EC developments in it law

INTRODUCTION As this is the start of the second year of publication of Baker & McKenzie’s article on EC Developments in IT Law the whole table is reproduced in this edition to give a complete picture of the relevant existing and proposed EC measures. As with last year, a shortened version of the table will be reprinted in each edition of the magazine with any changes that have occurred clearly set out. Those measures which are already enacted and the implementation dates for which

A. INTELLECTUAL

have passed (which are indicated by a ‘*‘ in the first column) will not normally be included in the reprints unless there are any new developments relating to them. 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. It should be noted that the implementation date in a directive is that required by the directive: not all member states implement on time. Where the United Kingdom is delinquent, however, or where there are other known problems of implementation, we shall aim to state them.

PROPERTY

IWEASURE 1. Copyright

REFERENCE

STATUS

lMPLEFdlEN?‘ATION

OJ 1991 L122l42

Adopted

14 May 1991

1 January 1993

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

OJ 1992 Cl 3811

Adopted 14 May 1992 in substitution for proposed Council Decision OJ 1992 c57/13

1 January 1995

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

OJ 1992 L346/6 1

Adopted 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 C30811

Under discussion in Council

1 January 1995

2. Patents Community Patent Convention (Luxembourg convention) (amended)

OJ 1976 L1711

Signed 15 December 1975

Not yet ratified by all Member States

Directive 911250 on the Legal Protection of Computer Programs*

19 November

3. Designs Legal Protection of Industrial Design (Community Design)

The proposals are under discussion.

Green Paper 1991

ill/F/5131/91

Proposed regulation

COM 931342 final

Proposed directive

To be decided, but proposed as 31 October 1996

COM 93/344 final

27

4. Trademarks Directive 891104 on Approximation of the laws of Member States relating to Trademarks*

OJ 1989 L 40/l

Adopted 21 December 1988

28 December 1991

Council Decision 92/l 0 postponing implementation of Directive 891104 (see above)*

OJ 1992 L6135

Adopted 1991

Postponed until 3 1 December 1992

Council Regulation on Community Trademarks*

OJ 1994 LO1 1

Regulation adopted on 20 December 1993.

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

OJ 1980 C351 OJ 1984 C230

Implementing regulations are still outstanding but estimated implementation period is two years

5. Topography Rights Directive 87/54 on the legal protection of topograhies of Semiconductor Products*

OJ 1987 L24/36

Adopted 1986

7 November 1987

Decision 90/510 extending scope of Directive 87/54 to inter alia) natural persons and certain legal persons in listed territories (amended by Decision 93/l 7)*

OJ 1990 L285/29

Adopted 9 October 1990

8 November 1990

Decision 90/511 extending protection under Directive 87154 to USA (as amended by Decision 90/541)*

OJ 1990 L285l3 1

Adopted 9 October 1990

8 November 1990

B. PERSONAL

II

2

-

T

16 December

DATA

I==---Amended protection relation to movement

-

19 December

REFERENCE

Proposal on of individuals in processing and free of personal data

Amended Proposed Directive concerning the protection of personal data and privacy in the context of public digital telecommunications networks [COM 94 (128)] -

