Category Archives: Legal policy

Strategy meetings – are they worth having?

strategySelect a dozen or so people who have a common interest but different perspectives on a subject, say intellectual property or legal services. Select people who represent ‘stakeholders’ in the subject. Give them a draft document that you wish to discuss with them. Hold a meeting lasting an hour and a half, at which you canvass their views on the document.

Last week, IP Draughts participated in two such meetings. The first was a meeting of solicitors to discuss the Law Society’s corporate strategy. The second was a meeting of various trade bodies to discuss national IP strategy.

The two meetings were very different in their participants, subject-matter and the way they were run. But in some ways the meetings felt very similar. You may think that some of the following points are obvious, but they only became obvious to IP Draughts after reflecting on how the meetings went, and how they differed from the meetings of IP lawyers and business people that he is used to attending.

  1. It is very difficult to develop any coherent conclusions on a topic when (a) the topic is complex and multi-faceted, and has numerous points of detail, (b) the meeting participants have widely-differing interests and personalities (and in many cases have not met before), and (c) you only have an hour and half to discuss the topic.
  2. Getting people to stick to an agenda, and to discuss their pet subjects under the relevant agenda headings rather than download their ideas all at once, is much harder than one might expect.  Strong chairmanship is required.
  3. Meetings develop ‘group-think’. The nature of that group-think depends on who has been invited to the meeting.

These comments make some tacit assumptions as to the purpose of the meeting, eg that they are intended to find solutions to problems through discussion. But what if the purpose of the meeting, at least on the part of the people who called it, is to ‘engage’ with stakeholders in the wider sense, without necessarily expecting (or needing) that engagement to lead to any consensus?

By contrast, meetings of the Law Society’s Intellectual Property Law Committee seem much more productive. This may be partly because:

  1. Under our current Chair’s guidance, the IPLC has been good at sticking to an agenda in its meetings. Preparatory work is done outside meetings, eg through the development of draft submissions on proposed legislation, and sufficient time is given in the meeting to discuss each point in a focussed way.
  2. Members of the IPLC get to know one another over several years, and develop a productive working relationship.
  3. Members of the IPLC are not representing ‘interests’, other than in the very general sense of all being specialist IP lawyers.
  4. IP lawyers tend to take what IP Draughts calls an ‘engineering approach’ of trying to find workable solutions to problems.

Similarly, client meetings that IP Draughts has attended, eg of the executive committee of a listed biotech company, have been focussed, kept to an agenda and produced relevant conclusions.

It is not surprising that strategy discussions take more of a ‘blank sheet of paper’ approach, and this inevitably leads to a looser discussion. But IP Draughts is left wondering about exactly what the purpose was of the meetings he attended this week and whether, in the minds of the organisers of each of those meetings, the purpose was achieved.

 

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Protecting the public from non-lawyers

office1According to popular culture, and therefore according to populist politicians, lawyers use their privileged position to charge too much and do too little. They provide their services in an old-fashioned way that is out of step with the service methods of banks, department stores, airlines, holiday companies and other mass-market providers. They are also too clever by half –  a particularly British, social sin. This negative feeling seems to operate mainly at the group level. Ask someone to comment on the service that their lawyer provides, and a more appreciative response is often given.

Prejudice against gender, race, religion or age is now outlawed. Prejudice against professions ticks no forbidden box. It is not only lawyers who are disparaged. Other professions, including doctors and teachers, are fair game for public hostility. This leads politicians to chip away at the the legal mechanisms that protect and promote professional services. Why do you need a lawyer to sell your house, when any Tom, Dick or Harriet could do it? Let them do it, and let them call themselves lawyers, it doesn’t harm anyone except overpriced solicitors.

Making these comments almost invites a sarcastic response. Another strand of popular sentiment is that well-paid professionals can look after themselves. Perhaps they can, but consumers of professional services can’t, and they are the ones that need protection.

The public benefits from having highly-regulated professions, and from laws that control the performance of professional activities, whether it be cosmetic surgery or investing people’s money. But who will point this out and stand up for the professions when they are under attack from politicians? If professionals do so, their comments are dismissed as the product of self-interest.

financial adviserThese gloomy thoughts are prompted by a letter that an elderly relative of IP Draughts received recently, on which IP Draughts’ advice was sought. The letter was written by a “financial adviser”. It offered to help this relative to create a “tenancy in common” of her house, and thereby avoid the house being compulsorily sold to pay local authority care home fees, if the relative needed to go into a care home in the future.  The adviser offered to charge a fixed fee for this work, and another fixed fee for creating a “mirror will” and trust to support the change of ownership.

