One of the worst IP systems for consumers

That's how Consumers International rate the UK, in a recent report, which places only Thailand and Brazil (out of 30 countries) below us. Hat tip to Out-Law (of course!) for alerting me to it. The report seems to focus - naturally enough - on matters like home copying, on which UK law is found badly wanting. There is also criticism for the increase in copyright term for sound recordings - the complete antithesis of evidence-based policy-making. the lack of pre-grant opposition system in patent law is another area - showing that this isn't only about copyright. I hope they might have a go at trade marks in the future, too!

Copyright protects what?

The self-styled Intellectual Property Office's "IP Insight" offers a piece on how to protect a recipe, which includes this remarkable paragraph:

Copyright is the area of Intellectual which protects: literacy, dramatic, musical and artistic work; it provides the owner with control over how the work is issued to the public, reproduced, performed, published, adapted or broadcast.

Even if you're trying to dumb your message down for the benefit of a lay audience (which doesn't have to mean patronising them, incidentally) it's unhelpful to omit the essential adjective "original" from that list of what copyright protects. It's also misleading to say that a patent will protect a concept - where do they get this rubbish from?

But copyright has never protected literacy, though on this showing it certainly needs protection from somewhere ...

I have said before, and will keep on saying, that it is not and should not be the Patent Office's job to give advice on intellectual property matters. If there is an unmet need for such advice, there are other ways of providing it and thousands of professionals ready and willing to give it. I do not approve of the use of taxpayers' (or applicants'!) money to create a state-funded rival to professional advisers - and when they offer misinformation of this standard, the case against surely becomes overwhelming.

Standardised packaging for tobacco products?

I read the consultation paper - a short and easy read - on what the Department of Health is pleased to refer to as "standardised packaging" for tobacco products, courtesy of my old friend Mike Jewess, when we found ourselves on the same train the other day. Clearly, there are trade mark implications for any law that might come along limiting what cigarette manufacturers (and that of course is whom this is aimed at) may put on their packaging. We aren't talking plain packaging here (though that's how it is often referred to), because they'll still be able to put their name and the name of the product on the packet - along with the dire health warnings the ineffectiveness of which makes me doubt that standardised packaging will make much difference.

Well, of course, if you have a trade mark and don't use it, you risk losing it. If the law says you can't use it, you probably have good reason which would overcome a non-use challenge, so perhaps that argument doesn't get you very far: and I guess it has happened in the past, with Olympic signs, red cross and red crescent, and even the word ANZAC. Anyway, if you can't use the trade mark what's the point of maintaining it? The tobacco industry has resorted to arguing that the UK's international treaty obligations prevent it from legislating to require standardised packaging, because of the trade marks aspects, which seems to me like grasping at straws.

If people aren't put off buying tobacco products by the health warnings, how likely is it that making the packaging less glamorous is going to stop anyone? A fortiori, how is going to help smokers kick the habit? Even if cigarettes were sold in plain brown cardboard packets I can't imagine it would be much of a deterrent, and the manufacturers would save on manufacturing costs which can't be an intended consequence. The consultation paper raises questions about cross-border shopping (a concept which, helpfully, it explains to readers) and illicit imports (I don't think the word "contraband" is too strong, though the consultation paper doesn't use it), which led me to the idea that standardised packaging would actually help HMRC and brand owners because imported packets would stick out like sore thumbs.

If the government stipulated that health warnings had to be of a certain minimum size, though, they could require a packet of 20 cigarettes to be so large you'd need a van to move it. Now that might be a deterrent. Even so (assuming that brilliant suggestion won't be taken up) I take the view that if standardised packaging stops one person from smoking, it's justified. I just know, however, that no smoker I have ever known would give up so easily. They need more than that to help them to do so. 

Gmail in Germany too now

Google has been unable to use the name Gmail for its email service, because one Daniel Giersch had an earlier trade mark registration. They had a similar problem in the UK which was resolved a bit more than a year ago. Now, papers filed with the German trade mark office indicate that they have sorted something out with Mr Giersch, too. The story is here on the CIO website (no, I don't know who they are but it's a good report).

Where do you think Stilton cheese is made?

