Working with government

Years ago, IP Draughts was a member of a committee that had been formed by a government agency. The purpose of the committee was to give insights on topical issues within the scope of the committee’s remit.

The agency regularly expressed appreciation of the advice that the committee gave it. There was no fee for attending this committee, whose meetings were usually in London, and no expenses were paid. It was understood that the committee was independent, and not bound to follow government policy.  A civil servant took the minutes.

Then, one day, the committee expressed a view that was contrary to government policy, and indicated that it would want to publicise its view. IP Draughts can’t remember what the issue was, which suggests that it wasn’t particularly earth-shattering. The agency’s representative declared that this wasn’t permissible from a committee of this kind, and required the view not to be published. Before it was next due to meet, the committee had been disbanded.

IP Draughts remembers this incident every time he sees mention in the press about government advisers being asked to sign NDAs, or questions being raised as to whether committees advising government are genuinely independent. In the last few days, the UK government has announced that Public Health England, the committee that has advised the government on Covid19, is to be terminated, but whether this is due it being too independent, or not independent enough, is not clear.

He has helped clients to negotiate contracts with government that include what he would call non-embarrassment clauses. He has other, varied experiences of interacting with government and government bodies.

In his experience, which may well be incomplete, the unwritten rules of conduct for civil servants include the following key terms:

1. Assume that everyone on an advisory committee is representing an interest group, and so has an axe to grind. (This is reinforced by the way in which people are invited to join committees, even on technical subjects. It is sometimes annoying to encounter this assumption.)
2. Focus on the process, and let the politicians take the decisions. Sometimes, the politicians may be content to rely on the advice that comes out of the process. On other occasions, the politicians may take decisions that ignore or override the process. Going through the motions of the process may sometimes disguise the informal nature of a political decision.
3. If a minister asks for something, do it, whether or not it fits with the agency’s strategy.
4. Whatever you do, don’t allow anything to happen that might embarrass the government.

These rules seem to apply not only to civil servants in government departments, but also to employees of government agencies, however “independent” they are presented as being from central government. If the agency has any kind of reporting line into a government department, or is funded by government, it should be treated as part of government, unless it demonstrates genuine independence.

Another feature of government is that it generally dislikes difficult, technical issues that have no votes attached to them. Much of IP law fits within this category, except perhaps for the limited question of consumers downloading copyright material from the internet. It seems that novel infectious diseases also have some of these features, though when they turn into pandemics they become of great interest to voters.

Politicians are mostly ill-equipped to handle complex issues, which may require technical or managerial skills. Their civil servants may be better, but their training leads them to avoid taking sensitive decisions for which they could be blamed.

What is the solution? It could be to create genuinely independent institutions, like the judiciary. But even there, politicians will try to exercise the levers of power if they are allowed to do so. Witness the efforts of successive Home Secretaries to by-pass court orders or bad-mouth the judiciary, e.g. on politically-sensitive subjects like immigration. It is not just a right-wing Tory phenomenom. David Blunket was pretty strong on this subject as a Labour Home Secretary.

The level of independence of an advisory committee, and its ability to withstand political hostility, are difficult but important issues. Terminating a committee because its views are not politically expedient – whether it is an important committee like Public Health England, or an unimportant one like the one IP Draughts sat on – is a symptom of a disfunctional system.

 

 

Covid 19: “massive data-sharing contracts”

Making the rounds on Twitter is news of the UK government’s release of the “massive data-sharing contracts” that it has entered into with various tech companies, relating to Covid 19.

According to the OpenDemocracy website, this release occurred only after pressure from openDemocracy, and “hours before” they were due to issue legal proceedings to demand their release.

The web page linked above has on it links to what are said to be the contracts that the UK government released. The contracts are with Google, Faculty, Palantir and Microsoft, respectively. According to openDemocracy, the contracts are concerned with an:

‘unprecedented’ transfer of personal health information of millions of NHS users to these private tech firms.

IP Draughts thought it would be interesting to take a look at these contracts and consider what, if anything, they tell us about the processing of health data, and more generally what they tell us about government contracts.

IP Draughts’ first reaction, having downloaded the four contracts, is “where’s the beef”?

