Category Archives: Legal policy

IP threats in the House of Lords

hl-committeeThis weekend, IP Draughts has a note from the school doctor that he is excused long runs, contact sports or blogging. He has to prepare for what may be a once-in-a-lifetime event, namely appearing as a witness before a House of Lords committee next Monday afternoon.

The committee is known as a Public Bill Committee, and has been convened as part of the passage of the Intellectual Property (Unjustified Threats) Bill through Parliament. It is chaired by Lord Saville, a retired Supreme Court justice. Previous witnesses to have appeared before this committee include Baroness Neville-Rolfe, the IP Minister, Sir Robin Jacob and Sir Colin Birss.

The committee hearing, which will be taking place on Monday 24 October at about 3.30 pm, is recorded on camera, live-streamed and saved on the UK Parliament website, so if you are a glutton for legal minutiae feel free to stop by. Details of the hearing can be found on the Parliament website here. IP Draughts believes the streaming will be accessible here.

IP Draughts will be giving oral evidence as chairman of the Law Society’s Intellectual Property Law Committee. Also giving evidence will be fellow IPLC member, Matthew Harris, and Vicki Salmon, representing the Chartered Institute of Patent Attorneys.

Now IP Draughts has to do some homework, and prepare for some difficult questions from Baroness Bowles, who is a member of the committee and a patent attorney, possibly the only patent attorney in Parliament.


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IP laws after Brexit: what would be best?

brekApples is apples. All are of the dust, and all turn to dust again. And Brexit means Brexit.

A large proportion – perhaps 70 to 80% – of UK IP laws are based upon or affected by EU laws. What is to happen to these laws when the UK leaves the EU? According to a recent announcement by the UK government, there will be a Great Repeal Bill, which will continue EU laws in existence as domestic UK laws until they are individually revised or repealed. This announcement is welcome, but it leaves many questions in the IP field unanswered. Some of these are listed below.

  1. What about laws that are in the pipeline of EU legislation and come into effect after Brexit? For example, what about EU directives currently in place that require member states to implement national legislation by a future date that falls after Brexit?
  2. What about pan-European IP that is currently in existence, such as EU trade marks and EU registered designs? Will they continue to exist as UK rights after Brexit, and if so, how? As purely national rights or as part of a larger EU system?
  3. Will it be possible for the UK territory to be included in pan-EU IP rights that are registered after Brexit? Could there be a new treaty that extends these rights to non-EU countries including the UK and Switzerland?
  4. Or if the answer to question 3 is no, will the UK introduce equivalent rights in the UK? For example, will the UK introduce UK-only database rights, supplementary protection certificates, data exclusivity laws and orphan drug rights?
  5. If the UK does not agree with the EU to be part of a future pan-European IP system, but introduces equivalent UK rights through domestic laws, will the UK courts follow EU case law on the interpretation of those laws?

dustIP Draughts attended a meeting of practitioners last week, at which the consensus was that it was in the UK’s commercial interests for future UK IP laws to be aligned, as closely as possible, with equivalent laws in EU countries. But how will this be achieved, if the case law of the EU and the UK diverges over time?

One answer would be for the UK courts to follow the approach taken by the CJEU and other senior EU courts. But recent statements by UK government members suggest that it is a central part of Brexit that the UK will be relieved of any obligation to act in accordance with the judgments of the CJEU. If that continues to be the UK government’s position, even in technical commercial subjects such as IP, then the most we might hope for is that the UK courts will take notice of EU judgments and seek alignment were possible. This could be by an informal nod-and-a-wink on the part of the UK judges, or could be enshrined in UK legislation that says, in effect, we are free to do our own thing but if we think it is sensible we will follow EU law. Would this approach be politically acceptable? Who knows.

A similar question arises in relation to the Unified Patent Convention. According to a recent opinion by Richard Gordon QC, it is technically possible for the UK to participate in the UPC after Brexit. But this would require agreement among various stakeholders, and would almost certainly require the UK to accept the supervisory jurisdiction of the CJEU. This last requirement is likely to stick in the craw of the Brexiteers, at least according to some of their recent pronouncements.

applesPerhaps, in time, the UK government will realise that, in some areas of international trade, giving jurisdiction to EU institutions is in the UK’s commercial interests and does not significantly dilute the principle of sovereign independence. Coming to this realisation will require a suppleness of thinking that is currently lacking in those responsible for Brexit in the UK government.




