Those Who Claim That Significant Copyright-Related Benefits Flow from Greater International Uniformity of Terms Point to T

Issue 5 - October 2015

Dear Colleagues, It is with great pleasure that we are presenting the fifth issue of this Newsletter, the purpose of which is to provide a platform for the exchange of experiences and ideas among staffers of the European Parliament and the Congress in the area of legal affairs. The main purpose of this issue is to introduce the Members of the Legal Affairs Committee of the European Parliament (JURI) who will be visiting Washington, DC on November 3-6, 2015, as announced in the the last newsletter from July 2015. An ambitious programme of meetings has been set up with the purpose of discussing questions relating primarily to Civil Justice, Private International Law and Intellectual Property Rights, with both public counterparts and private stakeholders. This newsletter will also include brief background descriptions in view of the meetings that the Committee delegation will hold in Congress, with the US Administration and the Supreme Court, as well as with civil society and industry. The week of the visit will be a busy one indeed for the European Parliament in the US capital, with close to 40 MEPs visiting at the same time. In addition to the Members from JURI, the Constitutional Affairs Committee (AFCO) and Parliament's Standing Delegation for relations with the US will also have Members visiting with official missions, the latter for an interparliamentary meeting (IPM) in the context of the Transatlantic Legislative Dialogue (TLD). Political groups from Parliament and individual Members are also visiting Washington next week with their own agendas and meeting programmes.

"Those who claim that significant copyright-related benefits flow from greater international uniformity of terms point to the fact that the nations of the European Union have adopted a system of copyright terms uniform among themselves ... European and American copyright law have long coexisted despite important differences, including Europe's traditional respect for authors' moral rights."

Justice Breyer in his dissenting opinion in Eldred v. Ashcroft

Antoine Ripoll Robert Bray Head of the European Parliament's Head of Unit Liaison Office with the US Congress Committee on Legal Affairs, EP

Subscriptions: please email the JURI Secretariat : [email protected] Credits & Acknowledgments European Parliament - Committee on Legal Affairs Head of Secretariat: Robert BRAY - [email protected] Administrator responsible: Magnus NORDANSKOG - [email protected] Editorial/Production Assistant: Marcia MAGUIRE - [email protected] The work and responsibilities of the Legal Affairs Committee As outlined in the newsletter from November 2014, the Committee on Legal Affairs is the standing committee of the European Parliament responsible for all horizontal issues relating to better regulation. In addition to its responsibility for legislative dossiers within central legal areas, such as civil law and procedure, private international law, commercial law, company law and intellectual property law, the Committee has a very important role as the Parliament's legal advisor. This role follows from the Committee's responsibility for the interpretation, application and monitoring of Union law and international law, and includes giving opinions to other committees in Parliament concerning the legal bases of legislative proposals and on the delegation of legislative powers to the Commission, and recommending to the President of Parliament whether to initiate litigation or intervene in on-going cases in the Court of Justice. The purpose of the mission to Washington, DC, on 3-6 November 2015, is to dicuss primarily questions relating to Intellectual Property Rights, which are very high up on the agenda internationally today, not least when it comes to efforts to reform copyright to the digital environment and the negotations for a Transatlantic Trade and Investment Partnership (TTIP), for instance relating to Geographical Indicators (GIs), denominations of origin for in particular agricultural products. In addition, the Committee is going to Washington to discuss questions pertaining to Private International Law (PIL) and civil justice, for instance the Judgments Project under the Hague Conference on PIL and questions relating to civil liability when it comes to new technlogy, such as robotics and Articifial Intelligence (AI). ______

Pavel Svoboda, Chair of the Committee on Legal Affairs Pavel Svoboda, from the Czech Republic, has a strong academic background as a Professor of European law at the Law Faculty of Charles University in Prague and his former posts include those of Attorney at Law, Deputy Minister of Foreign Affairs, Ambassador of the Czech Republic to the Council of Europe, Minister, and Chairman of the Legislative Council of the Czech Republic. He has dedicated his professional career since 1999 to European integration and EU law.

A member of the centre-right Group of the European People's Party, in addition to being the Chair of the Legal Affairs Committee, he is also a substitute member in the Parliament's Transport Committee and very active in working with EU candidate and neighbourhood countries, such as Montenegro and Ukraine. ______

Robotics and civil liability Robotics is ever more present in daily life, and this is set to intensify. The development of robotics and artificial intelligence represents one of the most relevant technological innovations of the current century, a revolution with profound impacts on the economy and society.

Whereas the first robotics revolution of the 1970s saw the emergence of industrial robots, the current second robotics revolution is built around inter-connected service robots. Robotic applications are now very different from one another, ranging from automated vacuum cleaners to a prosthetic limb, a personal robot, a flying drone, a driverless vehicle or a surgical robot.

2 First generation industrial robots were contained in a "cage" to avoid any contact with humans. Second generation robotics are now moving "out of the cage" to interact directly with humans.

Consequently, issues such as liability rules and insurance, standardisation, regulation of human enhancement are recurrent to new robotics. In addition, new roles for robots obviously raise moral and ethical questions, as does the prospect of self-enhancing artificial intelligence.

While the European Commission has identified robotics as one of the flagship initiatives within the Horizon 2020 research framework to secure Europe's global competitiveness, so far decision-makers have shown limited interest in the wider legal challenges around robotics. The issue raises a number of legal questions related to liability and responsibility, which current EU regulations do not appear to provide an adequate response to.

The Committee on Legal Affairs has therefore decided to establish a Working Group on "Legal questions related to the development of Robotics and artificial intelligence" in order to reflect on legal issues and to pave the way for the drafting of civil law rules on robotics and artificial intelligence. The members of the working group represent the different political groups in the EP and the Committee on Industry, Research and Energy, the Committee on the Internal Market and the Committee on Employment and Social Affairs also have a representative in the Working Group.

