Archive for the ‘European Union’ tag

The Right to be Forgotten

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This past May, the Court of Justice of the European Union approved “the right to be forgotten” in a case brought by Mario Costeja against a newspaper and Google, a move which fundamentally changed our notions of Internet privacy. More than a decade earlier, Costeja had posted two notices about an auction of his property to pay off debt, and the links to the notices were still appearing in the search results when Googling his name. Costeja brought suit in an effort to remove the links from the search results. The court said the links could be removed if they were found to be “inadequate, irrelevant or no longer relevant.” Under the right to be forgotten, only searches that include a person’s name will provoke the search result removal, which means that the articles or website can still show up in the results if the search is under a different keyword.

The European Union’s right to be forgotten has spurred much concern for free speech campaigners, who claim the ruling unjustly limits what can be published online. Privacy advocates, however, are praising the ruling for allowing people some exercise of power over what content appears about them online. This new right creates a process for people to remove links to embarrassing, outdated, and otherwise unwanted content from Google and other search engines’ results. Courts are directed to balance the public’s interest in access to the information in question and the privacy interests of the person affected by the content.

As of now, the ruling applies only to Google’s local European sites, such as Google.de in Germany, Google.fr in France, and other search engines. This leaves an easy loophole because the content is still available by searching from Google.com. European data protection representatives are, of course, eager to apply the right to be forgotten worldwide in order to make the ruling more effective. Europe’s Article 29 cross-European panel of data protection watchdogs recently announced: “de-listing decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented.” The Article 29 Working Party is comprised of data protection representatives from across Europe and it has very recently published guidelines on the implementation of the right to be forgotten ruling.

The guidelines note, “a balance of the relevant rights and interests has to be made and the outcome may depend on the nature and sensitivity of the processed data and on the interest of the public in having access to that particular information. The interest of the public will be significantly greater if the data subject plays a role in public life.” They also address concerns of how this will impact free speech: “in practice, the impact of the de-listing on individuals’ rights to freedom of expression and access to information will prove to be very limited. When assessing the relevant circumstances, [Data Protection Authorities] will systematically take into account the interest of the public in having access to the information. If the interest of the public overrides the right of the data subject, de-listing will not be appropriate.”

The representatives ask search engines to apply this new right to be forgotten to all of their websites, including Google.com, for enforcement worldwide. Privacy advocates allege Google has been undermining the new right by limiting its application to local European sites, while free-speech advocates say the rule is “a gateway to Internet censorship that would whitewash the Web.” It is up to the data regulators in individual countries to decide whether to enforce the panel’s guidelines, and it remains unclear whether Google will move to implement the rule.

New Movement on the European Union Patent

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European patents are presently granted by the European Patent Office (EPO) under the European Patent Convention (EPC), but they remain expensive for patent seekers, roughly ten times as expensive as an American patent.  This expense is due in large part to translation costs that must be incurred for patents to be recognized in various countries.  These translation requirements have recently been lowered as a result of the London Agreement, but still nearly 75% of the cost for the acquiring typical patent is from the need to have it translated into various languages.  Additionally, the current European patent is essentially a bundle of patents, which must be registered, renewed, and enforced at the national level.  To remedy problems with the European patent, there has long been discussion about creating a single, centrally enforceable unitary European Union Patent (EU Patent).  However, consensus among member states for creating such a system has been impossible to attain, delaying various attempts to make the EU Patent a reality.  In the past year, new movement has been seen culminating at the December 2010 meeting of the Competitiveness Council.

In December 2009, unanimous agreement was finally found for creating a specialized patent court system, which would include a common court of appeals, and a single EU patent, which would grant intellectual property rights across all European Union member states.  However, agreement over a method to bring down translation costs for the EU patent had not yet been found.  The proposed translation arrangement would allow for the EU patent to be issued in English, French, or German – the working languages of the European Union.

