Category Archives: Legal policy

Give me a child until he is seven and I will show you… a copyright expert?

Lenin reads Copyright Education and Awareness - he seems to be impressed!

Lenin reads ‘Copyright Education and Awareness’

Apologies to the Jesuits among you, for mangling the quotation that is attributed to St Ignatius of Loyola. Or to his mate, St Francis Xavier. He/they supposedly said  “Give me a child until he is seven and I will give you the man”. Or something similar. Presumably in Latin. Or Spanish. Or perhaps Catalan or French.

Alternatively, we could adapt the quotation attributed to Lenin: “Give me four years to teach the children and the seed I have sown will never be uprooted.”

In other words, the best way of getting your point across is to teach it to children for several years, and the lesson will stay with them during their adult lives.

The UK Prime Minister has an Intellectual Property Adviser, Mike Weatherley MP. Or rather, he did until recently. One of Mike’s last acts before he resigned from the role was to publish a Discussion Paper, Copyright Education and Awareness. Its main recommendation comprises a paragraph of text that uses too many buzz words for IP Draughts’ taste. They include: “strategic partnership”, “sharing of best practice”, “strategic outreach plan”, “various stakeholders”, “cross-industry working group”, “consult on strategic vision”, “review progress”, and “working together”. Blah blooming blah. The essence seems to be that Government should develop a plan to raise public awareness of IP, and then convene a committee every 3 months to see whether the plan is working. No harm in that, you might think. Why couldn’t they just say it simply?

More interesting, in IP Draughts’ view, are the more detailed or “additional” recommendations, which can be summarised as follows (summary followed by IP Draughts’ reaction):

  1. Measure. Develop mechanisms to measure the public understanding of IP and how they behave in relation to IP (eg do they download music illegally). [Seems sensible.]
  2. Introduce IP education into the school curriculum. [Potentially a good idea, if done well.]
  3. The BBC should create a copyright education programme using online, on-air and face-to-face channels. [Pie in the sky. BBC is not there to lecture people on IP.]
  4. Provide good information. This recommendation reverts to buzz words like “obvious synergies”, so IP Draughts can’t be bothered to summarise it. [Yawn.]
  5. Create a fund to incentivise SME digital businesses to educate citizens about IP rights – again too many buzz words for IP Draughts’ short attention span. [Yawn.]
  6. Create a new IP Education Coordinator or a broader IP Director General role. In other words, there should be an IP czar, similar to the one in the USA. [Hurrah! Or Yawn! Can’t decide which.]
  7. Produce an annual Copyright Education Evaluation Report. If this doesn’t achieve the desired results, introduce a statutory duty on the Secretary of State to “inform and educate on IP and copyright awareness”. [Yawn.]

media studiesThe most substantive and realistic of these recommendations, at least in IP Draughts’ eyes, is the proposal to increase education in schools and universities.  The report discusses some current initiatives in this area, such as the development of copyright materials for inclusion in an AS/A level course in Media Studies. It also records, with regret, the Government’s refusal to include IP law as a subject within the national curriculum.

The report recommends various steps to increase understanding of IP by school pupils, university students, and their teachers. Many of these initiatives are being led by the UK Intellectual Property Office. In general, they are at an early stage.

IP Draughts’ solution would be more radical. He would set up an IP training academy, completely independent of government, and led by experts in IP and education. But who would pay for it?

As with much of government life, successful education of the public about IP will require the expenditure of money. Is public money to be spent on developing educational materials? Who will do it and at what price? Should this be a priority at a time of economic hardship?