This is not an area of law with which IP Draughts is familiar, but some Googling soon revealed the basic idea behind the proposal. In essence it is a scheme for ensuring that the surviving spouse, after the first spouse dies, can avoid selling their home to pay the care home fees. Apparently this works when the first spouse has set up a legal mechanism to ensure that their “half” of the property does not pass to the surviving spouse when they die. As a result the property cannot be sold, or is unlikely to have a market value.

For the benefit of readers who are not English lawyers, property can be jointly owned by two people in two different ways. The two ways are known as “joint tenancy” and “tenancy in common” and they have different legal consequences. When a joint tenant dies, the property automatically passes to the surviving owner. A tenancy in common passes in the deceased person’s will.

The scheme assumes that:

  • the spouses originally own the property as “joint tenants” (which many spouses do, including IP Draughts)
  • they convert their ownership to “tenancy in common”
  • the spouses do not pass their half-shares to each other in their wills but instead provide that they pass to someone else, eg trustees of a family trust
  • protection is sought from selling the house when the second spouse goes into a care home

IP Draughts was surprised that a financial adviser should be offering to transfer property, draft wills and create trusts, rather than directing the client to a solicitor. But she told IP Draughts’ relative that she has a law degree, so of course she understands these things.

severeHe was even more surprised by the letter, which appeared to be a modified version of a template letter. The template uses some pompous legal expressions like “sever the [joint] tenancy”, but because the writer doesn’t really understand what she is doing, phrases like “we will severe your tenancy” appear.

For several reasons, this scheme is unlikely to help IP Draughts’ relative:

  1. Her husband died many years ago, so it is too late to set up the scheme between husband and wife.
  2. She owns her property outright – there is no current joint tenancy.

If a solicitor offered garbage of this kind, they could be referred to the regulator – the SRA. They could be sued for negligence when the scheme doesn’t work, and they would have compulsory insurance that would cover any losses that might arise. Any competent solicitor would know that they have to check the client’s circumstances meticulously before offering a scheme of this kind. IP Draughts’ experience of local solicitors in the area where this relative lives is that they tend to err on the side of caution.

When a “financial adviser” dabbles in a subject that they don’t fully understand, and when they haven’t checked the facts properly before offering a service, who knows whether the client will be fully protected.

Situations like this one need to be explained to politicians when they engage in periodic bouts of lawyer-bashing. Financial advisers should not be allowed to offer legal services. It hurts the consumer when they do so. Old-fashioned, slightly stuffy solicitors are much better protectors of consumer interests.

This example concerns consumer law, which is what politicians tend to understand. For those of us advising business clients, we may think that situations like this don’t directly affect us (except when our relatives suffer from them). But misguided de-regulation in the consumer arena tends to have effects that are felt across the professional spectrum.

 

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Would you like to be a member of the IP Law Committee?

law societyNow that the Kat is out of the bag, IP Draughts can confirm what he has known, or thought he has known, for several weeks: that he has been appointed as the next Chairman of the Intellectual Property Law Committee of the Law Society of England and Wales. The appointment is for a 3-year term, starting in September.

A Law Society press release on this subject was issued a few minutes ago. IP Draughts’ haste to mention the topic is because the Committee is also in search of new members. The deadline for applying is 5pm today, so if you are interested (and are a member of the Law Society) you will need to apply this afternoon. Details of the vacancies and how to apply can be found here. Expenses are paid (subject to loads of rules) and there is also an annual allowance of about £60o. (Wow!)

In IP Draughts’ unbiased view, being a member of the Committee enables you to make a contribution to the IP profession, and to influence new legislation in the UK, EU and internationally. If you have experience as an IP lawyer, have a mindset where you think about the legal issues involved, and are willing to contribute to discussions and position papers, you may well be the person we are looking for.

The background to this recruitment drive is that for the last decade (and earlier, but IP Draughts is not familiar with that period) the committee operated as a lowly sub-committee, and was largely left to get on with its work undisturbed by Law Society protocols. The work was done very well, and eventually (a few months ago) the Law Society recognised this fact, and decided to upgrade us to being a full committee. However, one consequence of the increase in status is that we are now required to comply with Law Society procedures for committees, including a requirement to retire members and appoint new ones in a 3-year cycle.

