A Run Through Intellectual Property Law

If only there were more hours in the day. I have finally launched the lecture series I have been talking about for years, under the general title A Run Through Intellectual Property Law. This link will take you to the page from where the recordings can be downloaded. I envisage nine lectures to cover the basics, of which I have recorded three so far: they are each about an hour in length.

Feel free to listen, and download the files to listen to on your choice of device if you wish. Just don't share them with your friends, as I would prefer you to send them to this site to download their own copies. If you have any requests for subjects I might cover in the future, please let me know - leave a comment or email me at peter@ipsojure.co.uk. If you have comments on the content, including corrections, please let me know too, but bear in mind that these lectures reflect the law on a specific date and won't be updated very frequently.

Going home: Coleman on legal education

Ron Coleman, of Likelihood of Confusion fame, is one of the most perceptive legal writers (and probably the most perceptive legal blogger) I know, although when he gets onto politics I find my hackles rising ... well, it would if I were the sort of animal that had hackles in the first place, and if I were a dog or a cat I wouldn't know much about politics, or be able to read what Ron writes on the subject. Oh dear, this seems to be getting complicated. Let's see if I can get back to the point.

Although it seems to be a post from a couple of years ago, leading eventually to a 19-year-old article, 'Go Home ...' is horribly relevant today. Back in '95 when Ron wrote the original article I was teaching would-be (or as people might say now, and perhaps would have said even then, 'wannabe') solicitors who were attracted by the notion that it was a 'clean and pleasant trade' (follow his links and allow Ron to educate you about that phrase, if, like mine, your upbringing didn't already make it familiar). And I was wondering why on earth many of them had ever thought they might stand a chance.

I found my way easily - too easily - into the legal trade. At the time, I thought it was a profession, and perhaps it was, until about 1984 when advertising restrictions were lifted. After that it quickly turned into a business, which at first seemed progressive and exciting, but perhaps the deficiencies of my route into the law were brought into sharp relief by that change. Although my father couldn't teach me the clean and pleasant trade, he could arrange for his best friend to do it, and in due course, after three years at university during which I learnt a great deal about politics, photography, journalism and real ale but very little about law, followed by a very miserable six months at the College of Law studying the new wave music that was sweeping the country at the time, followed inevitably by another six months cramming to resit the Law Society Qualifying Examination, Part II (an examination of such stunning mindlessness that has surely never been surpassed, although from what I hear the Multistate Bar Exam might run it close), I became articled to him. If you lost track of that sentence, as I did, the 'him' to whom I was articled was my father's best friend, senior partner in the equal-largest firm in Teesside, which in those days meant six partners: there were three other behemoths with the same number of partners in the area.

I realise now that my articles were a further period during which I learnt no law (but did learn even more about politics). It wasn't a great start to a career in a learned profession, but once I'd qualified I did begin to learn some law, not only on the job but also by pursuing a formal part-time course of study which led first to being awarded a Masters degree in business law, then in due course to a doctorate, and finally to a (still part-time) position at the institution that had finally given me some legal education, teaching those would-be solicitors on the new Legal Practice Course, the successor to the Law Society Finals which had replaced the unlamented Part IIs. By this time - the mid-nineties - it was firmly in the business of law student farming, in Ron's apt phrase. The parallel with the fermiers who played such an important part in causing the French Revolution is striking.

Between the late seventies and the mid nineties, legal education shifted from being a system that one could negotiate with little effort, coming out with a 'gentleman's degree' and scant knowledge of the law and moving comfortably into a clean and pleasant profession, to one which demanded hard work, much learning, and considerable expense, the end of which was admission into a far-from-clean and definitely unpleasant trade. But there remained several hurdles, even for those who had passed the LPC (and the fermiers certainly saw no advantage to failing any of their students). First, the aspiring solicitor needed a training contract.

A large number of students only embarked on the LPC after securing an offer of a training contract. Often they would be sponsored by the firm with which they would complete that final stage of their training. But many didn't, and for years after they moved on I was still writing references for students who needed to persuade a solicitor to take them on. One of them tragically succumbed to breast cancer shortly after qualifying, having secured a training contract several years after passing her exams. And to this day there is still a colossal mismatch between the production of aspiring solicitors and the capacity of the profession to absorb them. A friend who had completed her LPC a few years ago searched for a long time for a training contract, finally accepting the only one offered which was quite unsuitable and made no use of her impressive qualifications and experience; now having qualified she faces a difficult search for a job.

