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
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.

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