Google

The first contract is with Google, and is described as a “confidentiality and consultancy agreement”. It is 3 pages, plus signatures. It says that Google will:

provide technical, advisory and other support (the ‘Support’) to NHSX [two national NHS bodies and the Department of Health] regarding efforts to tackle COVID-19 (the ‘Project’).

No further details of the Support are given. Clause 5 states, inter alia:

The parties acknowledge and agree that it is not their intention to collect, access, share, use or otherwise process any personal data…

Much of the rest of the contract consists of boilerplate clauses, eg on anti-bribery , disclaimer of warranties, etc.

If there is a scandal associated with this contract, it is not evident from the text of the contract.

Faculty

Faculty is allegedly a company that has connections with Dominic Cummings, and has received several government contracts. OpenDemocracy alleges that the disclosed contract is worth £1M.

The contract is headed with the “Crown Commercial Service” name and logo, and is described as a “G-Cloud 11 Call-Off Contract (version 4)” – whatever that means. It appears to be a typically turgid form of government contract, running to 48 pages. Most of it is boilerplate language.

The “call-off contract value” is stated to be “£930,000 excluding VAT”, and the “call-off contract description” is “provision of strategic support to the NHSX AI Lab”.

The main reference to data in the service description is a phrase (the 7th bullet point of 12 that describe the services) that reads:

Modelling and simulation: using data from across the healthcare system to model scenarios to better understand that impact of the spread of CODIV-19 on healthcare resources

This may or may not involve obtaining personal data from NHS records.

A later [template?] Schedule 1 – Services includes a narrative description of the NHS AI Lab and what it will do, and states that the NHSX “are looking for a partner to help share and deliver the NHS AI Lab”.

These brief descriptions certainly raise the possibility that, in helping to develop the AI Lab, the contractor will have access to personal data, but so far the contract does not say so in terms.

Part B – Terms and Conditions, sets out detailed boilerplate terms for the contract. Clause 12.1 requires the Supplier to

comply with the Buyer’s written instructions and this Call-Off Contract when Processing Buyer Personal Data… [and to] only Process the Buyer Personal Data as necessary for the provision of the G-Cloud Services…

Schedule 6 is a glossary and defines Buyer Personal Data as:

The personal data supplied by the Buyer to the Supplier for purposes of, or in connection with, this Call-Off Contract.

Schedule 7 is headed “GDPR Information” and sets out a familiar table that sets out the parties’ legal roles and responsibilities in relation to data processing. It states that NHX is the Controller and the Supplier is the Processor. Under the heading “Type of Personal Data” it includes:

1. Pseudonymised personal data
2. Aggregated personal data

Under the heading “Categories of Data Subject” it includes “members of the public” and “patients”.

So, the framework contract contemplates the possibility that the supplier may have access to personal data from NHS patients, but does not explain in detail what the data is and in what circumstances it will be provided and processed.

Palantir

This contract is in a similar form to the Faculty contract. In the interests of saving a few Norwegian forests, IP Draughts printed out only the Statement of Work that appeared at the end of the contract. But he did check the contract value, in case this was evidence of a scandal. Disappointingly, the contract value is stated to be £1.

The Statement of Work is written in almost impenetrable jargon, but some phrases look as if they might refer to accessing personal data, including:

Ingestion of mutually agreed data sources and further integration into a data ontology

The Customer is required to provide:

Timely access to or provisioning of relevant data

Microsoft

The “contract” that has been disclosed appears to be a set of standard Microsoft contract terms for various types of standard service, including “Azure Services” and Office 365 Services”. The document is headed “Volume Licensing: Online Services Terms April 2020”.

The document is only 16 pages long, but this is misleading: they have reduced the font of the text to about 8 point. IP Draughts now has a headache. [Correction: IP Draughts’ printer ran out of paper. The full document is much, much longer!]

IP Draughts is suprised to hear himself say this, but it was refreshing to turn to Microsoft’s turgid contract prose, after wading through the UK government’s very different turgid contract prose.

These terms are very light on the subject of personal data, but they do include a link to a web page where can be found Microsoft’s “Data Protection Addendum”.

Conclusions

Nothing in the Google or Microsoft documents appears to be evidence of a scandal.