The aim of the Working Group is to stimulate the reflection of Members of Parliament on these issues by facilitating specific information, providing exchange of views with experts from many fields of academic expertise and enabling Members to conduct an in-depth examination and analysis of the challenges and prospects at stake.

Thanks to impressive technological advances, robots are nowadays widely used, among other things, in manufacturing, agriculture, medicine, housework, disaster response, and even warfare. It is self-evident that the more autonomous robots are, the less they can be considered simple tools in the hands of other actors (the manufacturer, the owner, the user etc.). This, in turn, makes the ordinary rules on liability insufficient and calls for new rules which focus on how a machine can be held – partly or entirely – responsible for what it has done or omitted. The shortcomings of the current legal framework are patent in the area of both contractual and non-contractual liability.

As regards contractual liability, it is not unlikely that sooner or later robots will be able to enter into contracts with other parties on the basis of their autonomous decisions. A machine designed to choose its counterparts, negotiate contractual terms, conclude contracts and decide whether and how to implement them can no longer be considered as a simple machine. This makes the traditional rules on liability inapplicable and underlines the need for new, more up-to-date ones.

As regards non-contractual liability and apart from cases of manufacturing defects, which would be covered by Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products1, damage can be caused by robots' autonomous behaviour. This crucial question, therefore, arises: from a legal point of view, what happens in this case? The traditional categories of liability fail to answer this question.

Some basic principles should be considered which would necessarily apply whichever solution may be proposed. First and foremost, robots' liability should in no way restrict the type or the extent of the damages which may be recovered, nor should it limit the forms of reparation

1 OJ L 210, 7.8.1985, p. 29–33.

3 which may be offered to the aggrieved party. There is no reason to depart from the ordinary principles in case of a robot's harmful behaviour.

In many cases it may be hard to provide evidence of the causal link between human behaviour and damage caused by robotic technologies, particularly in cases where a person cannot distinctly control the actions of a robot. With smart autonomous and self-learning robotics, this factor is increased. This is a strong case for the application of strict liability. Under strict liability, there is no requirement to prove fault, negligence or intention of the agent causing damage. It is only sufficient to prove that damage has occurred and to establish that a causal link exists between the harmful behaviour and the damage suffered. The application of strict liability standards to robots' misbehaviour should be the rule.

Liability should be proportionate to the actual level of instructions given to the robot and its autonomy. The greater a robot's learning capability and/or autonomy is, the lower other parties' responsibility should be, and the longer a robot's 'education' has lasted, the greater the responsibility of its 'teacher' should be.

The real issue at stake is not just whether and how robots should be regarded as holders of full rights and obligations, but whether and how the other parties involved should be considered free or partially free of liability in relation to a robot's misbehaviour.

A first option could be to establish a compulsory insurance scheme whereby, similar to what already happens with cars, owners of robots would be required to take out an insurance cover for the damage potentially caused by their robots. Depending on the circumstances of the case, this mechanism might be supplemented by a cap that limits the final payable amount or by specific insurance systems which can also require the manufacturer to contribute to them. Similar to the existing funds for victims of road accidents, an appropriate guarantee fund could be established in order to contribute to covering higher medical expenses or compensation costs relating to severe personal injuries or death of the aggrieved party.

A second option would allow the manufacturer, the programmer, the owner or the user to benefit from limited liability insofar as smart autonomous robots would be endowed with a compensation fund and damages could only be claimed within the limits of this fund. The owner should be required to contribute to the fund, but it could also be raised, in different proportions, from all the parties involved. It would be created before the robot is actually put into public use. This fund could be regarded as the 'assets' of a smart autonomous robot limiting its financial liability. It could also be envisaged that each robot should supply the fund, for instance by investing the 'remuneration' they would receive for their work. The link between a robot and its fund would be ensured by an individual registration number identifying each and every smart autonomous robot and being suitable to be used as a reference.

A third, more innovative solution would consist in creating a specific legal status for robots. Of course, robots cannot have the same legal status as physical persons. However, it is still possible to create a new, specific legal category for them: electronic personality. This would be very similar to what already characterises the concept of legal persons vis-à-vis physical persons. Smart autonomous robots would be regarded as neither physical nor legal persons, but it could be desirable to establish them as having the status of electronic persons with specific rights and obligations. Electronic personality for robots would also bundle and replace all the legal responsibilities of the various parties and would ultimately fulfil the need for a clear identification of who is to be held liable and to what extent.

In practice, each smart autonomous robot should be entered in a public register and would obtain its legal status at the moment of the registration. It would also be possible to sue a

4 smart autonomous robot directly and exclusively, whenever it is clear that no other party is responsible for the damage in question.

Machine ethics can positively contribute to the reflection on robots' liability. This result should be attained by equipping robots with a code of conduct which would enable each robot, through a learning algorithm based on a series of examples submitted by the manufacturer and/or the programmer, to understand whether certain behaviour is right or wrong in a given situation and to take decisions according to a pre-set hierarchy of values.

The code of conduct could ultimately be regarded as technical standards of a peculiar nature and their development could be entrusted to an ad hoc guarantee institution. In order to ensure uniformity of approach, this could be set up at least at EU level. Endowing robots with ethical principles would probably reduce the risks related to their autonomous decisions and make technological advances in robotics, along with their legal categorisation, more easily acceptable in the public opinion. ______

Julia Reda, MEP Julia Reda, from Germany, was elected to the European Parliament for the Pirate Party in 2014. She is a Vice-Chair of her parliamentary group, the Greens/European Free Alliance. She is a member of the Legal Affairs Committee, a substitute in the Internal Market & Consumer Protection and Petition Committees as well as a co-founder of the Digital Agenda intergroup. Her legislative focus is on copyright and internet policy issues. She was the rapporteur for the Parliament's evaluation of 2001's Copyright Directive ahead of the upcoming reform, and is very active in the Committee's Working Group on the subject.

