en English

“IP rights are worth protecting.”

Intellectual property (IP) contributes enormously to economies. Dozens of industries across economy rely on the adequate enforcement of their patents, trademarks, and copyrights, while consumers use IP to ensure they are purchasing safe, guaranteed products. IP rights are worth protecting. How to make sure that players in business world- investors, entrepreneurs, licensors, licensees, end-users- will feel comfortable with Slovenia’s IP environment?

This and many other questions arose bringing some possible practical solution at the AmCham IP conference, April 4. The conference was organized by AmCham IP Committee and moderated by co-chairs of the IP committee Tjaša Burnik and Jaka Repanšek who were hosting 8 exceptional guest speakers, experts in the field of IP:

Max Oker Blom, PhD in Economics and LL.Lic., member of ECTA Council and former President-European Communities Trade Mark Association

dr. Maja Bogataj Jančič, LL.M., Director of the Intellectual Property Institute

Tanja Fajon, Member of the European Parliament

Rok Koren, Legal Counsel, BSA The Software Alliance

Urban Vrtačnik, Member of AmCham IP Committee

Luka Novak, MBA, Director, Slovenian Intellectual property Office

Uroš Čadež, founder of XVIDA

mag. Dušan Pšeničnik, Director General, ministry of Economic Development and Technology

For the purpose of participants discussing their views, problem, suggestions on IP theme etc. eight round tables were formed, each with one of the guest experts moderating. Discussion followed with guest speakers presenting key notes on their topics at the round table. Participants of the conference agreed that within the IP area we need to find the balance between protection and openness. They all agreed on the urgent need for modernization of Slovenian legislation concerning IP rights and pointed out fragmentation within EU as well as many other urgent issues concerning IP protection awaiting to be solved sooner the better.

AmCham IP Committee Draft Position Paper

Opening the conference moderators briefly presented the draft position paper of AmCham IP committee, emphasizing the importance of the process of modernization of IP legislation, striving for the redefinition of IP rights, better predictability of the procedures, flexibility in the area of licensing IP and other contractual relationship, as well as judicial protection of IP rights in Slovenian courts. As Repanšek put it, the proper measure of legislation is especially needed in the field of pharmacy, as well as software, media and music, where the legislation – if Slovenia wants to become a more high-tech oriented society- needs to be adjusted to the fast developing technologies. The core mission is “/…/ to find a proper measure between ensuring maximal value of IP rights for the IP holders and non-interferences into legitimate interests of IP users.”

“IP is a vehicle to achieve business goals.”

Max Oker Blom, PhD in Economics and LL.Lic., member of ECTA Council and former President-European Communities Trade Mark contributed his exposé on How to create and maintain an efficient IP environment presenting Finnish perspective in connection to the changes in terms of globalization, digitalization and convergence of different technologies. He pointed out the connection of law and economics where IP rights are obviously having a tremendous importance for national economies: “Clear IP rights promote market efficiency. IP is a vehicle to achieve business goals.” Decision makers need to understand the connection to truly valuate the need for changes.

Building government awareness, comprehensive IP study, action plan on IP modernization follows with necessary government coordination is only the first step. Building business awareness is next level, where Oker Blom pointed out importance of making an IP a top management issue, creating IP policy, using watch services as well as continuous education of personnel. Only then the consumer awareness comes into the first plane when people are supposed to understand the relevance of IP rights for and effects of counter fights on the economy.

“If we overprotect IP it can lead us to the direction where it can slow down the progress of the modern society.”

Tanja Fajon, Member of the European Parliament, exposed IP as a sensitive issue, involving us all: “We are all leaving traces, mosaic of our lives every day, with new digital media… there is more and more concern what is happening with our personal data.” She presented EU as a very advanced in protection of citizens personal data. Yet she warned that there is a big reform package awaiting, with more than 5000 amendments, and even more national, lobbying interests behind.

“On one hand we all agree we want to protect the IP holders, the copyrights but on the other hand we want users, citizens to have the free access to the contents. We all agree that the access to the contents, music, cultural heritage, information… is the biggest advantage to the society. If we overprotect IP it can lead us to the direction where it can slow down the progress to the modern society.” She stressed the importance of not just talking and discussing the problem but finding the concrete, practical and efficient model.

“Yes, there is a total mess in IP: there are no black and white stories, although the battle is black and white: one interest against the other.”

Maja Bogataj Jančič, PhD and LL.M., Director of the Intellectual Property Institute agreed we are witnessing a challenging situation with new media developing very fast and where technology enables everything: “New situation is challenging for musicians, record companies, software companies as well as ordinary users, media companies and start up companies.”

Participants of her round table discussed problems of legislation fragmentation in EU which is very critical also for competitiveness reasons: »Due to the fact of copyright fragmented legislation, when you have to study IP rights in 27 countries, EU is definitely not a land of opportunity.«

According to dr. Jančič solution is a level to level systematical approach. One of the participants of her table, dr. Marko Jusič, judge at the EU court of justice commented: “Legislation has to be clear, so the highest court can find balanced solutions applied to executive law.”

She sees reasons for Slovenian court not being able to find valuable solutions due to lack of knowledge, lack of incentive, not enough praxis and no awareness. IP always stays a new, challenging and complicated field. “In Slovenia we are in a constant process of changing legislation. Problem that arises from every Amanda process is that we always stay locked in problems collecting management, we never even start discussing copyright legislation in EU from perspective of new technologies.”

She concluded, no matter what, we should never stop trying to find the answers otherwise, a s she put it “the next generation will diminish IP or if it will not be successful in that, creativity and inventions will diminish.”