STATUS

OJ 1992 c31 l/O4

Common position expected to be reached shortly

OJ 1994 C200

Modified amended proposal issued

-

28

C. COMPETITION

LAW -

T

MEASURE

REFERENCE

5TATVS

Commission Notice of 19 December 1977 on Agreements of Minor Importance*

OJ 1977 c3 1313

In force

Exclusive Purchasing Agreements Block Exemption Reg 1984/83*

OJ 1983 L173/5

Adopted

22 June 1983

Directly Applicable

Exclusive Distribution Agreements Block Exemption Reg 1983/83*

OJ 1983 L173ll

Adopted

22 June 1983

Directly Applicable

Patent Licensing Block Exemption Reg 2349/84*

OJ 1984 L219115

Adopted 23 July 1984. Expired July 1994

Directly Applicable

Block Exemption for R&D Corporation Agreements Reg 418/85*

OJ 1985 L53/5

Adopted 1984

19 December

Directly Applicable

Know-how Licence Block Exemption Reg 556/89*

OJ 1988 L6111

Adopted 30 November 1988

Directly Applicable

Franchising Agreements Block Exemption reg 4087/88*

OJ 1988 L359146

Adopted 30 November 1988

1 February 1989

Merger Control Reg 4064/89

OJ 1989 L39511

Adopted 21 December 1989

21 September 1990

As supplemented

OJ 1990 L2 1915

Adopted 25 July 1990

2 1 September 1990

Regulation extending R&D patent and know-how block exemption to Joint Ventures. Reg 151/93*

OJ 1993 L21/8

Adopted 1992

Directly Applicable

Technology Transfer Block Exemption Regulation

OJ 1994 C178/3 with minor amendments in OJ 1994 Cl 87/l 6

Discussion draft issued

by Reg 2367/90*

23 December

D. ENVIRONMENT/HEALTH

-

& SAFETY REFERENCE

MEASURE I

STATUS I

OJ 1990 L156/14

Council Directive 90/270 concerning the minimum safety and health requirements for work and display screen equipment*

E. PRODUCT

Due to come into force on 1 January 1995

IMPi.EMENTATlON I

Adopted 29 May 1990

31 December 1992

LIABILITY

NIEASURE Directive 84/450 on misleading advertising*

I

REFERENCE OJ 1984 L250/17

I

29

STATUS Adopted 10 September 1984

lMPLEMENTATK$N 23 May 1988

Amended proposal for a Directive concerning comparative advertizing and amending Directive 84/450 relating to misleading advertking

OJ 1994

Directive 85/374 on liability for Defective Products*

OJ 1985 L2 1 o/29

Adopted 1985

25 July

3 1 December 1992

OJ 1990 C243, OJ 1992 C73/7

Adopted 1993.

5 April

If implemented will apply to all contracts after 31 December 1994

Proposed Directive on Liabiliity for Defective Services

OJ 1991 Cl2

Draft Directive dropped end of 1993 on subsidiarity grounds

Directive 92/59 on general product safety*

OJ 92 L228/24

Adopted

Directive on Unfair Terms in Consumer amended

Under

discussion

Cl 3614

Contract Contracts,

as

product

29 June 1992

29 June 1994

f F. STANDARDIZATION MEASURE Directive 83/189 on notification of draft standards (as amended)*

1

REFEREIUCE

1

OJ 1985

Council Decision 87i95 on standardization in the field of information technology and telecommunications*

IMPLEMEhlTATlUN

Communication on responses issued. Recommended less radical future action. Adopted 28 March 1983, amended 22 March 1988

OJ 1983 L109l8 OJ 1988 L81/75

Council Resolution on “New Approach to Technical Harmonization Standards””

STATUS

28 March

1984

1 January

1989

Adopted

7 May 1985

OJ 1987 L36/3 1

Adopted 1986

22 December

February

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

COM (92) 298 final and OJ 1993 c73119

Still under discussion

Directive 89/336 on Electromagnetic Compatibility* Directive 92/31 amending Electromagnetic Compatibility Directive 89/336*

OJ 1989 L139119

Adopted

3 may 1989

1 January

Adopted 1992

28 April

N/A

Cl 36/l

OJ 1992 L126lll

-

30

1987

1992

G. PUBLIC

PROCUREMENT’

MEASURE

REFERENCE

STATUS

IMPLEMENTATIQN

Council Directive 93/37/EEC coordinating procedures for the award of public works contracts*

OJ 1993 L199/54

Adopted 1993

14 June

Had immediate effect

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

OJ 1993 L199184

Adopted 1993

14 June

1 July 1994

Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts*

OJ 1993 L199/1

Adopted 1993

14 June

14 June 1994

c L

‘The three Directives listed are designed to be consolidating procurement for supply, works and ‘excluded areas’.

