Right2Remix: A Campaign For European Copyright Reform

from the worth-trying dept

Back in February we reported on a welcome move by the Dutch government to modify its copyright law so that creative remixes are permitted. A new initiative called right2remix.org wants to make that a Europe-wide change:

The initiative right2remix.org calls for European lawmakers to adopt remix rights in European copyright legislation. On this portal, the German civil rights organisation Digitale Gesellschaft e. V., who launched the initiative, explains: "We live in an age of remix. Creativity and culture have always drawn from previous works, but with the Internet and digital technologies, the creative re-use of works has been taken to a whole new level. More people are able to edit and share a greater range of works than ever before."

The campaign has a short manifesto and a petition, as well as a suggested route to achieving its goals. This would be to add additional exceptions, including the right to remix, to Article 5 of the EU Copyright Directive, which already lists the possible exceptions and limitations to copyright. EU countries could then modify their national laws to legalize many everyday online activities that currently infringe copyrights. Here are couple of right2remix.org' s other suggestions:

Extended quotation rights: Currently, quotation rights are generally very narrowly defined, and do not extend to all types of works, excluding, for example, movies. Furthermore, ancillary copyrights often prevent the quotation of existing works, as is the case with samples of musical works, for instance. A reform of quotation rights is overdue and needs to account for different types of works and quotations.

Redefine the boundaries of free usage: Creators should be permitted to use works as an inspiration, as long as the borrowings are secondary to the individuality of the new work. However, the remix, by definition, preserves at least part of the originality of the quoted work, though this does not mean that the remix is less original. The originality of a work should be assessed independently from the question whether the inspirational works are still recognizable. Particularly in musical works, we call for the legalization of samples, which in case of commercial use could be compensated using compulsory licensing models.

Those might seem overly-bold objectives, but the main driving force behind right2remix.org includes some of the people that led the European revolt against ACTA last year, and look what happened there....

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, culture, europe, remix

Trade Agreements With Mexico And South Korea Turned Out To Be Disasters For US: So Why Pursue TPP And TAFTA/TTIP?

from the follow-the-money dept

Two massive trade agreements currently being negotiated -- TPP and TAFTA/TTIP -- could potentially affect most people on this planet, either directly or indirectly through the knock-on effects. Like all such agreements, they have been justified on the grounds that everyone wins: trade is boosted, prices drop, profits rise and jobs are created. That's why it's been hard to argue against TPP or TAFTA -- after all, who doesn't want all those things?

But given their huge impact, and the fact that trade agreements are also used to impose a range of policies on countries that are certainly not in the public interest there -- for example making it harder for generic drug manufacturers to offer low-cost medicines -- it seems reasonable to ask what the evidence is that entering into these agreements really does deliver all or even some of those promised benefits.

An article in US News provides statistics that show that two major trade agreements -- the North American Free Trade Agreement (NAFTA) and the South Korea-US Free Trade Agreement (KORUS) -- have not only failed to deliver, but have been disastrous for the US. As regards NAFTA, for example, here are figures from a Reuters column it cites:

The United States ran a $1.6 billion trade surplus ($2.6 billion in today's dollars) with Mexico in 1993, the year before NAFTA. Last year [2011], the United States ran a $64.5 billion deficit.

That might have been a one-off, were it not for the following facts about KORUS, reported here by the Economic Policy Insitute (EPI)

In the year after the agreement took effect (April 2012 to March 2013), U.S. domestic exports to South Korea (of goods made in the United States) fell $3.5 billion, compared with the same period in the previous year, a decline of 8.3 percent. In the same 12-month period, imports from South Korea (which the administration consistently declines to discuss) increased $2.3 billion, an increase of 4.0 percent, and the bilateral U.S. trade deficit with South Korea increased $5.8 billion, a whopping 39.8 percent.

But maybe the trade agreements are generating jobs at least. Nope. Here's what happened with NAFTA:

Bill Clinton (1993) and his supporters claimed in the early 1990s that the North American Free Trade Agreement would create 200,000 new jobs through increased exports to Mexico. In fact, by 2010, growing trade deficits with Mexico had eliminated 682,900 U.S. jobs

Well, what about KORUS?

