The EUIPO has published an analysis of the legal and technical feasibility and benefits of an EU IP Digital Deposit System.
Overall the analysis found that a system is feasible from both a legal and technical perspective, but there is currently no explicit legal basis for the EUIPO to establish an EU Digital Deposit System. Therefore there would need to be an amendment to existing legislation or new legislation to implement this.
Such a system would enable creators and inventors to keep evidence of their work at a certain point of time through a central secure and confidential tool. A deposit system is already in operation in some EU Member States although there is not currently anything which is EU-wide. The current systems range from differing levels of confidentiality and fees. The study concluded that these systems can be complicated and expensive.
The analysis found many benefits of an EU system such as:
- A simple and inexpensive access to all EU Member States through a central tool administered by a public authority.
- A significant first step in the innovation process i.e. the preliminary phrase of the application for a design/patent.
- Useful evidentiary function in conflicts where the anteriority of ownership/priority of the claim needs to be resolved.
- Evidence generated by the system could also facilitate the work of online platforms and help them to take down illegal content more quickly.
The analysis considered three main systems which are potential options for an EU System:
- A basic simple system providing reliable electronic proof of the existence of content at a given moment without storing the content i.e. a timestamping authority;
- A basic system as in option 1 above but with storage of the content uploaded by users system i.e. a timestamping authority and a depository; or
- A more advanced system based on option 2 above but more similar to those being developed currently and even going beyond so as to be at the forefront of development.
Alongside this feasibility analysis the EUIPO also published a study which concluded that a voluntary copyright registration system can be of considerable practical use in international litigation, online enforcement or commercial activity.
The study considers the impact which a deposit system will have in the context of litigation if rightsholders can adduce an electronic certificate or the court can request access to certain information. Given the importance of IPRs to business across all sectors and industries, a system which assists in the evidentiary processes to enforce such rights clearly seems beneficial to resolve disputes more efficiently and provide greater certainty.
However the administration of this system needs to be simple and inexpensive to ensure that it does not discriminate against those creators who are unaware or unable to access a deposit system. The analysis concludes that any system will only work on a voluntary basis so the plans currently do not appear to put any undue cost or burden on creators.
Therefore the focus should now be on the practicalities and how to implement a successful system to ensure that the benefits can be realised.