Eu General Court: Intellectual property rights cannot be used as an excuse for anti-competitive behaviour

　　The EU's General Court recently confirmed that agreements between market operators to geo-block the activation keys of online platforms may violate EU competition law, regardless of intellectual property considerations。

　　Eu competition law generally prohibits agreements between independent market operators that are intended or in fact restrict competition。Eu antitrust law allows only limited exceptions to this general rule, and the ban applies to both horizontal and vertical agreements。

　　Horizontal agreements are agreements between actual or potential competitors at the same level of the supply chain, while vertical agreements are agreements between businesses operating at different levels, such as those between manufacturers and their distributors。The European Commission works with national competition authorities to ensure that operators in the EU internal market comply with these competition rules。

　　The European Commission has launched an investigation into Steam platform operator Valve Corporation and five game publishers for anti-competitive conduct。The conduct involved agreements reached by these operators。These agreements are intended to restrict the cross-border sale of certain Steam video games by preventing distributors from responding to unsolicited requests from distributors or users located outside certain European Economic Area (EEA) countries。

　　These restrictions are implemented by means of geo-blocking Steam keys, which are designed to prevent users located outside of designated countries from activating the relevant video games。

　　The Commission concluded that the agreement in question violated EU competition law because, by agreeing to this geo-blocking, the operator unlawfully restricted the cross-border sale of certain PC video games compatible with the Steam platform。Valve filed a lawsuit with the General Court of the European Union asking for the ruling to be reversed。

　　Citing previous jurisprudence on the issue, the EU General Court noted that EU competition rules cover all types of agreements, namely horizontal and vertical agreements, and some agreements distort competition in the EU internal market。Regardless of the market in which the parties operate, it is sufficient to establish an antitrust violation if one of the parties' business conduct is affected by the terms of the arrangement。

　　Valve asked the court to deny that it violated competition rules on the grounds that it did not act as a cartel "facilitator" among other businesses active in another market, but the court rejected the claim。

　　Valve tried to argue that the commission did not take copyright into account when making its decision。The company claims that technical measures, such as geographical blocking of Steam keys, are explicitly authorised by the EU Copyright Directive and cannot be classified as restricting competition。Game publishers are therefore fully entitled to use territorial controls to prevent the unauthorised distribution of their Steam video games to the public in parts of the EEA。

　　The Court confirmed that the mere fact that the agreement relates to intellectual property does not preclude the application of EU competition rules。The Court noted that the Commission, in its decision, did not raise any question as to the licensing granted by the issuer to the distributor which was limited to the territory of certain EEA countries。

　　What is unlawful is that the conduct in question involved additional measures taken by Valve and each publisher to ensure compliance with these territorial restrictions by making it impossible for any sale or any use of the video game in question outside certain EEA countries。

　　The Court confirmed that while the granting of licences, including exclusive licences, does not violate EU competition law, additional measures designed to ensure compliance with the geographical limits of these licences may be considered anti-competitive and unlawful。

　　After analyzing the current facts, the EU General Court held that the geographical restrictions imposed by operators are intended to prevent video games sold at low prices in some countries from being bought by distributors or users located in other countries where prices are much higher。Thus, the purpose of geoblocking is not to protect the Copyrights of PC video game publishers, but to eliminate parallel imports of these video games, protecting the high royalties charged by the publishers or the profits earned by Valve。

　　The court emphasized that the purpose of copyright is only to ensure that the rights of the relevant rights holders are protected, including payment through licensing。However, this does not guarantee them the opportunity to demand the highest possible remuneration, nor does it guarantee them the opportunity to engage in behaviour that leads to artificial price differentials between divided national markets。This fragmentation and the artificial price differentials it creates are antithetical to the EU's internal market policy。

　　Harmonizing the rights of different EU laws is not an easy task。Nonetheless, as the above judgment makes clear, intellectual property rights cannot be used as a means of circumventing competition law, whose objectives, in particular ensuring the right of EU citizens to benefit from the internal market, should be guaranteed at all times。

　　(Source: China Intellectual Property Protection Network)

