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Showing posts from September, 2008

Patents: Worldmapper

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In his acceptance speech, Francis Gurry, the new Director-General of the WIPO, addressed "the question of how intellectual property can contribute to the reduction of the knowledge gap and to greater participation on the part of the developing and least developed countries in the benefits of innovation and the knowledge economy." 
A graphic illustration of just how far the World IP Organization and indeed the WORLD have to go to achieve that end is provided by Worldmapper, a multidisciplinary team of mainly Sheffield academics led by Professor Danny Dorling
They have a whole load of interesting maps one of which on the relative economic decline of the British Isles has already been blogged by BBC correspondent Mark Easton. However the map that impressed me (and one which perhaps explains the reason for our relative decline) is the Map of Patents Granted.  North America is big as one would expect it to be but Japan appears on the map to be even bigger. Half way between those …

Licensing: The Dangers of Precedents - Oxonica Energy Ltd v Neuftec Ltd

I learned to draft as a pupil at 9 Old Square, the chambers of Robert Megarry, Lenny Hoffmann, Jeremiah Harman and Nick Patten. Unlike the common law chambers where I spent the first 6 months of my pupillage and indeed every set in which I was subsequently a tenant, there were no copies of Atlkin's Court Forms, the Encyclopaedia of Forms and Precedents or any other precedent book in chambers. When I asked why I was told that precedents were at best a distraction to clear thought and clear expression and at worst a potential danger to both the draftsman and his client. Though the ban on precedent books undoubtedly made my pupillage more difficult than it might otherwise have been, I understood the wisdom of it from the start. Indeed, I applied it to my practice and eventually imparted it to my own pupils.
A case transcript that shows just how wise that policy was is the decision of Mr Peter Prescott QC in Oxonica Energy Ltd v Neuftec Ltd [2008] EWHC 2127. Early in his judgment the …

WIPO: Francis Gurry's Appointment as Director-General

I am no sycophant but I am genuinely delighted that Francis Gurry has got the top job at the WIPO.  
I first heard of Gurry 20 years ago when I read his book on Breach of Confidence  which is to my mind one of the best books on the subject. It was published by Clarendon in 1984 but for some inexplicable reason it does not appear ever to have been reprinted.   I still refer to it from time to time.   
In 1992  I actually met Gurry at a seminar on IP arbitration which was organized by the Chartered Institute of Arbitrators. Several things sprang from that seminar. Peter Ford set up an arbitration panel for the Patents County Court led by Professor Bryan Niblett which he asked me to join. Sadly, I never got any appointments but I don't think anybody else on the panel did either. Secondly, the WIPO set up the Arbitration and Mediation Centre.  The Centre was one of the first domain dispute resolution providers and having handled many thousands of domain name disputes it is arguably the …

Intellectual Property: Stephan Kinsella - an Interesting Critique

If you have 15 minutes to spare (which I don't really have but have just spent them anyway) you may like to listen to a podcast interview by US libertarian writer Lew Rockwell of a US libertarian IP lawyer called Stephan Kinsella. As you can see from his CV Mr Kinsella is a serious IP lawyer and a prolific writer. Interestingly, he has a higher degree from King's College London. Essentially his thesis is that IP is inherently obtrusive and requries the suppression of other legal rights. He seems to suggest that contract can provide effective proteciton and hence incentive for innovation and creativity.   I am sure that he will be rubbished by the great and the good but having seen the effectiveness of the US software and entertainment industries in the consultation on the implementation of the enforcement directive at the IP Office some time ago and having advised and represented a lot of pretty harmless small Britishbusinesses against some massive claims some US based softwar…

Patents: Conor Medsystems Inc v Angiotech Pharmaceuticals Inc and Others

Copyright: Creation Records Ltd. v News Group

It is trite law that if two photographers take identical pictures of the same scene at the same time from the same position each of their photographs is an original work and neither infringes the copyright in the other. However, much of the skill of a photographer lies in his choice of subject and the arrangement of the scene. The question whether copyright subsists independently in such an arrangement arose in Creation Records Ltd. v News Group Newspapers Ltd. (1997) The Times 27 April.  The Facts
A swimming pool at a country club was drained and various props including a white Rolls Royce motor car assembled for a photograph of a well-known group of musicians for reproduction on their album cover. Although the public was not admitted to the session certain fans of the group who happened to be there were allowed to photograph the scene before official pictures were taken. A freelance photographer who was booked into the club photographed the scene during the session. One of his pictur…

