Monday miscellany

Corgis: they enjoy have Royal patronage but,
ultimately, they're still not cats ...
Apart from waving at boats and feeding her Corgis, Queen Elizabeth has been quite busy lately. She has given her Royal Assent has been given to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which introduces into England and Wales a wide range of reforms to the justice system -- some of which affects that complex web of laws we all know and love as intellectual property. Section 85 of the Act (not in force until a commencement order is made) removes the £5,000 upper limit on fines that can be handed down by the magistrates' court, thus giving magistrates more freedom to hand down fines that they consider to be proportionate to an offence. This change affects the penalties on summary conviction for many offences that have frequently featured on this blog: counterfeiting; piracy; unauthorised receipt of broadcasts and the use of illicit decoders and copyright circumvention devices under the Copyright, Designs and Patents Act 1988.

Lots of people have emailed the IPKat to tell him about another piece of British legislation in the offing which, unlike the Queen's Corgis, hasn't yet received the Royal Pat. It's the Enterprise and Regulatory Reform Bill, 2012-2013, which received its first reading on 23 May: you can read it in full here. and peruse the Explanatory Memorandum here. It's not specifically copyright-related but Part 6 does extend copyright to 70 years for some currently restricted term works and gives the power to Her Majesty's Government to amend copyright and performance right exceptions by secondary legislation. The sme Bill will repeal section 52 of the Copyright, Designs and Patents Act 1988 (see note on the Class 99 weblog here) so as to provide full copyright protection for the period of the author’s life plus 70 years in respect of artistic works which are manufactured commercially. The Bill will additionally create a power to amend exceptions for copyright and rights in performances without affecting the existing criminal penalties regime.

Two Miners, by Ernest Narjot --
but resale rights for artists
in California haven't been
the Gold Rush that many
hoped and intended ...
The IPKat has learned from his Australian friend John Walker that the California Resale Royalty Act has been struck down as unconstitutional and that an appeal is planned. According to the LA Times,
"The highly controversial, widely misunderstood and little enforced state law that took effect in 1977 was designed to provide artists with 5% of their resale prices under certain conditions. As written, the law would apply to a resale of an original work of art provided this sale takes place in California or the seller resides in California.

[Federal Judge Jacqueline] Nguyen of Central District Court in California found this last provision, which would allow for royalties to be collected on sales that take place in other states, overreaching in a way that invalidates the entire law. In granting a motion by Christie's and Sotheby's to dismiss a class-action suit brought against them by artists Chuck Close and Laddie John Dill and the estates of artists Robert Graham and Sam Francis, Nguyen wrote that the law “explicitly regulates applicable sales of fine art occurring wholly outside California” and thus violates the U.S. Constitution's Interstate Commerce Clause".
This Kat has always been a little suspicious of resale revenue trails himself. This is partly because they have been made to masquerade as part of intellectual property law when they're not (they are really part of the law of chattels, movable objects, rather than dealing with rights in the intellectual dimension of the work itself) and partly because, if there is an identified need to improve the position of artists and their estates, this seems by and large to be a random, unequal and inadequate way of addressing that need. He is curious to see what happens next in California, a jurisdiction which is notoriously imaginative when it comes to legislation.

Around the weblogs. In "Slumming it: multinationals take the cheap option", PatLit reports on a recent dispute which saw two industrial titans clashing in the surprising venue of the SME-friendly Patents County Court for England and Wales. If you never even knew what an API was (it's an application programming interface), you may never have wondered whether they were protected by copyright or not. Well, writing for the 1709 Blog, Ben Challis highlights the recent dispute between Oracle and Google in which a US court court could point to 37 APIs and say they weren't so protected.

Many young lawyers have
begun to return to practise
in Scotland now that the
Scottish Law Society has
banned initiation rites
such as these ...
One of the IPKat's Scottish readers writes for a little assistance.  The story goes like this:
"As a firm our IP&T practice has grown substantially over the last few years. We now act for clients such as [names of four to-die-for clients deleted for modesty's sake] and many others. I appreciate that awareness of our practice could be higher, and this is perhaps why we are having a slight difficulty in finding the right person to join our team. We're looking for someone with a few years post-qualifying experience under their belt, but apart from that we have an open mind. We'd be very much interested in someone who might be looking to return to Scotland from London or further afield, particularly as our international client base is growing faster than ever. Its very much an opportunity to progress also, which I know isn't overly prevalent in the current climate. With your wide number of connections in the field of IP, might you know of anyone that could be a good fit ? Please do let me know if you feel I'm being cheeky asking - I don't mean to be - we have already tried advertising and a number of agencies without success".
If you think you genuinely fit the bill and would like to know more, please email the IPKat at, with subject line "Great Scot".  He will forward your expression of interest to the firm concerned.
Monday miscellany Monday miscellany Reviewed by Jeremy on Monday, June 04, 2012 Rating: 5

1 comment:

  1. Francis Davey has covered the topic of the Copyright provisions in the Enterprise and Regulatory Reform Bill on his blog. Personally I cannot see how removing s52 can be seen as anything other than retrograde. 'Iconic' designs of the sort discussed in the explanatory notes are adequately protected under the 1949 Registered Designs Act, not to mentioned the unregistered design provisions of the CDPA, without needing to extend the term of protection to the lifetime plus 70 years, especially when one considers that any designer worth his salt should have earned an equitable return on his intellectual efforts through canny manufacturing licensing deals, and not like some poor starving author, be relying on royalties as a form of pension for him and his children.

    But what concerns me far more is the unstated purpose of Clause 56. The explanatory notes on the Bill do not mention what amendments to Chapter 3 the Department for BIS has in mind, other than to give the Secretary of State a free hand to "add or remove exceptions to copyright". The supporting document on the BIS website (in .pdf) says: " An order making power to allow amendment of copyright exceptions (via secondary legislation) will enable the Government to preserve the level of penalties which are set out in the substantive copyright legislation, which in some cases includes penalties of up to ten years for egregious cases of copyright infringement on a commercial scale. It would not allow any reduction or increase in penalties" but since Chapter 3 does not deal with penalties, this is a truly baffling explanation. One would hope that the sort of thing they have in mind is inclusion of legal format-shifting for private use as recommended by Hargreaves, but given that this clause will have been inserted at the behest of some industry lobby group, I think we can discount that.


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