　　Myanmar Industrial Design Law and Copyright law生效

　　The State Administrative Commission of Myanmar (SAC) has issued Circular No. 217/2023 and Circular No. 218/2023, setting October 31, 2023 as the effective date of the Industrial Designs Law and Copyright Law enacted in 2019。The publication of these notices marks the beginning of operation of the substantive protection framework for industrial designs and Copyrights in the country。

　　About the Industrial Design Rules

　　The Ministry of Commerce of Myanmar has promulgated the Industrial Designs Rules on 29 September 2023, setting out the procedures and guidelines for the registration of industrial designs under the Industrial Designs Act。

　　The Industrial Design Rules shall come into force on the date of the first implementation of the Industrial Design Law。The Rules set out substantive procedures for matters relating to industrial designs, including the appointment of agents, examination, objections, priority claims and registration, as well as the assignment and licensing of industrial designs。

　　Application for registration

　　Once the Industrial Designs Act and the Industrial Designs Rules come into force，And the application fee and application form are ready，Individuals and legal entities may then submit applications for the registration of industrial designs to the Intellectual Property Office electronically, in person (including through local agents) or by post。Applicants who are not registered or residing in Myanmar must appoint a local agent through the required form, which must be notarized by the notary office of the country (region) where the applicant is registered or resides。

　　Application requirements

　　The new Myanmar law follows the latest Locarno classification established by the Locarno Agreement Establishing the International Classification of Industrial Designs, 1968。An application for the registration of an industrial design may be made in Burmese or English and must include the following:

　　- the applicant's name, address, identity card number (personal passport or Myanmar Citizenship Review card number, the entity is required to provide a legally established registration number);

　　- Notarized documents of the appointed local agent (if applicable);

　　- Fill in the creator's name, nationality and address (if applicable) using the required form;

　　- Locarno classification and sub-classification of products related to industrial designs;

　　- Drawings, photographs or graphic representations of industrial designs;

　　- Description of products in Locarno classification;

　　- A written explanation of the expression of the industrial design (maximum 100 words);

　　- The number of industrial designs (up to 100, all products must belong to the same Locarno classification);and

　　- Postponement of publication period (if applicable)。

　　The relevant competent authorities have not yet published the application fees and application forms for matters related to industrial designs。

　　Relevant suggestion

　　In the next step, the Myanmar Intellectual Property Office (MIPD) will announce the forms and official fees for handling matters related to industrial designs, a step that is expected soon, given that the effective date of the law has been announced。Therefore, right holders should start assessing their portfolios and prepare for the requirements for registration in order to secure their legal rights to industrial designs in Myanmar。

　　About the Copyright Law

　　On August 7, 2023, MIPD announced that the new Copyright Act is expected to come into force in October 2023 and the corresponding rules will be issued in due course。The new Copyright Act will repeal the Copyright Act 1914, which was enacted more than a century ago and is still in force。

　　With Myanmar's efforts to establish a framework for the protection of copyright works that meets modern needs, the new Copyright Law heralds a new era of copyright protection in Myanmar。

　　Main feature

　　A key feature of the Copyright Act is its protection of foreign copyrighted works, which represents a shift from the current situation where only creative works published in Myanmar or created by Myanmar citizens are protected。The existing regulations pose a significant challenge to foreign companies seeking to protect their works under Myanmar's current copyright system。

　　After the new Copyright Law came into force，Works published in Myanmar for the first time will be protected by copyright;If the work has been published in another country，Regardless of the author's nationality or habitual residence，Public publication of the work in Myanmar within 30 days from the date of its first publication in a foreign country will also be subject to copyright protection (Chapter 7 "Scope of Application" of the Copyright Act).。This paves the way for foreign rights holders to enforce copyright and other related rights in Myanmar。

　　The process of modernizing Myanmar's copyright system can also be seen in the new concepts introduced in the new Copyright Law:

　　- Computer programs can now be protected as literary or artistic works (Chapter 13 of the new Copyright Act);

　　- A distinction is made between the economic and moral rights of copyright owners (Chapter 10 "Economic and Moral rights" of the new Copyright Act), where the protection of the moral rights of authors, such as the right to authorship and the right to preserve the integrity of the work, is now enshrined in law;

　　- Chapter 19 of the new Copyright Act provides for the establishment of collective management organizations, which are given the right to act on behalf of rights holders in respect of copyright or related rights;