provisions, bringing together

the numerous previous directives relating to public

H. TELECOMMUNICATIONS MEASURE

REFERENCE

IMPLEMENTATION

STATUS

Council Recommendation 86/659 on the coordinated introduction of an Integrated Services Digital Network (ISDN)*

OJ 1986 L382/86

Adopted 1986

22 December

Directive 86/361 on the initial stage of mutual recognition of type approval for terminal equipment*

OJ 1986 L217121

Adopted 1986

24 July

24 July 1987

Directive 88/301 on competition in the internal market for terminal equipment*

OJ 1988 L131/73

Adopted 1988

16 may

In force

Council Resolution on development of a Common for telecoms up to 1992”

OJ 1988 C257ll

Adopted 1988

30 June

Council Resolution on the strengthening of the coordination of the ISDN for the introduction in the Community up to 1992*

OJ 1989 C 19614

Adopted 1989

18 July

N/A

Directive 911263 on mutual recognition of terminal equipment*

OJ 1990 L128

Adopted 1991

29 April

6 November

Directive 90/387 on the creation of a market for telecoms services through Open Network Provisions (ONP)*

OJ 1990

Adopted 1990

on 28 June

1 January

Market

L192

31

1992

1991

Directive 90/388 on competition in the market for telecoms services**

OJ 1990 L192llO

Adopted 28 June 1990

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) as amended by COM (94) 41

OJ 1992 C248 as amended by OJ 1994 Cl08

Amended proposal adopted by the Council in April 1994

Proposed Council Directive on the application of Open Network Provision (ONP) to voice telephony (COM (92) 247 as amended by COM (93) 182 and COM (94) 48)

OJ 1992 C263 as amended by OJ 1993 Cl47

Proposal rejected by European Parliament

31 December 1990 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)

*In November 1992 the ECJ ruled, rejecting arguments by several Member States, that the Commission had not exceeded its powers by abolishing

service monopolies

on the basis of this Directive. This followed

a similar case in relation to Directive 88/301.

I. MEDIA/BROADCASTING MEASURE

REFERENCE

STATUS

European Convention on transborder television*

Ratified.

Directive 89/552 on cross-border television - the “Television Without Frontriers” Directive*

OJ 1989 L298/23

Adopted 3 October 1989

Directive 93/83 on copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission

COM (92) 526 OJ 1993 L248

Adopted 27 September 1993

Directive 92/38 on the adoption of Mac-Packet standards for satellite broadcasting of television signals

OJ 1992 L137/17

Adopted 11 May 1992

Green Paper on Strategy options to strengthen the European programme Industry in the context of the audiovisual policy of the European Union

OJ 1993

L248

Adopted 27 September 1993

32

IMPLEMENTATIOIU Entered into effect on 1 May 1993 3 October 1991

1 January 1995

1 January 1995

EC LEGISLATION

- SUMMARY

Set out below is a short summary of the main provisions referred to in the table.

A. INTELLECTUAL

PROPERTY

The directive on the protection of computer software provides that Member States are to protect computer programs as literary works within the meaning of the Berne Convention. For this purpose the term ‘computer programs’ includes preparatory design material. The standard of originality under the Directive is that it must be original in the sense that it is the author’s own intellectual creation. The Directive includes several important limitations on the copyright owner’s rights in relation to lawful users making back-up copies and reverse engineering for the purposes of achieving interoperability. A rental right for software is also required. The Directive has now been implemented by all but one of the Member States (and all but one of the EFTA members, to which the Directive also applies). The resolution on the accession of Member States to the Rome and Berne Conventions is designed to ensure that the Member States’ obligations under international treaties relating to copyright (including the protection of films, sound recordings and the like) are the same. The Directive on Rental and Lending Right harmonizes certain areas of sound recording and film rights and requires member States to provide a rental right in respect of certain copyrights. The UK, like most of the EC is late in implementing the Directive. Draft regulations are however expected soon. Implementation is planned for March/April 1995. The Directive on the Term of Copyright will require Member States to provide a copyright term of the life of the author plus 70 years. Other copyright terms are also harmonized. The Draft Directive on the Legal Protection of Databases will harmonize protection of databases. Databases which are original (in the sense of the Software Directive) in their selection or arrangement will enjoy copyright protection; other databases will enjoy protection only

