Intellectual, industrial and commercial property  

Intellectual property includes all exclusive rights to intellectual creations. It encompasses two types of rights: industrial property, which includes inventions (patents), trademarks, industrial designs and models and designations of origin, and copyright, which includes artistic and literary property. Since the entry into force of the Treaty on the Functioning of the European Union in 2009, the EU has had explicit competence for intellectual property rights (Article 118).

Legal basis  

Articles 114 and 118 of the Treaty on the Functioning of the European Union (TFEU).


Although governed by different national laws, intellectual property rights (IPR) are also subject to EU legislation. Article 118 TFEU provides that in the context of the establishment and functioning of the internal market, Parliament and the Council, acting in accordance with the ordinary legislative procedure, establish measures for the creation of European IPR in order to provide uniform protection of such rights throughout the Union, and for the setting-up of centralised, Union-wide authorisation, coordination and supervision arrangements. The legislative activity of the European Union consists chiefly in harmonising certain specific aspects of IPR through the creation of a single European system, as is the case for the EU trademark and design, and as will be the case for patents. The European Union Intellectual Property Office (EUIPO) is responsible for managing the EU trademark and design.


A. Legislative harmonisation

1. Trademarks, designs and models

In the EU, the legal framework for trademarks is based on a four-tier system for trademark registration, which coexists with national trademark systems harmonised by means of the Trademark Directive (Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks). In addition to the national route, possible routes to trademark protection in the EU are the Benelux route, the EU trademark, introduced in 1994, and the international route. Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 207/2009 and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the EUIPO simplifies national and EU trademark legislation and makes trademark registration in the EU cheaper, quicker, more reliable and more predictable, thus increasing legal certainty for holders.

Directive 98/71/EC of 13 October 1998 approximates national legislation on the legal protection of designs and models. Council Regulation (EC) No 6/2002 of 12 December 2001 (amended) institutes a Community system for the protection of designs and models. Council Decision 2006/954/EC and Council Regulation (EC) No 1891/2006, both of 18 December 2006, link the EU system for the registration of designs or models to the international registration system for industrial designs and models of the World Intellectual Property Organisation (WIPO).

2. Copyright and related rights

Copyright ensures that authors, composers, artists, film-makers and others receive payment and protection for their works. Digital technologies have profoundly changed the way creative content is produced, distributed and accessed.

a. Copyright

Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society adapted legislation on copyright and related rights to technological developments, but is out of pace with the extraordinarily fast developments that have taken place in the digital world, such as the distribution of and access to television and radio programmes, with 49% of European internet users accessing music, audiovisual content and games online (Eurostat estimate). Harmonised copyright legislation across the EU has yet to be established, and this results in legal uncertainty for consumers, creators and companies. On 14 September 2016 the Commission submitted a proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market (COM(2016) 0593), and a proposal for a regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions (COM(2016) 0594) — ‘CabSat’. The copyright proposal, responding to the Digital Single Market Strategy, would enhance the position of rightholders, who should be remunerated for the exploitation of their content by online services giving access to user-uploaded content. The broadcasting proposal seeks to offer wider online access to TV and radio programmes for users across the EU. Directive 2017/1564 of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled is facilitating access to books and other print material in appropriate formats and their circulation in the internal market. Regulation (EU) 2017/1128 of 14 June 2017 on cross-border portability of online content services in the internal market aims at ensuring that consumers who buy or subscribe to films, sport broadcasts, music, e-books and games can access them when they travel to other EU Member States.

b. Term of protection of copyright and related rights

These rights are protected for life and for 70 years after the death of the author/creator. Here, see Directive 2006/116/EC as amended by Directive 2011/77/EU (extension of the protection for performers in sound recordings from 50 to 70 years after their fixation in record), which has narrowed the gap affecting the authors of music, such as composers and lyricists, whose term of copyright protection is now also 70 years after the author’s death. The term of 70 years has become an international standard for the protection of sound recordings. Currently 64 countries around the world protect sound recordings for 70 years or longer.

c. Computer programs and databases

Directive 91/250/EEC required Member States to protect computer programs by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. It was codified by Directive 2009/24/EC of the European Parliament and of the Council. Directive 96/9/EC provides for the legal protection of databases, defining a database as ‘a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’. The directive stipulates that databases are protected both by copyright, which covers intellectual creation, and by a sui generis right protecting investment (of money, human resources, effort and energy) in the obtaining, verification or presentation of the contents.

d. Collecting societies

A licence must be obtained from the different holders of copyright and related rights before content protected by such rights and the linked services may be disseminated. Rightholders entrust their rights to a collecting society, which manages those rights on their behalf. Unless the collective management organisation has objectively justified reasons to refuse management, it is obliged to manage these rights. Rightholders are free to entrust the management of their rights to independent management entities. These are commercial entities that differ from collective management organisations, inter alia because they are not owned or controlled by rightholders. On 26 February 2014, Parliament and the Council adopted 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, laying down requirements applicable to collective management organisations, with a view to ensuring high standards of governance, financial management, transparency and reporting. This directive aims at ensuring that rightholders have a say in the management of their rights and envisages a better functioning of collective management organisations by means of EU-wide standards.

Member States have to ensure that collective management organisations act in the best interests of the rightholders whose rights they represent, and that they do not impose any obligations which are not objectively necessary for the protection of the rights and interests of the rightholders or for the effective management of those rights.

3. Patents

A patent is a legal title that can be granted for any invention having a technical character, provided that it is new, involves an inventive step and is susceptible of industrial application. A patent gives the owner the right to prevent others from making, using or selling the invention without permission. Patents encourage companies to make the necessary investment for innovation, and provide an incentive for individuals and companies to devote resources to research and development. In Europe, technical inventions can be protected either by national patents granted by the competent national authorities, or by European patents granted centrally by the European Patent Office (EPO). The latter is the executive branch of the European Patent Organisation, which now has 38 contracting states. The EU itself is not a member of that organisation.