When the U.S.-Korea Free Trade Agreement was completed in 2010, President Obama said that it would increase U.S. goods exports by "$10 billion to $11 billion," supporting "70,000 American jobs from increased goods exports alone"

Here's what actually happened:

Using the president's own formula relating changes in trade to jobs, the growth in the trade deficit with South Korea in the first year since KORUS took effect likely cost more than 40,000 U.S. jobs

So where does this leave TAFTA/TTIP? Well, the European Commission's FAQ on the subject refers to some research it commissioned:

One of the studies on which the Commission's impact assessment was based was an independent report commissioned by the EU from the London-based Centre for Economic Policy Research. The study, entitled 'Reducing barriers to Transatlantic Trade', outlines the economic effects of a for both the EU and the US.

It suggests the EU's economy could benefit by €119 billion a year -- equivalent to an extra €545 for a family of four in the EU. According to the study, the US economy could gain an extra €95 billion a year or €655 per American family.

But the EPI is doubtful:

A much more likely outcome, based on North American experience under NAFTA, is that production workers in all the member countries will suffer falling wages and job losses (Scott et al. 2006), while U.S. and EU investors will profit handsomely, reinforcing the rapidly rising share of profits in corporate and national income that has taken place over the last decade in the United States (Mishel 2013).

That also provides an explanation as to why the US government is so keen to push ahead with TPP and TAFTA/TTIP when all the available evidence suggests that both are likely to be harmful for the US economy overall. Despite that fact, certain influential groups still stand to profit "handsomely", and therefore have lobbied the politicians hard to engage in such talks anyway.

Unfortunately, much of those profits will be paid for by losses incurred by ordinary members of the public through lower wages and unemployment caused by a new "race to the bottom" and increased outsourcing. These are precisely the people who, by an interesting coincidence, are never allowed to comment on or even see what is being negotiated when these agreements are being drawn up in their name. Strange that.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: crony capitalism, europe, free trade, korus, nafta, north america, south korea, tafta, tpp, ttip

Germans Want To Give Snowden A Medal, French Want To Give Him Asylum -- And To Call Off TAFTA/TTIP

from the never-a-dull-moment dept

Although nobody seems to know what Edward Snowden is up to at the moment, there have been plenty of reactions from others to the earlier revelations about US spying in Europe. Alongside the outrage, there is also a certain gratitude towards Snowden in some quarters for providing information about what has been going on. For example, one of the local wings of the German Pirate Party has suggested that he should be awarded a Federal Order of Merit (original in German.) In France, a surprisingly broad spectrum of politicians are calling for him to be offered political asylum according to this report from France 24 :

"France must give this whistle blower and defender of freedom political asylum without delay," the Green Party, in coalition with the ruling Socialists, said in a statement. "It would serve to remind the US, as it enters into free trade talks with the EU, that France wholeheartedly rejects the US stance on data protection."

And in a rare show of cross-party unity, Marine Le Pen of the far right National Front and at the very opposite end of the political spectrum from Mélanchon's Left Party also said France had a duty to take Snowden under its wing.

If that offer were to become official, it might be welcome. Snowden has applied to 21 countries for political asylum, although he has since withdrawn his application to Russia because Vladimir Putin imposed a striking condition for offering it:

If he wants to stay here, there is one condition -- he must stop his work aimed at bringing harm to our American partners, as strange as that sounds coming from my mouth.

As this table from The Guardian shows, so far Snowden doesn't seem to be having much luck in finding a country willing to take him, although now that Ecuador has dropped him, Venezuela remains a possibility:

On a visit to Moscow, [Venezuelan] president Nicolás Maduro said he would consider an asylum request and said the whistleblower "deserves the world's protection".

"We think this young person has done something very important for humanity, has done a favour to humanity, has spoken great truths to deconstruct a world … that is controlled by an imperialist American elite," he said.