through a 15 year right to forbid unlawful extraction, outside the law of copyright. The Community Patent Convention will, if ratified by the Member States, provide for a single EC patent valid throughout the whole community, rather than the bundle of national rights produced by the European Patent Convention (which unifies the substantive patent law of the EC and other European Countries). The draft directive on the Legal Protection of Designs, if enacted, will harmonize the individual Member States’ laws on the protection of industrial designs. It will also harmonize most of the Member States’ laws relating to infringement of designs, and place limitations on, but not abolish completely, the rights of design owners to use their intellectual property rights to prevent the production of spare parts for their products. Although it was hoped that progress would be made on this proposed directive and the proposed design regulation in 1994, it now looks as if little will happen until early 1995. The draft regulation on the Legal Protection of Designs will impose a unified EC-wide design. It will be necessary to register at the EC Designs office, probably to be situated at the same place as the proposed Trade Marks Registry in Alicante. There will be a much shorter period of protection for unregistered designs. The Directive and Regulation on Trade Marks are the same in intent as the proposed directive and regulation on designs; the Directive is designed to harmonize the Member States’ substantive law relating to their own national trademarks and the Regulation will introduce an ECwide trademark. The UK implemented the Directive through the Trade Marks Act 1994, which came into force on 1st November 1994. The Semiconductor Topography Rights Directive harmonizes the laws of the Member States in the protection of semiconductor topographies. The method of implementation is left to the Member States (the UK implements through the unregistered design right in the Copyright,

33

Designs and Patents Act 1988, as amended by express regulation to disapply the compulsory licence provisions). The principal purpose of the measure was to ensure reciprocal protection of EC topographies in the USA, although protection to other countries’ topographies is granted on the basis of reciprocity.

B. PERSONAL

DATA

The (many times amended) proposal of November 1992 is for a general (framework) directive aimed at ensuring the protection of the privacy of individuals in relation to the processing of personal data. In August the Commission issued a modified amended proposal for a Directive on the Protection of Personal Data and Privacy in the context of Public Digital Telecommunications. Progress in this proposal is however, likely to be dependent upon progress being made with the framework data protection proposal, which has yet to be adopted.

C. COMPETITION

LAW

The EC’s activities in the sphere of competition law regulation are wellknown and the table lists the principal measures, all of which have direct effect. The patent Licensing Block Exemption, which was (Reg 2349/84) is due to expire at the end of 1994 has been extended until 30 June 1995 whilst discussions continue on the draft Technology Transfer Block Exemption, which is designed to replace both the Patent Licensing and Know-how block exemptions.

D. ENVIRONMENT/HEALTH SAFETY

&

Although the EC has been active in the field of health and safety law harmonization, the only proposal worthy of note in this field is the Display Screen Equipment Directive, which harmonizes Member States’ laws on the technical standards for display screen workstations in use by a worker - defined as an employee who habitually uses display screen equipment as a significant part of their normal work. The term ‘display screen equipment’ covers alphanumeric or graphic display screens of various types, and includes (but is not limited to) VDUs in offices.

I

E. PRODUCT

LIABILITY

Discussions are still continuing in Council working groups as to the content of the proposed directive on comparative advertising. Although it is possible that a revised draft will be published shortly it is unlikely that any significant progress will be made in the near future. The proposal would have less impact in the UK if adopted following the UK Trade Marks Act 1994, which has simplified the trademark restrictions on comparative advertising originally set out in the Trade Marks Act 1938. Regulations to implement the Product Safety Directive in the UK (SI 1994 No. 2328) were issued on 5 September and came into force on 3 October. The regulations cover those areas not already dealt with by existing legislation (mainly the Consumer Protection Act 1987) such as second hand goods. Draft regulations to implement the Directive on Unfair Contract Terms in Consumer Contracts in the UK have been issued for consultation. Despite the tight timescale the Directive is expected to be implemented more or less on time.