Both Faculty and Palantir appear to have been engaged to support the development of a national AI Laboratory. One may speculate that the development of machine learning techniques in relation to Covid 19 – e.g. assessing how patients with a particular genetic sequence are likely to react to infection – could well involve processing personal data. One may also speculate that the UK population would mostly be happy for their personal data to be used, in a suitably controlled way, to support this important work.

Just looking at the contracts, there is very little about the nitty-gritty of GDPR compliance, and one might hope that other documents exist that will address in more detail what information is to be disclosed and how compliance will be ensured.

Is there a public scandal, and are these contracts “massive”? IP Draughts will leave that for others to decide.

 

Farewell, Institute of Knowledge Transfer

So long, farewell!

Regular readers of this blog may recall that IP Draughts has expressed a wish to see a new national body that focuses on the public policy, networking and educational aspects of innovation. See, for example, this post from 2016, which suggested the formation of a Royal Academy of Innovation and Creativity.

Experience has taught IP Draughts that he achieves more when he sets something up himself, rather than joining someone else’s party. He has thought about how he might set up a body of this kind. One idea that passed through his mind was whether he could take over an existing, but moribund, organisation, and repurpose it.

In this context, he has occasionally looked at the Institute of Knowledge Transfer (IKT), wondering whether he should make an  offer for it. From a company law perspective, it had certain things going for it. It was set up as a company limited by guarantee, and as a membership organisation. It had permission from the relevant government department to call itself an Institute and omit the word “Limited” from its name. It had some name recognition in the university sector. And it didn’t seem to be going anywhere.

Fresh from the recent bank holiday, this morning he looked at their entry in the UK Companies Register. Too late! The company was dissolved in March of this year.

The IKT would make an interesting case study about the life cycle of a membership organisation. IP Draughts doesn’t know much about its internal workings, but he knows others who do. In a little over 15 years it passed through the seven ages of a man-made organisation. It was incorporated, grew, acquired a “big name” chairman, became part of an international network, was overtaken by other organisations (e.g. ATTP, which runs the RTTP certification), its assets were acquired, and the company was eventually dissolved.

IKT still has a Wikipedia page, which is now rather out of date.

The reasons why membership organisations fail to thrive are many and varied. Some depend on the active participation of volunteers, and if there is not a constant refreshing of the volunteer cohort, the organisation may die. Some are given pump-prime funding (e.g. by a UK or EU public body) and when the money runs out there is no viable revenue stream. Some simply don’t offer enough to their members.

IP Draughts hopes he has a sufficiently good track record, from growing a law firm, public policy experience, leadership roles, teaching, and publications, to demonstrate his focus on long-term success.

An initiative of this kind will need different types of contribution, including:

• financial sponsorship
• networking and opening doors
• helping to run the organisation and devise attractive offerings to participants

If you think you might be able to help him create a robust, national body to promote, debate and teach innovation – to government, to participants in academia and industry, and to the wider public – he hopes you will make contact with him.

Covid 19 – an open letter from the UK IP Minister

Well, perhaps. This article suggests that the UK’s Intellectual Property Minister, Amanda Solloway MP, should write an open letter on the subject of infringement of IP, in relation to developing and making urgently-needed products to deal with the Covid 19 pandemic. Draft text of a letter, written by IP Draughts for her consideration, appears below.

This article is prompted by several conversations and exchanges of emails that IP Draughts has had in recent days. It seems that many people (students, scientists, business people and others) have risen to the challenge of developing, making and distributing products that are urgently needed by the National Health Service and the nation. Examples that IP Draughts has been made aware of in recent days include:

• oxygen concentrators
• mechanical ventilators
• 3D printing of facemasks and airflow dividers
• apps to predict whether someone is infected
• apps to track the development of the virus across the population
• apps to provide reassurance to people in isolation

A concern that has been raised more than once is whether these activities may infringe the IP of others, and whether anything can be done at a national or international level to remove this risk. This concern has probably been stimulated partly by the news from Italy that someone has been making a ventilator valve using a 3D printer, for use in hospitals. Apparently they had asked the original manufacturer for design drawings and had been refused and threatened with an IP infringement suit.