Ron - if I may be permitted to return to the point of this rambling discourse - remarks at some length on the vicissitudes of applying for jobs. A 'gentleman's degree' is an immediate disqualification, no matter that it be supplemented with a doctorate: the way applications are filtered takes no notice of what follows one's first degree unless it is at least an upper second. I like his comment about the 20 'top ten' law schools ... A similar dilution of the quality of legal education has taken place here, and his comments about how attractive a law school is to a fermier is as relevant in the UK as in the US. The best are excellent, but the bulk of them offer less value - but, however good the legal education they offer, none of them can offer entry into a clean and pleasant trade. Or any trade, for that matter.

Enough, already. I will feel inclined to return to this topic another time. This is a good point at which to stop, for now.

Greek yoghurt means yoghurt from Greece

Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2013] EWHC 630 (Ch) (26 March 2013)  is what aficionados call an extended passing-off case. The claimant had been selling Greek yoghurt in the UK for some time, while the defendant introduced what it had previously sold in the USA as 'Greek yoghurt' to the British market sometime later. I sampled it at a running bloggers' conference last year - it seemed OK but with what I know now I'd certainly taste the thickening agent - and even came away with a pair of laces, branded with the Chobani name. I certainly won't be using them: not the sort of brand values I wish to be associated with. Anyway they won't fit my huaraches. Anyone want them? Drop me an email.



Nothing surprising about the passing-off claim here: FAGE won. A bit more interesting is the malicious falsehood sideshow, a counterclaim arising from the claimant's approach to Camden trading standards. The judge noted in particular that as he didn't imagine the trading standards department would take action without investigating the allegations first, there was little chance of the defendants (counterclaimants) suffering any damage.

Border detentions - new manual for rights owners

The European Commission has published a new manual  for rights owners wanting customs to stop infringing goods.

Rights of audience: Law Society secures rule change for IP solicitors - The Law Society

Solicitors will have the same rights of audience in the ultra-trendy Intellectual Property Enterprise Court* as they had in the Patents County Court, the Law Society  says, claiming that its lobbying has brought about this outcome. (I wish it would work equally hard to prevent the unqualified, which as I understand it remains unlawful, use of the title 'attorney' by patent and trade mark attorneys).

Although it was the Chancellor of the High Court who announced that judges would allow solicitors to appear, our too-big-for-its-boots regulator had to stick its oar in:

The SRA has also confirmed that it will not regard solicitors appearing in the IPEC as being in breach of the rules and will change the regulations to make it clear that solicitors have rights of audience.

How kind of it.

*The utterly spurious word 'Enterprise' is what makes it ultra-trendy, although I should make clear that it's the name not the court that I am describing thus.

OHIM's new examination guidelines

News  of revised guidelines from OHIM on the examination of CTM and RCD applications, which have now been published in the Official Journal.

UK Patent Office discontinues Patents Form 10 Reminder letter

The Patent Office, to give it its proper name, has announced in this statement  that it won't in future be sending out letters reminding patent applicants to file Form 10 and cross their palm with silver to request a substantive examination. For applicants with switched-on agents who have what Americans in general and patent lawyers everywhere call 'docketing systems', this won't matter, but for those who represent themselves it will be another matter. They will be told in the letter informing them of the A Publication that they have to file Form 10 and pay the fee within six months after that publication, as they already are: but the reminder which until now has been churned out two or three weeks before the end of that period will no longer be sent. The Office says it sends out about 3,000 of these letters per year, presumably many of them to agents who know perfectly well what is going on but who are either leaving it to the last minute or waiting for their client to get their act together.

3,000 letters is, these days, quite a lot, and producing a letter costs  much more than the cost of the paper and postage stamp, even in the computer age. So I can see the attraction of cutting out an unnecessary communication, though one might have thought that (again, in the computer age) some sort of automated reminder system for applicants in person could be devised - perhaps at a modest extra charge.

