Thursday, 14 March 2019

Commodities, commodification, commoditization and intellectual property laws

In a piece in The Guardian today, Anish Kapoor is quoted as saying: "Only poetry and the more serious classical music seem able to resist becoming commodities." He admits that he has benefitted from "neo-liberalist commodification", and indeed few artists can have done as well as him out of it, but even so he doesn't make it sound like a good thing. Which I guess he doesn't think it is.

Commodification is not a necessary consequence of copyright (or more generally intellectual property) protection. What the world of commerce needs is proprietary rights:
The merchant must have property in the things in which he trades, his rights to that property must be identifiable, When he sells an article he must be able to assure the buyer that the things is his to sell; he must be able to prove his property in it, if he is challenged. (Hicks, A Theory of Economic History, OUP, 1969, p.34).
It is true as much for intangibles as for tangible things. Argubly, a far-reaching law prohibiting unfair competition could do the job of all IP laws, but giving them the status of property rights probably makes them much more useful - much more tradeable, and available for use as security - than a mere right of action against an unfair competitor would be.

So, to make intellectual property tradeable it is commodified - turned into objects of trade. "Commodification" is a term used in Marxist theory, where it denotes the process of giving an economic value to something that it didn't have already, by producing it and presenting it for sale rather than just consuming it oneself. It's different from commoditization, which is a term found in business literature to denote the process by which goods that have economic value and can be distinguished by their attributes - their uniqueness or brand - become simple commodities in the eyes of the market or consumers. Here, the meaning of "commodities" is somewhat different from the Marxian one: the word denotes goods that have full or substantial fungibility (a great word), meaning that the market doesn't care who produced them, as one person's commodities are much the same as another person's.

So it seems to me that commodification is an essential result, or perhaps a goal, of copyright protection, whereas commoditization is what intellectual property laws (trade marks probably play a more important role here than copyright) are designed to prevent. Kapoor can earn a living (a very good one, I imagine) because his work is commodified, but it would be incorrect to consider his creations as commodities because they are readily distinguishable from the works of other artists. Ineed, I can see an argument for saying that anything that can be labelled a commodity in the second sense mentioned above should not receive any form of protection from intellectual property laws (by which I mean, in the trade marks field, that purely descriptive or non-distinctive trade marks like BREAD for bread must not be registrable, not that bakers should be denied access to the trade marks system altogether).

This is an aspect of intellectual property law about which I am developing my thoughts, so please excuse any half-bakedness in this posting. Any comments would be gratefully received.

Monday, 25 February 2019

Spare Rib archive threatened by B****t

I was surprised when I read about this today in the Guardian. Why should the British Library's digital archive of the celebrated feminist magazine have any problems arising from the impact on the orphan works directive of B****t?

My first thought was that the Directive (implemented in s.44B and Sched.ZA1 of the 1988 Act) must surely remain part of UK law. But (according to its website) the BL has been advised by the soi-disant Intellecual Property Office that the "legal exception" (properly, permitted act) would no longer apply. Which makes me ask, what is the BL doing taking legal advice from there? Don't they have lawyers (with insurance)? Given the extent to which the BL works with copyright (all the time), I would have thought the advice should have been flowing, if at all, in the opposite direction.

Thanks to Eoin O'Dell's Cearta blog I have now looked at the draft Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 (pdf) and their Explanatory Memorandum (pdf). I am astonished to see that the government plans to throw the baby out with the bathwater, repealing (or "omitting", as the legislation says - is that another example of B****t Newspeak?) section 44B which is the permitted act, along with Schedule ZA1 (and I do think that with a title like that it probably deserves something, though I'm not sure repeal is called for).

Is the real problem that the right to issue copies etc across the EU will be lost (and as the archive is online it is available, presumably, EU-wide)? Would geo-blocking help (but if it would, is it acceptable)? The BL won't be able to add anything to the EUIPO database, but if it has published stuff in reliance on the fact that it was in the database then it seems to have complied with para 5 of Sched. ZA1 and I don't see anything to require it to refresh its due diligence. It looks as if Cultural Heritage Institutions in the UK will no longer be able to look at the EUIPO database (which seems a bit miserly) so in future it would be impossible to comply with para 5: but that doesn't have to destroy the legal basis for the Spare Rib archive.

The domestic licensing scheme (s.116A and SI 2014/2863) might help but seems too limited, and expensive, so I am disregarding it as a practical alternative. I will however note that the SI is being amended to remove references to the EU database - which as the Regulations stand is an essential component of a diligent search. Well, of course this has to be done, but why couldn't the same approach be taken to the permitted act?

