A racial perspective on copyright

 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3591113

The privatisation of everything

My daily runs - interrupted by a chest infection in recent weeks, but now restarted - often take me past the Harwell Campus, which must be one of the most important concentrations of technology businesses in the country. During the pandemic, the government funded the building of a production facility for vaccines - then sold it off to a private company (as reported here by the BBC). The government denies that it sold it, claiming that it was never the government's property anyway, but it was certainly paid for with public money and the non-profit company that did actually own it should surely have been contractually prevented from selling it - to safeguard public investment. What an old-fashioned view I have of these things! As far as I know, it hasn't made any vaccine yet. 

More recently, Moderna has started - and now nearly finished - building another vaccine research, development and production facility on the Harwell Campus (read about it here). It's hardly necessary when there's an unused one only a mile away, and it's big and ugly and unsuited to the predominantly rural landscape - it's not within the existing built-up area, it occupies what were open green spaces including football pitches and the area where there used to be an annual bonfire night celebration, complete with a hugh bonfire that probably made a failry significant contribution to global warming. And all this in an area of outstanding natural beauty, which seems to count for nothing in planning terms. To build it, the contractors closed off the route I have been running for about 30 years and which was surely a customary right of way (though I have to admit I did not raise hell about this as I should have done). They also dug up and built over the historic runway from which the first airborne troops set off for Normandy on D-Day (more exactly, the previous evening, I think: and Montgomery himself must have been present, as a previous occupant of the farmhouse adjacent to our house remembers him staying the night with her family). There is still a war memorial at the end of the runway, and now also an interpretative board that, when erected, helped understand the landscape - no longer, as it's all under a huge building. They also destroyed the experimental catapult pit that contained the equipment that the RAF hoped would enable them to get aircraft airborne with heavier payloads than they could manage under their own power, but which never worked very well. What price history? And the Prime Minister at the time was a great fan of, biographer of, and in his own mind it sometimes seemed reincarnation of, Churchill. 

What was RAF Harwell during World War II became the Atomic Energy Research Establishment (and its two reactors, resembling giant baked beans tins and called Dido and Pluto (though I always thought it was Aeneas) remained local landmarks although not for much longer), and is now owned by the AERE's successor UKAEA, jointly with the Science and Technology Facilities Council and Public Health England. All very much in the public sector, surely. Which is why I am vexed when footpaths are closed, or when signs stating that the land is private appear. I accept that parts of the Campus are a licensed nuclear site, and regardless of ownership must be off-limits (patrolled by the only UK police force that can carry firearms at all times, though they tell me they don't do so in practice, and which has a right of hot pursuit - both facts that I picked up in my pre-reading before going to university to begin my legal studies, quite a few years ago), but the rest of it should be the property of the public. 

It seems to me that, as nature does with vacuums, the modern world - the post-capitalist world - abhors public property. And this is not only tangible property (I'm getting to the point at last): despite the success of initiatives such as Creative Commons and the open-source movement, the trend is towards more and more enclosure (to use another concept from the world of agricultural land) in the intellectual property world. It's a trend that looks closely related to the "technofeudalism" that Yannis Varoufakiswrites about in his new book, which I am sure contains a great deal of interest to intellectual property lawyers. I'll get into that sometime later, once I have read his work.

In the IP world, we can see many developments that expand the realm of private ownership. Patent offices continue to measure success by the number of patents granted, while critics of the patent system would regard this as a bad thing. Likewise with the number of trade marks registered: each one represents a diminution of the scope for free speech, further depletion of the stock of available trade marks, foreclosure of the market to businesses who can't find a suitable brand or can't use the one they have developed in their home country. The breadth of trade mark applications continues to make life difficult for smaller businesses, who are often bullied by big trade mark owners. And in the copyright field, big tech takes what it wants - using others' copyright works to train their AI engines, for example - without seeking permission from, still less remunerating, the copyright owner.

I am teaching a new cohort of University of London International Programme students, and getting to know a new group of students coming fresh to UK IP law always makes me reflect - their first experience of it is this, whereas mine 43 years ago was very different and I don't think the changes in the interim are altogether a good thing. Perhaps not at all a good thing.

