For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 6 December 2006

GOWERS HAS LANDED - PART 1


Gowers has landed!

The long-awaited Gowers Review of intellectual property law in the United Kingdom has now been published. You can read it for yourself here. It's 146 pages long and comes with 54 recommendations. The IPKat (and Merpel) are pleased to share some of the review's conclusions with his friends and readers. There's more to follow ...

The recommendations come under the headings Balance, Coherence, Flexibility, Operations, Use, Enforcement and Governance which make it awkward for those of us who think in terms employed by IP lawyers like patent, copyright, design and trade mark.

Some quick snippets ...

Copyright

* Confirming the heavy leak of recent weeks, there is no proposal to extend the term of copyright protection for sound recordings from its existing term of 50 years [IPKat comment: an initiative to extend term would be unlikely to carry weight in the European Union unless someone could persuade the Commission that it was their own idea, driven by (i) the purest of economic justifications or (ii) the need to beef up IP protection in the fight against piracy].

* Private copying should be permitted [IPKat comment: this looks a bit like a blanket defence rather than a specific one that fulfils the three-fold Berne Convention test. Merpel says, does this mean that if you can't realistically stop it, you should legalise it? If so, what about cannabis, parking on yellow lines and exceeding the speed limit?].

* Directive 2001/29 on copyright in the information society should be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test [IPKat comment: let's hope so. Some of us have been relying on this exception for years ...].

* Introduction of a defence of parody or pastiche by 2008 [IPKat comment: long overdue! Spain and some other countries have long taken a robust view of such works. Is their sense of humour better than ours?].

* Provision should be made for orphan works, i.e. those whose authors and/or copyright owners have become untraceable [IPKat comment: this is already the subject of very serious and constructive debate in the US. Simply taking a chance and using a work in the hope you won't be sued isn't enough].

Life after death for copyright owners here and here

Patents

* Section 60(5) of the Patents Act 1977 should be amended to as to clarify the research exception in order to facilitate experimentation, innovation and education [IPKat comment: a good idea - something as basic as this should never need to go to court for clarification].

* Support for the single Community patent [IPKat comments, oh no, not again ...].

* A pilot scheme along the lines of Beth Novek's Community patent scheme for cooperative examination of patent applications [IPKat comment: this is bold and imaginative - but it depends on people losing their fear of the wiki].

Trade marks

* Fast-track trade marks for small businesses [IPKat comment: is this likely to make a real difference? You can trade surprisingly well even without a trade mark - and cloggingly slow oppositions from both small and big businesses are inevitable. Merpel says, but a registered mark offers some protection against an infringement action and is also something you can mortgage].

Miscellaneous

* A strategic policy advisory board should be formed, to sit beside the Patent Office and report to the Department of Trade and Industry. This is supposed to help the Patent Office keep up with the digital economy and help free the patent system from red tape [IPKat comment: ever since he can remember, there have been various standing advisory committees to 'assist' the Patent Office. This sounds like the institutionalisation of another layer of talk-and-listen].

* The name of the Patent Office should be changed to the United Kingdom Intellectual Property Office [IPKat comment: this suggestion was made by the Department for Cosmetic Change ...]

* There should be stronger enforcement provisions to protect IP owners against infringers [IPKat comment: I guess the infringers' lobby didn't really get its act together].

True story 1

Treasury Officials were informed on Tuesday that a leaked copy of the Gowers Review had been posted on the Patent Office website. "Don't worry", a Treasury spokesman assured the IPKat, "no-one will ever find it there ..."

True story 2

The original suggestion was that, in the same way as the Australian Patent Office became IP Australia, the Patent Office would be called IPUK - until someone started speculating as to how some uncharitable wags might pronounce it.

True story 3

Andrew Gowers is actually Sir Andrew Gowers. Unlike most people, who are happy to settle for a knighthood from Her Majesty the Queen or another available member of the royal family, Andrew has received his honour ambitious and fast-growing law firm Wragge & Co. The Law Society refused to comment, but a spokesman for the Prime Minister said:

"The government is committed to the further development of the role of legal practitioners within the community - so long as solicitors don't charge less for the supply of honours than the present government does".
True story 4

Andrew Gowers did indeed say that "a cheap suit could cost £1 million". But he was referring to the cost of UK patent litigation rather than the high prices allegedly resulting from brand owners preventing the importation of genuine clothing first marketed outside the European Economic Area.

Official scoping for the Gowers Review here
Andrew Gowers, the man here
Where most intellectual property reviews end up here
Where most people who end up conducting reviews end up, here - or here

3 comments:

Anonymous said...

"United Kingdom Intellectual Property Office" how will this sound in Welsh. The UK had the world's first Patent Office (aka Y Swyddfa Batentau) why should we change?

John H said...

"Fast-track trade marks"? Getting a UK trade mark costs as little as £200 and takes less than six months. How much faster can you make that particular track?

A blanket private copying exception (as opposed, say, to "format shifting") does sound like it might go a bit far. But I've not read the report yet so don't know whether that's what's being proposed.

Would "broadly-sensible tinkering round the edges" be a fair summary of this report? Doesn't sound like there's anything particularly earth-shattering in there.

David said...

The whole thing to me seems like a bit of a wet blanket and a let-down. There is really nothing of substance that Mr Gowers proposes, only tinkering round the edges of current IP law. The solid reasoning of why mechanical copyright terms should not be extended is welcome (sorry Sir Cliff et al), but the rest of it is a mish-mash of general well-meaning but mostly vague suggestions of how to make the system work a bit better, with no real solid recommendations of how exactly to do it.

The recommendation of allowing copying for personal use is simply useless in practice, since nobody has ever been sued for doing this, and nobody ever will be. The argument that this will clarify what the industry should be clamping down on is just a bit pathetic, since the laws are already there to be used, and it is up to the rights holders to decide who they are better off pursuing, i.e. the big infringers and not the iPod owner.

I certainly see no reason for the Patent Office to suggest a rewrite of the Rules on the basis of this report (as they seemed to be suggesting recently).

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