During 2010, suggestions were fielded in an attempt to find agreement for the translation system, including one from the European Union’s Internal Market Commissioner Michel Barnier in July 2010.  Mr. Barnier’s proposal would have allowed countries where English, French, or German were not among the official languages to file in their an official language with subsequent translation into English, French, or German to be reimbursed by the EPO.  However, Italy was unyielding, accusing the European Commission of linguistic discrimination.  Throughout the fall of 2010, discussions about the languages of translation continued with the hope of finding a compromise.  These ended with a final attempt at compromise during the Competitiveness Council meeting in November 2010 after which the Belgian presidency released a statement saying, “[w]e have left no stone unturned…[h]owever, in spite of the progress made, we have fallen short of unanimity by a small margin.”  In the end, both Spain and Italy refused to compromise, remaining adamant that any EU Patent must also be translated into Spanish and Italian to avoid discrimination.

At a meeting of the European Union’s Competitiveness Council on December 10, 2010, the ministers of eleven member states – Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Slovenia, Sweden, and the UK – announced their mutual agreement to implement the EU Patent through enhanced cooperation.  Enhanced cooperation allows member states that wish to establish closer cooperation with each other to work together.  It is meant as a last resort when European Union member states as a whole cannot reach agreement within a reasonable amount of time.  Under the Lisbon Treaty, at least nine member states must agree to enhanced cooperation.  Now, the European Commission has approved the enhanced cooperation has requested a Council of Ministers vote by qualified majority authorizing the enhanced cooperation of twelve member states – the original eleven plus Poland.  If authorized, all members of the Council may participate in any deliberations concerning the implementation of the EU Patent, but only those member states participating in the enhanced cooperation may vote.  The enhanced cooperation agreement remains open for any member state to join at a later time.  Mr. Barnier hopes the whole process will be concluded by the end of 2011.  Both Italy and Spain continue to oppose initiating enhanced cooperation; however, the Hungarian delegation, currently holding the European Union presidency, have expressed their commitment to finding an agreement on the EU Patent issue as soon as possible.

In response to the proposal for enhanced cooperation, Belgian Minister for Enterprise and Simplification Vincent Van Quickenborne said that the agreement meant “that in the future the cost of a European patent will be reduced by a factor of 10, and the result will be that the cost of a patent in Europe will be competitive and comparable to that of the cost in the United States and Japan, and this will of course greatly benefit competitiveness in our industry.”  However, Mr. Van Quickenborne might be too optimistic.  No opinion has yet been issued by the Court of Justice of the European Union as to the legality of the proposal for a European Jurisdictional System for Patents, so questions still remain as to where and how EU Patents could be enforced.  Without this, a least part of the purpose of the EU Patent is undermined.  Regardless, the recent movement for enhanced cooperation means that the EU Patent will remain central to European Union political debates throughout 2011.

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January 18th, 2011 at 1:35 pm

European Union (EU) regulators drop Qualcomm investigation

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European Union (EU) regulators closed their investigation of  Qualcomm Inc. after all of the companies accusing Qualcomm of charging excessive royalties on technology patents withdrew their complaints. In 2005, six technology companies filed complaints alleging that the royalties Qualcomm has charged since its patented technology became part of Europe’s 3G standard are unreasonably high. Two of the companies, Nokia and Broadcom, withdrew their complaints after reaching separate outside settlements. Ericsson said in a statement that it is withdrawing the complaint and continuing “its ongoing dialogue with competition authorities around the world in relation to Qualcomm’s licensing practices.” Since all complaints have now been withdrawn, the EU dropped its investigation and is focusing its resources elsewhere. Qualcomm still faces antitrust scrutiny elsewhere in the world. Japan’s Fair Trade Commission said in September that Qualcomm coerced Japanese mobile-phone makers into agreements that prevented them from asserting their intellectual property rights, impeding fair competition and ordered Qualcomm to rescind the restrictive provisions. Earlier this year Qualcomm was fined 260 billion Won ($220 million USD) by South Korea’s antitrust agency for deterring competition through unfair fees and is currently appealing the fine. While the EU closed its four-year old antitrust investigation without levying a fine, Qualcomm was not absolved of wronging and the investigation could be restarted if another complaint is filed.