Although these questions of asylum are probably uppermost in Snowden's mind, in political terms the most important development in the last few days has been several of Europe's senior politicians warning that the latest information about the scale of US spying on them could affect the TAFTA/TTIP negotiations, due to begin next week. That's particularly the case in France, as the BBC reported:

French President Francois Hollande has said allegations that the US bugged European embassies could threaten a huge planned EU-US trade deal.

He said there could be no negotiations without guarantees that spying would stop "immediately".

The New York Times noted that many in the European Parliament felt the same way:

The European Parliament, which will vote on any free trade agreement, will debate the latest spying revelations in Brussels on Wednesday, with the Parliament's president, Martin Schulz of Germany, saying that he was "deeply worried and shocked." If the latest reports, which include American spying on the European Union itself, are true, he said, "it would be an extremely serious matter that will have a severe impact on E.U.-U.S. Relations."

European lawmakers across the political spectrum warned of a loss of confidence in the Obama administration that would make a free trade deal difficult. Daniel Cohn-Bendit, the Green Party floor leader, spoke for many when he said that the European Union "must immediately suspend negotiations with the U.S. over a free trade agreement."

Undoubtedly, there's a lot of posturing going on here. The most senior European politicians surely knew the NSA was active throughout Europe, and probably even benefitted from information it gathered. But the scale of the operations, and the fact that there seems to have been literally no limit to what could be gathered or from whom, does seem to have taken many by surprise.

That could be enough to encourage the European Parliament to make the Data Protection Regulation, currently being drawn up, impose far more stringent terms for companies that want to transfer personal data out of the EU -- and that would be a big problem for Internet companies like Google and Facebook. Since data transfers are also likely to be part of the TAFTA/TTIP negotiations, any such moves would complicate discussions there even more.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: asylum, ed snowden, edward snowden, europe, france, germany, russia, tafta, ttip

Do Dutch Spies Also Have Access To PRISM's Data? And If So, Who Else Does?

from the clear-as-mud dept

In the wake of the leaks about NSA's spying activities around the world, one of the interesting subsidiary questions is: who else had access to this stuff? We know that the UK did, and now there are indications the Dutch did as well, according to this report on DutchNews.nl:

Justice minister Ivo Opstelten on Tuesday refused to comment on claims the Dutch security service AIVD works together with the US secret services in collecting information from email and social media traffic.

…

Dutch security service AIVD has also received information on email and social media traffic via US spy system PRISM, the Telegraaf reports on Tuesday.

Some pretty dramatic claims are being made:

If the AIVD lists an American address as suspicious, it is supplied all the information within five minutes, a source told the paper. The source worked for the department which monitored potential Dutch Muslim extremists, the paper said.

Dutch companies also cooperated with the US authorities' request for information, the source said, claiming that 'there are agents ready to deal with requests for information inside companies and institutions.'

'There are a couple of those secret programmes like Prism active in the Netherlands,' the source is quoted as saying.

There are a few points to note here. First, this is a report about a story in the Dutch newspaper Telegraaf, which draws on unnamed sources. So the chain of information is quite long, and it's likely that details have been lost or mischaracterized along the way. It's also worth noting that PRISM is not the only system mentioned here for gleaning information about people. That's probably muddying the waters yet more, as sources reveal tantalizing information about other spying initiatives that then get subsumed under the general heading of PRISM, simply because it's in the headlines at the moment.

That's not to minimize the shocking nature of these revelations -- the idea that spies around the world may be accessing within minutes any private information they want, is troubling -- merely to note that the picture we have of what is going on remains frustratingly vague. And that, of course, is an argument for more transparency from the authorities, both in the US and elsewhere, about what is really happening to our personal information when we go online, and who has access to it.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: access, data, europe, netherlands, nsa, nsa surveillance, prism, us

Is The US Using Prism To Engage In Commercial Espionage Against Germany And Others?

from the well,-that-would-be-different dept

As we noted last week, one of the key claims following the revelations about the Prism program was that it was aimed at those outside the US, and that US citizens were caught up in it only incidentally. A further leak concerned the Boundless Informant analysis tool, one of whose maps showed which regions of the world were subject to most surveillance. Along with obvious hotspots like Iran and Pakistan, Germany too was among those of particular interest, as was the US (whoops.) A story on reason.com offers a clue as to why that might be.