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Why we shouldn’t teach children that infringing IP is immoral

ip-crimeThe UK Intellectual Property Crime Group and the UK Intellectual Property Office have just published their 2015-16 IP Crime Report.

Actually, it is not clear who is taking editorial responsibility for the report, as it comes with a 400 pound disclaimer:


The IP Crime Group is a collaboration among various bodies, including many that lobby on behalf of the owners of IP, particularly the types of IP that are commonly counterfeited, such as images, designs, consumer goods and software.

IP Draughts continues to be uncomfortable about the UK government appearing to act as a cheerleader for certain types of IP owner. There seems to be a several-step process:

  1. Government is understandably sympathetic to the concerns of IP owners about counterfeit goods.
  2. Government listens to lobbying by these IP owners as to the need for more laws, more enforcement, more education of the public about obeying the law, etc. Perhaps because the main focus of this lobbying is on counterfeit goods, there is no counter-argument by IP users. After all, who would lobby for counterfeiters?
  3. Government strengthens the law, eg there has been a recent change to make it a criminal offence to intentionally infringe a registered design.
  4. Lobbying groups tick that off the list and argue that, to be consistent, intentional infringement of other types of IP should be a criminal offence.

For example, the following paragraph appears in the above-mentioned report and appears to have been contributed by ACID:

Anti-Copying in Design (ACID)

Current Concerns – Unregistered Design Rights (UDRs)

The lack of criminal provisions for UDRs is no longer in step with
the criminal provisions for Registered Designs (RDs). Despite
improvements to the Intellectual Property Enterprise Court
(IPEC) and Small Claims Track, this route can be cost prohibitive
for micro and SME designers anxious to take infringement
action. As the majority of designers rely on UDRs the door is open
for organised criminals seeking to infringe UDRs.

lobbyistsIn IP Draughts’ view, this is a very slippery slope. It reminds him of a meeting that he attended last year, with representatives of ACID and other lobbying bodies, the IP professions, and the UK government. The topic under discussion was educating children about IP. Until IP Draughts spoke up, there seemed to be a consensus in the meeting that children should be taught that IP infringement was bad and that they shouldn’t do it.

IP Draughts’ recommendation was that children should be taught about the consequences of IP infringement, but should not be fed a “moral” view on the subject. This immediately met with a heated response from some of the people present. One representative said it was like burgling someone’s house – of course you shouldn’t do it.

After a few moments, IP Draughts responded that of course one should be taught to obey the criminal law, but most IP infringement claims are based on the civil law. (Of course, this argument is weakened if some of the lobbying bodies have their way, and extend the range of criminal IP offences.)

If he had been quicker-witted, he might have followed up the burglery analogy with one about civil trespass. Should children be taught not to trespass? IP Draughts is not so sure. The famous mass trespass in 1932 on the Duke of Devonshire’s land at Kinder Scout was controversial at the time, but is now celebrated by the Ramblers Association and others who support the “right to roam”. To quote Wikipedia:

On 21 and 22 April 2007, the Ramblers celebrated the 75th anniversary of the illegal trespass of Kinder Scout and the imprisonment of those who participated.

IP Draughts is not siding with IP infringers. He just thinks it isn’t always obvious where “right” lies, particularly with civil torts of IP infringement. And some people campaign vigorously about this subject, eg those in the open source movement who are hostile to software copyright. By all means, educate children and adults about IP and about the consequences of IP infringement. But without the element of moral instruction.

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Tell us what Brexit means, then IP laws can be reviewed

busesWhen Brexit happens, what will happen to existing UK IP laws? And what should the UK government’s proposals be in the field of IP law, in the forthcoming Brexit negotiations?

As with so many Brexit questions, the UK government needs to start deciding on its policy and strategy for Brexit, before the IP profession can sensibly suggest IP-specific proposals. One of these policy decisions is what is to happen to existing UK laws that are influenced by EU laws, immediately following the UK’s formal leaving of the EU. Many current IP laws in the UK consist of, or are affected by EU laws; very little is unique to the UK.