Born in Bonn in Germany in 1986, Julia Reda was a member of the German Social Democrats for six years before joining the Piratenpartei in 2009 amidst a debate on internet blocking. She was chairwoman of the party's youth wing from 2010 to 2012. She is the founder of the Young Pirates of Europe.

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JURI visit to Kiev, Ukraine, on 23-24 September 2015 A delegation of the Committee on Legal Affairs visited Kiev, Ukraine to meet with public and private interlocutors. With a view to preparing for future rapprochement of Ukraine to the EU, the main purpose of the visit was to examine how the European Parliament could assist the local judicial authorities - and businesses and citizens - to create better links and relations in view of JURI's responsibility for judicial cooperation in civil matters and the Hague Conference.

The Members of the delegation had very fruitful discussions with a wide array of Ukrainian stakeholders, with a strong focus on the ongoing reform of the judiciary, and in particular the question of appointments of judges.

In addition to meeting with Members of the Ukrainian Parliament, the Verkhovna Rada, the delegation met with the President of the Supreme Court, the recently set up Anti-Corruption Bureau, the Government Office for European Integration, and representatives of civil society. Members also met with the European Union Advisory Mission for Civilian Security Sector Reform Ukraine (EUAM Ukraine). As a result of the meeting with EUAM, the coordinators of JURI have decided to organise an even in Brussels in February 2016 with invited Ukrainian

5 stakeholders in an attempt to assist in finding ways for parlamentarians to give advise on best practices in the reform of the judiciary and fight against corruption in Ukraine. Chairman Svoboda put it this way at the press conference at the end of the visit: "Trust in the judicial system is a precondition for further development. How can parlamentarians help? We can help by sharing experience."

Chairman Svoboda meeting Ukrainian President Poroshenko ______

Reform of copyright to the digital environment liability As outlined in the newsletter from July 2015, reform of copyright in the context of the Digital Single Market in the EU is one of the top ten priorities of the European Commission.

Despite over a century of international harmonisation, copyright law remains essentially national law, even though some fundamental copyright norms are gradually converging. Today, copyright is regulated at international level mainly through the Bern Convention, the Universal Copyright Convention, and a series of other treaties administered by the World Intellectual Property Organization.

At present, national copyright laws are grounded in a handful of universal rules and principles. Exclusive rights are granted to creators for 'original' works which range from art (music, paintings) to information products (maps, databases). The rights conceded under copyright vary with national laws and legal traditions (civil law in continental Europe and common law in Anglo-American countries). However, as a minimum, exclusive rights encompass the rights to reproduce, distribute, rent, lend, or communicate a work to the public. All these rights can be transferred and/or collectively managed by specialist intermediaries (notably for music works). Most national laws also grant moral rights to protect the author's name and reputation. Other provisions – such as the term of copyright protection – differ widely on a global scale. To maintain a fair balance between the interests of users and rights-holders, legislators have foreseen a number of exceptions, allowing for limited free use of certain works. However, the new digital environment increasingly characterised by the use of the internet to deliver content across borders has an impact on both users and the creative industries, and represents a challenge to the implementation of coherent copyright legislation throughout the EU.

6 The fundamentals of the EU legal framework on copyright date back to Directive 2001/29/EC, yet divisions run deep over whether it should be updated or not. The matrix within which to view this framework is one of rights versus exceptions, and the basic balance between the two has not been revisited since 2001. To understand the divisions between stakeholders over whether and how to reform the framework, it is important to underline the added complexity brought by the debate on net neutrality and the absence of a legal control on intermediaries. There is no general control obligation on transmitted content, as established by the eCommerce Directive. Furthermore, the potential impact that changing the EU copyright system may have on telecom services is also problematic.

With the lower protection of rights come increased receipts from higher volumes of internet traffic. Greater receipts enable greater investments in the telecoms infrastructure. One example of this tension is the current discussion about whether a specific exemption for user generated content (uploading your own videos) should be introduced in the EU directives. Users are pressing for action, however blanket licences actually already exist between platforms supporting content and rights owners, so this traffic is apparently already monitored effectively at the technical level and monetised by the businesses concerned. More transparency and detailed information on how these licences are structured would now help with developing a policy proposal striking the right balance.

Nevertheless, the main findings are as follows:

 The system of Rights and the functioning of the Single Market is not satisfactory for all stakeholders, in particular owing to the territorial scope of the rights involved in digital transmissions and the segmentation of the market through licensing agreements. In particular, improved consumer access to cross border online services needs to be fostered.

 The system of limitations and exceptions to copyright and related rights in the Single Market should be updated, and possibly harmonised, since Member States are currently free to introduce these rules as they see fit in national legislation, and this has implications on fair compensation for rights holders given the cross border effect of limitations and exceptions.

 Additional exceptions may be justified for teaching, disabilities, libraries and other cultural institutions (preservation and mass digitisation), e-Lending and offpremises access to library collections, text and data mining (TDM), user generated content, private copying and reprography. One important element is the possible need to ensure cross border effect to exceptions, in particular those that are most relevant for the internet transmissions of copyright protected content.

In May 2015, the European Commission unveiled its plans to create a Digital Single Market, aiming in this respect to present legislative proposals reducing the differences between national copyright regimes and allowing for wider online access, including through further harmonisation measures. Reactions from stakeholders were mixed. In this context, the European Parliament's Committee on Legal Affairs undertook the preparation of an own initiative report to stir discussions in the field, which was voted in plenary on 9 July 2015.

