EC developments in IT law

EC DEVELOPMENTS IN IT LAW INTRODUCTION This is the second edition of the table prepared by Baker & McKenzie highlighting the main legislative provisions within the EC which could have a bearing on the tT industry. As indicated in the March/April edition, the table will be reprinted in each edition of the CL & SR with any changes that have occurred in the course of the previous two months clearly set out. Those measures which are already enacted (and the

implementation dates for which have passed) will not normally be included in the reprints unless there are any new developments relating to them. For a full picture the table should be read in conjunction with the table published in the March~April edition. As a reminder, the first column is a general description of the measure or draft measure. The second is the formal reference in the Official Journal of the European Communities, the reference

being to the original proposal, if it is still in draft, or to the final measure, if it has been enacted. The status is either that it has been enacted or the progress (if any) it has made through the legislative procedures of the EC. The last column gives the implementation date required of the Member States. In the case of draft measures, this is obviously subject to change.

A. INTELLECTUAL PROPERTY

1. Copyright Directive 91/250 on the Legal Protection of Computer Programs

OJ 1991 L122/42

Adopted 14 May 1991

1 January 1993 Spain has implemented

Council Resolution: Accession of Member States to the Rome and and Berne Conventions

OJ 1992

Adopted 14 May 1992 in substitution for proposed Council Decision OJ 1992 C57/13

1 January 1995

C138/1

Directive 92/100 on Rental and Lending Rights and Certain Rights Relating to Copyright

OJ 1992 L346/61

Adopted 19 November 1992

1 July 1994

Directive 93•98 on Term of Protection of Copyright

OJ 1993 L290

Adopted 29 October 1993

1 July 1995

Proposed Directive on Legal Protection of Databases

OJ 1993 C308/1

Latest proposal dated 15 November 1993. Considered by ECOSOC. Under discussion in Parliament and in Council

1 January 1995

2. Designs

Legal Protection of Industrial Design (Community Design) Green Paper 1991

Ill/F/5131/91

Proposed regulation

COM 93/342 final

Proposed directive

COM 93•344

3. Trade Marks

OJ 1989

Directive 89./104 on Approximation of the laws of Member States relating to Trade Marks

L 40/1

Council Decision 92/10 postponing implementation of Directive 89/104 (see above)

OJ 1992 L6/35

Under consideration by ECOSOC and the European Parliament. Draft opinion by ECOSOC is circulating. To be decided, but proposed as 31 October 1996 Adopted 21 December 1988

28 December 1991 UK implementation slightly delayed

Adopted 19 Dec 1991

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Postponed until 31 December 1992

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Council Regulation on Community Trade Marks

OJ 1994 Lll

Commission Proposal COM (80) 635 as amended by COM (84) 470 and COM (92) 443

OJ 1980 C351 OJ 1984 C230

4. Topography Rights Directive 87/154 on the legal protection of topographies of of Semiconductor Products

OJ 1987 L24/36

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Regulation adopted on 20 December 1993. Also, on 29 October 1993 Spain was designated as the site for the C.T.M. office. Also, five official languages have been chosen, namely: English, Spanish,French, German and Italian.

Implementing regulations are still outstanding but but estimated implementation period is three years.

Adopted 16 December 1986

7 November 1987 Commission case against Greece for non-implementation dropped J~

B. PERSONAL DATA

Amended Proposal on protection of individuals in relation to processing and free movement of personal data

OJ 1992 C311/30

Latest proposal dated 27 November 1992 submitted by Commission to Council - still under discussion

Proposed Directive concerning the protection of personal data and privacy in the context of public digital telecommunications networks (COM 90(314)

OJ 1990 C277 and OJ 1992 C311

Waiting for amended proposal

C. COMPETITION LAW

Combined draft anticipated shortly

Combined draft Patent and KnowHow Licence Block Exemption Regulation

D. PRODUCT LIABILITY

Proposed amendment to Directive 84/150 (misleading advertising) relating to comparative advertising

OJ 1991 C180

Proposal for amendment currently under review by Commission on on subsidiarity grounds. Unlikely to be any developments for another year.

Directive on Unfair Contract Terms in Consumer Contracts, as amended

OJ 1990 C243 OJ 1992 C73/7

Adopted 5 April 1993

If implemented will will apply to all contracts after 31 December 1994

Proposed Directive on Liability for Defective Services

OJ 1991 C12

Draft Directive dropped end of 1993 on subsidiarity grounds

N/A

Directive 92•59 on general product safety

OJ 92 L228/24

Adopted 29 June 1992

29 June 1994

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E. STANDARDIZATION

COM (92) 298 final and OJ 1993 C73/19

Proposal submitted by Commission to Council on 11 September 1992 - still under discussion

Council Directive 93/38/EEC coordinating procedures of entities operating in the excluded sectors (water, energy, transport and telecommunications)

OJ 1993 L199/84

Adopted 14 June 1993

Comes into force 1 July 1994

Council Directive 93/6/EEC coordinating procedures for the award of public supply contracts