Advertising Standards Authority Adjudication on Trademark Office Ltd

Back in October 2013, the ASA published the result of an adjudication in which it came down as much like the proverbial ton of bricks on one of the leading producers of what I think it is fair to call misleading renewal notices: the adjudication is here. Unfortunately the ASA is not set up to do 'ton of bricks' very well, and it ends up being more like a couple of pounds of feathers, but even so ... Given that the respondent did not even take the trouble to reply to communications from the ASA, one cannot be optimistic about the chances of the parasites giving up, but I suppose that every little helps.

Two things might help more. First, the rogues use (on patent renewal 'notices') the designation 'Patent and Trademark Office'. (I pause to note that the American spelling of 'Trademark' ought to be a bit of a give-away, but will be lost on many people, who apart from anything else have for too long been exposed to far too much American 'culture' - like the contestant on Celebrity Mastermind the other day who referred to the London A-Z pronouncing the last letter 'zee'.) That includes the designation 'Patent Office' and to use that is an offence. If anyone thinks that perhaps the offence is not committed because other words are included, consider the efforts of the Architects Registration Board - and its prosecution of Ronald Baden Hellard, reported at (1998) 14 Const LJ 299. (The Court of Appeal accepted that using the affix RIBA amounted to using the style 'architect', although to be fair to the Court of Appeal there was little argument to persuade them otherwise.) Second, and this will require a change in the law which I acknowledge is as likely as an English winter without widespread flooding, as a consumer protection measure this sort of work needs to be reserved to the professions who will do it properly - and at far, far lower cost than the rip-off rates charged by the purveyors of confusing non-invoices.

There must also be an argument that they are committing a fraud, misrepresenting themselves to the inexpert or merely inattentive recipients. In which case the banking system should reject them as customers. I recently had no end of trouble when a bank with which I maintained an account detected suspicious activity on my account, to wit a payment from HMRC by way of a rebate of income tax. Unusual, perhaps, but suspicious? So why when my bank refuses to handle those funds are other banks (or perhaps even the same one) handling the proceeds of deceptive advertising?

Arbitrating licence agreements: interim relief

The mysteriously-named  AB v CD [2014] EWHC 1 (QB) (03 January 2014)  concerns not, as one might expect, a badly-behaved professional footballer or television presenter but two businesses with a licensing agreement. The agreement concerned an electronic marketplace, but no software was supplied. The claimant faced big problems when threatened with termination the licence to use a facility which was an essential part of their business, and sought an interim injunction to stop the termination until arbitration had been completed. Because the dispute was subject to arbitration, and there were obligations of confidence in addition to what one would normally expect to be inherent in arbitration proceedings, the names of the parties were not disclosed.

Why was the agreement going to be terminated? First, because in breach (it was alleged) of the licence the claimant had failed to stick to a sales and marketing plan which the licence required it to agree with the defendant (the licensor). But no such plan had actually been agreed, so there was at least an issue to be tried there. Likewise the second ground, that the claimant's business had developed in a different direction from that of the defendant, because the judge (Stuart-Smith J) thought it was arguable that the core business remained the same.

Would damages be an adequate remedy? The judge, perhaps slightly surprisingly, thought so. It looks like a clear case of a situation in which the claimant will suffer too much damage if the defendant is allowed to do what they propose to do. The situation is further complicated by the fact that the parties had agreed to limit the damages available for breach. The case-law left the judge feeling somewhat uneasy with the result, and consequently have gave leave to appeal. So, an interesting case which highlights a legal issue that's novel to me, but not, I suspect, the last word on it.

The cult of the NDA

The cult of the NDA makes for interesting reading - even though it is over ten years old. I can't remember how I got to it, following a link from somewhere, nor is it apparent who wrote it, but it's still worth a few minutes of anyone's time who's concerned about intellectual property and start-up businesses. It chimes with one of my recurrent themes, observable throughout the IP world: that intellectual property is just a means to an end, not the end itself. Even if you're a troll.

