Please don’t confuse UK IP with UKIP! They are not the same thing, at all.
This blog recently commented on the UK Prime Minister’s 12 point plan for Brexit. IP Draughts tried to find clues as to future policy on international IP protection. They were not easy to find.
The Government’s White Paper, The United Kingdom’s exit from and new partnership with the European Union, was published last week. Running to 75 pages (plus forewords), its stated purpose is to “set out the basis for these 12 priorities and the broad strategy that unites them in forging a new strategic partnership between the United Kingdom and the EU”. One might expect that it would provide more detail on the Government’s approach to IP and other international trade issues.
References to IP
There are several explicit and implicit references to IP in the White Paper.
8.36 A range of cross-cutting regulations underpin the provision and high standards of goods and services, maintaining a positive environment for businesses, investors and consumers. For example, a common competition and consumer protection framework deals with mergers, monopolies and anti-competitive activity and unfair trading within the EU on a consistent basis, and EU-wide systems facilitate the protection of intellectual property.
8.37 As we leave the EU, the Government is committed to making the UK the best place in the world to do business. This will mean fostering a high quality, stable and predictable regulatory environment, whilst also actively taking opportunities to reduce the cost of unnecessary regulation and to support innovative business models.
A global leader in international collaboration
10.12 One of the UK’s key strengths in research is international collaboration: 47.6 per cent of UK articles in 2012 were internationally co-authored – a share that has been increasing.90 With just 3.2 per cent of global research and development expenditure, the UK accounts for 6.4 per cent of articles and 15.9 per cent of the world’s most highly-cited articles. The UK also exported over £11 billion of intellectual property globally in 2015. [Reference: ONS Pink Book 2016, July 2016.]
10.14 As we exit the EU, we would welcome agreement to continue to collaborate with our European partners on major science, research and technology initiatives.
The White Paper also includes a table that illustrates the export of services from the UK to the EU, and has a line item for IP showing £4 billion of exports of IP. (IP Draughts has no idea what this figure means, but it looks impressive, and this alone should help to focus the Government’s mind on IP issues.)
The above references to IP have a slight air of being an afterthought – tacked on to the most relevant paragraphs of the White Paper, as if the Government felt it should mention IP but hadn’t really formed its ideas on what to do about it. Is IP part of the cumbersome EU regulatory system, to be made better once the UK leaves the EU, or a valuable export asset to the EU that sits with the UK’s success in international R&D, and where continuing cooperation with the EU is to be encouraged?
There is a sense of non-sequitur, perhaps caused by this tacking on. The EU regulatory system for IP seems to be considered beneficial in paragraph 8.36 above, but paragraph 8.37 seems to suggest that the UK will be better off without EU regulations.
By contrast, the above references to exports of IP seem to suggest a more positive attitude to cooperation with the EU, post-Brexit.
In IP Draughts’ view, it would be better to think of IP as an asset that helps to protect and support the UK’s trade, rather than as a regulatory burden or asset class in its own right. Other parts of the White Paper focus on the importance of various trade sectors to the UK economy but give little clue as to the shape of any future cooperation between the UK and the EU in relation to trade.
Ending the jurisdiction of the CJEU
What can’t be curia’d must be endur’iad
The Prime Minister has been very clear about ending the jurisdiction of the Court of Justice of the European Union (CJEU). Her primary focus when saying this is probably on core political areas such as immigration.
Yet there are numerous other areas, including IP, that probably don’t have the same political sensitivity, and where the CJEU currently has a role in adjudicating disputes. Assuming that the UK will continue to cooperate with the EU in areas such as trade, standards, IP, and research cooperation, some form of international decision-making body will be required, that may look very similar to the CJEU. For example, the UK may wish to cooperate with other EU countries in the area currently covered by the Euratom treaty, and this is likely to require a supervisory body. Currently, while the UK remains a party to that treaty, the body is the CJEU.
This issue also comes up in relation to IP. If a way is found for the UK to participate in the Unified Patent Convention, post-Brexit, it is likely to involve either CJEU jurisdiction or something very similar. Similarly, if the UK is to continue as a member of the pan-EU trade mark and design systems, something of this kind will be required.
There are hints in the White Paper that the UK Government may “get” this point, but they are so subtle and unspecific that it requires a degree of faith to believe that they exist. In particular, though the White Paper refers to ending CJEU jurisdiction, it spends several paragraphs discussing the benefits of international dispute resolution mechanisms and the likely need for such mechanisms in the UK’s future relationship with the EU:
2.3 …We will bring an end to the jurisdiction of the CJEU in the UK. We will of course continue to honour our international commitments and follow international law.
2.4 We recognise that ensuring a fair and equitable implementation of our future relationship with the EU requires provision for dispute resolution.
2.5 Dispute resolution mechanisms ensure that all parties share a single understanding of an agreement, both in terms of interpretation and application. These mechanisms can also ensure uniform and fair enforcement of agreements.
2.8 The UK already has a number of dispute resolution mechanisms in its international arrangements. The same is true for the EU. Unlike decisions made by the CJEU, dispute resolution in these agreements does not have direct effect in UK law.
2.10 …The actual form of dispute resolution in a future relationship with the EU will be a matter for negotiations between the UK and the EU, and we should not be constrained by precedent. Different dispute resolution mechanisms could apply to different agreements, depending on how the new relationship with the EU is structured. Any arrangements must be ones that respect UK sovereignty, protect the role of our courts and maximise legal certainty, including for businesses, consumers, workers and other citizens.
It is possible to read into these words an acceptance, for example, of the CJEU (or a similar body with a face-saving, different name, perhaps) having a limited, supervisory jurisdiction over the Unitary Patent, as a form of dispute resolution mechanism over the “interpretation” of the UPC, particularly when combined with the Government’s comment about the UPC being part of the European Patent Convention, which is a non-EU treaty.
It may be a slightly tougher sell to fit continuing participation in pan-EU trade mark and design registrations within this thinking, as they clearly are part of the EU system. But perhaps in 2 years there will be a greater acceptance that close cooperation in EU trade-related institutions is in the UK’s interests and doesn’t prejudice the UK’s new-won “sovereignty”.
IP Draughts is relieved to see that IP is not the only area where the issue of post-Brexit CJEU jurisdiction is rearing its ugly head. It seems to be an issue across numerous other areas, including mutual recognition of civil judgments, nuclear research cooperation, aviation safety, and international standards generally. IP Draughts hopes that the Government will quietly find a way of ensuring continuing cooperation with the EU in these areas that side-steps the Government’s avowed intent to escape the clutches of the CJEU.