　　With the rise of digitization around the world, Chapter 15 of the new Copyright Act strictly prohibits unauthorized deletion or alteration of digital rights management information and circumvention of technical protection measures。

　　With the introduction of the new Copyright Law, the protection period of various rights will also be in line with international standards and practices。For example, a copyright in a literary or artistic work lasts for the life of the author and for 50 years after his death;The term of protection of applied art works is 25 years from the date of creation of the work (Chapter 9 "Term of Copyright" of the new Copyright Act).。At the same time, the author of the work enjoys moral rights for life。

　　The new Copyright Act also provides for a voluntary copyright registration system (Chapter 16 of the New Copyright Act "Registration of copyright or Adjacent rights").。Although authors or copyright owners can now register these works "so that there is sufficient evidence" to prove the above rights, this does not change the fact that copyright protection arises automatically without registration。

　　Illegal act

　　The new Copyright Law, like the existing law, provides for civil and criminal prosecution for copyright infringement。

　　However, the new Copyright Act makes it an offence to copy, disseminate or distribute copyrighted works to the public without the consent of the right holder, as well as to possess and/or import infringing goods for commercial purposes (Chapter 23 of the New Copyright Act, "Offences and Penalties").。These offences are punishable by imprisonment of not more than three years and/or a fine of up to 1 million Burmese yuan (about US $660)。Repeat offenders will be sentenced to up to 10 years in prison and fined up to 10 million Burmese yuan (about $6,600)。The extent of these penalties represents a significant increase over the current system。

　　Importantly, Section 12 of the new Copyright Act, Limits and Exceptions of Economic Rights, also provides for various defences against copyright infringement。These statutory "fair use" defenses include, among other things: reporting current events;The library reproduces literary and artistic works for non-commercial purposes such as study, teaching or private research;Make a copy of your computer program as a backup for personal use。

　　Relevant suggestion

　　In summary, the new Copyright Law aims to align Myanmar's copyright regime with international standards, thereby raising the standard of protection for literary and artistic works, as well as related performers, phonograms and broadcasting rights。

　　In addition, the newly established Intellectual Property Court (Chapter 22 of the new Copyright Act) and the Customs Department (Chapter 21 of the new Copyright Act) have been given greater enforcement powers, which also supports the modernization of Myanmar's copyright environment。

　　Right holders should now prepare for the new Copyright Law to come into force by reviewing current and future works in Myanmar and understanding whether these works, including foreign works, are eligible for protection。Rights owners should also be prepared to apply for a voluntary registration of copyright ownership to identify evidence of rights, which will facilitate licensing arrangements regarding copyrighted works and enforcement action against unauthorized third party use。

　　(Source: China Intellectual Property Protection Network)

　　The EPO makes a ruling on the validity of a signature for the assignment of a patent application

　　The transfer of a patent application from one party to another at the European Patent Office (EPO) is subject to Article 72 of the European Patent Convention (EPC)。This article provides that the assignment of a European patent application shall be in writing and require the signature of both parties to the contract。

　　The Director General of the EPO published a decision in the Official Journal of the European Patent Office in May 2021 allowing signatures on documents to:

　　In the form of an enhanced electronic signature;

　　A copy of the signature (fax signature);

　　In the form of a string, preceded and followed by a slash (/) symbol (a so-called text string signature)。

　　Ruling on signature request

　　A ruling made by the EPO Legal Appeals Board in September 2023 looked at the signature requirements when transferring a patent application under Article 72 of the EPC。The applicant in this case submitted a transfer document in which one party used a text string signature。

　　The Legal Appeals Board examined the definition of the term "signature" in the Vienna Convention on the Law of Treaties and in the three official languages of the EPO。The Commission is of the view that the term "signature" in Article 72 of the EPC should be understood to mean that the parties "sign the transfer contract in a unique manner".。The article also interprets the signature requirement as the provision of a handwritten signature。

　　Therefore, the signature in the transfer document signed in the form of a text string is considered not to meet the requirements of Article 72 of the EPC and therefore the transfer is invalid。

　　In addition, the Appeals Board ruled that the 2021 decision of the EPO director was not related to the transfer and was not relevant to the case。

　　(Source: China Intellectual Property Protection Network)