7 Dietmar Köster, MEP Dietmar Köster is a German Member of Parliament since July 2014 and a member of the centre-left Group of the Progressive Alliance of Socialists and Democrats. He is a member of the Committee on Legal Affairs and a substitute member of the Committee on Culture and Education. His current parliamentary work focuses on copyright in the digital age, being a member of the Working Group on IPR and Copyright Reform, and the Free Trade Agreements CETA and TTIP. Before being elected as a Member of the European Parliament, he was a professor of sociology at the University of Applied Sciences Dortmund with a research focus on Geragogik (Age Education). ______

Assessing the 2001 Infosoc Directive Overview of the study on 'Review of the EU copyright framework - European Implementation Assessment' by the European Parliamentary Research Service.

In complement to the INI report2 on the implementation of the InfoSoc Directive3, the JURI Committee requested from the European Parliament Research Service (EPRS) an Ex-Post Assessment on this Directive. The EPRS produced a "European Implementation Assessment on the review of the EU copyright framework", which was published in October 2015 and presented to the Working Group on IPR and Copyright reform. Specifically, the ex-post impact assessment on the implementation, application and enforcement of the InfoSoc Directive and of its related instruments was undertaken on the basis of four main criteria: effectiveness, efficiency, coherence and relevance.

As regards effectiveness, the study shows that more than ten years after the implementation of the InfoSoc Directive, its main positive impact has been the successful alignment of EU law with international WIPO standards, via the introduction of the tree-step test in the legal system of the EU Member States, thus leading to a very broad definition of intellectual property rights. However 28 different copyright systems subsist in the EU. In addition, the InfoSoc Directive has established a weak system of enforcement, which relies heavily on Technological Protection Measures (TPMs), thus leading Member States to rely on other methods of enforcement, such as administrative remedies and codes of conduct. What is more, although the InfoSoc Directive limited the number of copyright exceptions and limitations, most of them remained optional with the decisions of the Court of Justice of the European Union (CJEU) only partly contributing to the avoidance of a fragmented regime in the recent years. Lastly, the InfoSoc Directive was not successful in securing adequate remuneration for the majority of authors and performers, with 'reintermediation' and market forces only aggravating the problem.

Regarding the efficiency of the EU copyright framework, the study has identified three main problems. First, as distributors in the EU currently negotiate licences under 28 different legal regimes, this leads to inefficient and heavy transaction costs, exacerbated by the SME make-

2 Report on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2014/2256(INI)). 3 Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive).

8 up of the EU copyright intensive industries. Two recently adopted Directives4 are intended to address these problems and as such are expected to improve the efficiency of the EU copyright framework - albeit it is rather early to assess their effectiveness. Second, there are considerable costs associated with legal fragmentations in EU copyright law due to national divergences in the remuneration of artists as well as due to the lack of a consistent set of copyright exceptions and limitations. Third, the current acquis has only provided creators and end-users with very limited benefits and measurable positive effects.

Even if both the InfoSoc and the more recently adopted Directives have increased coherence within the EU's legislation on copyright, several significant problems remain. The study highlights certain major implementation gaps, specifically the absence of clarity as regards the compatibility of the InfoSoc Directive and the Directive on the enforcement of intellectual property rights (IPRED) with other legislations5. Furthermore, diverging definitions,6 enforcement practices7 and differing interpretations8 in the Member States have also contributed to fragmentation, whereas, the different approaches to the remuneration and compensation of authors through private copying levies have also created distortions in cross- border trade.

Finally despite its overall importance and relevance as a domain of legislation in the fields of content and media, the EU copyright framework is outdated in light of subsequent technological developments: not only are the original exceptions and limitations increasingly misaligned with technological developments, they are also arguably limiting the development of welfare-enhancing uses of information. Most notably, the lack of legal certainty regarding the development of Text and Data Mining represents a potentially serious gap in the EU acquis. Moreover, enforcement mechanisms outlined in the InfoSoc and IPRED Directives have been largely overtaken by technology and reliance on civil litigation to remedy copyright infringements is generally abandoned. .

In conclusion, the study presents a range of possible options to address the gaps in the EU Copyright Framework considering for that purpose both non-legislative and legislative measures. Those options range from a codification of existing EU legislation on copyright or a soft law9 approach to the creation of a single EU title of copyright or a complete unification of copyright law (hard law). Overall, it is argued that the 'no action' option is the least effective solution since the EU copyright framework needs to be further integrated, so as to increase legal certainty, to lead to better enforcement of intellectual property rights and to adequate protection of authors and performers in the digital era.

4 Directive 2012/28/EU on certain permitted uses of orphan works and 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. 5 Most notably, on fundamental rights, data protection, and e-commerce. 6 Divergent definitions on key aspects of copyright law, including the definition of derivative works / transformative uses and the authorship of copyrighted work. 7 Some countries rely on administrative procedures to counter infringing behaviour, others rely on codes of conduct and other voluntary measures, and others rely on neither of the two. 8 Divergent implementation and interpretation of exceptions and limitations across EU Member States, with some countries now even introducing new exceptions not originally envisaged by the InfoSoc Directive (e.g. in the UK on text and data mining). 9 "Soft law" refers to quasi-legal instruments which do not have any legally binding force or whose binding force is weaker than the one of the traditional law.

9 Angel Dzhambazki, MEP Angel Dhambazki, a trained lawyer from Bulgaria, is a member of the Group of European Conservatives and Reformists (ECR). In addition to being his group's coordinator in the Legal Affairs Committee, he is also a member of the Committee of Culture and Education and a substitute in the Foreign Affairs Committee and its Subcommittee on Security and Defence.