If you thought it comes from Stilton, you'd be wrong. The PDO allows eight producers, none of them in Stilton, to produce the cheese, so a cheesemaker in Stilton cannot call their product Stilton cheese. It was, apparently, given the name because it was supplied in coaching inns there.

Cheese names are a complete mess, with Cheddar coming from anywhere in the world, not just Cheddar (in other words, the name has become generic for a particular type of cheese - indeed, a pretty generic type of cheese) and other abominations (IMHO) like Somerset Brie - and Danish Feta, if I remember correctly ... Whatever the reasons for Stilton being called Stilton, no-one is going to be deceived if cheese made there bears the name of the village, and the system is only going to be brought into disrepute if the present situation is allowed to pertain.

The Telegraph reports that DEFRA is being asked to change the rules, and if it accepts that there is a case for change the matter will go out to consultation for twelve weeks. Watch this space!

Android copyright infringement case in California

Today, Oracle and Google face each other in court in San Francisco. Here is the story on the FT website. Oracle allege that Google needed a licence to use Java in its Android operating system, so it has infringed copyright. Java is even available as open-source software, so Google did not need even to pay a licence fee - except that the viral effect of open-source licensing would have infected (in the nicest possible way) Android.

Google prefers to keep the Android "ecosystem" (another of those ubiquitous metaphors!) closed, so developers can (as Lex puts it in the FT today) check in but they can't check out. It goes against the ethos of Java, which was designed to work across platforms - in many ways, a paragon of openness. Commentators (again, Lex) find it odd that Oracle of all people should be banging the openness drum - a view that needs to be updated, surely, now that Oracle is the provider of OpenOffice, a superb piece of software that should overturn the world order ... Even so (again, as Lex observes) Google have surely done the Java community a huge favour by providing such a popular platform for which they can develop apps that will be readily adapted to "proper" Java. A strange basis for a law suit.

Trade marks - indefinite copyright?

If your copyright expires, how about using a trade mark instead? I was interested, and rather pleased, to read this posting on a blog entitled IP in the Digital Age, "the class blog for CPSC 182: IP in the Digital Age at Yale College" - not sure why that doesn't say "University", but maybe it's one of those transatlantic things: the link on the blog certainly leads to Yale University's website. Anyway, the point is that this business of using trade marks to supplement copyright protection is widespread, unduly restrictive and undesirable. At least, I think it is.

What's the solution? Not to try to make the two rights mutually exclusive, that's for sure. Tempting, but doomed to failure. That's a road you can only set off down if you haven't grasped the fact that trade marks and copyright are distinct pieces of property. It's easy to get hung up on the way that both rights protect seemingly-identical subject-matter, but the fact is that they don't. In the example cited in the Yale blog, there is copyright not in the cartoon character Popeye but in artistic works depicting him, and if you don't get that you're going to be floundering in the sea that is called intellectual property.

Likewise, a trade mark does not protect Popeye: rather, it protects the trade reputation or goodwill that attaches to the name or image or whatever. A trade mark is an indication of origin, even if nowadays it performs several other jobs - like (as Floyd J remarked at a seminar I went to last autumn) one of those multi-function tools you see in the Sunday supplements which enable you to do whatever you need to do to your bicycle. But the advertising function and the investment function - I can't remember any others off-hand - are linked as much as the source-indicating function to goodwill, so I think the statement at the beginning of this paragraph still holds. The problem is that trade mark owners are trying to extend the scope of trade mark protection, and trade mark offices are letting them get away with it. The problem is one of over-reaching trade mark protection (which is not to say that there's nothing wrong with copyright) and the solution is to put trade marks back in their box.

Discuss.

The Utility of Design Law

The Patent Office has commissioned research into the utility of design law, to be carried out by Speechly Bircham (for whom, once upon a time, I worked in my first job in private practice) and Mountainview (www.mountainview.co.uk, is it?). I guess this must be a very short questionnaire, because our design law was carefully crafted to give no worthwhile protection to spare parts, particularly those for cars but also those for white goods - areas of technology which at the time were converging, as it happens, courtesy of Sir Clive Sinclair, though that has nothing to do with it - and, as an unintended consequence, no worthwhile protection to anything else either. Well, I exaggerate a little, and in 1988 the Registered Designs Act was made a bit better but still nobody bothered with it very much.
The questionnaire is available until 20 April according to the press release, so log on and have some fun.