IP Draughts has some direct experience of this subject, having been commissioned a few years ago by the European Patent Academy (part of the European Patent Office) to develop “train the trainer” course materials on IP licensing. He was subsequently commissioned to deliver the course, both in a traditional meeting and in series of online, one-hour courses run from his office, using a computer, camera and microphone. Three things have stuck in IP Draughts’ mind about those experiences. First, that the Academy was a well-resourced body in its own right, with its own specialist staff, and not a secondary activity of a Patent Office. Secondly, there was a decent fee for writing the materials (after IP Draughts publicly tendered for the work). And thirdly, the materials went through an intensive peer review process, with 3 reviewers, which greatly enhanced the quality of the slides and notes.

nittyIP Draughts wishes the UK government would take a similar approach to the EPA, but fears that the focus currently is too much on the political and administrative sides – the high-level aspiration and political process – and not enough on making sure that initiatives are well-thought-out, run by professionals, and properly funded. It was ever thus.

 

 

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Snow White and the Seven Dwarfs: What is the point of IP ministers?

snow whiteSince 2007, the UK Government has had a Minister for Intellectual Property. Or, to be accurate, it has had 7 ministers, each of whom has retained their position, on average, for about a year. The latest incumbent, Baroness Lucy Neville-Rolfe, was appointed earlier this month.

It sounds good that the Government is taking IP sufficiently seriously to have a minister-in-charge. But what does it mean in practice?

Clearly, the Government needs a responsible minister to steer legislation through Parliament. In practice, there need to be at least two ministers for the role, one in the House of Commons, and one in the House of Lords. Responsibility for steering the Intellectual Property Bill recently fell to Lord Younger in the House of Lords (the IP minister before Baroness Neville-Rolfe), and David (“Two-Brains”) Willetts in the House of Commons. Both have since lost their jobs as government ministers, but IP Draughts guesses that their performance on IP matters probably wasn’t the cause.

Steering IP legislation through Parliament doesn’t require the helmsman to have a formal title of IP Minister, as demonstrated by David Willetts’ performance of this task. So, what is the purpose of the named role?

Perhaps it is to coordinate Government policy in the field of IP? If that is the case, why is responsibility for IP policy split between the Department of Business, Innovation and Skills (where the IP minister is based), the Department for Culture (which is responsible for aspects of copyright policy) and the Department of Agriculture (which is responsible for plant breeders’ rights)?

Perhaps the IP minister is expected to be a champion for IP rights, and to make sure the Prime Minister “gets it”? But surely that has been the stated role of Mike Weatherley MP, the Prime Minister’s official adviser on IP?

It is not obvious that the Prime Minister needs an IP minister; he did very well to secure the life sciences division of the unified patent court for the UK, with no apparent involvement from an IP minister.

Perhaps the role is one “behind the scenes”, working within Government, and follows the mantra of Harry S Truman, that it is amazing what you can accomplish if you don’t care who gets the credit. If so, it would be good to know what the minister does, so that those of us who are involved in the IP world can provide information and support.

The late Alan Clark MP

The late Alan Clark MP

The late Alan Clark MP was a Government minister who never quite became a Cabinet Minister. He is famous for writing some of the most entertaining political diaries of the 20th century. He was also, by his own confession, something of a shit in his personal life, but so what: the same was true of Picasso, and that fact doesn’t affect the quality of his art.

Clark’s diaries amusingly describe the drudgery of a junior minister’s official life. In part, according to Clark, the job is a training for higher office, and a probationary period to see whether you are fit to climb further up the greasy pole. In part, the junior minister’s role is to take on all the boring, politically unimportant, but somehow necessary duties that his boss, the Secretary of State, does not wish to spend time on.

This is a cynical view of the lot of a junior minister, but it is the only one that IP Draughts has seen clearly expressed. Nothing in the unimpressive performance of the 7 IP ministers leads him to a different view. In fairness, it is too soon to condemn Baroness Neville-Rolfe as she has only just started in the role.

If the Prime Minister, David Cameron, can be viewed as Snow White – the fairest of them all – for securing the life sciences division for the UK (and, as a bonus, hugely annoying the European Parliament in the process), which roles do the 7 IP ministers fill? IP Draughts would like to suggest the following casting:

Happy – Baroness Lucy Neville-Rolfe, who has resigned from directorships with Tesco and other companies in order to focus on her new role as IP minister.

