IP and government: A Conservative approach

For a brief period during the UK general election, intellectual property became a national talking point. It wasn’t, however, the views of the Conservative or Labour Parties that started the debate, but rather the proposal by the much smaller Green Party to reduce the term of copyright protection from ‘life plus 70 years’ to ‘life plus 14 years’.

Author Philip Pullman joined a chorus of writers on Twitter to denounce the “bollocks” spoken by the Greens. Jessie Burton, author of "The Miniaturist", added a slightly more measured response that it was “political idealism gone too far”. Responding to the criticism, Green Party leader Natalie Bennett promised to review the policy at its conference this September. The discussion proved to be academic as the Conservatives shocked pollsters by winning a majority, meaning the Greens would not be participating, as had seemed possible, in a coalition government.

However, the Conservatives’ policy on IP did not receive the same scrutiny. In its manifesto was the statement that the party will protect IP by continuing to require internet service providers to block sites that carry large amounts of copyright-infringing content, including their proxies, but nothing specific on either patents or trademarks.

Understanding IP

James Tumbridge, partner at law firm Pillsbury Winthrop Shaw Pittman who often gives ad hoc IP advice to the government, said its focus on copyright is simply because politicians do not quite get IP and that ultimately copyright is the “easiest” branch of IP to understand.

“As they progress civil servants rotate their roles across departments and may consider that IP does not give them time to become experts,” he adds.

Michael Hart, partner at law firm Baker & McKenzie, believes piracy is the biggest IP issue in the UK (perhaps not surprising from a lawyer who specialises in copyright law).

“Copyright is a deceptively complex area,” argues Hart, adding that improvements in technology pose problems for law makers.

One issue that highlights this difficulty is the set of exceptions to copyright law introduced by the coalition government last October. Such changes represented an attempt to balance the interests of right owners and end users, with one allowing consumers to ‘rip’ music from a CD and place it onto a device such as a laptop or iPod.

But in November, the British Academy of Songwriters, Composers and Authors, along with UK Music and the Musicians’ Union, challenged the amendment, arguing that by not providing a compensation mechanism for right owners the exception was out of step with EU law.

The English High Court ruled in favour of the bodies in June, stating that the government failed to provide enough empirical evidence to show that the changes would cause no more than de minimis harm to copyright owners. The court ordered a judicial review, representing a defeat for the government.

Such a dispute shows the difficult job governments have in balancing the differing interests of right owners and end users. Despite the setback in introducing a private copying exception, Hart believes the Conservatives deserve credit for “bringing some focus on copyright issues”.

In the past there have been protests across Europe in support of file-sharing website The Pirate Bay. Moreover, technological advances, Tumbridge notes, mean “a whole generation has grown up where music and films are online. Free access to content for that generation is assumed”.

The ease of accessing free music on the internet poses problems for governments in crafting legislation that both protects right owners and enables internet users to take advantage of technological developments.

Hart cites the establishment of the Police Intellectual Property Crime Unit (PIPCU) as an attempt to promote copyright protection and enforce its central tenets, saying it has “contributed to the promotion of the importance of copyright in the UK”.

PIPCU was established in 2013 with the purpose of tackling IP issues such as online piracy and the sale of counterfeit products. The unit regularly broadcasts developments on its efforts towards tackling infringement, and arrests of individuals are coupled with the removal of websites found to be facilitating IP violations.

PIPCU’s efforts have not gone unnoticed by right owners, with actor Sylvester Stallone applauding its part in the wider mission of protecting right owners “around the world from theft”.

Beyond copyright, PIPCU has received national attention for its anti-counterfeiting campaign “Wake up –don’t fake up”. Its images of fake hair stylers and counterfeit production laboratories were printed across national newspapers, with the message of the risks of buying counterfeit products thrust into the public’s eyes.

Such work led the government in 2013 to award the unit an additional £3 million ($4.6 million) in funding. Previously set to run until 2015, the enforcement agency will now continue working until at least 2017.

The European question

In David Cameron’s first speech after being re-elected as prime minister in May 2015, he confirmed there would be a referendum on the UK’s membership of the EU. The issue, which has divided the parties in the House of Commons including Cameron’s own party, has been heavily discussed, even before the election.

In June, the European Union Referendum Bill 2015-2016 was passed, meaning there will be a vote by the end of 2017—making good on Cameron’s promise that “we will deliver that in-out referendum on our future in Europe”.

"For the time being the UK remains a member of the EU, and some legislative developments in its IP laws are likely to be directed from the continent."

Current polls suggest that the majority of the British population are in favour of remaining an EU member. But the uncertainty that comes with Britain’s EU membership means the future is a lot less clear. The referendum, for instance, is likely to delay the UK’s ratification of the Unified Patent Court (UPC).

For the UPC to go into effect 13 nations, including France, Germany and the UK, have to ratify the agreement. So far, seven have, but the UK, which will be one of the three locations for the court’s divisions and which is contracted to develop the IT system, has not.

While the Conservative government has not confirmed that the referendum will put it off ratifying the agreement, Tumbridge says it is “likely that it will be delayed”. Some lawyers and right owners will be frustrated by an additional delay to the UPC so soon after it overcame Spain’s legal challenge to the legality of its agreement in May.

But for Tumbridge such a delay is welcome because there are still so many issues around the UPC that need to be cleared up.

“We should use the delay for a period of sensible negotiation over some of the problems of the UPC,” he says. The exact location of the London court is one issue the government still has to work out, he continues.

Stephen Jones, a colleague of Hart’s at Baker & McKenzie, says if the UK were to leave the EU the “ramifications” for the UPC would be significant.

He adds: “The UPC could not go through in its present form given that the UK is one of the states required to ratify it and the central division is intended to have a branch in London.”

Jones says that although the UK Intellectual Property Office has said that there is still work to be done, it is committed to pressing on with preparations for ratification, apparently despite the prospect of a referendum.

Keeping up with technology

It is not just legislative developments on a European level that will test the Conservatives’ ability to respond to right owners’ concerns. For example, 3D printing crosses all areas of IP and is something, Tumbridge argues, that UK law is not prepared for.

“Technological changes move faster than legislative changes,” Tumbridge says, which is why he is raising the issue with government.

“The law is not up to date to deal with such developments,” he argues.

While we are still a long way from having a 3D printer in every home, the issues around providing products made using them and possibly selling them to consumers without the right owner’s permission may cause concerns for law makers now.

Adapting laws

For the time being the UK remains a member of the EU, and some legislative developments in its IP laws are likely to be directed from the continent. Reforms to trade secrets, trademark and copyright law are steadily making their way through the European Parliament. Decisions by the Court of Justice of the European Union arrive much more frequently than in the past, says Hart.

“Laws have been adapting over 30-plus years within the context of changes at the European level and decisions at the European courts,” Hart says. “Our laws are deeply intertwined with EU laws and have been modified and following them for the last few decades,” he adds.

Governments are required to deal with issues that affect the majority of the population. Winners of elections are determined by how well they can persuade the country that they have the best policies on heavyweight topics such as the economy or health. But IP, frankly, doesn’t get a look in. “IP doesn’t really impact the average person on the street,” Hart says.

IP, however, does have an important role in our society. UK residents listen to music and watch films in their spare time, high streets are decorated with the names of some of the biggest brands in the world, and the computers in every household are protected by patent portfolios owned by huge multinational companies.

Although IP is a seemingly invisible or peripheral issue, it can be suddenly brought alive once changes are proposed that may upset the balance between right owners and end users. The Green Party can testify to that.