Tuesday 29 December 2009

The Manchester Manifesto

The University of Manchester Institute of Science Ethics and Innovation has published a document entitled Who Owns Science? The Manchester Manifesto which has generated a good deal of controversy and discussion. It comprises only six pages of text, including a page of background and one of conclusions and signatories. The Manifesto has been received by the patent community as an attack on the patent system, and – they think – a misguided one. Read the response of the Chartered Institute of Patent Attorneys here.

The Manifesto questions the value of intellectual property in general, but is concerned mostly, perhaps exclusively, with patents. The problem, put briefly, is that we treat innovations as a form of private property, through the medium of the patent system. Is this an appropriate model for dealing with innovation? It;s a big an important questions, which unfortunately has become embroiled in a series of much smaller questions.

CIPA’s response was a thorough debunking of what the manifesto says about patents:
  • Patents cannot be used to stop a product coming to market, because of competition laws and compulsory licensing (but surely that only means there’s a safety valve, and you need to know how to operate it and have the means to do so before that helps).
  • Patents don’t prevent universities doing research (but is the research exemption clear enough, and widely understood?) And does it allow you to make the most of your research?)
  • Institutions like Manchester University do rather well out of the patent system, and Manchester has a Technology Transfer office to deal with all the valuable stuff being produced.
  • If Universities could not protect their work with patents, big business (what about small business?) could take a free ride (but some alternative method of protection could surely be devised to avoid this happenijng).
  • The patent system promotes rahterh than inhibits knowledge-sharing, because patent applications are published as part of the process. (Yes, but patentees hold back as much as they can and keep that information secret.)
Joseph Stiglitz, one of the many signatories to the Manifesto, is also accused by CIPA of continuing to make misleading claims that human genes and other life forms can be patented. OK, as CIPA says no patent system actually allows thos, but they do allow claims that come close to having this effect (and applicants will do their best to get the most extensive rights they can). In the same way, software patents are not allowed but there are plenty of patents around that cover software. This is usrely a disctinction without a difference.

As for the contntious issue of access to drugs, the patent system has (as CIPA note) encouraged innovation – but blaming politics and economics for blocking access to drugs for poor countries is misleading. If the patents didn’t exist, there would be no tools for blocking access – and even with patents, the owners choose to use them in this way (perhaps driven by economics, and shareholder interests).

What about the main thrust of the Manifesto’s attach on IP? The fact is that patents are a major deterrent to people who fear that their activities might infringe. Manchester Universtity, and others, might be able to use the research exemption but if they get it wrong they might jeopardise a large part of what the Technology Transfer office has earned. Patents are frequently owned by large companies with whom you don’t want to pick fights. They don’t own science, but a lot of the territory around science has been privatised. It’s pertinent to ask whether placing knowledge in private ownership really is the best way to encourage innovation in the intersts of humnaity as a whole, or whether it places too much power in too few hands. As the modern saying goes, is the patent system fit for purpose? Or would something else – just touched on in the Manifesto, examined a few years ago in greater depth by the Royal Society of Arts – do the job better?

November 2009 IP update

Just in time before the end of the year - the November 2009 IP update podcast is now available from here, now complete with notes. Don't forget that if you would like an hour CDP for listening to the recording you can do if you obtain it from www.cpdchannel.com, though it isn't uploaded to there yet.

Wednesday 9 December 2009

Digital Economy Bill

It used to be the case than blogging was the most prolific of the myriad time thieves I had to contend with (ever since I removed the standard Windows games from every computer to which I have access). Now, newer time thieves leave litle opportunity to keep the blogs up to date. Yesterday, in between picking up useful bits of information from Twitter, I chatted on Skype with Ron Coleman (www.likelihooodofconfusion.com) and simultaneously with Güvenç (http://www.europeanlawyersevents.com/) in Ìstanbul on Facebook. And I did some work. It's busy at present, which is my excuse for missing this topic.

The Digital Economy Bill had its second reading in the House of Lords (where it was introduced) last week, a fact of which I was aware (in particular because I checked what it proposed about orphan works). I see it attracted an extraordinary outburst of criticism, reported here in The Guardian (Google tells me there are 69 other articles, which I suspect is only the tip of the iceberg). The good old Electronic Frontier Foundation has a lot to say about it too - including asking us to write to our MPs. So what is all the fuss about?

Let's go back to orphan works for a moment - the great non-problem, as I believe it to be, of copyright law. The Bill's solution is to give the Secretary of State power to make regulations to deal with it. Nothing unusual there. But the same undemocratic approach is prescribed, in clause 17 of the Bill, for the whole of copyright law. Under the heading "Prevention or reduction of online infringement of copyright" (who can argue with that?) the Bill provides that a new section 302A be inserted in the poor, long-suffering, much hacked-about, Copyright, Designs and Patents Act beginning:

(1) The Secretary of State may by order amend Part 1 or this Part for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur.

The following subsections contain nothing to give the concerned reader any comfort, except that the regulations will have to go through the affirmative resolution procedure. Most secondary legislation is subject to the negative resolution procedure, enabling Members of Parliament to stop it - although my experience, of trying with the aid of a friendly MP to stop the Restrictions on Agreements (Manufacturers and Importers of Motor Cars) Order 1982 (S.I. 1982/1146) is not encouraging. I recall that the draft order contained a manifest error - I forget what it was, something fundamentally wrong with the terminology: perhaps it should have referred to "passenger cars" not "motor cars" and consequently was ultra vires because it went further than the Monopolies and Mergers Commission report on which it was based and caught other vehicles, such as coaches, that weren't intended to be caught. Anyway, nobody seemed bothered, so the negative resolution procedure didn't strike me as very helpful.

I understand that Parliament does not have enough time at its disposal to engage in detailed debate about everything it needs to consider, and that copyright law needs to be kept up to date as technology changes. Empowering the government to make necessary changes has a certain seductive attraction, although so much copyright law comes from the European Union these days that one wonders how much legislative freedom the government has. The affirmative procedure contains safeguards, of course, but I'm surprised to note that Parliament cannot amend a Statutory Instrument and the last time one was annulled was 1969. Does that look like an effective restraint on the powers of the Secretary of State - even without getting personal about the present occupant of that position, the chair of the British Youth Council back in the days when I was active in it, whose CV also includes a stint as a Commissioner from which no doubt he remembers that EC law occupies large parts of this field? No wonder the clivil libertarians as well as the Internet giants - Google, Yahoo, Facebook and eBay - are up in arms about it.

Tuesday 1 December 2009

Treaty of Lisbon

One of my pet gripes has been overtaken by events, at long last: with the Treaty of Lisbon coming into operation today, Community law is replaced by European Union law - which in common usage (even among lawyers who should have known better) it did a long time ago. The Court of Justice becomes the Court of Justice of the European Union (though Euraotom still exists, and it has jurisdiction over the Euratom treaty) though no doubt people will continue to irritate me (and Swiss, Norwegians, Ukranians, Russians, Byelorussians, Modovans, Icelanders, and others, even Turks) by calling it the European Court of Justice. The old name, and the term "Community law", will still be correct for anything that happened yesterday, or earlier.

The Court of First Instance has become the General Court, making it even less obvious what it's for - rather like the Office for Harmonisation in the Internal Market, which provides so much of its work.

Given that I still think in terms of Article 30 to 36 (though I have adjusted to Articles 85 and 86 becoming 81 and 82), I imagine I will be getting the terms wrong for some years yet. But how nice finally to live in a European Union.


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