Making Intellectual Property Rights work at work. European Legal Framework. Prof. Marie-Christine Janssens Centre for IT & IP Law (CiTiP)

Transcription

1 Making Intellectual Property Rights work at work European Legal Framework Prof. Marie-Christine Janssens Centre for IT & IP Law (CiTiP) Eurocadres, Brussels, 1 September 2016

2 Outline Intellectual property law in a nutshell IPR Regulatory Framework & Employee s rights Closer look at Copyright & Patent rules Some concluding observations

3 Intellectual Property Rights Copyright Industrial property rights Copyright.ss. Patents Trade marks Neighbouring rights Designs Computer programs Plant breeders rights Topographies Databases 3 Geographical denominations

4 Main types of intellectual property Copyright is concerned with original intellectual creations (literary, musical or artistic works, incl. software, databases, ). Patents relate to inventions, producing a technical result improved and new products, processes, and uses Prof. M-C Janssens 4 4

5 Types of intellectual property source : Design rights protect the visual appearance of objects that are not purely utilitarian: a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value Trade marks are signs concerned with brand identity, the purpose of which is to connect, in the mind of the consumer, a link between the particular products and the company Prof. M-C Janssens 5

6 Dinstinguish Ownership Inventorship & Authorship Natural person

7 Outline Intellectual property law in a nutshell IPR Regulatory Framework & Employee s rights Closer look at Copyright & Patent rules Some concluding observations

8 The legal and institutional framework of intellectual property law International Treaties (Berne, Paris, Rome, TRIPs,...) European Directives & Regulations No international solutions Exc. Right of attribution Authors/inventors have right to claim authorship (in patent)

9 EU Intellectual Property Framework Trademarks Designs Copyright Patents 2 Directives 1 Directive Directives 1 (BioTech) Directive 1 unitary EU right unitary EU title 2001 No unitary title (almost) Unitary title in 2017? Design created by employee Software created by employee employer employer

10 Particular nature of issue at intersection between patent law & labor law Patent law Inventor principle Labour Law Results of work principle

11 Outline Intellectual property law in a nutshell IPR Regulatory Framework & Employee s rights Closer look at Copyright & Patent rules Some concluding observations

12 Copyright ownership = domestic law The creator of the work is initial owner of any copyright Cf. calculation of the duration of copyright (70y after death) Most Member States have special regimes of legal transfers (cf. civil law-common law clash) For certain works (databases, audiovisual works) Works made by employees 2 extremes Work for hire rule - transfer to employer is implied (UK, Netherlands) Employee retains ownership unless contract Mandatory EU regulation for Software Rights are deemed to vest in employer Employees keep moral rights (mostly) Obligation from International Treaty (Berne) Right of attribution & right of integrity No EU harmonization

13 Copyright versus Patent protection for Computerprograms Computerprogram as such Computerlanguage (codes) copyright Underlying for technical solution problem patent law technical

14 Who owns the patent? National patent European Patent (EPO) Dom estic law Art. 60 EPC Unitary (EU) Patent Rules of substantive law follow EPC

15

16 Article 60 European Patent Convention The right to a European patent shall belong to the inventor or his successor in title. If the inventor is an employee, the right to a European patent shall be determined in accordance with the law of the State in which the employee is mainly employed; if the State in which the employee is mainly employed cannot be determined, the law to be applied shall be that of the State in which the employer has the place of business to which the employee is attached. Prof. M-C Janssens 16

17 Reality of multinational inventions Person domiciled in France Working at the German Branch in Germany Employment contract with UK company Contract designates (obviously not German but) Belgian, Swiss,... law Multiple inventors with different nationalities Employment contracts under different national rules Prof. M-C Janssens 17

18 European Union 28 variations on a theme Who owns patent Remuneration Scheme Obligations of the parties Validity deviating contracts Special rules universities Very detailed act No regulation Patent rule Seperate Act Labour Law rule

19 Different approaches re categories 2 3 Service inventions o Free inventions o All other inventions Service inventions o during the performance of his duties that involved inventive activity; Work related inventions o Based on know-how and/or resources of the company and developed during the course of his duties Free inventions o All other inventions

20 Different approaches re compensation No compensation Only service inventions All work related inventions Open norm: Right to a fair share Detailed rules regarding calculation

21 Different rules re obligations

22 Outline Intellectual property law in a nutshell IPR Regulatory Framework & Employee s rights Closer look at Copyright & Patent rules Three concluding observations

23 1. Perspectives on harmonization Not promissing Despite announcements in the 1990s en 2000s However : The use of the legislative instrument is generally accepted by legal doctrine, which assumes that in respect to remuneration rights a real conflict of interests between the employer and employee exists (...) This conflict is unsolvable on the individual contract basis; by the considerable factual imbalance of both parties it is difficult to reach a fair and functional legal understanding. This situation needs, therefore, some external support in favour of the weaker party either by collective action and/or by legislation (Jonczyk, International Society of Labour Law, 1989)

24 2. DIRECTIVE 2016/943 of 8 June on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure Goal : common measures against the unlawful acquisition, use and disclosure of trade secrets, aims at ensuring the smooth functioning of the internal market Safeguards mobility of employees The directive will not impose any restrictions on workers in their employment contracts, where national law will continue to apply. Therefore there will be no limitation to employees' use of the experience and skills honestly acquired in the normal course of their employment. Furthermore, the autonomy of social partners and their rights to enter into collective agreements will not be affected by the implementation of the new conditions.

25 3. Invention v. Innovation & Employee recognition PATENTABLE INVENTIONS ALL INVENTIONS PATENT APPLICATIONS INNOVATIONS Innovation relevant patent applications Patent applications without economic applications IP MGMT, MARCH 2015 Non-patented inventions without economic application Innovationrelevant inventions without patent application

26 Thank you for your attention