The European Union Commission and Recent Trends in European Information Law
Hoeren, Thomas, Rutgers Computer & Technology Law Journal
This Article addresses several recent and emerging developments regarding the European Union's copyright and intellectual property ("IP") laws. Because not every significant issue can be discussed within this short survey, the Article will only address what the author considers to be the most significant developments. Specifically, this Article discusses: (1) recent European Union law relating to intellectual property infringements occurring on or via the Internet; (2) the patentability of computer-implemented inventions; (3) implementation of the Council Directive on the legal protection of computer programs--i.e., the "Software Directive"; (4) selected topics regarding contract law as applied to copyright infringement and copyright related matters; (5) recent developments regarding collecting societies; (6) compatibility of the European Union's copyright directives; (7) applying European Union legislation on design protection to graphical interface and icons; and (8) the development of the new ".eu" top-level-domain.
II. RECENT EUROPEAN UNION LAWS RELATING TO INTELLECTUAL PROPERTY INFRINGEMENTS OCCURRING ON OR VIA THE INTERNET
In the European Union ("EU"), several new legislative measures have been passed relating to cross-border IP infringements. Specifically, the legislature has addressed Internet infringement, as well as proper forum selection in infringement matters. In regard to issues of international jurisdiction, the recently enacted "Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters" (1) ("Brussels I Regulation") has replaced the Brussels Convention of 1968 for all Member States, except Denmark. (2) According to the general rule of article 2, number 1 of the Brussels I Regulation, a defendant, who is domiciled in a European Union Member State ("Member State"), may be sued in the courts of that Member State. (3) Article 5, number 3 then provides for special jurisdiction in matters relating to a tort or delict, which includes IP infringements. (4) Specifically, the relevant forum is the courts of the place "where the harmful event occurred or may occur." (5) Therefore, the plaintiff has the option of suing in the state where the act or omission causing the injury occurred, or may occur, (6) or alternatively, in the state where the harm occurred, or may occur. (7)
As applied to IP infringements occurring on or via the Internet, a copyright owner now has the ability to sue in any Member State where the infringing Internet activity can be accessed (assuming that accessibility is considered to be an IP infringing activity in that Member State). (8) Indeed, Council Directive 2001/29 (the "Info-Soc Directive") (9) will likely be interpreted to cover the mere availability of protected content on the Internet. (10) Pursuant to article 5, number 3, of the Brussels I Regulation, Member States had to enact the Directive by the end of 2002; therefore, the accessibility of copyrighted content in a Member State may result in granting special jurisdiction. Of particular significance, this may enable forum shopping, allowing the plaintiff to select the forum where he expects the highest damages or where the defendant has valuable assets.
The European Commission began negotiations in March 2002 to amend the Lugano Convention to address rules of international jurisdiction. (11) Essentially, the amendment would mirror the Brussels I Regulation to ensure that the concepts applied in the Brussels I Regulation would also be applied between the Member States. (12)
In addition to forum selection issues in cross-border disputes, the EU has recently addressed, both directly and indirectly, questions of private international law. In terms of indirect action, the E-Commerce Directive (13) establishes a so-called "principle of the country of origin" or "internal market principle" under which a provider of Internet services is only bound by the laws of the country in which it is permanently established. …