Thursday, 24 January 2013

A tale of two exotic intellectual property rights

I received an email in the middle of the JIPLP/GRUR seminar on secondary protection of innovation in Germany, on Tuesday. I replied to the sender, who had tried moments earlier to phone, that I was in a seminar on utility models and his message had woken me up. It struck me as amusing, but it was far from the truth. Gebrauchsmuster, or utility models, or perhaps petty patents, have interested me ever since I read the Nicholson Report - although it has always been a source of relief to me that they have not yet come to the UK.

A report of that seminar will follow. The day after (that is yesterday) I also went to a seminar, this time on the much more recent and rather more exotic new intellectual property right that Guernsey has introduced, giving protection to image rights. I quickly felt like a grumpy old intellectual property lawyer (although my first impression was that I had strayed into a parallel universe where I did not belong, as the audience seemed to comprise financial types and fiduciaries, which I guess make up a large proportion of the population of Guernsey. I felt more at home when I found some lawyers, many of whom, naturally, I knew). The event was put on by the Guernsey International Financial Centre, with much of the talking being done by Elaine Gay of Carey Olsen - who facilitated the panel discussion most impressively.

If you want to learn the details of the new law, don't rely on me for an explanation (but you'd probably have attended the seminar anyway). And, cheekily (because I assume it was written by a competitor of the people whose seminar I attended) let me point you to a post on my friend Jane Lambert's IP blog. It is a subject with which we will all need a passing acquaintance, though the creation of a new, specialised property right makes me despair.

Why, do I hear you ask? Well, for starters, I find it highly regrettable that what people are has come to eclipse what they do. Intellectual property laws protect the creations of people's minds (OK, I admit, that's not a very sound way to characterise trade marks, but it can be made to work). Patents protect useful things (please don't waste time trying to find those words in the legislation: I paraphrase), registered designs and unregistered design rights protect things that look good (again, I paraphrase, with even more licence) and copyright protects things that inform or entertain, or perhaps improve. They have human creators, whose contribution to the well-being of humankind, small though it may be in the great scheme of things, is recognised by giving them property in it.

Protecting image rights places the cultivation of an image, a nebulous entity if it's an entity at all - on the same footing as the invention of a new pharmaceutical or the design of a new mechanical device. IP laws are already widely criticised for protecting too much - stuff which by most objective standards does not merit it - to the detriment of consumers with no countervailing encouragement to create or produce more for the benefit of society. Where is the evidence-based justification for property rights in one's image?

It seems to me that there are two possible justifications for such a property right. First, and most importantly, substantial sums of money are already changing hands for the use of someone's image. The Eddie Irvine case (Edmund Irvine and Tidswell Ltd. v Talksport Ltd. [2002] EWHC 367 (Ch) (13th March, 2002) and on appeal [2003] EWCA Civ 423 (1 April 2003)) demonstrates that, while also demonstrating a lack of appreciation on the part of the judge of the sums involved. Irvine was of course a passing-off case, and the law of passing-off is an expensive place in which to protect one's rights (cheaper now the Patents County Court has been remodelled), and one could point to many other cases if one were less lazy than I feel at the moment - all that cutting and pasting and inserting links. Anyway, Fast Eddie is my preferred example for many reasons, especially given that Dave Bedford did not pursue his claim against The Number far enough to give us the benefit of a judgment.

I don't like the idea of image rights as a form of property (oh, you noticed?) but neither do I like the way the image of the athlete who more than any other inspired me when I took up running being badly treated. However, he didn't challenge The Number's use of his likeness for some six months, having been advised that he had no grounds for doing so. Although OFCOM found there had been a breach of its code, that did not bring compensation, only publication of the decision, and £60,000 lighter he did not care to risk going to court where he might well have been told that his reputation had little value some 30 years after his heyday. Suing for passing off in the wake of Irvine, he might have been awarded a sum to reflect the fee he could have charged for the endorsement - which would not have been great. Had he been able to register his image, the outcome would have been at least easier, though presumably the quantum of damages would not have been very different from that available in a passing-off action.

The second justification for the new right is much more mercenary. It will be a nice earner for the Intellectual Property Office in Guernsey, and for the local legal profession - or, more precisely, the profession of image rights agents. It therefore serves as a Guernsey Lawyers' Welfare Ordinance and as a tax on vanity. Neither are noble goals, but the legislation achieves them extremely well. If an individual be prepared to pay £1,000 for registration in Guernsey, then, how much might a UK image rights register be able to charge?

The law itself, running to 117 sections, adopts much from copyright and trade mark law - fair dealing provisions and moral rights, a likelihood of confusion test and remedy against groundless threats. I picked up from one of the talks that the creator of a personality would be the first owner of rights in that personality, which seemed to raise interesting theological questions, but it transpires that this is only in the case of fictional characters. Nevertheless, I remain extremely uncomfortable with this legislative recognition of, and support for, cults of personality and celebrity - an intellectual property right with no intellectual content. No doubt it will be coming here soon.

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