B1: Do the governance and practice of knowledge generation, ownership and sharing strike an equitable and efficient balance between supporting widespread creativity and enabling widespread use of knowledge? (only grid)
Copyright in the EU
The European Union believes that copyright and related rights provide an incentive for the creation of and investment in new works. There has been significant harmonisation of the substantive copyright law to reduce barrier to trade.
Copyright legislation at European Union level was initiated with the 1988 Green Paper on Copyright and the Challenge of Tecnology (COM (88) 172 def.). the Green Paper identified six areas where the copyright laws of the EU Member States should be harmonised. The result have been five Directives, which harmonised the national copyright laws of the EU Member States.
These Directives cover the legal protection of computer programs (Council Directive 91/250/EEC), lending rights and the main neighbouring right (Council Directive 92/100/EEC), satellite broadcasting and cable retransmission (Council Directive 93/83/EEC), the duration of the protection of the authors’ rights and neighbouring right (Council Directive 93/98/EEC) and the legal protection of databases (Directive 96/9/EC). All the EU Member States have now implemented these first five Directives into their national laws.
These just mentioned Directives address rather sectorial issues, because they apply only to certain categories of works (software, databases) or rights (rental rights).
The Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (Directive 2001/29/EC) is different.
It is the European Union’s response to the challenge of structuring copyright protection in the new environment of the digital services.
The more recent Directive 2001/48/EC concerns the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights.
As far the International standards are concerned, the Directorate – General Internal Market is responsible for conducting negotiations on industrial and intellectual property within World Intellectual Property Organisation (WIPO).
The case of software patents
Patent protection is ensured in the European Union by two systems, neither of which is based on a Community legislative instrument: the national patent systems and the European patent system.
The European patent system is based on two international agreements, the 1973 Munich Convention on the European Patent, or European Patent Convention, and the 1975 Luxembourg Convention on the Community Patent, or Community Patent Convention.
Europe has uniform rules about software patents under the European Patent Convention of 1973. in articles 52, the Convention states that mathematical methods, intellectual methods, business methods, computer programs, etc are not inventions in the sense of the patent law.
In 1986 the European Patent Office (EPO) started granting patents that were directed to computer programs but presented in the guise of process claims.
The patents granted on this basis were considered as hypothetical, because the program “as such”, when distributed on a disk or via Internet, did not constitute a process and was not an invention.
In August 2000 the European Patent Organisation which is the intergovernmental organisation that runs the European Patent Office, attempted to delete all the exclusion listed under Article 52 of the European Patent Convention. Due to public resistance this effort failed.
For the computer programs it has been preferred the protection under the copyright instead of that of patents due to the limitations of the Article 52 of the European Patent Convention. The Directive 91/250/CEE has just made for this purpose and it makes software equivalent to an intellectual works.
Since this kind of protection doesn’t prevent the duplication of computer programs (because the copyright protection doesn’t exclude the “imitation” of a product) the European Commision’s Directorate for the Internal Market (under Frits Bolkestein) presented the Proposal for a directive of the European parliament and the council on the patentability of computer – implemented inventions (COM (2002) 92 fina.). such Directive was claimed to serve the purposes of harmonizing Member States laws.
On September 24th 2003, the European Parliament as a whole (plenary assembly) voted to incorporate a set of amendments into the Directive, reaffirming the non – patentability of programming.
Afterwards, the amended proposal was next examined by the Council of Ministers. Within the Council the “Working Party” produced a compromise document that removed all the parliament’s limiting amendments, additionally allowing program claims.
On 18th May 2004, the Council of Ministers approved the Working Party’s text by a slim majority.
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