IP Draughts assumes that the UK government will have to pass UK legislation to take effect immediately following our formal leaving of the EU, and that there will be insufficient time before Brexit, to draw up individual measures covering every area that is currently influenced by EU laws. In other words there will need to be some kind of sweeping, interim master-law that defines the new legal regime, probably in combination with numerous exceptions and qualifications that are considered sufficiently urgent to be dealt with at the time of Brexit. Once this new legal regime in place, Parliament can take its time to develop new laws and revise existing laws across the policy areas that may be thought suitable for a distinctive UK approach.

If that is right, then it would be helpful to clarify how the new master-law will work. For instance (and some of the following questions overlap):

  • Should we assume that all existing, national UK laws that are derived from EU laws (e.g. are designed to implement an EU directive) will remain in place immediately following the UK’s formal withdrawal from the EU? For example, the Data Protection Act 1998 currently falls into this category, as it is a UK law that implements an EU directive. However, this may not be a good example, as the Act may be repealed and replaced before Brexit by the new General Data Protection Regulation (GDPR), which is due to come into effect automatically throughout the EU (ie without the need for national legislation) in 2018.
  • Should we assume that all EU laws that currently have direct effect in the UK will automatically cease to have effect on Brexit, or will the UK government introduce some kind of holding measure to continue them all in force as purely national UK laws, unless otherwise stated? If the GDPR is introduced before Brexit, it will fall into this category.
  • In the area of laws affecting international trade (a category that may be thought to include IP laws), should we assume that, as a default position, immediately following Brexit UK laws will be aligned as closely as possible with current EU laws, with individual exceptions where it is felt to be in UK interests to have them? Or will the opposite policy position be taken? Or will every law be looked at on a case-by-case basis before Brexit?
  • cjeuShould we assume that there will be a strong presumption against allowing any EU jurisdiction (eg by the CJEU) to continue in the UK in any field post-Brexit? Or will a more sophisticated and nuanced position be taken, eg distinguishing between EU controls over areas of major political interest, such as immigration, and areas of international trade that don’t affect core political concerns? This may seem like a theoretical question, but consider the case of UK participation in the Unified Patent Convention. If it is possible for the UK to participate post-Brexit, but it is a condition of continued UK participation that the CJEU has ultimate supervisory authority (as CJEU Opinion 1/09 suggests – see this recent opinion by Richard Gordon QC), will the UK government be unable to stomach this ‘loss of sovereignty’ or will it be treated like any other area where, in the interests of UK trade, the UK agrees to supranational authority over UK activities (as may be the case with certain international trade treaties that give authority to the World Trade Organisation). Will the UK government be brave enough to recognise the valuable benefits to the UK of this (minor) loss of sovereignty, even it risks giving the Daily Mail ammunition to write hostile articles? IP Draughts has considerable doubts on this issue, given the recent rhetoric of senior government ministers such as the Secretary of State for International Trade.

In IP Draughts’ view, it is in the UK’s interests for future UK IP laws, and other laws affecting high-tech business activities (eg the regulation of pharmaceuticals, data protection laws, recognition of judgments) to be aligned as closely as possible with those in the rest of the EU. Ideally, there should be ongoing, formal cooperation between the UK and the EU in these areas, so as to ensure such continuing alignment.

steerBut it has yet to be seen what the UK government’s approach to trade laws, including IP, will be following Brexit. A great deal of work is being done by IP practitioners, through various technical committees, to consider the detail of what should happen to IP laws. But until we get a steer from government on their overall approach, and how they plan to deal with IP and trade laws, it is difficult to devise a strategy for negotiating the best outcome with the various actors (including governments, as well as industry and IP professionals, across the EU). This is not purely a matter for governments to negotiate. IP professionals will want to discuss these matters with their opposite numbers in other EU countries. as well as representatives of industry, and hopefully get their support, and their advocacy to their national governments, on areas of common interest. In an area as technical as IP laws, IP Draughts hopes that UK and EU governments will seek advice from specialists in the field.


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