Copyright: What is meant by "the Author"

The author of a work is the person who creates it (s. 9 of the Copyright Designs and Patents Act 1988 ("the CDPA")). In the case of a sound recording the author means the producer, in the case of a film the producer and principal director, in the case of a broadcast the person making the broadcast (unless the broadcast is in fact a relay and immediate re-transmission of another broadcast in which case it is the person making that other broadcast). In the case of the typographical arrangement of a published edition the publisher. Before the 31 Oct 2003 when the law was changed by The Copyright and Related Rights Regulations 2003, the author of a cable broadcast was the person providing the cable programme service in which the programme is included.Computer Generated Works
The author of a computer generated artistic, dramatic, literary or musical work is the person who undertakes the arrangements necessary for the creation of the work (see s. 9 (3)).Joint Authorship
S. 10 (1) pr…

Copyright: Assignment

An assignment of copyright is an outright transfer of some or all of the rights of a copyright owner. S. 90 (2) of the Copyright, Designs and Patents Act 1988 provides that an assignment may be limited to one or more, but not all, of the things the copyright owner has the exclusive right to do, or to part, but not the whole, of the period for which the copyright is to subsist. S. 91 (1) permits authors or others who would become first owners of copyrights ("prospective owners") that will or may come into existence in respect of a future work or class of works or on the occurrence of a future event ("future copyrights") to agree to assign such future copyright (wholly or partially) to another person.Formalities
S. 90 (3) of the CDPA provides that an assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor. However, a copyright, like any other species of property, can be held on trust. A trust can come into being impliedl…

Copyright: Case Note - Christoffer v Poseidon Film Distributors Ltd.

This note that I first wrote in 1999 on the decision of Park J in Christoffer v Poseidon Film Distributors Ltd[1999] EWHC 262 (Ch), [2000] ECDR 487discusses another interesting old case that I have read again while updating the IP/IT Update website.   Three intellectual property issues arose in this case in which 5 separate actions came on for trial before Park J:whether copyright subsists in a film script which was based substantially on Book IX of Homer's Odyssey;if it did, whether it was infringed by making an animated film from the script; andwhether the distribution of that film without attributing authorship to the scriptwriters infringed the writers' moral rights.There were many other issues but they were concerned with the fracts rather than the law.The FactsThe case arose from a dispute between two Greek Cypriots, Andrew Christoffer ("Mr Christoffer"), a freelance scriptwriter, and Frixos Constantine ("Mr Constantine"), a director and controlling s…

Copyright: What is meant by "Secondary Infringement"

The Copyright, Designs and Patents Act 1988 ("CDPA") proscribes 8 separate acts of secondary infringement:importing infringing copiespossessing or dealing with such copiesproviding means for making such copiestransmitting a copyright work over a telecommunications systempermitting premises to be used for an infringing performanceproviding apparatus for such infringementpermitting such apparatus to be brought onto premises, andsupplying a sound recording or film for an infringing performance.An essential ingredient of all those acts is some actual or imputed knowledge primary infringement of copyright.Importing Infringing Copies
S.22 of the CDPA provides that copyright is infringed by importing into the United Kingdom otherwise than for private and domestic use an article in the knowledge or with reason to believe that it is an infringing copy of a copyright work. An "infringing copy" is defined by s.27 (2) as an article whose making constituted an infringement of co…

Copyright: What is meant by "a Substantial Part"

S. 16 (3) (a) of the Copyright, Designs and Patents Act 1988 provides that references in Part I of the Act to the doing of an act restricted by the copyright in a work are to the doing of it in relation to the work as a whole or any substantial part of it. The question what is a "substantial part" for the purposes of this Act has been considered by the House of Lords on no less than three occasions.Qualitative Test
In Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W.L.R. 273 their lordships emphasized that the test of substantiality was qualitative rather than quantitative. A case that illustrates that point better than most is Warwick Film Productions Ltd. v Eisinger [1969] 1 Ch 508 where the volume of material that had been copied was considerable but such material did not constitute a substantial part of the claimant's work because it had itself been copied from an earlier work. The question then arises, as Lord Hoffmann observed at paragraph [19] of…