Thursday, 19 July 2018

Sir Cliff Richard's expectation of privacy

I hope that the law on privacy is drifting away from its origins in the law on breach of confidence, if only for the selfish reason that I don't enjoy trying to lecture on or write about privacy as if it were part of the intellectual property world. Too often it seems to be concerned with little-known celebrities (spot the oxymoron) seeking to cover up their failings. But the chances of it appearing in exam papers just got a lot bigger than they already were.

Richard v The British Broadcasting Corporation (BBC) & Anor [2018] EWHC 1837 (Ch) (18 July 2018), a case which involved a genuine celebrity and a grievance that everyone should be able to acknowledge, suggests to me that the right to privacy is diverging from the law on breach of confidence, and I hope it will work out well for both areas of law. The claim was brought on the basis of Article 8 of the European Convention on Human Rights and also invoked the Data Protection Act 1998. Article 8 of course has to be balanced against Article 10, freedom of expression. So the questions for the court were, did Sir Cliff have a reasonable expectation of privacy in respect of the events reported, and was there a public interest in publishing the facts such that the BBC's Article 10 rights would prevail?

It's hard to imagine a more egregious (yes, that's my word of the day) invasion of one's privacy than to have the One O'clock News showing aerial footage of police officers swarming all over your house. But that's not what the court had to consider: only if Sir Cliff had a reasonable expectation of privacy would that have matter. Mann J held that he did indeed have such an expectation, so he went on to balance the BBC's rights against that. The judgment contains a lengthy review of the various factors to be taken into account, but concludes that Sir Cliff's rights were, in effect, stronger than the BBC's. My reading of the judgment is that a highly persuasive part of this was the egregious nature of the breach. Some invasions of privacy can be regarded as minor, no doubt, but this was not one of them.

The judgment contains a long section devoted to the application of the rules about damages, and also a lot about contributions between the defendants. Life is not too short, but it is too full, to read all that at the moment. It contains nothing more about data protection, other than to mention it as part of the pleadings: damages would not be recovered twice over if there were a data protection breach, so perhaps the point is pretty well moot anyway, but I can't immediately see anything in the facts that would be actionable. What personal data were involved? What did the BBC or South Yorks Police do with any such data? Data protection legislation is obviously an important part of the scheme of protection for an individual's privacy, but this doesn't seem to be a case in which it adds anything.

Yesterday at Prime Minister's Questions, Anna Soubry MP (whom I knew quite well, many years ago) asked for government support for a bill she had introduced (if it's a new one, it seems to be in the same terms as one she introduced in 2010) to protect the privacy of people being investigated by the police. She proposed that it be known as Cliff's Law. Sorry, Anna, but the Copyright and Duration of Rights in Performances Regulations 2013 (SI 2013/1782) got there first.

The Prime Minister made the point (which has also been made by others, including The Guardian here) that revealing names can encourage other victims to come forward. (It can also, of course, encourage non-victims to take a chance too, but that's another issue.) That's hard to argue with, but in the context of the Richard case surely one could say that the suspect's reasonable or legitimate expectation of privacy, which is intact while the police are searching his house for evidence, is not nearly so strong when the police have begun to assemble a case, particularly if the case is a strong one. If there is (say) a reasonable chance that there are more victims who have not come forward, that further dilutes the expectation of privacy. I am no human rights lawyer, but this situation seems to be covered by Article 8.2, a carve-out for law enforcement purposes, and Article 10 is not the right provision on which to rely for this purpose - although I suppose the media would have to be able to rely on it even if 8.2 allowed the police to name names.

Data protection and the redistribution of public funds

Data protection. You can't get away from it. I am spending nearly all my working hours at present helping clients comply with the General Data Protection Regulation - a piece of legislation that, however well-meaning, is crazily technical and obscure (as I remarked in a post a little while ago). Even my morning scan of The Guardian's website has thrown up a data protection story this morning.

The story (and I don't use the word to suggest that it is made up!) says that the ICO has fined the independent inquiry into child sexual abuse £200,000 for revealing a number of email addresses from which individuals could be identified - the email was sent to 90 participants in the inquiry, 52 of whom were identified by name in their address, and "vulnerable people were placed at risk", although the report doesn't say how - it depends in part on where the email went, I suppose. One complainant was reported to be very distressed, which I don't think requires any explanation. This all seems to me to be exactly what data protection law is there to deal with.