F. STANDARDIZATION The existence of differing technical regulations (as in the non-voluntary specifications laid down by the law) and the differing national standards (as in the voluntary technical product specifications adopted by private national standards institutions such as BSI in the UK, AFNOR in France and DIN in Germany) that exist in the different Member States, has historically created a barrier to the free movement of goods within the Community. ‘Standardization’ is the term used to refer to the Community’s commitment to eliminating both these legal and technical barriers which force manufacturers to tailor their products to meet the differing specifications in the different Member States, and to create instead a system of Community-wide standards. ITSEC is the official set of criteria developed and harmonized by the UK, Germany, the Netherlands and France for use in the independent evaluation and verification of the security of information technology products and systems. Although in practice the criteria are used only by

the four participating countries, other member States have agreed to adopt the ITSEC principles. Accordingly, a Council Recommendation has been proposed recommending the adoption of these criteria for an initial period of two years, followed by a review. The intention is that the adoption of the criteria will promote the establishment of international mutual recognition of IT security evaluations. It is hoped that the Recommendation will be approved towards the latter half of 1995.

G. PUBLIC PROCUREMENT The Community public procurement regime has been consolidated and amplified and the three directives listed now constitute a complete and mandatory code of conduct for the award of IT and other contracts in the public sector. The UK remains delinquent in implementing both the directive coordinating procedures of entities operating in the excluded sectors and the Directive coordinating procedures for the award of public supply contracts. However, consultation documents have been sent out and it is hoped that both Directives will be implemented shortly.

H. TELECOMMUNICATIONS Following the Commission’s Communication of April 1993 in the liberalization of telecoms in Europe, the Council agreed a resolution in July 1993 setting out a timetable for liberalization of telephone services in the EC. The main objectives, to he achielved in tv:o phases, from 1993 to 1995 and from 1996 to 1998 are: consolidation of the current regulatory environment common definition of universal service principles development of a framework for interconnection agreements independence of telecommunications organizations

creating a liberal environment for the international provision of telecoms services. The Proposed Directive on the mutual recognition of licences, which aims to provide for the recognition of other Member States’ telecommunications licences and authorizations, is currently being considered by Council working groups. It is hoped that a common position will be reached sometime in November. The Proposed Directive on the application of Open Network Provision to voice telephony has now been rejected by the European Parliament in its entirety. The proposal is therefore deemed not to have been adopted. The Commission is now considering preparing a new proposal. This is the first successful use of +G ::ropean Parliament’s post-Maastricht J.ower to block legislation. The original proposal aimed to harmonize the regulatory arrangements relating to the supply and usage of voice telephony services. l

I. MEDIA/BROADCASTING The “Television Without Frontiers” Directive was an important step in developing the EC broadcasting market. The purpose of the Directive is to encourage the production and distribution of television programmes throughout the Member States, not only by the creation of a market sufficiently large to render profitable the required investment, but also through requiring preferential treatment of EC works in the television programming of the various Member States. The Directive aims at the free circulation of television broadcasts within a single broadcasting market, in particular by satellite and cable.

EC CASE LAW In subsequent issues of the journal we shall be keeping readers aware of significant developments in the case law of the European Courts of Justice and of First Instance which might have a bearing on the IT industry.

7

For further information on any of the above, please contact Don Jerrard or Harry Small, both of whom are partners in the Intellectual Property and Technology Law department of the London office

34

of Baker & McKenzie (tel: +44 (0)17t 919 IOOO), Mr Jerrard and Mr Small were assisted in the preparation of this article by Mark Crichard, an associate in the same department.