Mr Dzhambazki is a member of JURI's Working Group on IPR and Copyright Reform and was the shadow rapporteur for his group for the recently agreed reform of the European trade mark system.

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Tadeusz Zwiefka, MEP Tadeusz Zwiefka, from Poland, is a trained lawyer and journalist. He is the group coordinator for the centre-right Group of the European People's Party in the Committee on Legal Affairs, of which he has been a Member since 2004. He has been deeply involved in most apects of the dossiers dealt with in JURI, from civil and commercial law to questions involving intellectual property rights, company law, family law and ethics in science. Mr Zwiefka is also a substitute member of the Parliament's Committee on Culture and Education.

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A Snapshot of Civil law questions dealt with during the 2009-2014 mandate of the European Parliament

The Stockholm Programme

The Stockholm Programme10 was adopted in 2010 by the European Council, and was aimed at setting a series of objectives to be reached by the end of the programme, in 2014, in order to enhance the Area of Freedom, Security and Justice (AFSJ) and to ensure that European citizens see the practical benefit of the European Union in their daily lives. Luigi Berlinguer was co-rapporteur on behalf of the Committee on Legal Affairs for the mid-term review of the Stockholm Programme and called for greater Parliament involvement in any successor to the Stockholm Programme11.

General Private international law

The main project in the field of general private international law under the Stockholm Programme was the review of the Brussels I Regulation12. Under the guidance of the

10 OJ C 115, 4.5.2010, p. 1. 11 2013/2024(INI), P7_TA(2014)0276. 12 OJ L 12, 16.1.2001, p. 1.

10 rapporteur Tadeusz Zwiefka, the recast of the Brussels I Regulation was led to a satisfactory conclusion13, streamlining and clarifying certain aspects of the cross-border enforcement of judgments. A further important piece of legislation which is outstanding is a regulation governing limitation periods for cross-border road traffic accidents. The Commission intended to make the proposal in 2011, but it is not yet on the table. Parliament has also called for the adoption of a European Code of Private International Law14, aimed at harmonising the provisions of private international law in the different areas and, at the same time, ensuring that there are no gaps in the body of rules. Finally, a regulation on the mutual recognition of protection measures in civil matters was adopted, under the joint responsibility of the FEMM and JURI committees.

Family law

One of the major successes in the field of substantive civil law was the adoption of the Successions Regulation15 under the rapporteurship of Kurt Lechner. This means that someone with property in several Member States will be subject to only one set of national rules which will apply to the succession, and will even be able to choose the law of their nationality if they live in another Member State.

The Rome III Regulation16 on the law applicable to divorce and separation (rapporteur Tadeusz Zwiefka) was adopted in 2010 under the enhanced cooperation procedure, with 15 Member States now taking part. What is more, the committee provided a substantial contribution to the debate on the two proposals from the European Commission from March 2011 dealing with decisions in matters of matrimonial property regimes17 and decisions regarding the property consequences of registered partnerships18, respectively, even though Parliament was only consulted on the file. The JURI rapporteur, Alexandra Thein, proposed that the Committee should treat these two proposals in parallel, putting forward largely similar rules for registered partnerships and married couples.

Parliament has also called for European legislation on cross-border adoptions19, as this is an area where many families report problems with the recognition of decisions taken in another Member State. Lastly, the protection of vulnerable adults, is a question which has preoccupied the committee for some time20.

Procedural law

In the field of procedural law, the European Account Preservation Order (EAPO)21, which will prevent a debtor from evading enforcement of his debts by benefiting from the delays in the cross-border attachment of bank accounts, was also a major achievement, signed into law in mid-2014 (rapporteur Raffaele Baldassarre). As far as civil procedure is concerned, it has been a major concern of the committee to introduce common minimum standards for civil procedure, as expressed by the Justice Scoreboard22. Following a Commission communication23 on the implementation of Directive 2003/8/EC on access to justice in cross-border disputes,

13 OJ L 351, 30.12.2012, p. 1. 14 See Paragraph 95 of the resolution of 25 November 2009. 15 OJ L 201, 27.7.2012, p. 107. 16 OJ L 343, 29.12.2010, p. 10. 17 COM(2011)0126. 18 COM(2011)0127. 19 Paragraph 95 of the resolution of 25 November 2009. 20 See Paragraph 95 of the resolution of 25 November 2009 and the resolution of 18 December 2008 (P6_TA(2008)0638). 21 COM(2011)0445. 22 Commission Communication 'The EU Justice Scoreboard: A Tool to Promote Effective Justice and Growth', 27 March 2013. 23 COM(2012)0071.

11 the committee decided to issue an own-initiative report on legal aid in cross-border civil and commercial disputes (rapporteur: Mr Zwiefka)24.

The Legal Affairs Committee in its own-initiative report "on alternative dispute resolution in civil, commercial and family matters" (rapporteur: Diana Wallis)25, highlighted that any approach on ADR should go beyond consumer disputes. On 29 November 2011, the Commission indeed submitted two legislative proposals: one for a Directive on consumer ADR26 and the other for a Regulation on consumer ODR27. Beyond its exclusive competences, the Legal Affairs Committee, with its opinion (rapporteur: Cristian Silviu Buşoi)28, decisively influenced the report of the lead IMCO Committee as the latter took over suggestions to add quality criteria relating liberty and legality of ADR, and to further strengthen ADR, inspired by provisions of the Mediation Directive29.

The Legal Affairs Committee concluded its work in the area in the 7th legislative term by taking stock on the success of the Mediation Directive, two years after its transposition deadline.