OJ 1993 L199/1

Adopted 14 June 1993

Comes into force 14 June 1994

Proposed Council Recommendation on Common Information Technology Security Evaluation Criteria and ECOSOC Opinion of 27 January 1993

F. PUBLIC PROCUREMENT

G. TELECOMMUNICATIONS

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s Full liberalization of public voice telephony services planned for 1 January 1998 subject to various derogations to Spain, Ireland, Greece and Portugal for up to five years and, where justified, a derogation of up to two years for very small networks (e.g. Luxembourg)

Commission Communication on further liberalization of European telecommunications of April 1993 followed by Council Resolution of 22 July 1993 on the review of the situation in the telecoms sector and the need for further developments in that market

OJ 1993 C213/01

Proposed Council Directive on the Mutual Recognition of licences and other national authorizations to operate telecommunications services (COM(92)254)

OJ 1992 C248

Proposal submitted to Council in August 1992 Still under discussion

Proposed Council Directive on the application of Open Network Provision (ONP) to voice telphony

OJ 1992 C263 as amended by OJ 1993 C147

Amendments proposed by the European Parliament currently being considered

COM (92) 526 OJ 1993 L248

Adopted 27 September 1993

H. MEDIA/BROADCASTING

Directive 93•98 on copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission

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1 January 1995

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EC LEGISLATION COMMENTS INTELLECTUAL PROPERTY Spain introduced legislation in December 1993 to implement the Directive on the protection of computer software. The remaining delinquent countries are the Netherlands, Belgium, France, Portugal and Luxembourg. In the UK, the Trade Marks Bill, which will implement the Directive and Regulation on trademarks, has just completed its third and final reading in the House of Lords and is now before the House of Commons. Royal Assent is now expected, rather later than first thought, towards the end of this Parliamentary session, perhaps as late as October. The case brought by the Commission against Greece for its failure to implement Directive 87•54 on the legal protection of topographies of semiconductor products has now been withdrawn• A draft opinion of ECOSOC has been produced on the Community designs proposal. This opinion is to be the subject of extensive discussion with ECOSOC, but is broadly favourable. COMPETITION LAW The Commission's proposals for renewing the Patent Licensing Block Exemption (Reg 2349•84), which is due to expire at the end of 1994, are expected to be announced shortly. Interested parties are

then to have two months in which to make representations. It is expected that the Commission will propose combining the Know-How Licence Block Exemption with the Patent Licence Block Exemption.

PRODUCT LIABILITY The proposed amendment to the Misleading Advertising Directive intended to deal with comparative advertising was first published a few years ago. The proposed amendment, which would permit fair comparative advertising is, however, being reconsidered on the ground of subsidiarity. A re-drafted proposal is awaited. A green paper on advertising is also expected towards the middle of this year. TELECOMMUNICATIONS The proposed directive on the mutual recognition of licences aims to introduce a mechanism enabling telecoms providers to obtain authorization in one Member State to provide services in all Member States. This would be done partly through the introduction of a Single Community Licence issued by a newly formed Community Telecommunications Committee. The proposed directive on the application of open network provision to voice telephony aims to harmonize regulatory conditions to ensure that all service providers and users have guaranteed open and efficient access to voice

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telephony services and networks.

MEDIA/BROADCASTING An audio visual green paper is expected imminently, which will deal with many key issues ranging from the application of the "Television Without Frontiers ~ Directive to the impact of new technol-ogles, such as digital systems, interactive TV and multi-media. The green paper is expected to be the precursor of concrete proposals later in 1994. EC CASES - MAGILL RTE is appealing to the European Court of Justice against the ruling of the Court of First Instance upholding the Commission's decision that to enforce RTE's copyright in weekly TV listings when daily listings were licensed was an abuse of a dominant position. Although the appeal is due to be heard shortly, no date has yet been fixed. However, the Advocate-General's opinion is imminent.

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BOOK REVIEW SOFTWARE COPYRIGHT L A W

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Copyright Protection of Computer Programs by Beth Gaze, 1989, hard-cover, 199 pp, ISBN 862870152 This book is based on a thesis for the LLM at the University of California, Berkeley, by the author, who is now a lecturer ~n law at Monash University in Australia. As the preface indicates, "high technology is international and the laws affecting it must take account of this fact. As copyright is increasingly used to protect the results of technological development, such as computer programs, its international aspects become more important". The aim of this book is to present a readable account of the development of computer copyright law in the United States and Australia as a basis for understanding the present situation and computer developments. A subsidiary aim is to analyse some of the specific problems requiring clarification if Australian law is to continue its development path similar to

that taken by American law. The author raises questions as to how law can or should respond to technological developments which transform the basis assumptions on which it rests. There are four chapters in the work Computers, Software and Copyright: Background, Issues and Scope; Developments and Present Position of Program Copyright; Problems of Computer Program Copyright; and Copyright and Information Technology. The author concludes that, in the long run, "both the enforceability crisis and the extension of copyright to functional subject matter require a thorough reassessment of modern copyright law in the light of all recent developments, including policies of access and consideration of the best interests of the public and users of copyright works". Available from The Federation Press, 101a Johnston Street, Annandale, NSW 2038, Australia.

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