After years of discussions among the Member States, in 2012 Parliament and the Council approved the legal basis for a European patent with unitary effect (unitary patent). An international agreement between Member States thus sets up a single and specialised patent jurisdiction.

Following the Court of Justice’s confirmation of the patent package in its judgment of 5 May 2015 in Cases C-146/13 and C-147/13, the way is free for a truly European patent. The previous regime will coexist with the new system until the Unified Patent Court (UPC) is established.

Once granted by the EPO, a unitary patent will provide uniform protection with equal effect in all participating countries. Businesses will have the option of protecting their inventions in all EU Member States with a single unitary patent. They will also be able to challenge and defend unitary patents in a single court action through the UPC; it has been proposed that its seats will be in London, Munich and Paris. This will streamline the system and save on translation costs. However, following the June 2016 referendum in the United Kingdom on withdrawal from the EU, there are serious doubts as to whether a country which is not an EU Member State can be a contracting state of the Unified Patent Court Agreement (UPCA). Moreover, the current wording of the UPCA clearly provides that the primacy of Union law must be respected (Article 20 UPCA) and that the decisions of the Court of Justice of the European Union (CJEU) shall be binding on the UPC and, therefore, also on the UK.

4. Trade secrets

The practice of keeping information confidential goes back centuries. Legal instruments to protect trade secrets, whether or not defined as part of IPR, exist in many countries. The level of protection afforded to confidential information cannot be compared to other areas of intellectual property law such as patents, copyrights and trademarks. The protection of trade secrets varies more from country to country than other areas of IPR law, as do the approaches taken. There is a patchwork legal framework, but since 2016, there has been an EU legal framework, namely Directive (EU) 2016/943 of the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

5. Combating counterfeiting

As differences in national systems for penalising counterfeiting and piracy were making it difficult for Member States to combat those offences effectively, Parliament and the Council adopted Directive 2004/48/EC on the enforcement of intellectual property rights as a first step. This directive aims to step up the fight against piracy and counterfeiting by approximating national legislative systems to ensure a high, equivalent and homogeneous level of intellectual property protection in the internal market. Directive 2004/48/EC provides for measures, procedures and compensation under civil and administrative law only. In 2014, Regulation (EU) No 608/2013 concerning customs enforcement of IPR provided procedural rules for customs authorities to enforce intellectual property rights with regard to goods liable to customs supervision or customs checks.

B. Theory of the ‘exhaustion’ of rights

1. Definition

This is the theory that the proprietor of an industrial or commercial intellectual property right protected by the law of one Member State cannot invoke that law to prevent ‘the importation of products which have been put into circulation in another Member State’. It applies to all fields of industrial property.

2. Limits

The theory of exhaustion of EU rights does not apply in the case of marketing of a counterfeit product, or of products marketed outside the European Economic Area (Article 6 of the Agreement on Trade-Related Aspects of Intellectual Property Rights — TRIPS). In 1999, the CJEU ruled, in its judgment in Sebago Inc. and Ancienne Maison Dubois & Fils SA v GB-Unic SA (C-173/98), that Member States may not provide in their domestic law for exhaustion of the rights conferred by the trademark in respect of products put on the market in non-member countries.

3. Principal legal acts in this area

  • Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;
  • Council Directive 93/83/EEC of 27 September 1993 on broadcasting and cable retransmission; and
  • Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art.

C. Recent case-law of the Court of Justice of the European Union

In 2012, the CJEU confirmed in the SAS case (C-406/10) that, according to Directive 91/250, only the expression of a computer program is protected by copyright and that ideas and principles which underlie the logic, algorithms and programming languages are not protected under that directive (paragraph 32 of the judgment). The Court stressed that neither the functionality of a computer program nor the programming language and format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program for the purposes of Article 1(2) of Directive 91/250 (paragraph 39).

In its judgement in Case C-160/15 (GS Media BV v Sanoma Media Netherlands BV), the Court declared that the posting on a website of a hyperlink to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally.

In its judgement in Case C-484/14 of 15 September 2016, the Court held that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive, and confirms that, under certain conditions, a service provider who provides access to a communication network may not be held liable. Consequently, copyright holders are not entitled to claim compensation on the grounds that the network was used by third parties to infringe their rights. Securing the internet connection by means of a password ensures a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users.

Role of the European Parliament  

Parliament is engaged in trying to harmonise IPR through the creation of a single European system in parallel with national systems, as is the case with the EU trademark and design, and the European unitary patent.

In various resolutions on IPR, and particularly on the legal protection of databases, biotechnological inventions and copyright, Parliament has argued for the gradual harmonisation of such rights. It has also opposed the patenting of parts of the human body. On 27 February 2014 Parliament adopted an own-initiative resolution on private copying levies (the right to make private copies of legally acquired content), as digital private copying has taken on major economic importance as a result of technological progress. Parliament has also played a very active role in the WIPO draft treaty on copyright exceptions for the visually impaired (the ‘Marrakesh Treaty’).

As preparatory work for the overhaul of EU-copyright rules, Parliament adopted, in September 2018, a report containing a number of important recommendations on all issues currently at stake. Over two years there has been a heated public debate focused on Articles 11 and 13 of the draft directive on copyright in the digital single market. This debate resumed with vote of Parliament backing efforts to create a new right for media publishers to monetise content on certain big news platforms and a new right facilitating tracking copyright infringements on the internet. The creative industry rejoiced, whereas tech company representatives slammed the proposals. Once again, the EP’s vote has set the tone for the negotiations to come.


Udo Bux