The answer is, I guess, that there was always a certain amount of tension between the UK's licensing approach and the Directive's permitted act approach - described by Eleonora Rosati in this paper and by the IPKat, 22 November 2013. Eleonora suggested that the UK law was incompatible with the directive, the Infosoc directive, the Copyright, Designs and Patents Act 1988, and even the Charter of Fundamental Rights, which is a pretty comprehensive charge sheet. On that basis, I can imagine that the UK government was content to see the back of the EU orphan works scheme: in the orphan works sphere, the UK had been taking back control since 2013. So following B*****t orphan works will be subject to the IPO-operated licensing scheme, and the BL and others (a wider range of others than under the Directive) can pay for the privilege of using orphan works.

Of course we have to respect the will of the so-called majority (including, I am pretty confident, no readers of Spare Rib) who voted to trash all the hard work that has gone into this.

Numbering of "comparable" UK trade marks

The UK-only trade marks that will, if leaving the EU ever becomes a reality, be carved out of existing EU trade marks are being called "comparable" trade marks. It seems like an odd choice of word, but compared with the madness that is Brexit this is a minor quibble. The Patent Office has published a notice about how these will be numbered:
In order to identify comparable UK rights and distinguish them from existing UK trade marks, the number allocated to the comparable mark will be the last 8 digits of the EUTMprefixed with UK009.
The following examples show how comparable UK trade marks will be numbered:
Existing EU trade markComparable UK trade mark
000000977UK00900000977
000025197UK00900025197
000340513UK00900340513
017867542UK00917867542
By retaining the EUTM number, we aim to keep the administrative process to a minimum.
Of course the best way to "keep the administrative process to a minimum" (let's read that as if it had the word "burden" in place of "process" - one does not keep processes to a minimum, and in any case it is surely more accurate to say it's as small as possible, not a minimum) would be to stop the nonsense altogether, but our Prime Minister is clearly dead set on it. As a numbering scheme this makes sense and is pretty simple - it reminds me of how when the 1994 Act came into operation the Registry started with number 2,000,000, which meant losing only a few numbers but provided a nice easy way to recognise "new Act" trade marks.

I wonder what will happen to comparable UK trade marks when the country rejoins the EU in a few years' time? Is the government planning for that contingency yet?

Wednesday, 20 February 2019

Book review: Copyright Law and Derivative Works by Omri Rachum-Twaig

Calling a work "derivative" is not a compliment, but there has been a tendency (since at least the Gowers Review) to consider the way that copyright laws treat derivative works as too restrictive. The author's starting point is the proposition that copyright regulates creativity: indeed, "regulating creativity" appears as a sub-title on the front cover. It seems to me that exploring creativity through the prism of derivative works is the wrong starting point, but I don't think it detracts from this fascinating and important book.
It seems customary these days to explain that one has been given a review copy of a book, so let me start by stating (though it seems pretty obvious to me) that I have been given a review copy of this book, published recently by Routledge at the eye-watering price of £115 - that being the main reason that declaring the gift of a review copy is surely redundant. I wouldn't go so far as to say that it's worth £115 of anybody's money, but it will be worth that much of some people's money, and it is a very interesting not-so-little (190 pages of real text) monograph, not padded out with lots of front- and back-matter.
After considering matters of quantum, always the first thing I notice about a book, I start to wonder about the author. He is, the book tells me, an adjunct professor of law at the University of Tel Aviv. The Internet tells me more, and I was particularly interested to read that his first degree is a Bachelor of Music and that he has had an impressive orchestral career already. That might have been his route into copyright law, but if it was it doesn't show in this book, and I found that slightly disappointing: but it doesn't claim to be a book about music copyright, so my disappointment is probably misplaced anyway.
The work, my reservations about the focus on derivative works notwithstanding, is an exploration of how well copyright understands creativity, compared with other fields of study: so, despite the title, it is quite light on black-letter copyright law - and more interesting for it, IMHO. It uses derivative works to inform its discussion of creativity, considering whether the law's treatment of the right to make derivative works (and its inclusion, generally, in the bundle of exclusive rights that the copyright owner enjoys) is compatible with what other disciplines teach us. The author examines the cognitive aspects of creativity before going on to look at genre theories (with an interesting discussion of how Sherlock Holmes derives from the work of Edgar Allen Poe) and the justifications for what he calls the "derivative works right", though I am not convinced of the need to identify it as a distinct instance of copyright protection - reproduction right ought to do the job.
But perhaps that remark just shows me to be unsympathetic to the argument that copyright, in the interest of encouraging creativity, should be more liberal in its treatment of derivative works: surely "derivative" is the opposite of "creative" or "original", and where a later creator wants to use another's copyright material it is a transaction that should be resolved by licensing, not by permitting otherwise infringing acts. A transformative work is another matter, and to my mind copyright should be encouraging the creation of such works rather than engaging in a sterile argument about creating space to make derivative works, space which already exists and is regulated by the requirement that making them requires the copyright owner.

