Tuesday, 3 November 2009

Another brick in the wall

Years ago, I felt offended by the assumption in some quarters that intellectual property rights whould have holes knocked in them to permit what might broadly be called copying. I reasoned to myself, and anyone else who would listen, that it was right that someone who had created a design or whatever else it might have been (but in my life it was usually designs) should have exclusive rights over it.

It all came about because I was working in the motor industry and my sympathies (though I should have been neutral) tended to lean towards the car manufacturers. On what basis did the then BL or Ford or any of them owe the parts makers a living? They had taken the trouble to design the cars, and create the market for replacement parts (and for original equipment components too, of course). There appeared to be a lot of potential free-riders hoping to take advantage.

Whether I was correct or not, Parliament was determined to make the spares market free - well, the government was, and perhaps Parliament went along with it, despite my working the words "fair weather umbrella" into a second reading speech I drafted for one MP friend. Consumer benefit was assumed to lie in cheap spare parts. The House of Lords had already done the damage in BL v Armstrong, I suppose, so Part III of the Copyright, Designs and Patents Act was just the icing on the cake. I don't think the change has caused the demise of the car industry - though something seems to have damaged it in the intervening years.

More recently, I have been railing against intellectual property absolutists. Today I read that Lego are off to the Court of First Instance to argue that they should be entitled to keep a four-by-two plastic brick on the CTM register. Is this another instance of absolutism, of overreaching intellectual property rights that should be trimmed back? Or is it a legitimate way to try to stop free riding?

One man's meat, as they say ... To me, Lego is Lego and should be in perpetuity. I am young enough to have played with it as a child, and whatever has come along since simply isn't the real thing to me. Any argument that lego still deserve protection for their innovation is hollow, of course: they have had fifty or more years to cover the development costs and make a healthy profit. But I do find the sight of copyists and imitators claiming to be entitled to avail themselves of someone else's brilliant idea unedifying. Is a trade mark the right way to protect something like this? Well, to my mind the issue has transcended design or copyright law (even patent law) and the product is serving a trade mark purpose. It embodies Lego's reputation, and so long as they maintain that reputation and teh shape trade mark speaks so clearly about the origin of the product, it should be protected.

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