New copyright regulations coming next year

The government has published a statement  giving details of the changes to copyright law that will come into effect in the first half of next year, mostly concerning exceptions to protection (permitted acts, as the government should call them, to be consistent with the scheme of the legislation). It mentions 'relatively small but important' changes, which will remove 'up to' 45 pages of unnecessary rules and regulations from the statute book. Unnecessary? I find it impossible to understand how legislation can be regarded as 'unnecessary'. Undesirable, obsolete, unwanted, unduly complicated, perhaps, but never unnecessary.

The changes, of course, are inspired by the Hargreaves Review, which seems to have inspired more nonsense every time I look at it. Hargreaves it was who proposed new permitted acts to enable parodists to ply their trade without fear of being sued for infringement - as if good parody needs such a privilege, and as if it did not amount to removing a perfectly legitimate revenue stream for the copyright owner. The problem is that what passes for 'creativity' these days is less about making something pretty much from scratch (of course nothing is ever completely from scratch) but reusing and adapting what others have already created. Soon there won't be anything original to be found - perhaps that will remove the need to modernise copyright law.

The problem isn't that copyright works can't be reused, the problem is that too much is protected by copyright to begin with, and it would be far more constructive to raise the threshold for protection by making the originality requirement a bit more demanding - to require true originality, rather than mere independent creation. But that's another story.

In addition to the parody thing, the legislation will make some useful changes to Chapter III of Part 1 of the much-hacked-about Copyright, Designs and Patents Act 1988. The existing permitted act for archiving and preserving will be applied to all types of media, and to museums and galleries as well as libraries and archives. There will be new rights to copy material for private use and to conduct data analysis for non-commercial research. There will also be a new permitted act to quote copyright-protected content for purposes extending beyond criticism, review or news reporting.

The Department for Business, Innovation & Skills claims that businesses stand to save more than £25 million as a result of the planned changes to copyright exceptions, which is the sort of magical figure that I cannot take without a huge pinch of salt. In the audit society, everything has to be measured and costed, and Hargreaves stressed that policy in this area must be evidence-based, but I find it hard to see how figures like this can possibly be regarded as evidence. I don't think they would satisfy any legal test by which evidence is judged. No, the fact surely is that it suits the government to encourage the sort of ripping-off that can be cloaked with the title 'parody', because it's trendy and looks as if it amounts to modernisation.

At the same time, the government is legislating to support the idea of regulating the conduct of collecting societies by means of Codes. The idea is that the collecting societies should regulate their own activities with voluntary codes, but if this does not work the Government is giving itself powers to intervene.

Patent Erosion 2013: What Would the Founding Fathers Think? - IPWatchdog.com | Patents & Patent Law

Here  is an interesting review of developments in patent law in the US over the past year, by Gene Quinn. I am pleased to be reminded of some of those quotes, and introduced to others that I haven't seen before. Gene's posting reads on its face like a plea for stronger patent rights, but on deeper reflection it's more a call for a better balance, which is what the entire intellectual property universe could do with. His observations about the relative roles of large and small businesses in innovation are thought-provoking (or perhaps they just show that I haven't really thought enough about this?): if innovation comes mostly from small businesses, universities, and the like, and large corporations merely pick up the fruits of others' labour, what constitutes a troll is a subtle matter - although the key element in the definition of a troll is the 'non-practising' part.

What is clear, from Gene's comments and those of many other people, is that the intellectual property systems (and I use the plural deliberately) need to be adapted to the needs of smaller businesses, yet everywhere I look the trend seems to favour big IP owners. To reverse that trend is a huge challenge, but as long as the balance is tipped in favour of big business there will be calls for revolutionary changes in intellectual property protection. Is radical reform the way to stave off revolution? I am sure that legislators everywhere need to think carefully about their presumptions, which too often come down to the simple proposition that intellectual property is a Good Thing and therefore more of it is even better.

Thanks, Gene, for an valuable piece. I would have added that you ought to review and rewrite and correct before pressing 'publish', but the beam in my eye prevents me from drawing attention to the mote in yours (Matthew 7: 3-5).

Fix Copyright!

Fix Copyright!  is a campaign umbrella which seems to have been formed in response the the European Commission's consultation on copyright (on which, see separate posting although I haven't posted anything of substance on the topic yet). It assumes that copyright is broken, which I think might be a slightly extreme view of things but isn't far out. That begs the question, though, if copyright is broken, should we be asking the Commission to fix it?