How did this disclosure come about? By a failure to use the bcc box for email addresses. So simple, so damaging, so expensive. It doesn't seem the most egregious breach of the law, but the potential consequences are probably completely out of proportion to the mistake, and equally out of proportion to the ease of making sure it didn't happen. Human error can be largely avoided if humans are trained in how to do their jobs - but I've come across so many instances where people have been ignorant of the importance of using bcc.

A further twist is that the IICSA hired an external provider - a data processor in the terminology of the Data Protection Act 1998, which although now repealed and replaced was the governing law at the time - to handle its mailing list, and in doing so breached its own privacy notice. There's an object lesson in the importance of keeping these things under review and making sure you aren't doing things with people's data that you haven't told them you are doing.

The IICSA is a statutory inquiry under the Inquiries Act 2005, although it started life as a panel inquiry and has had a chequered history, which I think it's fair to say just became even more chequered. In the year ending 31 March 2017, according to its financial report, it spent £20.8 million. The data protection penalty will therefore be a substantial part of its spending, although the report says that its "full year budget" for the financial year ending 2017 was £30.94 million, which I must say sounds rather odd but I don't feel I need to look into it for the purpose of this blog. My point is that it's a lot of public money, and even when it is just being redistributed to another emanation of the state it is a pretty appalling state of affairs. Even if the inquiry isn't spending its entire budget, I'd prefer that its money was going on looking into the important matters that it was set up to deal with rather than filling the coffers of the Information Commissioner.

One final point: under the new legislation, the very wonderful General Data Protection Regulation, the ICO is able to levy much larger financial penalties. Perhaps, with a little effort, the Information Commissioner could appropriate the entirety of the UK's public spending! Only if public bodies continue to make such appalling errors, and I hope the lesson is not lost on them.

Wednesday, 13 June 2018

The essence of a trade mark

The draft agreement I am currently reviewing - I won't disclose more about it - contains a definition of "Corporate Design" which has a nice form of words in it: "[T]he official design of the logo and name of the [redacted] brand by which the brand's personality is brought to life in communication." I wonder why the drafter of the trade marks directive and the regulation on the EU trade mark didn't see fit to put it that way? It's not exactly poetic, being (I think) spoilt by the last couple of words, which don't seem to add anything, but it's much closer to poetry than most EU legislation.

Wednesday, 23 May 2018

"Have you not considered Recital 171?"

This week, few lawyers have the luxury of not having to be data protection experts, which is why the subject is intruding into my IP blog. Thank goodness it will all be over on Friday and we can settle down to working with the General Data Protection Regulation, until data protection law is repatriated and instead we have the Data Protection Act 2018 and "the Applied GDPR".

We are all acutely aware that many data controllers are taking the opportunity to refresh consents from the people whose data they publish. It's a great opportunity to do some housekeeping, of course, but not all the consents are necessary, nor do they need to be refreshed. First of all, consent should rarely be the lawful basis of choice for data processors: the legislation offers several other possibilities, of which "legitimate interests" is probably the most useful. The data processor's legitimate interests in processing personal data must, it is true, be balanced against the interests and fundamental rights and freedoms of the data subject, which may override them - thus removing the lawful basis: so legitimate interests per se are not a lawful basis. But when will the data subject's interests (etcetera) override them? How long is a piece of string? It's questions like this that make advising on data protection like nailing jelly to a wall.

For data controllers who still feel the need for consent, it's not always necessary to get it afresh at this point, as this article from The Guardian reports. Consent obtained under the old law, provided it meets the conditions of the GDPR, still works. How do we know? Because (apart from common sense) Recital 171 to the Regulation tells us so. And that, I think, tells us a great deal about this almost impenetrable piece of legislation ... (What do you mean, you gave up before you got to Recital 171?)

Sunday, 13 May 2018

Interpretation or truth?

Nex week there will be a Luxury Law summit in London, I discover. The concept of "luxury law" baffles me, but I guess I am looking at it wrongly - the law that applies to the luxury end of the goods and services market, not a particularly soft, comfortable, exclusive and expensive set of rules. Although come to think of it, the law is a luxury beyond the means of most people. The wonderful quote from Anatole France, 'The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread', doesn't quite say what I am getting at here but as it had come to mind I could not resist the temptation to repeat it. Mr Justice Darling's famous dictum, “The law courts of England are open to all men like the doors of the Ritz Hotel”, is more apposite but a bit of a cliché.

