clearer what can constitute a breach of an agreement when the parties are not equally strong. Especially since is unlikely that that the seller takes it to court, as the seller is normally a private individual, a private trader or an SME who lacks the resources to claim rights in court. They are particularly vulnerable in this regard as they lack collective representation.
Since it is quite clear that creative work in general, and inventions in particular, are performed by employees, it is crucial that trade union organisations and social partners claim a seat at the table. Bargaining between creators, intermediaries and employers in the social dialogue is core business: labour contracts, wage levels and developing codes of conduct are all part of the process. We believe that through social dialogue the EU regulations on enforcement will be completed in national collective agreements that are appropriate for the specificities in each member state.