Inferring access when establishing a copyright infringement case

Once, Silent Witness was one of the better crime dramas on television, but as some point a few years ago (after changes to the cast had already made it a shadow of its original self) it seemed to lose its connection to reality. I have not watched it for many years now, and the claim that an episode infringed copyright in an earlier screenplay made me wonder whether claiming even such an association with the show wouldn’t be detrimental to the purported author’s reputation. But there you are – that’s probably just me being a grumpy old man.

Molavi v Gilbert & Ors [2023] EWHC 646 (Ch) (23 March 2023) is an unusual case, in that it came before the court on an application by the defendants (which included the BBC and BBC Studios Production Ltd as well as Virginia Gilbert, the named writer of the accused episodes of Silent Witness) for summary judgment, on the grounds that the claimant had no real prospect of succeeding in her claim – Part 24.2 of the Civil Procedure Rules. And indeed it is hard to see, on the basis of the reported judgment, how the judge’s (Marcus Smith J’s) conclusion could have been otherwise.

The case is an important one because copyright infringement claims so often rely on inferences. Direct evidence of the defendant taking the claimant’s work is unlikely to present itself. The claimant’s job is to satisfy the court about three matters: first, that the work is their original work; second, that the defendant has engaged in copying (or some other infringing act); and third, that what has been taken is a substantial part of the work.

The second part of that list is the one that matters here. The defendants accepted that the claimant’s work was original, and that if there had been copying it was of a substantial part of it, so the judge did not have to worry about those issues. It all came down to whether there had been copying at all.

The defendants said that the claimant could not show that they had had access to the work, and without access copying would simply be impossible. The claimant could not say how her work had been copied, because of course she was not privy to the process by which the defendants’ screenplay had been written: she had to rely on the inferences that copyright law, recognising that it is unrealistic to expect the claimant to be able so show definitely what happened, allows to be drawn. There must be objective similarities between the original work and the accused copy, and the defendant must have had an opportunity to copy – if these conditions are satisfied, it is up to the defendant to explain away the similarities.

In the present case, it’s almost as if a further level of inference is brought in. The claimant had no evidence that the defendants had ever had an opportunity to copy her work, so pointed to the similarities and argued that their very presence in the defendants’ screenplay suggested that copying had taken place. The similarities could not, the claimant argued, be down to coincidence.

That reeks of desperation, though clearly there will be cases where the claimant is rightly desperate. If the alleged copying is literal, I can see that the court might be prepared to draw an inference – if the defendant has come with something that is word-for-word the same as the claimant’s work, it would be an extraordinary coincidence if there were no copying. Most cases, however, involve non-literal copying, and here it is plain from the judge’s analysis of the respective works that they weren’t very similar. The timeline also worked against the claimant (the basic premise of Silent Witness had been established long before the claimant wrote anything).

Of course in the field of non-literal copying we have to be wary of the idea-expression dichotomy, lest ideas be given copyright protection to which as a matter of policy they are not entitled. When considering an inference of copying, the court has to take great care to ensure it does not overstep this boundary, so when the allegation is of non-literal copying the claimant is going to have an uphill struggle to convince the judge to infer that copying has taken place.

It’s also very important to remember that you can’t break a copyright work down into its component parts and compare them against the elements of the alleged copy. In that great old case, Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 WLR 273 at 277, Lord Reid warned us that this approach can lead to the wrong result. UK copyright law tends to look at works as a whole (in the US, a rather different approach is taken) rather than chasing similarities in the components of the works.

Establishing that copying has taken place is never exactly easy, unless there is a smoking gun in the form of identical choices of words or something like that. We probably didn’t need this case to remind us of that, but it is always useful to be reminded of points like this that may determine the outcome of ligitigation.

End of the Line for Australian Innovation Patents

 Australia has phased out its innovation patent system, following legislative changes to the Patents Act 1990 (Cth). 

The final day for filing a new Australian innovation patent is 25 August 2021.

The relevant amending provisions of the Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Act 2020 (Cth) commence from 26 August 2021 - 18 months after the Act received royal assent.