In an article on the Internet intended (I guess) to generate interest in the Luxury Law summit, Arrigo Cipriani, described as "one of the the elder statesmen of luxury" (what?), complains that intellectual property law no longer serves the "luxury industry" - an industry, presumably, that produces not luxury cars or clothes or perfumes or hotel accommodation or meals, but just inchoate luxury. The headline is even more alarming: "Interpretation is trumping truth in copyright law, says Arrigo Cipriani."

Mr Cipriani goes on: "The copyright world has become more and more complicated. The people who write the rules should be professors in mathematics problems rather than copyright law writers. There is too much space given to interpretation and very little space for the truth.”

First, what is his beef about copyright law? He's right that it has become more and more complicated, although I'd say that it's the world that became more complicated and copyright law, to do its job of maintaining a balance between the owners and users of copyright had to follow suit. But how does that affect luxury goods and services? Or is somebody getting copyright and trade marks mixed up? And does the criticism extend to patents and designs?

I should not, I suppose, get too excited about what is little more than a marketing puff (Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1) - an attention-grabbing but legally dubious proposition. Instead, I ask you to consider the point that too much emphasis is placed on interpretation and too little on the truth. (I don't think "space" was a particularly helpful concept in the piece.)

So, is there too much emphasis on interpretation? I think not. How can the need to interpret the law (or, for that matter, patent claims) be avoided? Copyright law, perhaps more than any other type of law, needs to develop, and it cannot keep pace with technology unless judges interpret it. In the common law system for certain, and in the civil law system to a lesser extent I guess, the law proceeds by a process of judicial interpretation. It is not the place to look for truth (unless, as I remarked elsewhere, you are reading the law in Exodus or the equivalent in another religion - perhaps a better example is the Golden Rule, found in much the same form in all major religions: "do unto others as you would have them do unto you" could be a satisfactory replacement for the whole of intellectual property law, although it would probably not remove the need for interpretation).

I hesitate to suggest that Mr Cipriani might have been influenced by his family's defeat in Hotel Cipriani Srl & Ors v Cipriani (Grosvenor Street) Ltd & Ors [2010] EWCA Civ 110 (24 February 2010). But that case turned on the court's conservative interpretation of the "own name" defence in trade mark law, and also of the protection by passing of a foreign reputation. It is hopeless to state that the law should not be interpreted, but applied as immutable truth: in the Cipriani case, it seems to me that a bit more in the way of interpretation would have helped the defendants - and perhaps made the decision accord a little better with commercial reality.

On the other hand, the case arose from dealings with names and trade marks which had effectively given a multinational corporation the right to use the family name. In the modern world, that's not uncommon, but isn't it a bit weird? An example, perhaps, of the sort of changing commercial practice that IP law has to keep up with.

Has the difficulty of ascertaining freedom to operate led to a patents arms race?

Reading Boldrin and Levine's "Against Intellectual Monopoly" (Cambidge University Press, 2008, and here), I am struck by a thought that isn't directly related to the authors' arguments against the patent and copyright systems (I expect they will get round to trade marks in due course, although that will have to be on a different basis). Perhaps it is such a banal thought, it isn't even worth putting out here, but I don't recall it being expressed in these terms before so maybe I have something original to say ...

There are so many granted patents in existence (why on earth did I waste time typing "granted"? There are so many patents in existence ...) that "freedom to operate" searches must be little more than a lottery. This may explain why patent owners (in some fields at least) now put their efforts into collecting extensive portfolios so that when (not if) a competitor sues them for infringement they will be able to find a patent which the competitor is infringing in their own portfolio. Then the problem can be dealt with by cross-licensing rather than fighting out the infringement claim in court.

There must also be a problem with unpublished applications (not quite submarine patents but similar) which form an undiscoverable part of the state of the art - they would not show up in "freedom to operate" searches but could prove fatally damaging. The accelerating pace of technological change must make these a bigger and bigger problem, which in turn makes freedom to operate searches even less reliable, and gives further encouragement to alternative defence mechanisms.

Thursday, 15 March 2018

Abbreviations, acronyms, and their plurals

Creating a slide show this morning, a task that demands brevity and therefore frequent recourse to abbreviations, I wrote "TMs" for "trade marks". Autocorrect didn't like it, but that was no surprise and I overrode it. Then I wondered whether the correct way to form the plural of an abbreviation wasn't just to add an "s" - should I be adding another "M" (or "m", perhaps)? After all the plural of "p" for page is "pp", and of "op" for work (opus) is "opp". (The use of full points turns out to be another contentious matter.)