Sunday, 3 February 2019

Crown use as a solution to drug costs

There's nothing new about controversy over the cost to the NHS of patented pharmaceuticals. It's inherent in the patent system that patentees who invest possibly eye-watering amounts of money in devising inventions will want to use their monopoly rights to recover that investment and gain a return on it.

Today The Observer reports on a novel solution to the sometimes terrible problems that can arise when drugs are available to treat life-threatening conditions but the price is out of reach. Mechanisms are in place to try to ensure that the NHS is not charged excessively for new drugs, but they have failed to close the gap between what the NHS can afford and what the patentee wants (£105,000 per patient) in this case. The mooted solution is to use the Crown use provisions of the Patents Act 1977, under which the patentee will receive a modest royalty. Section 55 actually uses the expression "for services of the Crown", but section 56(2) specifically includes "the production or supply of specified drugs and medicines" within "the services of the Crown", making it a surprisingly wide concept.

I don't recall section 55 being invoked very often, and while the facts as narrated by The Observer are rather thin - it concentrates on the undoubted human interest aspects - this certainly looks like an interesting departure in patent law. I hope above all else that a solution can be reached that delivers what the unfortunate patients need.

Monday, 21 January 2019

New podcasts

I have had a break of a few years from podcasting, for various reasons. I hope you will have seen the IPso Jure YouTube channel (link on the right hand side bar) which I started up a few months ago, on which I plan to publish some basic material including a lot of stuff for law students (such as how to answer exam questions) as well as practitioners.

Today I have relaunched my podcasts with a production about the reform of UK trade mark law which came into effect on 14 January this year. It's about 40 minutes long and I am selling copies for £1 each. I will soon be recording a monthly update podcast (like I used to do a few years ago) and selling that too. You can get your copy here. You can also download the accompanying slides here.

Wednesday, 16 January 2019

The effect of a "no-deal" departure from the EU

Yesterday's vote in the House of Commons, a record-breaking defeat for a government, leaves us with no clearer idea of what might happen at the end of March. By default, according to the law as it stands, we leave the EU on 29 March, and as there is no withdrawal agreement we will leave with nothing to govern our relationship with the EU. The chances of that changing are fairly good, given that Parliament (which is trying to wrest control of the process from the government - ironic, given that "taking back control" was supposedly at the heart of the whole idea of leaving the EU) has put in place provisions that make it pretty well impossible to crash out without a deal.

The most likely alternatives at present seem to be an extension beyond 29 March of the notice period given under Article 50 TFEU, or withdrawal of that notice (which the Court of Justice has kindly indicated can be done unilaterally, although only if it is in good faith - that is, not simply to delay matters). Neither of those requires consideration at present, because the status quo would be preserved.

The government has published guidance on what will happen in a variety of areas if there is no deal. One of its briefings concerns trade marks and designs. Originally these documents said that a "no-deal" withdrawal was unlikely: more recent editions seem to lack that reassurance. Ho hum. Although it does say: "We expect to negotiate a successful deal with the EU."