IP support for SMEs from the civil service

The Hargreaves Review recommended that ways should be found to give SMEs access to affordable advice on intellectual property, which of course is great news for those of us trying to make our living from doing precisely that. How are we supposed to be able to do so if civil servants are doing it for nothing? Of course, civil servants aren't the right people to give advice - they can educate, sure, but not more. The Patent Office and Companies House have now announced a series of events to promote knowledge of intellectual property.

Trade Marks and Trade Marks (Fees) (Amendment) Rules 2012

These Rules amend the Trade Mark Rules 2008. According to the Explanatory Notes:

Rule 2 amends Rule 14 to remove the ability of the proprietor of a Community trade mark or international trade mark entitled to protection in the European Union under the Madrid Protocol to request to be notified of the results of searches under article 4 of the Trade Marks (Relative Grounds) Order 2007. Rule 2 also amends article 27 of the 2008 Rules to remove the procedure for the merger of trade mark applications before any trademarks have been registered pursuant to those applications. It also provides that an application for merger of trade marks can only be made in respect of trade marks that have the same renewal date. The amendments made by Rule 2 also prohibit an application for merger of trade marks which are the subject of proceedings for revocation or invalidation or which are the subject of an international registration pursuant to the Madrid Protocol.

Commission investigating allegations about Motorola patents

Hat tip to Out-law.com for this piece about the European Commission launching an investigation into Motorola's patent licensing activities. In the fraught world of mobile telecommunications patents, which often cover technology that needs to be available for others to use because standards are based on them, FRAND rules - or should.

ACTA's expedition to Luxembourg

Reuters reports that the widely-unloved Anti-Counterfeiting Trade Agreement, the antithesis (per Bill Patry, into whose mouth I am putting words but I hope not entirely the wrong ones) of evidence-based IP policy-making, has been referred to the Court of Justice by the Commission, to see whether it breaches citizens' fundamental rights including that of free speech. Reuters describe it as a treaty on copyright theft, which sloppy language ought to be grounds for rejecting it without further ado - except that I doubt the agreement actually uses that horrible, in accurate and unnecessary neoligism. Why, if commentators can't use the correct words, couldn't we have an international agreement on copyright bogarting?

Patents or copyright?

Hat tip to Sandrine Hilaire, avocat, of Strasbourg, "capital of Europe" according to her firm's website, who shared this on Facebook: a somewhat depressing story in which the patents seem to have become the end, not the means, but also depressing for the inability of the journalist to tell his copyright from his patents - despite having both in the headline. "Un sérieux bémol" as she says, giving me my French word of the day (a couple of days ago it was "chienlit", which perfectly describes a big-city Marathon). Literally, un bémol is a flat sign in musical notation, which seems an excellent metaphor for a journalist's failure to distinguish one legal right from another.