What is (or was) an Innovation Patent?

The innovation patent was conceived as a simpler, faster, and more economical, form of protection for inventions compared to a standard patent or provisional patent.

Unlike a standard patent, an innovation patent does not require the applicant to demonstrate an "inventive step". 

However, the prospective patentee must still demonstrate the subject matter has:

• novelty - namely, the absence of public disclosure of the invention before the priority date; and 
• an innovative step - namely, that the invention is different from known prior art, and makes a 'substantial contribution to the working of the invention'.

The duration of an innovation patent (once granted) is up to 8 years after its filing date, subject to payment of annual renewal fees. The specification is limited to 5 patent claims and formal examination of the application is optional.

Once filed, the application may be granted in as little as 1 month, and examination (if requested) can be completed within 6 months.

The overall cost of the application (excluding professional attorney fees) is estimated at approximately A$1,500 - substantially less than the cost of a full standard patent.

The Phase-Out

In 2015, the Australian Productivity Commission was tasked with a review of Australia's intellectual property laws, including to "ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services".

The Productivity Commission's Final Report was released in 2016, and included a recommendation to abolish the innovation patent system.

That recommendation was formally supported by the Australian Government in 2017, stating in its response: "The [Australian] Government considers that more targeted assistance would better achieve this objective [to stimulate innovation in Australian SMEs], while avoiding the broader costs imposed by the innovation patent system."

Legislation was then implemented in two parts:

• The 'Part 1' Act (passed in 2018) included amendments to copyright, designs and trade mark legislation, among other measures; and
• The 'Part 2' Act (passed in 2020) addressed the recommendation to abolish the innovation patent system.

According to IP Australia's official announcement, the phase-out stems from several reasons, which are reflected in the 2016 Productivity Commission Final Report:

1. The innovation patent's low barriers to entry made it easy to file a patent application, but resulted in a clogging of the system. Further, it was argued that strategic filers could exploit the system as a means of stifling competition.
2. The low innovation threshold and lack of compulsory examination created difficulties and uncertainty for other innovators in gaining a clear understanding of freedom to operate.
3. Innovation patents were not recognised internationally. This is said to have jeopardised international expansion prospects and exposed patent holders to potential copycat activity in international markets.

IP Australia's conclusion was that the innovation patent system had failed to achieve to its objectives, whilst imposing an A$11m annual administrative burden on the agency.

Where to from here?

Existing innovation patents filed before 25 August 2021 will continue to remain in force until their expiry, and divisional applications based on an existing innovation patent application will still be permitted provided the effective priority date is on or prior to 25 August 2021.

To support SME innovators, IP Australia has deployed a range of other measures including:

• an online portal;
• a dedicated "SME Fast-Track" patent process to shorten the examination timeframes for SMEs; and 
• piloting access to subject matter experts and case managers targeted at assisting self-filers.

It will remain to be seen what impact the removal of innovation patents has on the broader Australian patent landscape.

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Ben Thorn is an Australian intellectual property lawyer based in Brisbane, Queensland. He is the founder and director of Xuveo Legal, and is the current chair of the Queensland Law Society Technology and Intellectual Property Committee. Ben has been listed as a recommended intellectual property lawyer in Doyle's Guide 2020 and 2021.

TRIPS waiver: many academics sign open letter supporting it

 The idea that the TRIPS agreement should be waived (just a little) to remove IP protection from Covid vaccines, first raised by India and South Africa a few weeks ago, has new momentum following publication of an open letter signed by “over 100 international IP academics” supporting the intiative. The list contains some well-known names (well-known, that is, to IP practitioners and students) although a couple that are missing are perhaps even more significant (I leave you to work out who they might be). You can read the text here and my friend Mark Anderson's take on it here. He is not convinced, and neither am I.

