Wednesday 29 April 2015

Another Chinese clone, this time with a retro feel

Automotive news reports that Mercedes G-Wagen is the latest victim in China's clone wars. At least the Evoque is a new design - it seems strange to go back to such an old vehicle as the G-Wagen, which I remember driving as a battle-bus in Enfield North in the 1987 general election. Could it really have been so long ago? It had a turning circle comparable to that of an oil tanker.

JLR gave up on the Evoque copy as a bad job, noting that there was nothing in Chinese law which would help them. Mercedes, presumably, have less ground for complaint because the have to assume that even if there ever had been any rights in the design, they would have expired by now. Unless they could rely on copyright, of course, but that is an unreliable way to protect designs of anything, but especially motor vehicles, and particularly functional-looking ones.

This time the copyist is Beijing Automotive, which is where the story becomes complicated - they are Mercedes's local joint venture partner in China. Imitation may be the highest form of flattery, but it doesn't seem that Mercedes see it that way, and the problem is as much a political one as a legal one.


Saturday 25 April 2015

NIPC Law: Damages for Infringement of Database Rights

Damages for Infringement of Database Rights is the latest posting by my friend Jane Lambert on her excellent NIPC law blog - essential reading about an apparently minor intellectual property right which seems to become more important every time we hear about it.

Friday 24 April 2015

Reposting from NIPC Law: Damages for Infringement of Database Rights: Inter...

NIPC Law: Damages for Infringement of Database Rights: Inter...: Jane Lambert The first claimant.  Intercity Telecom Limited ( "Intercity" ) , is one of the largest independent com...

Right to repair a four-wheeled computer

According to this story in WIRED (hat-tip to Warwick Rothnie for posting it on Facebook) John Deere and General Motors are trying to change the very idea of ownership, of tractors and cars at any rate. Actually, personal leasing plans in the motor sector (and, no doubt, similar arrangements in the agricultural machinery sector) have already years ago changed the ownership equation, but in a rather different and direct way than what is described here.

The simple fact is that, because vehicles rely increasingly on software to operate them, the owner of the hardware is beholden to the owner of the copyright in the software running on it. As with computers, so with tractors and cars. To characterise this as the manufacturer retaining ownership of the hardware is at best hyperbole, at worst downright wrong. But it nevertheless appears to pose problems for owners in the USA.

Would it happen here? I think not. First, an owner deprived of the ability to repair his or her car or tractor (or anything else) would be able to refer to the House of Lords decision in that great case, British Leyland Motor Corp & Ors v Armstrong Patents Company Ltd & Ors [1986] UKHL 7 (27 February 1986) where their Lordships (or at least a majority of them) held that the owner of a motor car had the right to repair it as economically as possible, and that to use intellectual property rights to thwart the owner was a derogation from grant which the courts would refuse to uphold. And since 1986, the software directive has introduced several provisions (in particular section 50A and 50C of the Copyright, Designs and Patents Act 1988) to permit "reverse engineering" of software and the fixing of problems with it. So, between those two pieces of law, one judge-made and the other statutory, I don't see much to worry about: except, of course, for the fact that if a large multinational leans on an individual car-owner or farmer there is a good chance that they will prevail regardless of the merits of their legal case.

