Brexit and IP Practice: What does it mean?

As we all know, Brexit happened yesterday (I guess depending on your time zone).  I am disappointed by the vote, but that is democracy.  It was relatively close, but over 17 million voters unhappy with the status quo is significant.  I am not a European IP attorney, but I thought it might be helpful to collect some of the links to advice concerning the IP fallout from Brexit.  Here are a few: 

Freshfields Bruckhaus Deringer

Carl Oppendahl

Afro IP via Darren Olivier (Brexit implications for Africa)

Fashion Law Blog

Olswang

Foley & Lardner via National Law Review

Kluwer Patent Law Blog

Shepherd Wedderburn

Bird and Bird

World Intellectual Property Review

EU giving up investigation into patent box schemes - Hola!

Bloomberg reported on 5 February that the European Commission will be giving up its investigation into patent box schemes in the European Union. Apparently it has found that it's hands are tied by a 2008 decision to approve Spain's system. The agreement reached last Autumn/Fall between the UK and German governments (reported here) to modify the UK's scheme to restrict the tax break has probably also contributed to the commission's desire to stop the investigation.

Basically the UK has agreed to modify its scheme so that only patents based on activities in the UK can contribute to the tax break (the so-called nexus approach) with some provision for expenditure which has not been directly incurred by the UK company (hence the term "modified nexus approach"). The discussions continue in the context of the OECD's discussion on harmful tax practices.

The message coming from the commission seems to be clear: if the OECD will approve the patent box, then the European Commission can and will have no objection. In the meantime, the current UK scheme will be wound down and it remains to be seen whether the next UK government will put a replacement scheme into place, as the opposition labour party has been critical of the scheme.

E-CRIME and the economic impact of cyber crime in Europe

Monica Lagazio (Associate Partner, Trilateral Research & Consulting LLP), has informed us of the commencement of a new European project, E-CRIME, which focuses  on the economic impact of cyber crime [which also touches on criminal aspects of intellectual property right protection] in Europe.  In conjunction with this, she has sent us a media release which reads, in relevant part:

"Some progress has been made in understanding and managing cyber crime as well assessing its economic impact. Yet much remains to be done. Lack of co-ordination in law enforcement and legislation, lack of common consensus on the nature of cyber crime and lack of knowledge sharing and trust are just some of the issues that both afflict cyber crime responses and cloud our understanding of cyber crime. 

The European Union is sponsoring a European project called E-CRIME in order to address these well-known problems. E-CRIME focuses on analysing the economic impact of cyber crime and developing concrete measures to manage risks and deter cyber criminals in non-ICT sectors. E-CRIME does so by adopting an inter-disciplinary and multi-level-stakeholder approach that fully integrates a wide range of stakeholders’ knowledge and insights into the project. 

First, the project will create a detailed taxonomy and inventory of cyber crime in non-ICT sectors, and analyse cyber criminal structures and economies by combining the best existing data sources with specialist new insights from key stakeholders and experts. 

Secondly, E-CRIME will assess existing counter-measures against cyber crime in non-ICT sectors in the form of current technology, best practices, policy and enforcement approaches, and awareness and trust initiatives. 

Thirdly, the project will use available information and new data to develop a multi-level model to measure the economic impact of cyber crime on non ICT-sectors. 

Fourthly, E-CRIME will integrate all its previous findings to identify and develop diverse, concrete counter-measures, combined in portfolios of inter-sector and intra-sector solutions.

... 

The consortium has now set up the E-CRIME Stakeholder Forum (ESF) comprising 24 representatives from key non-ICT sectors, ISPs and communication networks, law enforcement agencies, cyber security, legal, civil, and insurance companies, and governmental organisations from the Member States. The ESF acts as an advisory body for the consortium."

IP Finance proposes to keep an eye on this project, for which some ϵ3,749, 289 has been allocated. It will be interesting to see whether, and to what extent, the work of E-CRIME overlaps or is complementary to that of another institution, the OHIM-hosted European Observatory on Infringements of Intellectual Property Rights.

EU's new tech transfer regime: a new book

The revised European Competition Law Approach to Technology Transfers: Innovation friendly? is the title of a new book penned by Stéphanie De Smedt and her colleague Yves Van Couter, both from the Brussels office of Loyens & Loeff (Stéphanie's a junior IP-IT lawyer, while Yves is a partner).