Grumpy – Viscount Younger of Leckie, who was recently sacked as IP minister. IP Draughts can’t feel too sorry for this heir to the Younger’s brewing fortunes and the hereditary title that goes with it.

Sleepy – Lord Marland, who came before Lord Younger, and rose and sank without trace.

Sneezy – Baroness Wilcox. Apart from being Chair of the National Consumer Council, her job as IP minister seems to be the most noteworthy role she has had, at least if her Wikipedia entry is accurate. If she dislikes the title Sneezy (given for no other reason than that it was vacant), perhaps she would prefer the name that Walt Disney was originally planning to give to one of the seven dwarfs but abandoned as too boring: Jumpy?

Doc – David Lammy – the closest this group has to an intellectual. Not that it takes much: an LLM from Harvard means that he has more than one degree.  He is the only IP minister to come from the House of Commons; the rest have exercised their ministry from the Lords. He is probably the most dynamic of the bunch, but he wasn’t noticeable as IP minister.

Bashful – Baroness Morgan. She now has a more important role, and one to which she seems more suited in view of her career background, as Chief Executive of Breast Cancer Campaign, a leading UK charity.

Dopey – Lord Triesman, who lasted as IP minister for only a few months, before jumping ship to become Chairman of the (English) Football Association.

Part of the problem, in IP Draughts’ view, is defining what the role should be. There is probably more technical content for an IP minister to master than in many Government briefs, and  it would be good to have a minister with some intellectual clout as well as political influence. In fact, the technical content makes IP Draughts wonder whether a purely political ministerial appointment is quite right. He recalls the President of the Board of Trade, an ancient office whose title Michael Heseltine revived when he was Secretary of State for Trade and Industry (now the role held by Vince Cable, as Secretary for Business, Innovation and Skills). Originally, the Board of Trade was a committee advising Government. To quote Wikipedia:

In the 19th century the board had an advisory function on economic activity in the UK and its empire. During the second half of the 19th century it also dealt with legislation for patents, designs and trade marks, company regulation, labour and factories, merchant shipping, agriculture, transport, power etc.

Instead of an IP minister, perhaps the Board of Trade should be revived, with one of its members responsible for leading on IP issues and briefing the Secretary of State and the Prime Minister. The selected individual would probably be a businessman or businesswoman with experience of IP. An advantage of this route is that they wouldn’t have to handle (and be suited for) the humdrum activities of a junior minister.

It is also important to bear in mind that much of the UK legislation in the field of IP comes from Europe. IP Draughts is not convinced that the UK Government is properly set up to negotiate European legislation. For example, when IP legislation is negotiated by the UK Government in Europe, it seems to be handled by officials from the Foreign Office, to whom interested parties such as IP professionals have no direct access, instead having to deal with, for example, people in the UK IPO who, in turn, brief the Foreign Office representatives. IP Draughts hopes he has got this right; the lack of transparency on this issue makes it difficult to be certain. IP Draughts would much prefer there to be a single Government department, probably BIS, handling all legislative developments in the IP field in both the UK and Europe.

Therefore, in an ideal world, he would like to see the IP minister being a senior level Government appointment, perhaps with a title such as:

President of the Board of Trade and Secretary of State for Europe

 

 

 

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What should the Government’s IP policies be?

reactionAt a recent meeting of IP lawyers, at which IP Draughts was present, someone asked what the next UK Government’s policies should be in the area of intellectual property. This prompted several “instant reactions”, including the following:

  1. Unified Patent Court. Continue to support the UK’s participation in the Central Division of the (European) Unified Patent Court, by providing sufficient direction and funding for the new court’s facilities and activities. After David Cameron’s remarkable diplomatic success in getting the life sciences part of the Central Division’s work to be located in the UK, it is important to follow this up at an operational level, and avoid penny-pinching.
  2. Educate the population about IP. Establish a body that is responsible for widespread education about IP.  Consider introducing courses on IP in undergraduate programmes in science and arts subjects. Work with universities and IP professionals to take this forward, rather than rely on the UK IPO which is not established to be a training body.
  3. IP threats legislation. Depending on what the final recommendations are from the Law Commission, which is currently reviewing the subject of IP threats, promptly introduce legislation to implement their recommendations.

