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Adding insult to injury: after all that, an Intellectual Property Bill



Once upon a time we had the distinct and separate concepts of copyright and patent. In international, EU and UK law copyright defines artistic works as property and is a combined property, moral and human right of limited duration (usually 70 years after the author’s death) granted automatically, without formality and free of charge to creators of artistic works. In contrast, a patent is a monopoly exploitation right of short duration (usually 20 years after the issue of the patent) granted to the inventor of a new technological process or product after formal application to government, payment of a fee, and verification that the invention is indeed novel and not obvious. Both are property rights, but apart from that they could hardly be more different. DCMS was responsible for copyright; the Patents Office handled patents.

A while back it became trendy to lump both of these, plus design rights, trade marks, etc. under the umbrella of intellectual property, and the old Patents Office, full of experts on patents but knowing little of copyright, rebranded itself as the ‘Intellectual Property Office’. Creators, inventors and users of IP all complained of problems with the Copyright, Designs and Patents Act 1988, the UK’s copyright and patent law, and following the Digital Economy Bill Clause 43 debacle under the last Labour government the then Tory opposition said they would introduce a proper Intellectual Property Bill.

In late 2010 the coalition government announced the ‘Hargreaves Review’ into Intellectual Property and Growth, which recommended very significant changes to copyright, and a bit of tweaking to the patents system.

On Wednesday May 8th 2013 an Intellectual Property Bill was announced in the Queen’s Speech. According to the BBC, ‘This bill is designed to simplify patent and design protection laws. It will implement the Unified Patent Court, which will mean that a single patent application will be valid in almost all EU countries. The bill will introduce criminal penalties for breaching UK protected designs, and bring in measures to speed up the patent-application process. It will apply to the whole of the UK.’

Not a peep about copyright. What happened to it in the interim?

The changes to copyright were largely stuffed into an otherwise irrelevant portmanteau Bill which became the Enterprise and Regulatory Reform Act. The most important copyright clause enabling exploitation of orphan works and ECL was not added to this Bill until its Committee stage in the Commons, an unusually late stage at which to add an important clause. [After nine months of representations from rights owners and strong Ministerial pressure the IPO finally removed from the ERR Bill the other powers they really wanted, namely to be able via secondary legislation to change or introduce new copyright exceptions at will, before it became an Act.]

In comparison, the relatively minor changes Hargreaves recommended for other forms of IP are to have an entire Bill to themselves.

Some predictions:

  • The IPO failed in their ERR Act attempt to grab powers for themselves to make copyright exceptions. What do we think the chances are of a similar power grab returning in the IP Bill?
  • Hargreaves, the British Library and the academic sector want contract law not to be able to override copyright exceptions. A clause to this effect is sure to be in the IP Bill.
  • Clauses to introduce copyright exceptions which cannot be brought in under the European Communities Act 1972 2(2) are sure to be in the IP Bill.

Whatever happened to joined-up government? Why was copyright not dealt with along with the rest of IP in this Intellectual Property Bill, but instead shoehorned at the last minute into a Bill which otherwise had nothing to do with it? Why this shoddy, underhand and shameful treatment of copyright owners? Even copyfighter Martin Kretschmer, Director of CREATe and Professor of Intellectual Property Law at the University of Glasgow, has said: ‘Lastly, I also should put on record that I consider the legislative process of the ERR Act to be problematic (http://www.create.ac.uk/blog/2013/03/17/copyright-in-artistic-designs/). The first version of the ERR Bill (as introduced in May 2012) did not contain any Orphan works provisions at all, and I still do not think the appropriate scope of copyright exceptions should be a matter for secondary legislation.’

After the last three years of the copyright wars and the way things have ended up, smirkingly to introduce an Intellectual Property Bill adds insult to injury to anyone who ever makes an artistic work. It stinks.