Judicial cooperation and training

As a successor to the 2007-2014 Civil Justice Programme, the Committee on Legal Affairs took part, together with the Committee on Civil Liberties, Justice and Home Affairs, in the adoption of the 2014-2020 Justice Programme30. Negotiations on the regulation creating the Justice Programme 2014-2020 focused on funding priorities and on checks on the programme’s implementation31. In 2012, the Commission issued, for the first time, a report which looks at the performance of national civil and administrative justice systems entitled the EU Justice Scoreboard32 and the Committee on Legal Affairs decided to issue an implementation report33. ______

Gilles Lebreton, MEP Gilles Lebreton is a Member of the European Parliament from France, and the group coordinator in the Legal Affairs Committee for the Europe of Nations and Freedom Group. He is a Professor of Law at the Univerity of Havre and holds a PhD in Philosophy. In addition to being a member of JURI, he is also a subsitute member of the Parliament's Committee on Civil Liberties, Justice and Home Affairs.

24 2012/2101(INI), P7_TA(2013)0240. 25 A7-0343/2001, P7-TA(2011)0449. 26 COM(2011)793. 27 COM(2011)794. 28 COM(2011)0793 – C7 0454/2011 – 2011/0373(COD), PE PE486.223v02-00. 29 OJ L 136, 24.5.2008, p. 3. 30 COM(2011)0759. 31 OJ L 354, 28.12.2013, p. 73. 32 COM(2013)0160. 33 2013/2117(INI), P7_TA(2014)0064.

12 The Schrems judgment In a case brought by an Austrian law student, Maximilian Schrems, against the Irish Data Protection Commissioner in which he claimed the right to judicial redress for alleged infringements of privacy in connection to Fabebook's computer servers in Ireland in light of the 2013 revelations of mass surveillance by the NSA, the High Court of Ireland had asked the Court of Justice for a preliminary ruling concerning the lawfulness of the transfer of personal data from the EU to the US, with regard to the EU Charter of Fundamental Rights and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data.

In this context, the Court decided, of its own motion, to examine the validity of a decision adopted by the Commission under Article 25 of that Directive concerning the adequacy of the level of protection afforded by the US with respect to transfers of personal data from the EU to the US (i.e. the so-called "Safe Harbour decision", Commission Decision 2000/520/EC).

The European Parliament submitted observations in this case in order to ensure, from the outset, that Directive 95/46/EC is interpreted in accordance with the Charter of Fundamental Rights and, as a result, to ensure that the validity of that Directive is not itself put into doubt. The Court's judgment today confirms that this Directive, when interpreted properly, actually promotes the fundamental rights set out in the Charter and so the Court, in no way at all, questions the validity of this Directive.

The Advocate General's Opinion of 23 September 2015 followed a very similar line of reasoning to that proposed by the Parliament in insisting that all of the provisions of Directive 95/46/EC must be interpreted in the light of the objective of guaranteeing a "high level" of protection of fundamental rights.

In the judgment, the Grand Chamber of the Court of Justice effectively built upon the reasoning of the Advocate General, to which it referred on a number of occasions, to reach the same conclusions as had already been proposed, that is to say:

(1) national supervisory authorities are not prevented, in any way, from investigating the lawfulness of transfers of data from the EU to third countries, despite the fact that the Commission has previously adopted an adequacy decision with regard to that same third country, and

(2) the "Safe Harbour decision" is declared invalid, as it is in breach of the fundamental rights to privacy, to data protection and to an effective judicial remedy as guaranteed by the Charter. The case has recently been debated in the European Parliament, and the Civil Liberties Committee Chair, Claude Moraes (S&D, UK), urged the Commission to suspend Safe Harbour immediately and initiate a new data protection framework. Parliament has repetitively called for the suspension of Safe Harbour privacy principles, in particular in its 2014 resolution on the electronic mass surveillance programmes run in the USA and some EU countries.

In its resolution adopted on 29 October 2015, Parliament welcomed the judgment and called on the European Commission to immediately take the necessary measures to ensure that all personal data transferred to the US are subject to an effective level of protection that is essentially equivalent to that guaranteed in the EU.

13 Emil Radev, MEP Emil Radev is a Bulgarian lawyer who also has a degree in Public and Regional Administrator and, since 2012, is doing a PhD in Civil and Family Law at the New Bulgarian University. In addition to being a Member of JURI he is also a substitute member in Parliament's Committee on Civil Liberties, Justice and Home Affairs and a member of the Delegation to the EU-Kazakhstan, EU-Kyrgyzstan and EU- Uzbekistan Parliamentary Cooperation Committees. He is a member of the centre-right Group of the European People's Party.

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Geographical Indications of Origin (GIs) The TRIPS agreement contains rules on geographical indications of origin ('GI'). The logic behind this specific form of industrial property rights is based on the idea that a product’s quality, reputation or other characteristics can be determined by where it comes from. Geographical indications are place names or, in some cases also words associated with a place used to identify products that come from these places and have these characteristics (for example, “Champagne”, “Tequila” or “Roquefort”).

TRIPS defines such GI' in Articles 22 and 23of the agreement. All products are covered by Article 22, which defines a standard level of protection. This says geographical indications have to be protected in order to avoid misleading the public and to prevent unfair competition. Article 23 provides a higher or enhanced level of protection for geographical indications for wines and spirits. The EU has protected geographical indications and designations of origin for agricultural products and foodstuffs since 1992, when the Council adopted Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, which came into force on 26 July 1993 and has been amended several times afterwards.

In July 2014 the European Commission's published a Green Paper entitled "Making the most out of Europe's traditional know-how: a possible extension of geographical indication protection of the European Union to non-agricultural products", thus launching a public consultation on the need and desirability of an extension of GI's to, in principle, any kind of products. The Committee on Legal Affairs, as the committee responsible for IPR's, decided to draw up a report on the Green Paper and appointed Ms Virginie Rosière as rapporteur. On 23 February 2015 the rapporteur presented a Working Document to the committee in which she welcomed the publication of the Green Paper and supported the introduction at EU level of a protection scheme specifically for non-agricultural products in order to promote industrial and artisanal production processes and boost consumer confidence.