The blog post focuses on an incident from the time when the whistleblower Edward Snowden worked for the CIA, rather than the NSA. Here's the original text in the Guardian:

By 2007, the CIA stationed him with diplomatic cover in Geneva, Switzerland. His responsibility for maintaining computer network security meant he had clearance to access a wide array of classified documents.

That access, along with the almost three years he spent around CIA officers, led him to begin seriously questioning the rightness of what he saw.

He described as formative an incident in which he claimed CIA operatives were attempting to recruit a Swiss banker to obtain secret banking information. Snowden said they achieved this by purposely getting the banker drunk and encouraging him to drive home in his car. When the banker was arrested for drunk driving, the undercover agent seeking to befriend him offered to help, and a bond was formed that led to successful recruitment.

In that quotation, there's the nugget of information that the CIA was not targeting terrorists on this occasion, at least not directly, but "attempting to recruit a Swiss banker to obtain secret banking information". That raises an interesting possibility for the heightened interest in Germany, as revealed by Boundless Informant.

Given that the NSA is gathering information on a large scale -- even though we don't know exactly how large -- it's inevitable that some of that data will include sensitive information about business activities in foreign countries. That could be very handy for US companies seeking to gain a competitive advantage, and it's not hard to imagine the NSA passing it on in a suitably discreet way.

Germany is known as the industrial and economic powerhouse of Europe, so it would make sense to keep a particularly close eye on what people are doing there -- especially if those people happen to work in companies that compete with US firms. In other words, just as as the CIA was looking to obtain "secret banking information" in Switzerland, it seems quite likely that the NSA also comes into the possession of similarly sensitive commercial data during its German trawls.

If that were confirmed, it would certainly change the debate somewhat. The standard justification that massive surveillance is indispensable in the fight against terrorism if lives are to be saved, would be replaced by the rather weaker one that it's rather handy being able to spy on Germany since its industrial secrets can be pilfered. It will be interesting to see whether any future revelations about the NSA's activities shed more light on this area.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: commercial espionage, economic espionage, europe, germany, international relations, nsa, prism, surveillance, switzerland

NSA Spying Revelations Start To Cause Outrage In Europe; China Next?

from the just-the-beginning dept

News that the NSA has unfettered access to most of the leading Internet services inevitably has an international dimension. After all, Microsoft, Yahoo!, Google and the rest of the Naughty Nine all operate around the world, so spying on their users means spying on people everywhere. Indeed, as Mike explained earlier today, the NSA is actually trying to quell criticism by selling this news as something that purely concerns non-Americans (although that's clearly rubbish.)

Despite that fact, the European Commission's Home Affairs department made the following reply to the journalist David Meyer when he asked them for a statement of the latest revelations:

We do not have any comments. This is an internal U.S. matter.

It was only later that it realized this was a ridiculous position, and issued the following statement:

We have seen the media reports and we are of course concerned for possible consequences on EU citizens' privacy. For the moment it is too early to draw any conclusion or to comment further. We will get in contact with our U.S. counterparts to seek more details on these issues.

That dismissive initial comment followed by the rather feeble backtracking suggests that the European politicians have not yet realized how big a problem this is going to be for them, as well as for the US authorities. For example, The Guardian has confirmed today that the UK has been tapping into Prism for a while:

The UK's electronic eavesdropping and security agency, GCHQ, has been secretly gathering intelligence from the world's biggest internet companies through a covertly run operation set up by America's top spy agency, documents obtained by the Guardian reveal.

Specifically:

It says the British agency generated 197 intelligence reports from Prism in the year to May 2012 -- marking a 137% increase in the number of reports generated from the year before. Intelligence reports from GCHQ are normally passed to MI5 and MI6.