Despite the government's commitment (superficially at any rate: it hasn't exactly stuck to the script, otherwise it would never have repealed s.52 or introduced criminal offences for designs) to the Hargreave Report's recommendation that changes in the law should always be supported by hard evidence - so-called "evidence-based policy-making" - the letter is rather short on hard facts. It footnotes a number of academic papers, and perhaps I should not expect an open letter to go into its evidence at any length but simply citing academic articles is not very convincing. Annoyingly, the links in the footnotes do not take you to the articles themselves, which would have enhanced the credibility of the exercise: I would have liked to have been able to look at them easily. As it is, I have downloaded the half-dozen that look most relevant and will read them in due course, but as this is not a peer-reviewed academic journal I don't need to be extremely rigorous in expressing my opinions.

It seems to me that, while the patent system clearly failed to ensure that we had a vaccine from an early stage (however magical the patent system is, it could hardly have produced a vaccine before the pandemic), it is not good enough to say that it must therefore be done away with - at least for the duration of the present emergency. Perhaps the proposed waiver would help, but if it does I think it will be only in a very small way. Waiving patent (and other IP) protection is all very well, but without the accompanying know-how the patent will be of little use. Protection for know-how could also be waived, but far from ensuring that the information becomes freely available, that is likely to cause the pharmas to keep its secrets even more tightly controlled.

This is a crisis in which there has been a conspicuous failure of the market system, which is built on patent protection. Vaccines have been produced not because the pharmas could enjoy monopoly profits from behind their patent fortifications, but because governments gave them a great deal of public money. There is a very important discussion to be had about how the fruits of that expenditure - the patents and other IP - should be distributed, and no doubt the pharmas will say that they need the patents for the future, and perhaps that the publc money was just a contribution. It might well lead to a fundamental reappraisal of how the patent system works, and the desirability of creating so many private monopolies especially when they are created at public expense. But that is very far removed from saying that patent protection should be waived. Perhaps it would make a contribution, and perhaps the evidence that I haven't yet read will support that, but it will be a very small contribution, quite out of proportion to the amount of noise being made about it, and it would be far more productive to direct the energy that is being expended on the waiver campaign to matters that will have a more immediate and greater impact on the problem.

Unified Patent Court agreement not contrary to German constitution

The Unified Patent Court, which will bring much-needed consistency to patent litigation in Europe (but which the UK will do without), has already faced problems in Germany once: back in March 2017 it was approved by the Bundestag but not by the right majority, so the decision was declared void. Then the UK dropped out (initially after the referendum the UK government, in an excess of "cakeism", announced that it would still participate although no-one could quite see how that would work, but then someone noticed that the Court of Justice had a role to play in the new system and it suddenly became an impossibly hot potato), which threw the entire project into doubt. But now the Bundesverfassungsgericht (federal constitutional court) has rejected two claims that the UPC Agreement violated fundamental rights under the Constitution and the way seems clear for the Bundestag to approve it again (by they correct majority this time).

As this is not a blog about German constitutional law, and one of the many things that I am not is a German constitutional lawyer, I won't try to explain the details. The court has very helpfully put out a press release in English (here). It's got at least one split infinitive in it, but apart from that the English is excellent: if you prefer, the German version is easy to find from that same link but that's all the language versions there are to choose from.

Artificial intelligence

 Isn't there already enough music in the world?

IPO launches consultation on exhaustion of IP rights post-Brexit

The UK government has launched a consultation on the future regime for the exhaustion of IP rights. The consultation is open for responses from 7 June to 31 August 2021. It is going to be a crucial decision which would significantly impact IP owners, consumers, and others involved and affected by parallel trade. 

IP rights give economic incentives for creations, products and innovations of new technology, enabling rights owners to benefit from the information and intellectual goods created. Consumers benefit from the availability of a wider range of innovative or attractive goods. But move away from this justification and you have a plain old monopoly, which means fewer goods being made, innovation being sidelined, and prices being raised.

The doctrine of exhaustion of IP rights exists to balance the different interests of consumers and rights owners when goods move between jurisdictions, preserving competition in situations where the traditional justification for IP protection is not convincing. The doctrine limits the ability of IP rights holders to use their rights to control the distribution of physical goods once they have legitimately been put on the market. Intellectual property rights can be invoked to prevent goods crossing territorial borders, an issue that has caused problems within western Europe since the earliest days of the European Economic Community. “Parallel trade” - goods moving between national markets outside the manufacturer’s official channels, are a challenge to rights-owners’ marketing strategies, but often a key factor in reducing prices.

