EU Copyright Directive published in the EU Official Journal

The Directive on Copyright in the Digital Single Market (the “Directive“) has been published in the EU Official Journal and enters into force on 7 June 2019. Member States then have 24 months, until 7 June 2021, to transpose the Directive into national laws.

The Directive was supported by 19 Member States during its vote in the European Council on 15 April 2019. The UK supported the legislation whilst Poland, Italy, Finland, Sweden, Luxembourg and the Netherlands opposed it. Poland stated that its reason for objection was that the Directive could pave the way to internet censorship. The Directive was finally approved by the European Parliament on 26 March 2019, marking the end of lengthy negotiations and delays.

For further detail on the Directive, please see our previous blog post here. The final text provided the following changes to the numbers:

  • Article 17 (previously Article 13 in the draft) – online content-sharing service providers’ liability for copyright infringing content;
  • Article 15 (previously Article 11 in the draft) – ancillary copyright for press publishers

Further provisions were also added relating to: exceptions and limitations for text and data mining;  collective licensing, and recall, transparency, and fair remuneration rights for owners of copyright.

Articles 17 and 15 proved to be controversial throughout the approval process as we discussed in our earlier blog post here.  The EU Commission is now required to issue guidelines to Member States on the application of “best efforts” requirements, as well as on cooperation with rights holders.

Whether the UK transposes the Directive into national law remains to be seen given the country’s imminent departure from the EU. It will be interesting to see how stakeholders manage the implementation process following the biggest shake up of copyright legislation in decades.

Authors

Joel Smith
Joel Smith
Partner
+44 20 7466 2331
Elena Hogg
Elena Hogg
Associate
+44 20 7466 2590

TRADE SECRETS: NEW EU RULES IN FORCE IN ITALY

Italian Legislative Decree 63 – 11 May 2018, implementing Directive (EU) 2016/943 on trade secrets, entered into force on 22 June 2018.

The Italian legal system was already at the forefront of trade secret protection, affording twenty years’ protection to both commercial and manufacturing and industrial-technical trade secrets, in full compliance with the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). This meant that the Italian legislator did not need to make major changes to the existing legislative framework. There are however some interesting changes to report.

New Definition of “Trade Secrets” 

The Italian Industrial Property Code (IPC) already provided for the protection of business information and technical-industrial experience as long as:

a) they were secret, meaning they were not generally known or not easily accessible to experts or sector operators;
b) they had commercial value because they were secret;
c) they had been subject to reasonable steps to keep them secret.

Although the Directive has not impacted scope of protection, such know-how is however now captured by the term “trade secrets”.

Continue reading

Dyson argues against unfair and misleading labelling comparison by competitor

Compulsory energy labels on vacuum cleaners must strictly comply with an EU Labelling Regulation. In the case of Dyson Ltd, Dyson BV v BSH Home Appliances NV (C-632/16), the Advocate General of the EU Court of Justice held that there is no leeway within energy label regulations regarding the format or content of energy labels. This means that energy labels must contain only the classification of a vacuum cleaner’s energy consumption as required by the Regulation, and cannot specify the conditions under which the energy tests were performed. In addition, supplementary labels clarifying the information further are not acceptable.

Dyson brought this action against BSH, arguing that BSH’s energy labels were misleading consumers in breach of the Unfair Commercial Practices Directive 2005/29/EC, because they did not explain BSH’s tests were carried out with an empty dust bag. Dyson’s own products do not have a dust bag, and so there is no loss of energy efficiency during normal conditions of use. However, BSH’s vacuums do have a dust bag—and therefore Dyson argued become more energy inefficient the more the dust bag is filled. Dyson sought to force BSH to specify its testing conditions on its energy labels, or for its current energy labels to be declared misleading.

The Advocate General found that the specific, standardised information selected to be provided to consumers was a deliberate choice by the EU Legislature. The methodology for measuring energy efficiency of vacuum cleaners is not included in the information to be provided to consumers. Therefore, BSH cannot be required to include additional test procedures on its labels and it is not necessary to consider whether BSH’s current practice is misleading. He concludes that the Unfair Commercial Practices Directive does not apply in situations where a Regulation provides no lee way for the traders involved.

Dyson will have to wait to see if the Court of Justice leaves the competition in the dust.

A link to the decision can be found here.

Author

Emma Sherratt
Emma Sherratt
Associate (New Zealand)
+44 20 7466 2385