“IP rights are derides of today and their protection should be a matter of today!”

Urban Vrtačnik, Member of AmCham IP Committee exposed main reasons for judicial IP protection staying underdeveloped. One of them is that knowledge for legal professionals in terms of IP is poor, there is no Masters or Phd program, at the university IP is thought only in scope of a selected subject: “Criticism from lawyers must be taken seriously and encourage us to develop in knowledge and follow the interests of our clients, their specifics of their industries, businesses…to get accounted with minimal technical professional standards to be able to provide a good advice, especially at the beginning when launch of a certain product service is often less expensive and more efficient as dealing with the litigation in the end.”

He pointed out that the notifications of hearings in IP matters would be beneficial to professionals to follow court procedures and outcomes of such procedures. Not enough cases running has clear and applicable solutions for both- IP holders and IP users.

Another problem is that procedures are taking to much time and often at the end, after years of litigation there is even no economic rationale for protecting certain right and IP rights are raised. “IP rights are derides of today and their protection should be a matter of today!”

He believes for IP relations to become more secure, simple and foreseeable so both stockholders know what outcomes to expect, modernization and simplification of the legislation is urgently needed: “Going peace by peace of every bit of legislation we need to find some minimal standards in which specific solutions/particular rights in field of IP can be found.”

“We share a common goal: we want a legislation which is up to date, foreseeable, flexible, efficient and IP environment that is full of IP awareness and execution of IP rights. If we find a proper balance between all of the stake holders we are on the right way.”

Problem is that to reach this goal in IP protection an obstacle of too many day to day politics is involved that follow different interests, which are not always harmonized with the needs of IP field.

“The generation lost in piracy”

Luka Novak, director of Slovenian intellectual property office made a thesis that free access to copyright material does not necessarily make present generation happy; it provides too much information and no analysis, resulting in private frustration and week public policies. On the other hand extended or permanent IP protection does not necessarily make future generation happy providing for slower change and development. In this regard he stressed the importance of finding the balance, to be moderate between “two sides of a coin”: overprotecting IP and not protecting at all.

Furthermore he pointed out the importance of the dialog between the civil society and the authorities. “To find the balance is the soft side of the problem. Primarily it is not the question of awareness but a problem of communication. We can achieve something only by dialog, transparent, honest communication… It is a long path, a Sizif work but we must try talking to each other. Only then can we reach the goal of “balancing”.

Exposing some popular cases of social and ethical IP business he illustrated the contrast in perspectives, concluding with the awareness initiative call: “Analyze. Understand. Act. Don’t just prohibit but understand!”

“How strong protection? It’s about as strong as the size of your pocket!”

Founder of XVIDA, Uroš Čadež explained IP problems in Start-Up companies. In this regard he pointed out three major issues:

1) lack of knowledge: you don’t know if your product is going to take off in the market, how important it is to protect the product, how strong protection is needed, what are the procedures to get IP protection…

2) lack of interest: IP protection is not the first thing you’d want do- first you want a product to be done and marketable only than go into the legal staff

3) money: question how much money a Start-Up company is able and willing to spend on the IP- prices for lawyers and patent protection are high

On this point he stressed the importance of unbiased free advice in the local IP office: “They opened the possibilities to decide what is best for us, what is in our best interest, how do we start. It’s important to know: how to pay the least money and get the most protection and results. Be persistent.”

Dr. Jenčič made a good comment summing that start up’s are truly under tremendous challenge how to form a proper IP strategy. She gave a good incisive: “Look for the holes of your business model. IP is almost by rule on of those wholes. You can do this today, when launching your company, products or wait and after some years when you will want to attract potential investors they will look for the holes instead of you.”

“IP is in the heart of the EU ability to compete.”

Dušan Pšeničnik, Masters, Director General, Ministry of Economic Development and Technolog stressed the link between the single market and IP. The single market is the key economic driver within the EU and it deals also with the free movements of goods thus IP. “EU has build it’s competitiveness on innovation on high value added products. IP is somehow in the heart of the EU ability to compete.”

“Enforcement has to be efficient. Institutions have to be effective not only by forming the legal framework but also by governing, monitoring after the system has been established- the protection of IP rights.”

He expressed the urge for the harmonization in the IP field since there is definitelly an added value to business to have simplified, common procedures, common court. Yet, he supported the way out of a traditional court procedure litigation with a winner and a looser and he proposed to better settle cases by arbitration and meditation: “make a win-win situation that will cost less and be more efficient and faster.” Slovenia could even become the center for arbitration and mediation in patent cases.

Beside this: “To have an effective IP protection one needs to have all puzzles set together: one of this- very important one- is awareness. With the awareness also respect for IP comes. This is a continuous task of us all.”

Another idea set forth at his round table was that maybe instead of investing in IP we should be able to create/be innovative faster than the one that are copying, counterfighting the goods? The participants of his round table were asking themselves could it be the way out to put more forces in marketing strategies?!

“Our public procurement law promotes unfair competition.”

Rok Koren, Legal Counsel, BSA the Software Alliance discussed IP in public procurement cases where bidders are illegally using IP. “Our public procurement law promotes unfair competition more than preventing it because in most cases bidders are decided upon their price. Those that don’t pay IP rights can offer much lower price, so they actually compete unfairly.”

To prevent this in the future they propose not to amend the law itself but to implement solutions where bidders would need to make a statement or give a proof that they are using IP rights that are obligatory for such public procurement legally – less infringement so competition between bidders could improve.

Results of the IP Committee work in the last year, together with the conclusions and possible practical solutions set forth at the Conference will be published in AmCham IP Position Paper launched at the end of April 2013.