Already, one Labour MP, Tom Watson, has said that he will table questions in the House of Commons next week, and it seems likely that others will be demanding to know how much the UK government knew of this pervasive spying activity, what information it received -- and what it gave in return.

Another European asking questions is Peter Schaar, Germany's federal commissioner for data protection, who told David Meyer the following:

Given the large number of German users of Google, Facebook, Apple or Microsoft services, I expect the German government... is committed to clarification and limitation of surveillance.

He then went on to make an important connection:

In addition, the reports illustrate the importance of strengthening the European data protection law. The dilatory attitude of the EU Interior and Justice Ministers towards the Privacy Policy reform package is a completely wrong signal.

As Techdirt has reported, new data protection rules currently being discussed by the European Union have come under fierce attack by US companies, who want them watered down. For the most part, they were succeeding, but it's possible that the revelations that the very same companies who have lobbied so hard to neuter EU regulations have allowed the NSA to access customer data may start to tip the balance the other way.

Some want to go further than simply strengthening data protection in Europe. The European privacy advocate, Alexander Hanff, is calling for the US's "safe harbor" status to be revoked. Here's why that matters:

The European Commission's Directive on Data Protection went into effect in October of 1998, and would prohibit the transfer of personal data to non-European Union countries that do not meet the European Union (EU) "adequacy" standard for privacy protection. While the United States and the EU share the goal of enhancing privacy protection for their citizens, the United States takes a different approach to privacy from that taken by the EU.

In order to bridge these differences in approach and provide a streamlined means for U.S. organizations to comply with the Directive, the U.S. Department of Commerce in consultation with the European Commission developed a "Safe Harbor" framework and this website to provide the information an organization would need to evaluate -- and then join -- the U.S.-EU Safe Harbor program.

Without Safe Harbor status, no US company would be allowed to transfer personal data about Europeans out of the EU. It's unlikely that the European Commission would contemplate such a drastic move, but it's an indication of how high feelings are starting to run -- and this is only a few hours after the NSA story broke.

Mind you, however bad the situation is in Europe, President Obama can take comfort from the fact that it could be worse:

Peng Liyuan, the wife of Chinese leader Xi Jinping, appears to have an iPhone. And now, according to reports, US intelligence agencies may be spying on iPhone users through a secret data harvesting program. Does that mean there’s a possibility that the US is spying on the private messages of China’s first lady?

If confirmed, I don't think that's going to go down too well with the Chinese government...

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: china, europe, nsa, spying, surveillance

Europe Continues To Allow Vegetable Patent Despite Being Told To Stop

from the patently-crazy dept

Two years ago, we wrote about how the European Patent Organization had granted a patent on broccoli. The patent was originally on the breeding method, but then it was ruled that the breeding methods were not covered by the patents, leaving just the basic broccoli as patented. Both the European Parliament and the German Parliament have said that the EPO should stop granting vegetable patents, but apparently it hasn't stopped. It's now issued a patent on a kind of pepper. While the new peppers are supposedly "resistant to insects," people are pointing out that it was derived from conventional breeding -- and that's what was rejected in the broccoli case. What's amazing, by the way, is that this pepper patent appears to have gone to Syngenta, which I believe was one of the companies that fought against the broccoli patent.

As for the European Patent Organization, it says that it's still waiting to hear about the final decision on the broccoli patent (and a tomato one) from the Enlarged Board of Appeal (I don't want to know...), and that while it finds the European Parliament's request to stop issuing such patents interesting, the European Parliament has no mandate over the European Patent Organization, so they don't really care that much. In the meantime, careful what you eat in your salad.