Patry on leadership

I hate to think how long ago I went to Bill Patry's Stewart Memorial lecture, found it disappointing, blogged to that effect, and some months later received an email from him saying he was sorry but I had missed the point. As the bard sang, I was so much older then, I'm younger than that now. I took exception to his treating copyright as a metaphor, because statute told me it was more than that. Now I understand how true what he said, back in 2007, was.
He still has much to say - critical stuff - about the way copyright laws are made. This evening, at the end of a day spent going from one copyright audience to another (sadly I missed a breakfast event, my running injury making travel earlier in the day out of the question) he was hugely complimentary of the evidence-based approach which supposedly informs all UK IP policy (and Prof Hargreaves was in the audience to hear him say so). Sir Robin Jacob, playing the chat show host to Bill Patry's guest, challenged him on what this meant, and we were treated to a lively discussion which I shall have to write up later, having spent half an hour exploring the limitations of the virtual keyboard on my office Playbook and only managed to produce this much.
I wondered where the introduction to his talk was taking us - especially after Sir Robin suggested that after a 15 minute opening he'd start asking questions: not very long to lay out what you have to say, and thankfully Mr Patry took about twice as long as that, so the introduction had settled into its context in good time. It was, however, given the title of the event ("What would leadership in copyright policy look like?"), appropriate to explore notions of leadership, even in the strained terms in which the expression is used in the US Congress.
The introduction led to the way copyright law - indeed, almost all law - in the US is made, coming not from the executive branch but from Congress, and in the case of copyright from the Judiciary Committees. Not, I admit, a matter to which I had ever given much thought: the differences between the US system of government and ours are greater than I'd really appreciated. He talked about regulatory capture, and gave examples of how it affected the way that the law was made - the DMCA being a paradigm example to illustrate many of his points, with the Commerce Committees prevailing on the issue of safe harbors.
Copyright law, if I understood his thesis correctly (and perhaps he'll correct me if I am wrong!), is a product of ideology, or one might even say religion, rather than a rational process based on evidence. Legislators do not want to understand what the evidence suggests. I think there are plenty of instances of laws being made as a knee-jerk reaction to the pressures from lobbyists. Is that not how we came to have such a disastrous law on design protection, which the Hargreaves Review criticised as being no use (I paraphrase) to the design industry? Perhaps, but it suited the car spares industry in 1988 and they were the ones making the noise! It even flew in the face of the evidence - I remember Ford making a presentation to MPs, showing how an infringing, or spurious (or, in Ford-speak, counterfeit) bonnet (hood, if your preferred language is American English) could decapitate the occupants of the front seats in a head-on accident because, unlike the original, it was not designed to fold in the same way, or even at all. There's no shame in not knowing everything, Mr Patry told us - oh, if only I'd been told that back in the late 80s - and legislators, leaders, have to be prepared to learn. Indeed: lobbyists consider themselves to be the source of information for backbench members of parliament.
The laws that the lawmakers make must be ones that people are prepared to obey. The top down approach has never worked, he said, ever since the Ten Commandments. The rules have to match the way people want to behave. Indeed. Our previous government - not that I notice the Coalition doing much different - put in place a vast body of laws that people see no need to obey: legislation clearly has not stopped drivers using handheld mobile phones. The sheer volume of legislation calls the legitimacy of the government into question, makes low-level law-breaking routine, an accepted form of behaviour. Witness this from the excellent Charles Crawford's Blogoir.
Examples of IP legislation that lack legitimacy because they are so far removed from ordinary human behaviour - because they are not based on evidence - include ACTA and, in the US, SOPA. The US lacks the evidence-based approach to policy recommended by Prof Hargreaves: so does most of the world, including the EU. As Sir Robin observed, EU copyright law emerges from a very untransparent (sic, but an excellent word for it) process.
So, if the purpose of copyright is to encourage the creation of more works, using the "but for" argument that without copyright the supply would be sub-optimal, we need more. But does the evidence bear this out? Does extending the term of protection lead to the creation of more copyright works? Of course not, especially by dead authors. Does extending protection to mundane stuff like business letters increase human happiness? No, they exist for reasons quite unconnected with copyright. This evidence-based approach argues (to my mind, anyway) for a drastic reduction in the scope of protection - for an originality test which requires the author's own intellectual creation, for one thing.
There is an evidence base for a lot in the copyright field: it is the low level of renewals after 28 years that took place in the US, before it acceded to Berne and fell into step with the rest of the world - which perhaps looks now increasingly like the wrong way for the countries of the world to get into step. Mandatory formalities, including renewal, separated the wheat from the chaff - even if the renewal fee were only $3 it would ensure useless copyrights withered away. The system we have is an ideological, or religious, approach which obliges people to have copyright whether they want it or not - an approach which Mr Patry traced back to Rousseau, opening up a whole new line of reading for me - time to visit Project Gutenberg with my Kindle again, another topic which came up in the course of the evening ...
A fantastically thought-provoking evening. Someone needs to do the same for trade marks - and I might try to make a start: do they satisfy any sort of evidence-based policy? As for Party on copyright, I've bought a copy of "How to Fix Copyright", just out from OUP, had it autographed by the author, and will let you know what I think of it when I have read it - soon(ish). I expect it will be excellent.