Ownership and control of IP: report 2

Next to speak on the Ownership and control of IP programme was Chris Stothers (Arnold & Porter), on the topic of IP and Abuse of Control. This was a canter through the highways and byways of European competition law, sensitising participants as to the points at which their business arrangements and/or their market dominance might lead to trouble. The key articles of the Treaty that govern IP abuse are Articles 101 (agreements etc which distort or prevent competition) and 102 (abuse of dominant position). Ascertaining that most people in the audience only encountered competition issues on an average of once a year, he observed that, given the potentially pervasive nature of competition rules, they were either very fortunate or in very big trouble. He noted that the European Commission has been trying to encourage private enforcement and damages awards -- these being cheaper for the Commission than having to do the enforcement itself.

Chris took the audience through some of the most significant EU cases involving intellectual property rights, including Magill and Microsoft -- both of which are regarded with little affection by IP lawyers. In Magill copyright was regarded as a barrier to the creation of a market for TV listings magazines, while in Microsoft the same IP right was the subject of a request for easy access so that a competitor could produce interoperable programs to run on its own platform. In each case, it was felt that there was an "exceptional circumstance" that justified the reduction of copyright protection.

Combined with the interoperability case in Microsoft was a further complaint, raised on the Commission's own initiative, that the bundling of Microsoft's Media Player into its Windows package stifled competition for the product. Microsoft was forced to offer an unbundled version of Windows without Media Player as Windows N.

Chris continued with a report on the Commission's sectoral investigation of the pharma industry, which caused huge resentment concerning its deployment of dawn raids. The Commission was hugely critical of proprietary pharma company techniques of life cycle management for products by securing second- and third-generation patents. There were many mistakes in the Commission's preliminary report and it was full of economics and percentages. The final report, in July 2009, was far more restrained.

Nerys Tasker (Olswang LLP) then gave a round-up of some recent UK case law that reflects the tussle between a commissioning body and an author as to where ownership and control of copyright lies. She emphasised the contrast between the position of the employed author, whose IP would generally vest in the employer, with that of the independent party who has been commissioned. She also pointed out that the position is different with regard to commissioned designs.

Starting with Ray v Classic FM, Nerys explained the manner in which a consultancy agreement relating to creation of a classical music playlist was interpreted as leaving copyright with the author, subject to a licence to the radio station to exploit it in the UK -- which was within the contemplation of both parties -- but not beyond that jurisdiction. She then moved on to the dramatic dispute over the copyright in the Doc Martens Airwair logo, in which the designer of the logo was held to have no legitimate interest in the copyright in that logo, given the circumstances in which he was commissioned to create it. The subsequent history of these cases, in Lucasfilms v Ainsworth (the Star Wars stormtrooper helmet case) and in Infection Control v Virrage, was then succinctly explained, along with the application of common law principles regarding the implication of terms that a copyright be licensed or assigned to the commissioning party.