For more see, Automakers to gearheads: Stop repairing cars

Thursday 23 April 2015

Green Party sustains gunshot wound to foot over copyright, of all things

Who would have imagined that the biggest policy gaffe of the election would be over the duration of copyright? Well, go back a few years and it could have been "New" Labour swallowing the "Cliff's Law" argument hook, line and sinker, but actually this goes completely the other way. The Green Party, which had already ensured that it would not be getting my vote* by accepting the endorsement of the dreadful Russell Brand, announced that if elected ("if" being a very important word here, as the Greens had a single MP, their first, in the last Parliament) they would take us back to 1709 or 1710 (it always depends on whose calendar you use) and reduce copyright to 14 years. From creation or publication, it was not entirely clear, but certainly not PMA which might have been a bit more comprehensible.
It transpires - allegedly - that 14 years came from a Cambridge University postgrad student. Isn't that how the Iraq war started, too? To be fair to the Green Party (and of all the political parties they are the only one to which one should have any reason to be fair) this is mentioned in the same breath as their "Citizen's Income" idea, although the two policies seem to be associated because the latter would ensure people had time to devote to cultural activities which would (they imply) somehow justify reducing the term of copyright protection (the total volume of copyright, works multiplied by years protected, would remain much the same, on my reading of the policy). Had they said that because everyone will have the Citizen's Income there will be less need for people to earn money from copyright, it might have made a little sense: but as it is there is no logic underlying it at all, except for Mr (or presumably Dr now, as his work seems to date back to 2007) Pollock's thesis.
I have found myself participating in a couple of discussions on Facebook about this crazy idea, and it is clear that the Greens have upset a lot of creative people who might otherwise be more-than-averagely likely to favour them. And in addition to the damage they have done to their own support, how do they imagine it could be achieved? 14 years would not comply with the Berne Convention, so the UK would have to denounce (I think that's the right verb) that, and other international instruments. TRIPS probably isn't the Greens' favourite international agreement anyway, and certainly it has plenty of questionable things about it, but this is surely not the issue on which to challenge it. What about the directive? Copyright duration would be an odd reason for a Brexit. Then there would be inevitable claims under the European Convention on Human Rights, that copyright owners had suffered the loss of property. At least Cliff's Law would be a thing of the past.
There is plenty wrong with copyright, but anyone proposing to reform it would do best to consider its breadth rather than its depth. It is the omniverous nature of copyright, the indiscriminate way in which it confers protection on works with minimal originality, permitting big businesses to bully small users and reap super-normal profits, that should be addressed, and to my mind the way to do that is to reconsider the originality requirement (along with the notion of what constitutes a copy of an earlier work, in the case of sound recordings and films: given that "original" means, basically, "not copied", this amounts to the same thing). But I don't think that presses the right buttons in a general election.
The Greens also propose to legalise peer-to-peer filesharing where it is not commercial, and to "liberalise" the rules about fair use (which of course are absent from our copyright law entirely at present - "fair dealing" being rather different, a distinction which seems to have escaped the Greens). They claim they want it to apply outside academia, which - correct me if I am wrong - I thought was one of the places where fair dealing didn't run very far anyway. Still, we needn't worry too much: few people will vote Green just because of these policies, and they aren't within sight of even holding the balance of power in Parliament (are they?).

*I plan to support whoever is most opposed to the desecration of the North Wessex Downs AONB by massive housing developments, as per the draft Local Plan which the Conservative Group on our District Council voted through without demur. Unless that's the Greens, who won't get my support because of this copyright gaffe and the Brand thing. My local MP also alienated me by "cutting" me at the All Party Writers' Group winter party in December, and lost any possibility of getting my vote. Just so you know.

Wednesday 22 April 2015

Art and Artifice: The dirty side of artistic copyright: septic tank ...

Art and Artifice reports on a case in the Privy Council, not something we come across every day, or even every decade: apart from Lego and Opportunity Knocks, which are now almost ancient history, I can't remember any in my time as a lawyer.

This is Gold Rock Corp Ltd & Anor v Hylton (The Bahamas) [2015] UKPC 17 (20 April 2015), a case which demonstrates (if the point needed demonstrating) that design protection often involves some rather unpleasant subject-matter - pig fenders (not too bad), slurry separators (a great deal more distasteful), and now septic tanks. Although we are in the realm of copyright here, so we are not considering septic tanks but rather designs for them, which is a much cleaner and more pleasant proposition.

Bahamian copyright law, in the form of the Copyright Act 1998 (amended in 2004, though not in a way material to the present case) bears some similarities to our law in the way it treats copyright in designs, but the wording is significantly different and as far as I can see there is no unregistered design protection, only a registered design system (under the Industrial Property Act 1965) which borrows heavily from the Registered Designs Act 1949 v1, allowing applicants to request a grant of "design copyright" (remember that?) and imposing an eye-appeal test. Oh, those were the days!

As for copyright protection, technical drawings are expressly included in the definition of artistic works, which is one significant difference from our law (though perhaps a difference of words only). The Bahamian Act then goes on (in section 2(3)) to restrict copyright in a design for a useful article:

the design of a useful article ... shall
be considered an artistic work only if, and only to the extent that,
such design incorporates artistic features that can be identified
separately from and are capable of existing independently of, the
utilitarian aspects of the article.
That seems, on the face of it, to be intended to deny copyright protection for designs for utilitarian things. Back in the heyday of copyright protection for designs, we might have expected an interesting debate about septic tanks in various fanciful and artful shapes, as I remember discussing the possibilities of conrods cast in the shape of the female human form: in each case a completely pointless exercise, because no-one in their right minds would think to copy the crazy design. Here, though, we get an extraordinarily narrow interpretation of those words, turning on a distinction between design (abstraction) and technical drawing (piece of paper: I almost wrote "concrete", in contradistinction to abstract, but concrete is precisely what the septic tanks were, so I would have confused the issue no end). The Board (well, Sir Kim Lewington, at any rate, speaking for all of them) said:

A “useful article” is ... a three-dimensional physical artefact. A technical drawing which gives instructions about how to make such an artefact is not itself a “useful article”; not least because its function is merely to convey information about how to make it. In the Board’s view the “design” of a useful article is a reference to the physical aspects of the article itself, rather than a technical drawing conveying instructions about how to make it. Any other interpretation would mean that it was almost impossible for any technical drawing to be protected by copyright, even though technical drawings are specifically included in the primary definition of “artistic works.”
So the drawings remained protected, and the PC advised Her Majesty that the appeal should be allowed, and no doubt she will take that advice rather then try to work out whether a better solution might be available. I find it hard to believe that this is the result the draftsman intended, although it is no doubt a correct reading of the words (especially in the light of all the experience we have of copyright and designs): but if the draftsman's intentions have been thwarted, we can all console ourselves by remembering that this whole area of law developed quite by accident, mostly as a result of the law of unintended consequences (the same law which I imagine will make the repeal of section 52 a disaster - but I digress ...).

Monday 20 April 2015

Intel bullies home improvement company into name change

Intel trademark letter prompts UK business re-brand,  World Intellectual Property Review reports. The UK business, which seems to be the division of the Intelligent Home Improvement Group that deals in windows, had the temerity to use the now name, Intell Windows. Well, Intel had to stop that, didn't they? The window company complains that it cost £1,800 just for lawyers to send a letter back to Intel (either someone is being economical with the truth or a lawyer is having a laugh) and rebranding cost £15,000.

A humourless spokeswoman for the semiconductor maker is quoted as saying: "As with any other asset, we have an obligation to our shareholders to protect the value of our brand." If that statement could be reduced to a single word, Dr Johnson's definition of patriotism could nicely be applied to it. Unfortunately it explains (even, perhaps, sometimes excuses) a lot of trade mark bullying, but here it looks pathetic: would the shareholders really feel sufficiently threatened to have the company spend their money threatening the window company? There is clearly not the slightest risk of confusion - oh, Intel chips are capable of running Microsoft Windows(R), huh? - and if there is any possibility of dilution, tarnishment or unfair advantage it is vanishingly small. Shareholders might well ask themselves whether the legal bills, let alone the damage to the company's reputation, were worth it. They might be less humourless than the spokeswoman.

Had it been a fish and chip shop, it might have been a different story.

Wednesday 8 April 2015

Assos, Asos and the "own name" defence

According to WIPR, Assos (a Swiss clothing manufacturer) is appealing against the Court of Appeal's April Fool's Day judgment (Maier v Asos [2015] EWCA Civ 220) holding that although the marks in suit were similar, and there was a likelihood of confusion and damage to the claimant's mark, Asos (an online retailer) could rely on the "own name" defence under section 11 of the Trade Marks Act. Read the WIPR report: there is no point in my paraphrasing it here, and I cannot direct you to the BAILII report because it is not online yet. At the same time, marvel at the WIPR's author's inability to identify members of the judiciary by their correct titles. What amateurs!
Assos are proposing to appeal to the Supreme Court, according to their solicitors Bird and Bird, and one can see why they might. Surely, despite cases which say otherwise, the "own name" defence was never intended to apply to company names which can so easily be invented to suit a particular purpose. However, that particular point (subject to what I find in the judgments in the Court of Appeal when they are published) seems to have become part of the corpus of trade mark law.
Of course, the defence is subject to the proviso that the use has to be in accordance with honest practices in industrial and commercial matters. That must be the key issue in this case, notwithstanding that Sales J seems to have based his dissenting judgment on logical restrictions on the scope of the defence.

The Washington Post: YouTube’s copyright system has taken Rand Paul’s presidential announcement offline

This report of a spectacular own goal almost made me laugh (but the excesses of modern intellectual property law and practice will never get past that "almost" - they are more likely to make me cry). The headline tells you everything.

I suppose it illustrates the importance of clearing rights for all the uses to which a copyright work might be put in the modern age. Perhaps Senator Paul, or at least his people, had obtained the myriad permissions (or the omnibus permission) needed but YouTube's robots, acting as WMG's agents, took it down anyway.

The reference in the article to huge music companies (the expression "Big Copyright" comes to mind) being able preemptively to apply copyright law encapsulates the problem in a way I have not read before: I will try to file that expression away for future use, although I think it is better called pre-emptive (my dictionary tells me that the hyphen is correct in the adjectival form but not in the adverb) enforcement, not application, which is too imprecise a term for lawyers to use (acceptable, though, for journalists, I think). Maybe it is a synonym for bullying. And read in the context of the Senator's attack on the power of special interests, the story becomes even more powerful.

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