Price differentials, naturally, lie at the heart of parallel trading. Traders - arbitrageurs, they might prefer to be called - will buy goods where they are cheap and move them to markets where they command a higher price. At one level, this is nothing that has not been going on for centuries: Traders will buy produce where it is grown and move it to where people want to buy it. But in the consumer society it’s far more complicated. Purchasing power differs enormously, even within the European Economic Area, and a rational manufacturer will pitch their prices according to what local consumers can afford - which might represent a fantastic bargain to someone in a richer EU country.

Following Brexit, the UK is no longer bound by the requirements of EU’s rules, which in essence say that once goods have been placed on the market within the European Economic Area any IP rights attached to them will not be infringed if those goods are imported into another Member State (although the rules do provide for cases where there are legitimate reasons for stopping parallel imports, for example where they have been repackaged). The goods have to be free to circulate within the EEA. Notwithstanding all the talk of taking back control, the UK (at least in part because the Northern Ireland Protocol limits its room for manoeuvre) continues to apply the same rules after Brexit, so we are open to trade in cheap pharmaceuticals from The Netherlands; but the EU simply treats the UK as a third country, not within the Single Market, so parallel imports entering EU Member States from here are likely to infringe.

The consultation identifies four possible regimes: 

● The current unilateral EEA regime 

● National exhaustion 

● International exhaustion 

● A mixed regime 

The current unilateral EEA regime 

Once goods are put legitimately on the market in the EEA, rights are considered to be exhausted in the UK. IP rights cannot be used to prevent goods being imported from the EEA into the UK. On the other hand, the EEA is closed to parallel imports from the UK, but that is a matter for EU law so naturally the consultation does not touch on this aspect.

National Exhaustion 

Under this regime, rights are only considered exhausted in the UK once goods are legitimately put on the market in the UK, so IP rights can be used to prevent goods put on the market anywhere in the world from flowing into the UK. But this option has been ruled out by the government because of the inconsistency with the Northern Ireland Protocol, which means no checks are needed on the goods crossing the border with the Republic of Ireland. 

This option was only included in the consultation to gather what evidence is available on economic impact.

International exhaustion 

This regime would automatically allow the import of goods from any country. exports, on the other hand, would be automatically allowed only to those other countries with an international regime. This means that the rights are considered exhausted in the UK when goods are legitimately put on the market anywhere in the world. IP rights then cannot be used to prevent goods from entering the UK from any other country. This would have significant implications for IP owners in that it would limit their ability to prevent goods from being parallel imported into the UK. 

We have been here before, though it was over 20 years ago. Following the Silhouette case, the Commission had a report drawn up entitled "The economic consequences of the choice of regime of exhaustion in the area of trademarks" (NERA/SJ Berwin, February 1999), which found that the issues were complex and the benefit to consumers of changing to international exhaustion likely to be small (in some sectors under 2 per cent). It then consulted widely, including with Member States: in the UK, the result of this was the Eighth Report of the Select Committee on Trade and Industry (9 July 1999). The Commission dropped the idea of changing, though the Select Committee favoured international exhaustion at least for some goods. Which leads us to...

A mixed regime 

This would mean that specific goods and sectors could be subject to one regime and all other goods, sectors and IP rights subject to a different regime. Switzerland has a regime in which most goods can be parallel imported but an exception for medicines which is governed under their national regime. It is going to be a rather complex system if implemented and may be difficult for consumers and businesses to understand, but that doesn’t seem to have given the government pause for thought since the referendum. 

Note that the consultation does not cover some major topics such as: 

● Exhaustion of rights in purely digital goods. 

● Geographical indications or plant variety rights 

● Counterfeit goods 

● Parallel exports

Conclusion

Since the “National Exhaustion regime” has been ruled out, the UK government is left with limited possibilities . It will be interesting to see which regime will win the votes for this Post-Brexit battle as this will be of great commercial concern. Will the Government  head towards a “Mixed regime” and implement a complex system for consumers and businesses or getting cheap exports through “International regime” become the vote-winner? Only time will tell.