In fact The Economist Pocket Style Book (Economist journalists must have bigger-than-average pockets) tells me that the right way to set out an abbreviation is in small capitals, and to use a lower case "s" for plurals. I suppose that in the name of a case (e.g. "Re Le Mans TM") the phrase would have capital initials by virtue of forming part of the title - "title case" is in fact the correct expression for that, I think. And actually the words of the trade mark should be in upper case: Re LE MANS Trade Mark (BL O-012-05, a decision of Richard Arnold QC as he then was). But of course the heading of the decision is in block capitals, although in the body of the decision it is in upper case. None of the three IP textbooks at my right hand have it in the table of cases, so no guidance from there. I could have scanned them for another such decision but life is too short, especially when I can reach up to the top shelf and take down a dusty copy of the 12th edition of Kerly - in which I look up the Perfection case (Crosfield [1910] 1 Ch. 118; 26 R.P.C. 561) and find the trade mark rendered just like that - a capital initial only.

Neither Fowler's Modern English Usage nor The Oxford Style Manual offer any assistance in their entries on abbreviations. The King's English doesn't even have an entry in its index for the topic. The Oxford Dictionary of English Grammar is however more helpful: it tells me that the initial letters of the (main) words of a phrase should appear in upper case, so BBC and OTT get the same treatment, which is not what The Economist prescribed. It goes on to say that "[t]here are a few special written conventions for plurals", of which it gives three: "pp", which is from where I embarked on this little voyage through English grammar, MSS which I was also thinking about, and "ff" for "following pages". Elsewhere, I read that "p" stands not for "page" but for its Latin equivalent, "pagina", and "pp" ("paginae") is an example of a special rule for Latin words or expressions in English usage. ("Op" and "opp" presumably follow the same rule.)

Finally, since it seems that uppercase or small capitals is correct, and an added "s" rather than a doubled last letter is right, should there be an apostrophe? I can see a reason why there should be a difference in the treatment of contractions (e.g. Dr) and true abbreviations, where there is something missing between the initial letter in the abbreviation and the plural "s". But The Oxford Style Guide says just add the "s", so TMs would be correct, and I could have saved myself half an hour or so on this interesting diversion. Maybe some helpful reader will be able to guide me further, but unless I hear otherwise I'll go with TMs.

Saturday, 3 March 2018

Interpreting patent claims: Actavis v Eli Lilley

It's now 13 years since Lord Hoffmann told us definitively how to interpret patents claims, in his opinion in Kirin Amgen v Hoechst Marion Roussel [2005] 1 All ER 667. The courts had spent a lot of time pondering how to do what should have been a pretty simple task: judges have always been in the business of finding the meaning of legal documents, and patent claims should never have been much different. Or should they? For many years the courts have eschewed (nice word) a literal interpretation and chosen instead to look at the claims as practical documents written for practical readers.
I have never bought into that view (but who cares what I think?). Patent claims are usually written by highly skilled and trained patent attorneys for other patent attorneys, members of the patent bar and ultimately specialist judges to read. Why should it be necessary to adopt a different rule about interpretation from that which governs the interpretation of, say, conveyances?
I suppose that, centuries ago, when patents for inventions first came before the courts, the judges were able to say "we know how to interpret documents like this: we look at the wording." Only later did the fiction arise that the claims were anything other than highly specialised documents written by and for experts. The idea that patent claims are addressed to some hypothetical individual skilled in the art strikes me as nonsense: what ordinary person, however skilled they might be in the art, ever reads patent claims?
The courts pursued this strange idea through a series of cases, tying themselves in more and more knots. Catnic, for one, should probably have been a professional negligence case - which is not to say that the patent agent who write the claims was necessarily negligent, but it would have been helpful if the courts had considered the point. Then in the Improver case Hoffmann J formulated a series of questions for the judge to ask, which turned into the Protocol Questions when the Protocol on Interpretation of Article 69 (of the EPC), originally dating from 1973, became recognised as the governing document, and in due course Lord Hoffmann put his own Improver Questions out of their misery.
In Activis UK Ltd v Eli Lilley & Co [2017] UKSC 48 (12 July 2017) the claim in issue was a Swiss-style claim for pemetrexed disodium, with vitamin B12, used in the manufacture of a medicament for treating cancer. Actavis sought a declaration that it would not infringe by marketing drugs containing other pemetrexed compounds (for example, with potassium instead of sodium). Arnold J at first instance gave the declaration, and the Court of Appeal upheld him, both following (as they pretty well had to) Kirin Amgen. The Supreme Court, however, allowed Actavis's appeal.
Lord Neuberger (who, remember, is a Oxford chemistry graduate) held that when a court has to consider a possible infringement by a variant, there are two questions that it must ask:

  • First, does the variant infringe the claim at issue as a matter of interpretation? If it does, that's all the court has to do.
  • If not, ask whether the variant infringes because it varies only in a way, or in ways, which are not material. Put another way, is the variant equivalent to the claimed invention?