Filed Under: broccoli, epo, europe, european patent organization, patents, peppers, vegetables
Companies: syngenta

VOD Service Acetrax Shutting Down, Forcing Customers Through DRM Hoops To Retain Their Purchased Movies

from the controlling-the-horizontal-and-vertical-but-mainly-the-'purchases' dept

Does DRM stop (or even slow down) piracy? This question's hardly hypothetical. It's been answered with a resounding "no" all over the internet. Of course, it's been argued that DRM was never about piracy prevention, but instead was a vehicle for content owners to control the technology in the hands of the end users. If so, the answer isn't much different. It may provide a sense of control, but those who want to enjoy their purchased content on devices outside the confines of the imposed restrictions will easily find a workaround or two simply by doing a small bit of searching.

Whatever DRM's stated purpose is, there's only one thing it does extremely well: inconvenience paying customers. Acetrax, a video-on-demand service that serves millions of customers across Europe, is closing on June 21st. Unlike other service closures, Acetrax is at least providing a sort of "exit strategy" for purchasers, but it's one filled with busywork and limitations. [h/t to Techdirt reader techflaws for sending this in.]

After [the June 21st shutdown], owners of Windows PCs can download their films. Mac users can forget it, as can anyone hoping to re-download HD films. Even on Windows, it's standard definition only from that point.

Movies that users have previously downloaded will cease to play from that date, so re-downloading films is mandatory if you want to continue to be able to watch them. Re-downloaded films will be tied solely to the machine on which they're first played. Because they use Microsoft's Windows Media Player DRM, the films can't be transferred to any platform that doesn't support the copy-protection technology.

Acetrax has provided a FAQ that details everything purchasers can and can't do with their purchased movies. As stated above, purchased movies are standard def only and are tied to a single device running Windows Media Player. Purchasers will also need to set aside a bit of time to validate their already-purchased movies (and hope they're not rubbing up against a providers' data cap).

From the Acetrax FAQ:

If you're watching on a laptop or PC (not including Mac), movies you've bought in standard definition (SD) are available to download directly from Acetrax.com. Just go to ‘My Movies' and click on the download icon. Once the download is finished, you'll need to have the latest version of Windows Media Player installed in order to watch it. Make sure you have the necessary rights on your computer and at least 2GB of hard-disk drive free on your PC or laptop so you have sufficient space to store the movie. Once the movie has successfully downloaded, you will need to play the movie for at least 5 minutes for us to validate the movie licence on your computer.

This sort of time-killer is only going to make former Acetrax customers more hesitant to purchase digital downloads from online services and, obviously, those who have spent the most money will be wasting the most time re-downloading and re-verifying movies they've previously purchased.

On a more positive note, Acetrax isn't limiting its offer to apologies and DRM to-do lists. Purchasers of HD movies are entitled to refunds, along with customers carrying unused credit on their accounts. (Caveat: refunds limited to those with PayPal or ClickandBuy accounts -- another unnecessary limitation, but at least it's the same as the options allowed for purchasing and renting.)

While Acetrax is handling this shutdown better than others have in the same situation, the decision to lace its offerings with DRM causes the greatest headache for those purchasing the most. If Acetrax had decided to go DRM-free (not likely, considering the amount of major Hollywood films it carried), this shutdown would have been painless for its paying users.

Filed Under: drm, europe, failure, germany, vod
Companies: acetrax

European Court Puts Release Of Drug Safety Data On Hold

from the regrettable dept

Last month Techdirt wrote about the case of the giant pharma company AbbVie seeking to prevent the European Medicines Agency from releasing basic health safety data that AbbVie claims contains commercially sensitive information. Unfortunately, an interim injunction has just been granted to that effect:

The European Medicines Agency (EMA) has been ordered by the General Court of the European Union not to provide documents as part of two access-to-documents requests until a final ruling is given by the Court. These interim rulings were made as part of court cases brought by two pharmaceutical companies, AbbVie and InterMune. The companies are challenging the Agency's decisions to grant access to non-clinical and clinical information (including clinical study reports) submitted by companies as part of marketing-authorisation applications in accordance with its 2010 access-to-documents policy.

As the EMA notes, it's not as if the release of this data is unprecedented:

Since November 2010, the Agency has released over 1.9 million pages in response to such requests. This is the first time that the policy has been legally challenged.