The formalities for appointing the Chairman are even more detailed than for members. As well as undergoing SRA checks, and approval by a Board of the Law Society, IP Draughts was required to take 2.5 hours of online training on the subjects Disability Confident and Unconscious Bias, and to pass two exams in these subjects, which he has done. At least IP Draughts is now fully conscious of his biases.

 

 

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Copyright reform and the bottom line

eames yellowIP Draughts has a comfortable office chair. It is a reproduction of a design by the famous, mid-twentieth-century designers, Charles and Ray Eames. The design is known as the lobby chair, because it was originally designed for the lobby of the Rockefeller Center in New York, in about 1960.

The chair was a bit of a luxury item, as it cost IP Draughts several hundred pounds. It was certainly more than his previous chair, which was also of good quality, but was bought in a clearance sale when Rio Tinto shut one of its offices in London. That one cost £10. The average price paid by IP Draughts for his office chairs is not too unreasonable.

eames redThere must be thousands of reproduction Eames lobby chairs in circulation across the World. They vary in quality and price, but many of them look very similar. You can spend nearly £5,000 on one at the Conran Shop in London, if that is your choice. Or you can get them much cheaper. This one costs AUS$499, while this one seems to cost only US$70-150 if you buy 20 of them, and pay the costs of importing them from China.

With such a disparity of prices, IP Draughts idly wonders whether it is possible to have a reproduction of a reproduction, or a rip-off of a rip-off, to put it less charitably. No doubt, readers who are copyright litigators will be able to answer that one.

IP Draughts is not an expert in US copyright and design laws, but assumes that the Eames design is no longer protected. He is on safer ground discussing the position under UK copyright law. UK copyright law in this area is about to change very significantly, and will make the sale of modern reproduction furniture more difficult (or more expensive).

Let us take the fictional example of a chair designed and first marketed in England in 1960, by the fictional English designers, Karl and Jay Eaves, who both died in 1976. The chair would probably have benefitted from UK copyright, as a type of artistic work known as a “work of artistic craftsmanship”. Usually the period of copyright protection for artistic works is the life of the author plus 70 years. However, section 52 of the Copyright, Designs and Patents Act 1988 limits the period of copyright protection for articles that are manufactured by an industrial process, to 25 years. A statutory instrument states that this provision applies if more than 50 articles are manufactured.

In the above example, assuming that the current law applies, copyright expires in 1985 rather than 2046. (As this is only a blog article, we will skip over the fact that the chair would have first been protected under the Copyright Act 1956 and the effect of the transitional provisions in the 1988 Act for works that existed before the 1988 Act came into effect. This subject is far too boring and complicated for IP Draughts’ brain.)

In principle, this shorter period of protection seems right to IP Draughts. There may be arguments for a long period of copyright protection for creative works such as books and paintings, to give a revenue stream to struggling individual creators and their descendants. But industrially-manufactured items seem to IP Draughts to be in a different category, and the duration of design right (much shorter than copyright) reflects this difference.

morrisThe precise meaning of a “work of artistic craftsmanship” has not been fully established. There has been very little case law on the subject. It probably covers a chair that was designed specially for a building in New York, by leading designers, but this is not certain. This category of works was originally introduced into UK copyright law in response to the UK’s Arts and Crafts Movement, led by William Morris, in the late nineteenth and early twentieth centuries. William Morris wallpaper designs are still selling today.

Part of the problem in deciding what is the right period of protection for works of artistic craftsmanship is that they straddle the line between purely creative works and industrial works. They have both art and craft.

Never mind the historical position, the UK Government is now proposing to repeal section 52, to align UK copyright law more closely with that in the rest of the EU. This will result in a much longer period of copyright protection for iconic furniture designs and other works of artistic craftsmanship. The Government’s detailed proposals, published last week, can be summarised as follows:

  1.  Section 52 will be repealed in the near future. The repeal will take effect from 6 April 2020. In other words, there will be a period of about 5 years in which makers and sellers of reproduction articles can adjust to the new legal regime, in which copyright will last for the life of the designer plus 70 years.
  2. Following the effective date of the repeal, traders will be allowed to sell off existing stocks, and trade in copies that already exist, but will not be allowed to make or import new unlicensed copies.
  3. The Government will issue non-statutory guidance about the types of product that are within the category of works of artistic craftsmanship.

The effect of this change on traders in reproduction furniture and other artistic products is likely to be dramatic. A large number of items will be brought back into copyright. It may be necessary to stop selling items or take licences. It will be interesting to see what happens to the trade in reproduction ‘designer’ chairs. Will the bottom drop out of the market?

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