This title seeks to provide readers with an overview of the main changes of the new technology transfer exemption regime (which entered into force on 1 May 2014), together with an assessment of their possible impact on the plans and potential plans of businesses contemplating engaging in technology rights transfer and/or licensing agreements within the EEA -- as well as those who, having engaged in tech transfer activities, might be wondering what they've let themselves in for.

The book can be downloaded free of charge by clicking here.

Commission Regulation 316/2014 of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements can be downloaded free of charge by clicking here -- but it's not as much fun.

Taxation of e-books: Commission takes the initiative

Our friend Magali Delhaye spotted this piece of information in today´s Europa Midday Express and thought it might be of interest-- which it certainly is, being related to an earlier IP Finance post, "European Commission looks to level the playing field -- and the "paying field"", which appeared here last week.

“Taxation: VAT on electronic books in France and Luxembourg

The European Commission is asking France and Luxembourg to amend their VAT rates on electronic books (e-books).

Since 1 January 2012, France and Luxembourg have applied a reduced rate of VAT to e-books, which is incompatible with the current rules under the VAT Directive. Under the Directive, e-books constitute electronically supplied services, and application of a reduced rate to this type of services is excluded.

This situation is creating a serious distortion of competition to the disadvantage of operators in the 25 other Member States of the Union, as e-books can be easily purchased in a Member State other than that in which the consumer is resident, and current rules provide for application of the VAT rate in the Member State of the provider rather than that of the customer. The Commission has received complaints from a number of Ministers of Finance highlighting the negative effect on book sales in their domestic markets.

The Commission is aware of the different treatment being applied to e-books and printed books and notes the importance of e-books. Under the new VAT strategy, the Commission has opened this debate with the Member States and should put forward proposals before the end of 2013 (see IP/11/1508).

In the meantime the Commission, as guardian of the treaties, requires Member States to respect the VAT rules they themselves unanimously approved.

The Commission has therefore issued reasoned opinions to the two Member States. This is the second stage in the infringement procedure following the letters of formal notice sent in July 2012 (). The two Member States have one month in which to bring their legislation into compliance with EU law. Otherwise, the Commission may refer the matter to the European Court of Justice. (References: IN/2012/2098 and IN/2012/4080). (for more information: E. Traynor - Tel. +32 229 21548 - Mobile +32 498 98 3871)”.

European business still investing happily in R&D -- but not in pharma

According to the European Commission's Joint Research Centre (JRC, "the European Commission's in-House Science Service"), leading EU businesses expect their investments in research and development to rise by an average of 4% annually during the period 2012 to 2014. This information comes from the 2012 EU Survey on R&D Investment Business Trends, which was published here today (thanks, Chris Torrero, for the link).

The results of this survey, which was carried out by the JRC's Institute for Prospective Technological Studies(IPTS) together with the European Commission's Directorate-General for Research and Innovation, are based on information from 187 of the 1,000 EU-based companies that were studied when the 2011 EU Industrial R&D Investment Scoreboard was prepared. According to the report:

"It is in the software and computer services sector that the expectations of growth in R&D investments over 2012-2014 are the highest, with an average of 11% per year. Like for most sectors, this is higher than the annual R&D investment growth rates observed on average over the 2007-2010 period. However, in the pharmaceuticals and biotechnology sector, the expectations for 2012-2014, at 3% per annum, are lower than the average rate observed over 2007-2010".

This blogger is hardly surprised at the unpopularity of pharma R&D investment. If he had any cash to invest, he'd plough it into the generic pharma sector, where risks are low, profitability high and it may be seriously questioned whether patents continue to offer any genuine incentive to invest. In contrast, Linux and open-source hardly qualify as a generic threat to software patents and copyright, though, which is presumably why investment is heading into the software sector and computer services sector.

A uniform transaction tax regime for the EU?

1709 Blog reader John Walker posted the following question as a comment on that blog, but it seems to me that it's more likely to receive an answer on this one. He writes:

"Australia used to have a very complex sales tax regime (for example the tax on tissue paper in a box was much more than the tax on the same tissue paper if wrapped around a toilet roll). Australia in the year 2000 introduced a uniform Goods and Services Tax (GST). GST largely replaced a complex and hard to see system, levied by both the Federal and the individual state governments, with a uniform tax levied at the same rate on every transaction. (there are some exceptions, but nobody's perfect)

Many of the EU's copyright' levies are transaction taxes; the nexus between the consent of a right holder and payment to the same right holder is clearly severed.

Doesn't the EU have any policy about aiming for a reasonably uniform transaction tax regime?"

Can any reader give John some assistance on this point?