Fix Copyright! brings together a number of organisations which, broadly, could be described as pro-user. Which is far from saying they are anti-copyright, but they probably take a saner view of copyright than many other organisations - rights owners and their associations.

Plans to modernise trade mark legislation backed by Legal Affairs MEPs

Plans to modernise trade mark legislation backed by Legal Affairs MEPs says this press release from the European Parliament: by no means an unqualified Good Thing, especially for the small businesses for whom the trade mark system is little more than an unwelcome tax.

IPse Dixit: Copyright in ideas

If there is no copyright in an idea (which, in fact, is not true, but has enough validity for my purpose), how do we account for Elanco v Mandops [1979] FSR 46?

I can't point you to a readily-accessible online copy of the judgment. As it predates the world wide web (1980, at the very earliest) there is virtually no commentary on it, yet it looms large in undergraduate IP courses, where it causes confusion. That probably makes it worth jotting down my thoughts on it: part of a series of postings on topics of general interest for students of intellectual property, perhaps. I should try to think of a snappy label for the series ... how about IPse Dixit (literally, 'he said it himself', although figuratively it means a dogmatic assertion - never mind, it's good enough, and in fact the figurative meaning is pretty good anyway!).

In the case, the plaintiff had invented a new herbicide. It had a patent for the herbicide, but as patents do it expired, and the defendant started making its own herbicide to the same recipe.

When you sell something like herbicide you have to make sure buyers know what to do with it. Not only do you want to make sure they appreciate what plants it will deal with, you don't want them poisoning themselves, or livestock, or wildlife. The instructions provided with the plaintiff's products (on the side of the barrel) contained information drawn from public sources, including the results of field trials carried out by the plaintiff itself and by independent research institutes. The instructions were apt to be referred to as a compilation - which of course is a species of literary work.

To start with, the defendant produced instructions for its product using the plaintiffs' material. The plaintiff objected that it was too similar, and the defendants recast their instructions several times. It did not work. On an interlocutory application, the judge took the view that the final version of the instructions was arguably infringing because the defendants had not returned to public sources but simply drew their information from the plaintiff’s instructions. The Court of Appeal, refusing the appeal, accepted that the instructions were a copyright literary work, and noted that a great deal of time and labour had been spent in putting the compilation together. It stressed the skill and labour expended in developing the compilation, protecting not only the expression of the information but also the process by which that expression of the information came into existence.

Copyright lawyers are often asked, 'how much do I have to change to avoid infringing copyright?': and the answer is always that you will never avoid infringing copyright if you start from that point.

It is often said that Elanco effectively secured a monopoly over the information contained in their instruction despite it being in the public domain. But in fact they only secured exclusive rights over their compilation of material collected from the public domain, and that is a very different matter. Copyright does not prevent others using the same sources, but it certainly prevents others from saving themselves the trouble of consulting those sources by taking material from someone else's compilation. In his judgment, Goff LJ. cited with approval a passage from the judgment of the Vice-Chancellor in Scott v Stanford (1867) L.R. 3 Eq. 723: "No man is entitled to avail himself of the previous labour of another for the purpose of conveying to the public the same information".

So how, you might ask (especially if you are an examiner), can this be reconciled with Green v Broadcasting Corporation of New Zealand [1989] 2 All ER 1056 (PC)?  The answer seems pretty simple: Hughie Green's problem was that he could not point to a copyright work in which his rights had been infringed. The defendant convinced the Privy Council that all it had taken was ideas. There was no dramatic work to copy, and as for copyright in a broadcast, they had made their own programme. Contrast this with the Elanco situation where the Court of Appeal was satisfied that the plaintiff had made a compilation.

It remains difficult to distinguish between ideas and expression, or as Lloyd LJ said in Baigent and Leigh v Random House [2007] EWCA Civ 247 (28 March 2007), no clear principle 'is or could be laid down ... to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side.'

Iron Maiden Tracks Down Pirates…. And Gives Them Concerts | TorrentFreak

TorrentFreak  reports a variation on the frequently-heard theme that either illegal downloading actually enhances sales of legit music, or it doesn't. Unfortunately, it is now recognised as inaccurate: it seems that it's more in the nature of speculation about what Iron Maiden (or anyone else) could do with the data that they can get hold of about downloading, and Iron Maiden were merely used as an example - but chosen for the very good reason that they have a record of going where the fans are, even if those fans are downloading illegal material. The CiteWorld article tells us that the band has played some very profitable gigs in South America.

