The art of writing is the art of discovering what you believe.
Gustave Flaubert

Friday, 18 November 2016

The second edition

I am about to start in earnest on a second edition of the Dictionary - so this is your opportunity to let me know what I should include. Headings only thank you - I am not seeking complete entries. Writing the definitions is my job - and it's what gives me enjoyment, especially when someone says to me "I didn't realise you were so funny!".

Friday, 14 October 2016

European Patent (partly revised definition)

Still a misnomer, although the European Union Patent [q.v.] will more closely resemble a European Patent than the bundle of national rights that the European Patent Office has been granting so far in its existence.

Although the patents making up that bundle are referred to as European Patents, they are effective only in the contracting states which the applicant has designated. In EPO documents, including published versions of the application and the granted patent, the letters "EP" precede the patent's number in much the same way that the letters "GB" would be used internationally to identify a UK patent (although there are better examples). If the patent is then the subject of legal proceedings, it will be referred to as a European Patent (UK).


A blend of the words "British" and "exit" [from the European Union], coined by The Economist in 2012 but inspired by the earlier coining "Grexit" which dates from the time not long ago when Greek membership of the European Union seemed unsustainable. The main difference between the two might turn out to be that whereas Grexit was avoided, Brexit will become a reality, although it has frequently been described in the aftermath of the referendum of 23 June 2016 which gave the government its mandate to pursue it as a delusion.

The popular vote, in which 37.74 per cent of the electorate voted to leave, was advisory only, but this nicety may have been lost on many voters and it certainly does not appear to have had any influence on the government. The process of leaving the European Union requires the UK to give notice under Article 50 of the Treaty of Lisbon, and will be completed (unless all Member States agree to an extension, which is so unlikely that it can be ignored) two years later. The UK government has announced that it will give such notice by the end of March 2017, so the UK should cease to be a member of the EU on 1 April 2019. Whether the UK or what some of our politicians are pleased to call the "rump" EU will be the April Fools remains to be seen.

In the intellectual property law field, Brexit will not perhaps be quite as disastrous as in other areas. Indeed, repatriating intellectual property law and being able to ignore some idiosyncratic decisions of the Court of Justice could be a major improvement over the present situation. Primary legislation based on directives should survive Brexit unscathed, and secondary legislation under section 2(2) of the European Communities Act 1972 which implements EU obligations will, the government promises, be brought under some new statutory authority, so there will be no immediate changes to the law. The powers given under s.2(2) have been useful in that they have obviated a need for Parliamentary time to be found to change the primary legislation on copyright, trade marks and registered designs: in the future copyright law especially might have greater difficulty keeping up with technological change, but we might be spared other changes like the the Trade Marks (Proof of Use, etc.) Regulations 2004 which amended the anti-dilution provisions of the Trade Marks Act 1994 to remove the limitation to the situation where the parties' goods or services were dissimilar.

In two areas Brexit will have a significant impact on intellectual property law. First, owners of EU trade marks and registered designs will have to secure separate rights in the UK: some mechanism for achieving this is likely to be put in place before Brexit actually happens, but in the meantime applicants for EU rights are likely to consider applying for national rights in the UK too. Second, the Unified Patent Court agreement provides specifically that it must be ratified by the three states with the most European Patents in force, namely France, Germany and the United Kingdom, of which the UK might not feel any pressing urgency to take that crucial step.

Monday, 21 September 2015

Innovation patent (Australia)

The Dictionary contains a brief definition of  'innovation patent', a form of utility-model protection (or petty patent) known to Australian law. Now, following a report by the Advisory Council on Intellectual Property (ACIP) in May 2015 recommending that the government consider abolishing it altogether, IP Australia is seeking public submissions on the recommendation. ACIP had spent three years on its report before finding itself unable to come down in favour or against innovation patents, but it seems like an unloved intellectual property right which will have few supporters when the consultation closes (28 September). Having written that, I will probably be proved completely wrong.

Saturday, 27 June 2015

Panoramic Freedom

The freedom to take photographs and make other images of buildings, sculptures and other features of the man-made landscape that may be protected by copyright. The 1709 Blog reports that the right is more liberally granted in the common law copyright countries than in the civil law world.

'via Blog this'

Friday, 19 June 2015

Innovation patent (Australia)

I included a short definition of "innovation patent" (basically, Australian for "petty patent") in the Dictionary. Now Warwick Rothnie's excellent Patentology blog reveals that the Advisory Council on Intellectual Property has suggested that the law on the subject be repealed.

Tuesday, 21 April 2015

Reversion, reversionary rights

It is common for copyright assignments, so as not to be unreasonably in restraint of trade, to be subject to statutory provisions cutting them short during the post-mortem term of protection. In UK copyright law (strictly speaking, in Imperial copyright) the Copyright Act 1911 dealt with the reversion of copyright in the proviso to section 5(2):
(2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorised agent
Provided that where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him otherwise than by will after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void.
This was tied up with the extension of copyright protection to 50 years post mortem auctoris in the 1911 Act. Under the 1842 Act it had been seven years PMA, or a maximum of 42 from first publication. Paragraoh 28(3) of Schedule 7 to the 1956 Act preserved the proviso, for certain types of assignment made before 1 June 1957 (when the 1956 Act came into operation). In Redwood Music v Francis Day & Hunter [1978] RPC 429 Goff J (at 434) noted that Parliament had not thought fit to continue with the proviso in the 1956 Act. Paragraph 27(1) of Schedule 1 to the 1988 Act again preserved the proviso, which was far from being a dead letter: an assignment made as recently as 31 May 1957 would have been prevented from dealing with the second half of the 50 year post mortem period of protection, so the proviso retains some potency even now. However, it is now settled that the proviso does not apply to post-1 June 1957 assignments: Novello & Company v Keith Prowse Music Publishing Co Ltd [2004] EWHC 766 (Ch). There, the parties both claimed copyright in various works by the celebrated English composer, Richard Addinsell (1904-1977), most famous for his "Warsaw Concerto", from the music to the 1941 film Dangerous Moonlight (known much less romantically in the United States, at whom as propaganda it was clearly aimed - just look at the clip to which I gave you the link above - as Suicide Squadron). Novello claimed under an assignment made in 2000, which would have been ineffective if earlier assignments dating from the 1940s and 1973 had dealt with the reversionary rights. The earlier assignments could not have included the reversion, but the 1973 instrument, Patten J held, did (and it is worth noting that it expressly mentioned that it was intended to ensure that the assignment of rights was dealt with under the 1956 Act).

In the United States, which is perhaps the only country which still retains reversionary rights for contemporary works and assignments, the rights revert after 35 years (with no consideration of whether the post mortem term has begun).