That obviously raises the question of why AbbVie and InterMune have problems with drug safety data being released when other companies don't. Fortunately, there is very broad support for the EMA's attempt to make this important information available for other researchers to check and analyze:

Since the two pharmaceutical companies filed these legal actions, the EMA has received more than 30 statements of support from various stakeholders, including the European Ombudsman, national competent authorities, members of the Agency's Management Board, Members of the European Parliament, academic institutions, non-governmental organisations, citizens' initiatives and scientific journals, some of whom have also applied to formally intervene in defence of the EMA at the Court.

There's a crucially important principle here, that public safety must outweigh any claims of commercial confidentiality. Let's hope that the General Court of the European Union recognizes that in its final judgment, which will have a major impact on health and safety not just in Europe but, as a knock-on effect, around the world too.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: clinical trials, drug safety, europe, health, information, safety
Companies: abbvie

Has Spain Just Slammed On The Brakes For Europe's Unitary Patent Plans?

from the are-we-there-yet? dept

Although the European Union finally approved the continent-wide Unitary Patent in December 2012, after decades of discussions, the story is by no means at an end. Science describes the root of the problem:

The final agreement introduced a complex arrangement for the oversight of patent matters by the Court of Justice of the European Union. Instead of being enshrined in the main patent regulation, the court's role will be mentioned indirectly in the Unified Patent Court agreement. Axel Horns, a patent attorney at the KSNH law firm in Munich, says the solution is "awkward." But it satisfies both defenders of the Court of Justice's supreme authority, such as the European Parliament, and those who want to limit its role, including some businesses and the United Kingdom's conservative government.

A key bone of contention is therefore what exactly the role of Europe's highest court, the European Court of Justice (ECJ) will have here, with different EU countries wanting very different things. But it's even worse than that, because two nations, Spain and Italy, refused to sign up to the Unitary Patent at all, after their respective languages were not included alongside the other official ones -- English, French and German. This has led to a Unitary Patent that doesn't actually unify Europe, but instead introduces yet another complicated layer on top of existing structures. Spain is now taking advantage of that fact to challenge the whole structure at the ECJ, as this story on The IPKat blog explains:

By hiding the actual substance of the patent, its scope and its limitations, behind an -- admittedly clever -- system of legal referrals, the [Unitary Patent] regime has become even more complex. As a result, the ECJ is confronted with a patent which is in fact just an empty shell. This makes the Regulation [governing the Unitary Patent] either invalid for a lack of legal determination or it will force the Court to define the substance of the unitary patent out of the blue. It will however not prevent the Court from exercising its judicial review over the European patent system. The idea of keeping the ECJ out of the game by stripping down the Regulation was doomed to fail from the very beginning.

And if this lack of legal clarity is not enough to scupper the whole plan, Spain has two more lines of attack. Since it is not part of the Unitary Patent zone, Spain's companies are obviously at a disadvantage:

Article 7 of the Regulation entails an indirect discrimination on grounds of nationality which results from the fact that unitary patents applied for by Spanish enterprises will always be governed by a foreign law.

It is also not unlikely that Spain will put its finger on the Court's greatest treasure, the Internal Market. There will almost necessarily be a distortion of competition between the Member States where the unitary patent is available and those where it is not.

In other words, the awkward compromise agreed to finalize the Unitary Patent last year actually contradicts the fundamental impetus behind the European Union: to create a uniform set of laws that apply equally across the whole continent. Probably for this reason the IP Kat blog suggests:

the chances of success [for Spain before the ECJ] do look promising. The mutation from an autonomous patent for the European market to the hitherto unknown schizophrenic creature of a "European patent with unitary effect" has left deep scars, and every one of them could be taken up before the Court.

One thing is for sure: if the brakes have indeed been slammed on for the Unitary Patent project, they are unlikely to come off for a good while unless something dramatic happens. The IPKat blog reminds us that proceedings at the ECJ take about 22 months on average, so it may well be several years before we have the court's judgment, and things can move forward.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: europe, european court of justice, italy, spain, unitary patent