The draft report was presented to the committee on 6 May 2015. The rapporteur concluded that the EU has a wealth of such products, which are rooted in traditional know-how and production methods, giving Laguiole knives, Bohemian glass, Scottish tartan, Carrara marble, and Aubusson tapestry as just some examples. Pointing out that such products are an essential part of the cultural, social, and economic heritage of a given place, which testify to

14 the breadth of Europe’s know-how and cultural heritage, embodying history, expertise, and talents.

Besides referring to the benefits for local and regional economies the rapporteur also raised the risk of misuse. Because of their quality certain products are much sought after and therefore their names can be open to misuse. The harm caused by such misuse is, according to the rapporteur, twofold.

On the one hand, consumers think they are buying high-quality products synonymous with local know-how, but they end up with products which have not been made anywhere near their putative place of origin and, more often than not, fly in the face of the traditions that made the genuine articles famous in the first place.

Secondly, businesses have to cope with competition from products which usurp their reputations and are sold at lower prices. In some cases this situation also has the side effect of damaging the image and reputation of the authentic products.

Thus, in the draft report the rapporteur expressed herself in favour of: • a single EU-level protection scheme for non-agricultural GIs that includes a registration scheme recognised at EU level; • a scheme that keeps costs and red tape to a minimum for businesses whilst offering sufficient guarantees for consumers; • a mechanism that makes it possible to recognise the link between the product and the geographical area covered by the GI, with that link being strong or more flexible; • a mechanism that leaves the decision of whether to establish a GI up to the businesses concerned by means of a set of specifications that can be adapted in line with developments in production processes and innovation. • a mechanism ensuring that GIs and previously existing rights can coexist.

The Committee on Legal Affairs gave broad support to the views of the rapporteur when it adopted its report to plenary on 15 September 2015. The Committee on Culture, the Committee on the Internal Market and the Committee on International Trade, the opinions of which were provided to JURI, were also all in favour of EU legislation along the lines proposed by the rapporteur. The report was adopted in plenary on 6 October 2015 without amendments.

From the point of view of international relations and trade paragraph 14 of the resolution of the report can be highlighted: "Stresses that the recognition of protection of non-agricultural GIs and traditional, high-quality know-how is both a defensive and offensive interest in the framework of the common commercial policy, and that it can be an effective tool to support micro, small and medium- sized businesses and manufacturers (SMEs), countering imitation and counterfeit products and ensuring a more socially, economically and environmentally sustainable approach to economic development inside and outside the EU, as well as fair competition and consumer protection, thus making it possible to identify more effectively product authenticity and quality; considers that recognising unitary protection of non-agricultural GIs would also contribute to building social capital in the regions of production;

The U.S. and GI's

Under the U.S. regime, it is possible to protect geographical indications as trademarks. According to U.S. trademark law, if a geographic sign is used in such a way as to identify the source of the goods/services and over time, consumers start to recognize it as identifying a particular company or manufacturer or group of producers, the geographic sign no longer

15 describes only where the goods/services come from, it also describes the "source" of the goods/services. At that point, the sign has a secondary meaning to consumers, which is the producing or manufacturing source. Trade marks can also be collective, in which case a trademark is a mark adopted by a "collective" (i.e., an association, union, cooperative, fraternal organization, or other organized collective group) for use only by its members, who in turn use the mark to identify their goods or services and distinguish them from those of non-members. The "collective" itself neither sells goods nor performs services under a collective trademark or collective service mark, but the collective may advertise or otherwise promote the goods or services sold or rendered by its members under the mark.

The U.S. Trademark Act provides that geographic names or signs--which otherwise would be considered primarily geographically descriptive and therefore unregistrable as trademarks or collective marks without a showing of acquired distinctiveness in the United States--can be registered as certification marks. A certification mark is any word, name, symbol, or device used by a party or parties other than the owner of the mark to certify some aspect of the third parties’ goods/services. There are three types of certification marks used to indicate: 1) regional or other origin; 2) material, mode of manufacture, quality, accuracy or other characteristics of the goods/services; or 3) that the work or labour on the goods/services was performed by a member of a union or other organization.

Geographical indications can, finally, also be protected through common law trademark law without being registered. For example, “COGNAC” has been considered as protected as a common-law (unregistered) certification mark in the United States. "Cognac” is considered a valid common law regional certification mark, rather than a generic term, since purchasers in the United States primarily understand the “Cognac” designation to refer to brandy originating in the Cognac region of France, and not to brandy produced elsewhere.

The United States and the EU are discussing the protection of geographical indications of origin in the context of the negotiations on a Trans-Atlantic Trade and Investment Partnership (TTIP). The US reaction to the recent conclusion among 28 parties to the World Intellectual Property Organisation (WIPO) of an agreement on GI protection (the Geneva Act of the Lisbon Agreement) indicates that the issue can be rather controversial.

Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (adopted on May 20, 2015)

The "Lisbon Agreement” means the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958, as revised 1967 and amended 1979. It is a treaty administered by WIPO but all parties to WIPO are not party to the Lisbon Agreement, nor to the Geneva Act.

The Geneva Act provides a legal framework for the protection of geographical indications of origin. The agreement is not limited to a specific kind of products, such as agricultural products or vines and spirits, which have their own legislation also at the EU level. Article 2(1) of the Geneva Act provides that

"any denomination protected in the Contracting Party of Origin consisting of or containing the name of a geographical area, or another denomination known as referring to such area, which serves to designate a good as originating in that geographical area, where the quality or characteristics of the good are due exclusively or essentially to the geographical environment, including natural and human factors, and which has given the good its reputation."

