Category Archives: Legal policy

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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Restricting use of professional titles protects clients

doomedOur society seems to be on a trajectory that is downgrading the traditional professions, including lawyers and doctors, to a point where they are unrecognisable to an earlier generation. In Sydney recently, an Australian lawyer told IP Draughts that part of the definition of a profession was that it regulated itself. Perhaps this was once an essential factor, but increasing moves towards independent regulation of professions in the UK make this definition highly suspect. Perhaps, though, the definition is correct, and the sorry reality is that there is no longer, or will soon not be, any legal professions in the UK. Instead there will be a range of “service providers” some of whom will be bound by externally-enforced rules of conduct, and some of whom will have no rules at all, other than general laws that come in from Europe, eg in the Services Directive.

Several factors conspire to make professions seem like a relic of the past. Mrs Thatcher started it, by liberalising the market for property conveyancing services, back in the 1980s, and introducing the paralegal-style qualification of “licensed conveyancer”. Subsequently, both advertising of legal services and referral fees were allowed, which led to ambulance-chasing personal injury practitioners, many of them not actually lawyers, but acting as referral agents for solicitors. Many solicitors would agree that referral fees are not a good idea, but it is largely out of our hands, and controlled by economists and competition authorities that tend to favour a free-for-all in legal services, and dismiss lawyers’ arguments to the contrary as the advocacy of vested interests.

At the same time, an increasingly consumerist approach in government policy-making has created pressures towards independent regulation of the professions. They even created a consumer panel of the Legal Services Board, whose chairman periodically rants about lawyers and seems to want to abandon all self-regulation. hailsham

Meanwhile, the Government has effectively abandoned the role of Lord Chancellor, who for generations has provided some political protection for lawyers (and more importantly,for the rule of law) from the short-term-populism of politicians, for whom lawyer-bashing always seems like a good vote winner. Or if not abandoned, at least downgraded the role to impotent irrelevance, by appointing non-lawyer, third-rate politicians to be Lord Chancellor. Contrast the present incumbent (who is he again?) with a former Lord Chancellor, Lord Hailsham. Hailsham may have been a bit of an upper-class twit and showman, ringing his bell at the Tory Party Conference in the early 1960s, but for a generation he was an effective Lord Chancellor, and as a former leading candidate for the party leadership, not a political third-rater.

These thoughts are prompted partly by an item that has been rumbling in the news for some months, concerning the practice of some UK banks and pay-day-lenders to send nasty letters to their debtors that appeared to be from external solicitors but were actually from in-house departments. For a time this seems to have been “standard practice” among some lenders. It seems that the stationery on which these letters were written sometimes used a fictitious name of a law firm. In at least one of these cases currently in the news, the Solicitors Regulation Authority is scratching its metaphorical head to know what to do about this disreputable practice, as the participants were not solicitors and therefore probably not within the SRA’s jurisdiction.

If we had stronger laws that prohibited a person from misrepresenting themself as a lawyer, this type of practice might never have developed. The UK rules have always been weak, though, focussing on titles and a very short list of restricted activities. The US rules have been stronger and more general, focussing on unlicensed practice as a lawyer, but may not be a good model to follow. The US rules may soon be relaxed in view of the pressure to open up the legal market there to new entrants. It is probably unrealistic to expect the current UK laws to be strengthened; the trend is in the opposite direction.

In IP Draughts’ view, consumers and corporate clients benefit from knowing whether they are dealing with a regulated professional, who is insured and subject to rules of conduct. Perhaps it is optimistic, in this de-regulated age, to hope that the professional will also have an ethos, learnt from, and reinforced by, his or her peers, that insists on levels of service and putting the client’s interests first. The best professionals will continue to stick with these values, even if the market is pushing them in a more selfish direction. Some consumers will always go for the cheapest service, and have no interest in the professional status of the service provider; for others, there is still a brand value attached to solicitors and barristers.

IP Draughts is not advocating a return to a world where solicitors live a cosy, protected life, buttressed by inflated fees on wills and conveyancing. Instead, he suggests a small change in direction to one where the Law Society takes back full control of the SRA, all future Lord Chancellors are experienced lawyer-politicians, and there is no further emasculation of the professions.

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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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