Earlier this week the UK Intellectual Property Office posted a 118-page review of the operation of the Copyright Tribunal, calling for comments on its 30 recommendations by 31 August 2007. The review was conducted by two senior and well-respected figures within the UKIPO - David Landau and Chris Bowen, both of whom are associated with trade marks rather than copyright (a subject that sits at the periphery of UKIPO's daily activities since UK copyright has no application, opposition and cancellation procedures and therefore (i) creates no employment within the office and, more importantly in the government sector these days, (ii) generates no income).
Both Landau and Bowen have substantial experience of handling hearings and keeping them cheap, which must have been a key factor in appointing them to healthcheck the Copyright Tribunal (CT), a forum which is ponderous and expensive in its current form. According to the two of them:
"Every case lodged with the CT from 2000 onwards was considered in detail: all the evidence, the correspondence and the transcripts of substantive and directions hearings of the cases (with the exception of the recent downloading case) were studied. This empirical data forms the cornerstone and the foundation of the review".The pair also examined outside data and materials, including the two Monopolies and Mergers Commission reports on collecting societies, the Collective Licensing report of 1988 and the Performing Rights report of 1996. A field trip was also undertaken to study and discuss the workings of the highly-rated Copyright Board of Canada (CBC).
The main recommendations of the dynamic duo are as follows:
Copyright Tribunal website here
"(1) The CT should be balanced and have no disposition in favour of one side or the other.
The IPKat says, no-one can argue with this - and it's not as if the CT is unfairly prejudiced against either side (Merpel says, you mean collecting societies?) - but the parties have to be reassured that the balance truly exists.
(2) The Copyright Tribunal Rules 1989 should be repealed and the proceedings of the CT governed by the CPR and practice directions.
The IPKat says, this is a good idea. Consistency between the CT and the regular courts would be enhanced - and the Civil Procedure Rules (whatever criticisms you have of them) are vastly preferable to rules dating from the previous century.
(5) The reasoning behind licence schemes and tariffs should be clearly shown.
The IPKat says, this not only makes it easier to accept (or appeal against) desicisions but, by making the CT's thought processes more transparent, it makes them more predictable with the result that ADR may be easier to achieve.
(6) A challenge to the terms of a licence should be based on fact.
The IPKat says, this should simplify things. Merpel adds, but it all depends on what you mean by "fact" ...
(9) Once the counterstatement has been received a case management conference should be called as soon as possible to direct the management of the case.
The IPKat says, it's not just the speed that counts but the willingness of the CT to take a dispute by the scruff of the neck and dictate how it should be handled.
(10) The CT should ask for particular questions to be answered in the evidence.
The IPKat says, this is starting to resemble a more inquisitorial approach. Oh, the joys of being in Europe.
(11) The CT should put clear limitations on the type and quantity of the evidence that is submitted.
The IPKat says, you wish. Merpel adds, the CT can take its lead from the Grand Board of Appeal in the LEGO bricks case when it basically said, "you've sent us too much evidence so we're just not going to take the trouble to read it all".
(12) The emphasis should be on written rather than oral evidence.
The IPKat says, about time too.
(13) If a hearing is to take place it should be the subject of a strict timetable.
The IPKat says, this takes a leaf out of the rules of the European Court of Justice, when you get guillotined after 15 minutes. Merpel adds, let's not forget the psychological role of the CT in providing therapy for people who need a live audience before which to bare their souls and get their grievances off their chests.
(14) Expert evidence should only be allowed if strictly necessary. If there is expert
evidence it should be by a single, joint expert.
The IPKat says, who will be so bold as to make this demand for patent litigation too? The idea of parties having their tame scientific experts and porting them around from court to court to give their trained evidence, is surely repugnant.
(29) The CT should be responsible for granting licences for the use of orphan works.
The IPKat says, but who is going to be bothering to apply for them?
(30) The collecting societies should be referred to as licensing societies.
The IPKat says, oh!".