The protection also covers

16 "any indication protected in the Contracting Party of Origin consisting of or containing the name of a geographical area, or another indication known as referring to such area, which identifies a good as originating in that geographical area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."

Article 2(2) defines the possible geographical areas of origin as follows: " A geographical area of origin as described in paragraph (1) may consist of the entire territory of the Contracting Party of Origin or a region, locality or place in the Contracting Party of Origin. This does not exclude the application of this Act in respect of a geographical area of origin, as described in paragraph (1), consisting of a trans-border geographical area, or a part thereof."

The Geneva also contains provisions on, notably, registration, cooperation between responsible authorities, fee provisions, safeguards, including the possibility to revoke a registration.

The U.S. was “extremely disappointed with this process and its outcome, which raise fundamental questions about the legitimacy of the new Geneva Act,” U.S. Ambassador Pamela Hamamoto said in a May 20 statement. “We also continue to have serious concerns with the precedent set at WIPO over the past two weeks and what that precedent means for the future of this multilateral institution, which is responsible for the setting of global IP norms,” Hamamoto added.

The U.S. was not the only WIPO member to object to the Geneva Act. A joint statement released by the observers to the Lisbon Union, Argentina, Australia, Chile, Japan, New Zealand, Panama, the Republic of Korea, the U.S. and Uruguay condemned the “non-inclusive method of work” that they maintained closed off participation from a majority of WIPO members

Parties to the Lisbon Agreement and the Geneva Act include Algeria, Bosnia and Herzegovina, Bulgaria, Burkina Faso, Congo, Costa Rica, Cuba, Czech Republic, France, Gabon, Georgia, Hungary, Iran, Israel, Italy, Korea, Mexico, Moldova, Montenegro, Nicaragua, Peru, Portugal, Serbia, Slovakia, Togo, Tunisia and the former Yugoslav Republic of Macedonia.

China

It is perhaps worthwhile to note that China appears to adopt increasingly favourable positions as regards geographic indications of origin, including in respect to the protection of foreign GI's. In China, geographic indications are primarily protected under the Trademark Law. Article 16 of the China Trademark Law (2014) defines a Geographic Indication as follows:

‘Geographic Indications refer to the signs that signify the place of origin of the goods in respect of which the signs are used, their specific quality, reputation or other features as mainly decided by the natural or cultural factors of the regions.’

Non-agricultural GIs can be protected in China as intellectual property rights under Chinese Trade Mark Law as a collective or certificate mark which provides the same level of legal and economic protection as for any other logo, name or mark registered as a trade mark. Alternatively and in addition, the GI can be registered at the State Administration of Quality Supervision, Inspection and Quarantine (AQSIQ). AQSIQ which monitors and manages the quality and standard of products offered in the Chinese market. Duel registration can ensure the GI is protected both as an IPR and as a indicating a certain level of quality assurance to the public.

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17 Victor Negrescu, MEP Victor Negrescu, from Romania, is a substitute member in the Committee on Legal Affairs for the centre-left Group of the Progressive Alliance of Socialists and Democrats. He is a member of the Committee on Budgets and the Delegation to the ACP-EU Joint Parliamentary Assembly and a substitute member in the Constitutional Affairs Committee and the Parliament's Delegation for relations with Canada.

Mr Negrescu holds a PhD in Political Science and an MBA. His work in the European Parliament focuses on the facilitation of access to European funds for EU member states, the promotion of European guarantees for health and uniformity requirements of education systems in the EU.

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The Transatlantic Trade and Partnership (TTIP) As outlined in the newsletter from July 2015, the European Parliament adopted before the summer recess a resolution with recommendations to the European Commission in its negotiations on TTIP with the United States Trade Representative (USTR).

Since then, the 11th round of negotiations took place in Miami, Florida, on 19-23 October 2015. Most commentators agree that the developments in the next several months before the next round in January in February will be crucial for the continued success of the negotiations, not least when it comes to regulatory cooperation in specific sectors, with the end goal of concluding them and reach an agreement before the end of 2016, coinciding with the end of President Obama's term as President.

The Committee on Legal Affairs is primarily interested in the negotiations on three fronts: regulatory cooperation, Intellectual Property Rights and dispute resolution or arbitration when it comes to investment protection.

For the purposes of the Committee's visit to Washington on 3-6 November 2015, focus will be put on two very timely questions relating to TTIP:

Firstly, in the context of the IPR chapter of the negotiations the positions of the two parties are very far away from each other when it comes to Geographical Indicators (GIs), with the US side claiming that the EU is overreaching by insisting on its system of GI protection and allegedly enhanced market access for European producers. The JURI delegation is likely to spend much of its meeting with the IPR negotiating team at the USTR hearing from the US perspective on this contentious issue.

Secondly, before the summer the European Commission presented a proposal on a new system of investment protection tribunals, which it proposes as an alternative to provisions on Investment-to-State-Dispute-Settlement which are routinely included in free trade agreements such as TTIP, but which has become very controversial recently with considerable opposition having been mobilised among civil society in Europe amid worries that this could lead to private enforcement of democratically adopted rules. During its visit to Washington, the JURI delegation will meet with Meg Kinnear, the Secretary-General of the International Centre for Settlement of Investment Dispute (ICSID) at the World Bank in order to learn more about their activities in this area.

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Next issue of the newsletter We will follow up from the visit to Washington in the next issue of the newsletter, foreseen to be issued in December 2015, by reporting back from the discussions at the meetings held and on any follow-up. The upcoming issue will also include updates on the coming proposals from the European Commission on legislative proposals in the field of copyright on portability of digital content and contract rules on consumer protection in the digital environment, as well as any progress in the negotiations for a new interinstitutional agreement on better law-making.