The facts of this story have subsequently been disputed, but they raise an understandable concern. Some people in the IP community feel that reassurance needs to be given to people doing their best in a national emergency, that they are unlikely to be sued.

But any such reassurance is ultimately only someone’s opinion. No matter how unlikely you think it that a reputable company would trash their reputation by suing someone who is trying to save lives, there is nothing to stop them from doing so. Or is there?

There are provisions in UK IP legislation (and, IP Draughts suspects but doesn’t know, in the laws of other countries) that enable the UK government to override IP laws.

For example, section 55 of the Patents Act 1977 provides:

…any government department and any person authorised in writing by a government department may, for the services of the Crown and in accordance with this section, do any of the following acts in the United Kingdom in relation to a patented invention without the consent of the proprietor of the patent…

The section then lists various activities that would normally constitute patent infringement.

Section 59 of the same Act provides an alternative route. It includes the following provisions:

During any period of emergency within the meaning of this section the powers exercisable in relation to an invention by a government department or a person authorised by a government department under section 55 above shall include power to use the invention for any purpose which appears to the department necessary or expedient;

(a) for the efficient prosecution of any war in which Her Majesty may be engaged;

(b) for the maintenance of supplies and services essential to the life of the community;

(c) for securing a sufficiency of supplies and services essential to the well-being of the community; …

Similar provisions apply to certain other types of IP. For example, in relation to unregistered design right, section 240 of the Copyright, Designs and Patents Act 1988 includes the following provisions:

(1) A government department, or a person authorised in writing by a government department, may without the licence of the design right owner—

(a) do anything for the purpose of supplying articles for the services of the Crown, or

(b) dispose of articles no longer required for the services of the Crown;

and nothing done by virtue of this section infringes the design right.

(2) References in this Part to “the services of the Crown” are to—

(a) the defence of the realm,

(b) foreign defence purposes, and

(c) health service purposes…

On a slightly different topic, where IP has been generated under a contract with the government, the IP may be owned by the contractor but subject to a contractual equivalent to the Crown user provisions mentioned above, to allow the government to make use of the IP and authorise others to do so. For example, IP Draughts has seen funding agreements from the Department of Health that include such provisions.

To implement provisions of this kind, a government minister is required to take a formal decision, and in the case of section 59 of the Patents Act 1977 an Order in Council is required to declare a “period of emergency”.

Thus, the government has several levers of power to ensure that people responding to the Covid 19 pandemic are not sued for IP infringement.

With this in mind, and with a view to encouraging people to do what they can to help the NHS and the nation through the present crisis, IP Draughts proposes the following draft statement, or open letter, from the relevant government minister. Given that Amanda Solloway is both the IP Minister and the Minister for Science, Research and Innovation, she would seem ideally placed to issue such a statement.

For the avoidance of doubt, IP Draughts waives any IP rights that he may have in the following statement!

IP Draughts’ draft statement for the IP Minister to issue:

Covid 19 and the use of intellectual property (IP) for the public benefit

It has been inspirational to see the public responding so generously to appeals for help during the current pandemic. Within the science and technology communities, we have seen hundreds of initiatives to help solve shortages of vital equipment such as ventilators, face masks and hand sanitiser. There have also been initiatives to improve our understanding of the spread of the disease, including diagnostic tools and tracker apps. On behalf of the UK government, I would like to express our strong support and appreciation for initiatives of this kind.

Some of the people involved in these and similar initiatives have expressed concerns that they may be sued for infringement of third party intellectual property. For example, a scientific technique may be patented, or a product may make use of existing designs that are protected by design rights.

It would be extremely concerning if anyone who is trying to develop, make or supply products to help with the current emergency were to be threatened or actually sued for IP infringement.

The government would like to remind IP owners that it has statutory powers known as Crown user provisions, that enable the government to use, and authorise others to use, IP in the national interest. The government will not hesitate to implement those powers where appropriate.

However, the government hopes that it will not be necessary to devote time and national resources to implementing such laws. It trusts that IP owners will voluntarily cooperate to ensure that urgent needs are met (e.g. by voluntarily supplying designs and blue prints of their products where required), and refrain from asserting IP rights against those who are trying to meet those needs.