[A2k] July 2015: WTO reports on EU competition policy and copyright law - WTO Trade Policy Review - European Union

Thiru Balasubramaniam thiru at keionline.org
Wed Jul 22 02:44:54 PDT 2015


Submitted by thiru on 9. July 2015 - 17:35

On 6 July 2015 and 8 July 2015, the World Trade Organization (WTO)
conducted a trade policy review of the European Union. All members of
the WTO are subject to review under the Trade Policy Review Mechanism
(TPRM). As noted by the WTO secretariat, the "basis for the review is
a report by the WTO Secretariat and a report by the Government of the
European Union" (Source:Trade Policy Review - European Union, July

The report by the WTO secretariat (WT/TPR/G/317) provides 212 pages of
detailed information on the European Union's economic environment,
trade and investment regime and trade policies and practices. In
relation to abuse of dominant position, standards essential patents
and licences given on "fair, reasonable and non-discriminatory (FRAND)
terms", the Secretariat report noted:

"3.170. One issue relating to the application of the rules on abuse of
dominant position is anticompetitive behaviour as it relates to
intellectual property. The request for a preliminary ruling lodged by
a German court in 2013 is interesting in this regard. The case centres
around the conduct of standard-essential patent (SEP) holders who have
given a commitment to grant licences to third parties on fair,
reasonable and non-discriminatory (FRAND) terms. In an Opinion
delivered on 20 November 2014 to the European Union Court of Justice,
the Advocate General stated that the fact that a company owns a SEP
does not necessarily mean that it holds a dominant position. He also
proposed that the Court of Justice rule that, where the proprietor of
an SEP has made a commitment to a standards body to grant third
parties a licence on FRAND terms, it constitutes an abuse of a
dominant position for that proprietor to request corrective measures
or to seek an injunction against a company that has infringed the SEP,
where it is shown that the SEP-holder has not honoured its commitment
even though the offending company has shown itself to be objectively
ready, willing and able to enter into such a licensing agreement
(Source: WT/TPR/S/317)."


On copyright, the secretariat provided a detailed primer:

"3.259. Based on its 2011 blueprint for IPRs, the EU is continuing the
review and modernization of its legislative framework under which
copyright and related rights can be protected and enforced. As part of
this process, Directive 2014/26/EU on Collective Management of
Copyright and Related Rights and Multi-Territorial Licensing of Rights
in Musical Works for Online Use in the Internal Market was adopted on
26 February 2014. EU member States are required to implement the
Directive into national law by April 2016. Its main objective is to
establish a coordinated framework that provides for sound and
transparent management of copyright and related rights by collective
management organizations; it also aims at facilitating cross-border
licensing of authors' rights in musical works for online use so that
these can be distributed across the EU while ensuring that the
revenues due to the authors are collected.

3.260. Also as part of the legislative reform process of the EU
copyright rules in order to adapt them to the digital age, the
Commission initiated a public consultation that was held from December
2013 to March 2014. A broad range of themes was covered by these
consultations, including: issues raised by territoriality in the Union
market; the need for further harmonization; the application of
limitations and exceptions to copyright in the digital age; the
fragmentation of the EU copyright market; and how to improve the
effectiveness and efficiency of enforcement while underpinning its
legitimacy in the wider context of copyright reform. The results of
the consultation were published in July 2014.

3.261. As foreshadowed in its Communication on Content in the Digital
Single Market, the Commission also commissioned a series of external
technical studies that examined legal and economic issues related to
the creation of a comprehensive framework for copyright in the Digital
Single Market. The studies covered the following topics:

(i) the application of Directive 2001/29/EC on copyright and related
rights in the information society (December 2013). It assessed the
extent to which the implementation of the Directive responds to the
realities of digital markets and evaluated whether further
harmonization of national copyright provisions is needed in order to
support the cross-border exchange of services and information in the