Having reflected since the meeting, IP Draughts would add a couple of further suggestions:

  • recognise that UK IP policy is mostly developed at an EU level nowadays, and put more Governmental energy into negotiating policy developments at that level. The same point could be made about many aspects of commercial law, including the current proposals to introduce an EU-wide sales law.
  • stopstop setting up independent reviews of UK IP policy, such as Gowers and Hargreaves. They generate a huge amount of work with limited benefits in return.
  • develop some genuine expertise on this complex subject within the relevant Government department (probably BIS). Don’t expect the UK IPO to be the main source of Government expertise – that is a bit like leaving it to HM Revenue and Customs to develop fiscal policy.

Do readers agree with these points? Do you have any other suggestions?

 

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Thank you, m’Lord

my lordApologies for the lack of posts in the last two weeks.  IP Draughts has been rather busy dealing with a flurry of client matters and recruiting an additional IT lawyer.

Last week he also gave an all-day, in-house talk in Cambridge.  A big thank-you to the Research Contracts team at the University for making the visit so enjoyable.  He greatly appreciated the comments from several people about how much they enjoyed reading this blog, and how they passed articles on to colleagues when they found them interesting.

Lord Clement-Jones

Lord Clement-Jones

While we are on the subject of appreciation, IP Draughts is delighted, as a member of the Intellectual Property Working Party of the Law Society of England and Wales (IPWP), that an IPWP briefing paper has been extensively cited by Lord Clement-Jones in debates in the House of Lords about the Intellectual Property Bill that is currently progressing through Parliament.  Lord Clement-Jones expressed himself to be “indebted” to the Law Society for this paper during the Committee Stage of the Bill on 11 June, and he again quoted from it on the second day of debate on 18 June.

This leads on to a more general point, which is that the IPWP has been considering whether to run its own blog, to keep solicitors and others informed about developments in IP legislation, policy and practice in the UK and EU.  The blog would provide updates on the work of the IPWP, which seeks to represent the views of IP solicitors in England and Wales (often in conjunction with the Intellectual Property Lawyers Association and the City of London Law Society).  It would also enable a more direct engagement with English solicitors who are interested in this area, eg by enabling them to comment on articles on the blog.

Recent highlights of the IPWP’s work include:

  • Active involvement in the campaign to improve, and secure a UK involvement in, the Unified Patent.  This led to David Cameron negotiating high-level terms of the underlying treaties directly with his European counterparts.
  • Submissions on the IP Bill, mentioned above.
  • A campaign over several years to revise the ‘unjustified threats’ provisions of UK IP legislation, which was probably a factor in the Law Commission making it a current subject of review.  That review is ongoing and the IPWP will be making further submissions.
  • Attending meetings with Government ministers, officials and the IPO to discuss IP-related topics, including the implications for UK business if the UK left the EU.
  • Submissions on numerous other items of proposed EU legislation, including (to take one small example) the draft Technology Transfer Block Exemption Regulation, on which IP Draughts led.

talkIt seems to IP Draughts that an IPWP blog would be a useful way of engaging with others in the development of Law Society ‘positions’ on topics that can sometimes be overlooked by non-specialists, perhaps because the topics can seem rather technical and dry, or of limited relevance to mainstream commercial and legal life.  There are not, as far as IPWP is aware, any other similar blogs in other areas of the Law Society’s campaigning, and for some this might be regarded as a big step to take, requiring considerable volunteer effort with no certainty that any engagement will result.  IPWP members already commit a great deal of time to IPWP work.  Would running a blog significantly enhance the IPWP’s work, or would it be a damp squib?

What do readers think?

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