Of particular interest to trade mark and registered design owners is what will be the effect of their EU trade marks if no deal is reached. After all, for years they have been encouraged to believe that all they needed was protection at the EU level and many allowed their UK national rights to fall away, to save renewal fees. The answer is:
The government will ensure that the property rights in all existing registered EU trade marks and registered Community designs will continue to be protected and to be enforceable in the UK by providing an equivalent trade mark or design registered in the UK.
Note that this says nothing about charges. Under the draft withdrawal agreement, there would have been no charge for this: will the government be able to resist an opportunity to raise some revenue, especially when so much would come from foreign companies? Perhaps the financial arrangements of the Patent Office (or Intellectual Property Office as it prefers to be called) remove any attraction to this course of action - it might not benefit the Treasury.
Right holders with an existing EU trade mark or registered Community design will have a new UK equivalent right granted that will come into force at the point of the UK’s exit from the EU. The new UK right will be provided with minimal administrative burden. The trade mark or design will then be treated as if it had been applied for and registered under UK law.
And if a new corresponding trade mark has not been used in the UK in the past five years - will it immediately be liable to revocation? Will the proprietor be able to rely on the reputation acquired by the trade mark in other EU countries, when suing an infringer in the UK? The rejected withdrawal agreement dealt with these points, but the guidance says nothing. Logically, leaving the EU should mean that the new trade mark's past counts for nothing - the five year non-use period should start from scratch, and any reputation acquired elsewhere in the EU should be irrelevant.
This means that these trade marks and designs:
  • will be subject to renewal in the UK
  • can form the basis for proceedings before the UK Courts and the Intellectual Property Office’s Tribunal
  • can be assigned and licensed independently from the EU right
No surprise there.
After exit, business, organisations and individuals with EU trade mark and Community design applications which are ongoing at the date of exit will be able to refile with the Intellectual Property Office under the same terms for a UK equivalent right, using the normal application process for registered trade marks and registered designs in the UK.
Was that even worth saying?
This means that for a period of 9 months from exit, the government will recognise filing dates and claims to earlier priority and UK seniority recorded on the corresponding EU application. Right holders taking this step will need to meet the cost of refiling the application in accordance with the UK application fee structure.
 Does this actually follow? I would have thought that if the normal application process were followed there would be a 12-month priority period, although seniority (being a pecularily EU thing) is a different matter. Anyway, this "special priority period" could be useful for applications for EU rights outstanding on the key date (29 March 2019 or such other date as might emerge) because it could enable an applicant whose EU application is opposed to salvage UK protection while retaining the priority date.
These same provisions will apply to international registrations designating the EU filed with the World Intellectual Property Organisation. This ensures that there is continued protection in the UK from March 2019 onwards for trade marks and registered designs (filed through the Madrid and Hague Systems, and designating the EU as the area where they apply).
That seems reasonable, if "reasonable" is a word that can be used in connection with any of this.

Two other points are worth mentioning: first, without an agreement to govern withdrawal the rights of UK lawyers to represent clients before the EUIPO will be in the gift of the European Union rather than based on a sound legal right; and second, EU TM owners might need to find themselves an address for service in the "residual" EU after the UK leaves. More headaches for small businesses.

You might find it useful to listen to this presentation which I published a while ago on the IPso Jure YouTube channel, although it is now to be treated with care!


Tuesday, 15 January 2019

Purposive construction

A little while ago, I illustrated the concept of a transformative copyright work by referring to what Rachmaninov did to Pagannini's Caprice no 24. A little while? It was October 2017. Now another illustration of an important aspect of intellectual property law from the world of music has come along.

This time my inspiration came from Record Review on BBC Radio 3 a few weeks ago (on 14 December 2018, to be precise - if you go to the Radio 3 website you might still be able to find the programme, perhaps in the podcast version). The work being reviewed was Richard Strauss's Till Eulenspiegels lustige Streiche. It's a piece I came to love when I was still at school (the horn solo particularly appealed), and the three boxed set of LPs of Strauss's Orchestral Works by Kempe and the Dresden Staatskappelle were quite an early part of my record collection. But I digress, as usual.

About 17 minutes and 20 seconds into the podcast, the reviewer (the composer William Mival) is considering the 1959 recording by the New York Philharmonic under Leonard Bernstein - another of my favourite musicians. "Bernstein even adds in detail that isn't in Strauss's score", he tells us. "A snap or Bartok pizzicato in the double basses right at the end of the market scene just before till rides off into the far distance. It means that the string is plucked with so much force that it rebounds against the fingerboard producing a distinctive crack. This kind of addition is of course typical of Bernstein who would often be far more interested in the spirit of the written score rather than the literal instructions on the page."

That neatly brings together two memorable events from my first term at University, back in 1974: the opening of the new arts centre, when honorary degrees were conferred on Peggy Ashcroft, Eurgene Ionescu, Michael Tippett and Leonard Bernstein, and one of the earliest concerts there given by the Amadeus String Quartet, which included a Bartok quartet from which I learnt about that pizzicato. But again, I digress.

Thanks to YouTube, I can direct you to exactly the right moment in Lennie's recording. But how does this relate to intellectual property law? Less well than it would have done a few years ago, I admit, but it's still relevant. Ever since Lord Diplcok's speech in Catnic v Hill & Smith [1981] FSR 60, [1982] RPC 183 (HL) we have been familiar with the idea of a purposive approach to interpreting patent claims - considering what the applicant had in mind, the spirit of the claims, rather than the precise words used. And although the way the courts approach patent claim interpretation now has developed from that starting point, the idea of a purposive approach remains important. Modern claim interpretation, I suppose, can be said to date from the moment Lord Diplock chose to seek out the purpose of the claims rather than fixating on the words - a departure which I do not believe is an unalloyed good thing, but who am I to criticise the noble Lord and his colleagues? Suffice to say (for the time being) that to my mind the purposive approach works far better in musical performances than in patent litigation.

Happily, the outcome of the review of the available recordings was that the Kempe version which I have owned for about 45 years came out well ahead of the rest. Although I do like the Bernstein ...
 

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