It's hardly surprising that the people who download illegal stuff are often supplementing spending on legitimate stuff, including concert tickets - it's not that people buy the illegal stuff and trade up to the real thing, in the way that I used to tape friends' LPs (and allow them to tape mine) before buying a copy of the record if I liked it (and wanted to hear it properly). It's also not far removed from buying bootlegs when you've already got all the albums the record company sees fit to release, and it's also not far removed from allowing fans to tape gigs, as the Grateful Dead always did and Robyn Hitchcock (to name one) does now.

So they would be identifying where's a good place to go on tour by using data about downloading. Clever, huh? As you'd expect from a band with a Hartlepudlian guitarist. I didn't knowingly go to junior school with him.

Perhaps now that it's had so much exposure, Iron Maiden or someone else will think of actually doing it. That would be a Good Thing.

BBC News - Oxford University wins claim against Oxford Law School

BBC News has this entertaining story which deserves a wide audience. The Oxford Law School was located in Eastleigh, Hampshire, a railway town 62 miles down the A34 and before it became a seat of legal learning famous for the first flight of the Spitfire (manufactured nearby in Southampton), as the place where Benny Hill had his first job (on Woolworth's, and his second job, as a milkman), and as the constituency of Chris Huhne before he became Steward of the Chiltern Hundreds.

The case is not yet reported on BAILII but rest assured I will let you know when I see it there. It is a judgment of Judge Janet Lambert in the trendily-renamed Intellectual Property Enterprise Court (the 'enterprise' part allowing the audit-obsessed government to tick a box somewhere, I assume). The defence seems to have been that even a moron in a hurry would not have been deceived (the BBC report elides trade mark infringement and passing off, so it is  not clear what cause of action was involved: perhaps both), which indicates that the principal ought to attend some of the School's lectures - that hypothetical individual plays no part in determining whether deception or confusion occurs. As I wrote of that phrase in my Dictionary of Intellectual Property Law:

A regrettable expression in this day and age, first used by Foster J in Morning Star Cooperative Society v Express Newspapers Limited [1979] FSR 113 (a different day and age, perhaps). The publishers of the Communist Party newspaper sought an injunction to prevent Express Newspapers from launching a new tabloid newspaper under the name The Daily Star, which was light on politics (especially of the left-wing variety) and heavy on the sort of photographic works not seen, for ideological as well as aesthetic reasons, in the Morning Star.

The judge asked whether the plaintiffs could ‘show a misrepresentation express or implied that the newspaper to be published by the defendants is connected with the plaintiffs’ business and that as a consequence damage is likely to result to the plaintiffs’ and stated that ‘if one puts the two papers side by side I for myself would find that the two papers are so different in every way that only a moron in a hurry would be misled.’

Study: EU Citizens Value IP, Yet Find Some Infringement Acceptable | Intellectual Property Watch

Study: EU Citizens Value IP, Yet Find Some Infringement Acceptable | Intellectual Property Watch

EUROPA - PRESS RELEASES - Press release - Licences for Europe: industry pledges solutions to make more content available in the Digital Single Market

EUROPA - PRESS RELEASES - Press release - Licences for Europe: industry pledges solutions to make more content available in the Digital Single Market

EUROPA - PRESS RELEASES - Press release - Copyright –Commission launches public consultation

The Commission has launched a public consultation  about its plans to extend its copyright empire. In fact, it did so earlier this month, when I was otherwise engaged, and I have just got round to making something of it here. You might have noticed that I have taken to posting links to matters of interest and then coming back to write them up later (or not, as the case may be). I hope that at least makes this blog fairly comprehensive, if a bit thin on comment.

Something about the Commission proposing further incursions into the copyright field makes me uncomfortable. They have given us until 5 February to tell them what we think, and Fix Copyright! (see separate posting) has conveniently provided online assistance to those who wish to make comments: I hope I'll have time to make my views known, to the Commission and on this blog.