More than 35 copyright legislative proposals and policy initiatives have been proposed in the EU since 2015, explained Cristina Duch of Baker McKenzie, in today’s Annual Conference session on copyright reform and its impact on trade mark owners. One of these initiatives is the new Copyright Directive, passed in amended form by the European Parliament last week. The new MARQUES Copyright Team has been active in monitoring and analysing the proposals.

During the session, Franz Gernhardt of Bird & Bird discussed Articles 11 and 13 of the Directive, covering respectively the so-called link tax and platform owners’ liability. He said that the recent amendments passed by the European Parliament made several major changes, including allowing hyperlinks, excluding non-commercial and ruling out retroactive effect: “Much of the criticism of Article 11 has been addressed.”

Article 13 originally proposed an “upload filter” whereby platform service providers should check all content for copyright infringement, and provide information to copyright holders. This has also been amended to address concerns that were expressed, said Franz: “It’s one of the largest articles I’ve ever seen in legislation, particularly in the IP sector.” The upload filter has been removed in favour of a cooperative approach.

Franz also analysed recent decisions of the CJEU on platform operators’ liability: the Pirate Bay case (C-610/15), Filmspeler (C-527/15), Svensson (C-466/12), GS Media (C-160/15) and UPC Telekabel (C-314/12). “It’s definitely not going to be boring in the copyright sphere!” he concluded.

Addressing in more detail the impact of the reforms on trade mark owners, Christian Schumacher of Schoenherr talked about how Articles 14 to 16 may affect contracts between brand owners and designers. Article 14 covers fair remuneration, Article 15 introduces a contract adjustment mechanism and Article 16 says that member states must provide a dispute resolution mechanism. “It looks like these will apply to trade marks, but we will have to see how it is implemented,” he commented.

Christian also discussed decisions from the EUIPO Boards of Appeal and EU General Court on copyright protection for trade marks, as well as two decisions from the Austrian Supreme Court concerning the use/modernisation of logos that have been commissioned (Zimmermann Fitness and TirolMilch).

Finally, Peter Schramm of Meyerlustenberger Lachenal AG took a look at the effect of the copyright reform on the furniture industry, which he said in some ways is comparable to the music industry: “Sales of design classics ensure the promotion of young designers and design innovations.” Will the copyright reform help protect design classics against piracy? Articles 13 and 17 may be helpful, said Peter, but questions remain about the protection of works of applied art and lack of harmonisation in the EU.