Lord Neuberger said that the Improver or Protocol Questions remain useful in finding an answer to the second question, but needed to be changed slightly. They now require the judge to consider

  1. whether the variant has a material effect on the way the invention works;
  2. whether the notional addressee, on learning what the variant does, would consider it obvious that it would achieve substantially the same result in substantially the same way as the invention; and
  3. whether the notional addressee would have uderstood from the language of the claim that the patentee intended strict compliance with the primary meaning to be an essential requirement of the invention.

The courts had previously set their faces against introducing a doctrine of equivalents into UK patent law, but the amendment to the Protocol which introduced Art.2 made this untenable. Potassium was, in effect, equivalent to sodium for the purposes of the patent and Actavis would infringe if they marketed the products about which they asked in the first place.
The further the courts move away from a literal interpretation of patent claims, the less certainty there is for those, like Actavis, who want to operate in the field but also don't want to infringe. One argument - perhaps the argument - against a literal interpretation is that it prevents a patent claim being read in the light of technological developments. But is it right that a patentee who has chosen to specify a sodium compound rather than using broader language (if, of course, they could get away with it) should receive such an extensive, and flexible, monopoly? Perhaps the correct approach would be to regard the discovery that a potassium or some other compound would do the job as leading to an invention in its own right.

Thursday, 1 March 2018

Steve Jobs: Trade marks and personal names

The news that two Italian brothers have registered what turn out to be two EU trade marks, one for the name Steve Jobs and the other for a logo comprising the name with the letter J, missing a bite-shaped piece like another well-known logo, illustrates how difficult it is to accommodate celebrities' personal names within the trade mark system. There was a time, long before EU trade marks arrived on the scene, when the Trade Marks Registry in the UK would not have allowed an application for registration of someone else's personal name as a trade mark to proceed without the consent of the owner of the name.

You might think that is how a trade mark system should work, but these Steve Jobs trade marks show the limitations of the law. First, the story tells us that the brothers were surprised that Apple had not registered Steve Jobs's name as a trade mark. But why should Apple have done so? Actually for the very bad reason that if you don't register a trade mark you run the risk of someone else grabbing it - a possibility since the switch from a use-based trade mark registration system, where the register records what distinctive signs businesses are using, to a registration-based system in which the property right comes into existence through registration. When we made that change in the UK in 1994, it put trade mark law on a very different footing - and incidentally condemned small (and not small) businesses to paying lots of fees and lawyers' bills for trade marks that up until then they never really needed to register.

Although there are many personal names of celebrities on the register, there are also examples of celebrities failing to secure registration. There are significant distinctiveness problems, as the Elvis Presley estate and later Sir Alex Ferguson, the Princess of Wales's executors and Corsair Toileteries Ltd who tried to register Jane Austen as a trade mark, found. Celebrities' names are not necessarily perceived as indications of commercial origin: in the case of deceased celebrities, they might be seen as some sort of commemoration.

Apple apparently tried to prevent the trade marks being registered, but without a trade mark of their own they must have been relying on common law rights - and even if Steve Jobs had used his name in trade and thus accumulated goodwill, which doesn't seem to be the way things happened because he adopted the Apple trade mark for his business, that would have been Mr Jobs's goodwill not Apple's (unless it had been assigned to the company). Would his estate have been better-placed to sue? Yes, probably, but still only if it owned some goodwill. Reputation - of which Mr Jobs had plenty - only becomes goodwill when it is used in trade.

A better argument might, perhaps, have been that the trade marks were not applied for in good faith - and that is an argument that I suppose could yet be deployed to have them declared invalid. But that is a very difficult route to take, the facts being hard to prove and the standard probably quite low. So a situation that most ordinary people (which in this context means "not trade mark lawyers") would imagine the law would not allow to arise, might be something that the perceived rightful owner can do nothing about.


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