(ii) an "Economic Analysis of the Territoriality of the Making
Available Right in the EU” (March 2014). Among the key issues
discussed were whether the current legal framework for copyright and
related rights needed to be updated in order to deal with the
provision of online on-demand service, if territorial licensing
hampers EU-wide dissemination of content, and how territorial
licensing relates to social welfare;

(iii) the Making Available Right and its Relationship with the
Reproduction Right in Cross-Border Digital Transmissions (December
2014).217 It focused on the link between the making available right
and the reproduction right and looked into accompanying measures,
including legislative changes, that might be needed in cases where the
recommendations of the above-mentioned study were implemented;

(iv) "Assessing the Economic Impacts of Adapting Certain Limitations
and Exceptions to Copyright and Related Rights in the EU". Published
in October 2013, the first part proposed a methodology to assess
exceptions and limitations to copyright.218 The second part,published
in June 2014, looked into specific policy options; and

(v) the Legal Framework of Text and Data Mining (March 2014) which
examined how such data analysis activities were covered by the EU's
present legal framework, be it under copyright legislation or that
related to database protection."

On the WIPO Marrakesh Treaty for the Blind, the WTO secretariat reported:

"3.268. On 30 April 2014, the European Union signed the 2013 Marrakesh
Treaty to Facilitate Access to Published Works for Persons Who Are
Blind, Visually Impaired, or Otherwise Print Disabled that was
concluded under the auspices of WIPO. On 21 October 2014, the
Commission proposed the ratification, on behalf of the EU, of the
Marrakesh Treaty which is due to enter into force upon acceptance by
20 WIPO member States.230 The Treaty provides for a mandatory
exception to copyright under which copies can be produced, distributed
or made available in accessible format to visually impaired persons
without the authorization of the rightholder. Books in formats such as
Braille, large print, e-books and audio books with special navigation
tools can thus be exchanged across borders within the EU and with
third countries."

On the jurisprudence developed by the Court of Justice of the European
Union (CJEU) in the field of copyright and related rights
-specifically on the scope of exceptions to copyright, the WTO report

"3.265. Defining the scope of exceptions to copyright has also been
the subject of several CJEU judgments. On 5 June 2014, the Court
ruled, for example, that the exemption in Article 5 of Directive
2001/29/EC extended to copies on a user's computer screen and copies
on the internet cache of a computer's hard disk that were made by an
end–user in the course of viewing a website. As such copies were
temporary, transient or incidental in nature, and constituted an
integral part of a technological process, they could be made without
the rightholder's authorization. This ruling was seen as a major
clarification both for internet users in Europe, but also for
companies that aim for an expansion of their activities in the
internet economy."

In terms of developments in national law in relation to amendments to
copyright law-specifically the "Google Tax" measures undertaken in
Span and Germany - the Secretariat reported:

"3.266. Among the relevant developments in EU member States are
amendments to the copyright law in Spain that were adopted on 4
November 2014.226 One of the changes introduced by the amended law
requires website owners to remove links to copyright-infringing
material in case of large-scale infringing websites offering
hyperlinks through an active and non-neutral activity, so long as they
are not carrying out mere technical intermediation. Changes to the
copyright law also include what has become known as the "Google Tax":
as of January 2015, online content aggregators benefit from an
exception to copyright in order to post excerpts of news articles
online; this exception is, however, subject to the payment of
compensation to the organization representing newspapers. Google
responded by announcing, on 11 December 2014, that it will close its
news service in Spain. In Germany, for example, the introduction of an
"ancillary copyright law for press publishers" in a 2013 amendment of
the Copyright Law led to the removal of newspapers concerned from
Google News. Subsequently, publishers requested to be relisted as they
had witnessed a decrease in traffic. On the other hand, instead of
adopting legislative measures, an agreement was reached in France on 1
February 2013 that allows the display of news content in Google's
search result in exchange for a payment of €60 million to French

During the 12th Trade Policy Review of the European Union, around
1,400 questions were submitted to the European Union by 31 WTO
members. It is expected that the WTO secretariat will release the
minutes and the questions and answers submitted during this Trade
Policy Review in mid-August 2015.

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