Update | Intellectual property: wide-ranging changes

There has been several high profile intellectual property cases in recent months, including the one involving the use of Rhianna's image on T shirts (its use was prohibited), the Football Association Premier League Ltd v British Sky Broadcasting case on database right (an area which seems to be developing on a very regular basis through case law in recent years) and the Whitmar Publications Limited v Gamage and Others decision in July about LinkedIn contacts. This latter case raises an issue which will often arise when employees leave. In that case the employee could be prevented from using the LinkedIn contacts after he left his employment. There is also a new data protection Subject Access Code of Practice which will be of interest to readers too. The 58 pages of guidance are on line at www.ico.org.uk.

But in this Update, I will focus on e-commerce and consumer rights, and the IP aspects of the Enterprise and Regulatory Reform Act.

Consumer rights directive

In August the government published its response on Misleading and Aggressive Practices (MAPs) and on the implementation of the Consumer Rights Directive (CRD). The response is accompanied by two draft sets of regulations.

The draft Consumer Protection from Unfair Trading (Amendment) Regulations 2013 on misleading and aggressive practices would give consumers 90 days to cancel a contract and receive a full refund if they have been misled or bullied into agreeing it. After the 90 days consumers can still receive a proportion of their money back.

Consumers would also have new rights to recover payments made to traders who mislead or bully them into paying money which was not owed. And they will have the right to claim compensation for any alarm or distress caused by these practices.

The draft Consumer Contracts (Information, Cancellation and Additional Payments) Regulations (CCRs) which implement the Consumer Rights Directive include measures which will allow consumers with cancellation rights, 14 days rather than the current 7 days to change their minds.

They will ban practices such as pre-ticked tick boxes for extras that the consumer may not ?want or need and that could result in unexpected payment. They also set out key information consumers should be given by traders before being bound by a contract to purchase goods, services or digital content (e.g. about additional costs, cancellation rights).

Together these draft regulations form part of a package of consumer law reform measures which include the draft Consumer Rights Bill,which includes interesting new provisions to give those downloading digital content similar rights to those buying goods as consumers online. The government's response, relevant documents and information on how to respond can be found at https://www.gov.uk/government/policies/providing-better-information-and-protection-for-consumers. The Consumer Rights Bill is at https://www.gov.uk/government/publications/draft-consumer-rights-bill.

Comments on the regulations are needed by 11 October 2013 so now is the time to comment and/or alert clients who might want to comment on these measures.

Enterprise and Regulatory Reform Act 2013

Ever copied at CD to another electronic device ('format shift') or used a photograph found online without permission? The Enterprise and Regulatory Reform Act 2013 (ERR) makes some interesting changes to the law in this regard. As well as competition law changes (merger of the OFT and Competition Commission, for instance), it changes intellectual property rights laws.

These changes include:-

(i) private format shifting becomes lawful;

(ii) designer furniture and other mass produced artistic works receive longer protection (up from 25 years to the life of the author plus 70 years);

(iii) orphan works may be licensed (works with no discernible author);

(iv) limited additional rights to copy under a fair dealing basis will be allowed for parody, caricature and pastiche (this is unlikely to affect most businesses however although solicitors with a sideline in cartoons or comedy may be affected)

(v) use of quotations is extended beyond for criticism, review and reporting current events to include quotes in research papers and sources in bibliographies and to identify hyperlinks in internet blogs and tweets:

(vi) limited rights to copy for research and private study reasons will now be extended for non-commercial research purposes to include sound recordings, films and broadcasts. Again as this is for private study and non commercial research purposes it is unlikely to be relevant to most businesses, however.

?Other changes include the areas of archiving and access for those with disabilities and simplifying an exception to breach of copyright for educational purposes. These provisions in the ERR result from a review known as the Hargreaves Review of Intellectual Property and Growth in May 2011.
The government has also announced that it ?will issue Copyright Notices by the IP Office to help to clarify copyright law in areas of confusion. This will be done on a non-statutory basis, but will certainly help industry in more difficult areas of copyright law.

Browsing does not breach copyright

The ERR Act follows hot on the heels of the recent Supreme Court decision in the Meltwater case which held that there was no breach of copyright if employees, whose companies do not have a licence to copy newspaper material from the Newspaper Licensing Agency, read commercial websites of newspapers for work purposes. Some of the issues in the case has been referred to the European Court of Justice.

Photographs and 'orphan' works

The ERR's provisions relating to 'orphan works' have received the most publicity. A common myth amongst small business owners is that they may copy material which is on the internet including photographs because it is in the 'public domain'. This has always been totally wrong. Just because a photograph, book or other material is published does not mean others are allowed to copy it. The ERR does not change this. However it does include a provision for orphan works the detail of which will be set out in a statutory instrument in due course which has not yet been published.

Those wanting to copy a photograph will need to undertake a diligent search to find the author. There is no license by ERR given to copy photographs at will even where no author is named on them nor if the meta data which enables their identification is stripped from them. However many photographers mounted a campaign against the worst features of this legislation as it went through and remain extremely unhappy about the resulting position.

It can be the thin end of the wedge to allow copying unless authors disagree or can be found and some companies around the world such as those loading books with no known author on the internet on the basis they will remove them if there is objection have already found themselves in breach of copyright law for so doing so it is not surprising that photographer and others have objected to the new legislation. Intellectual property solicitors such as the writer on a regular basis act either for those who are in trouble for using photographs or other material and designs without consent and those seeking to prevent ?such use. However fees will have to be paid ?even for orphan works and held until the author ?is found and other safeguards have been built ?into the system. Notwithstanding such precautions, the legislation is troubling for rights owners and it always worrying when the detail of the legislation is left to be included in statutory instruments which are unlikely to be subject to Parliamentary scrutiny.

Intellectual Property Bill

Finally on 10 May the government introduced the Intellectual Property Bill. The changes will include:

New powers to enable implementation of the Unitary Patent Court Agreement. There is a plan to have a single Community Patent (as already exists for trade marks and designs) which applies across all EU states which is not yet in force (the European Patent already in existence is just national patents in different countries). The new Community Patent needs its own courts.

The proposed London Court will handle pharmaceutical and life sciences patent disputes.

The introduction of criminal penalties for copying UK registered designs and the strengthening of design protection. This makes design law like that which applies to copyright and trademark disputes.

Proposals for a designs opinion service and an expanded patents opinions service.

?It also includes provisions for more sharing of information between international patent offices, provides for the UK to join the Hague system for designs registration. Patent owners will have the option of marking their patented products with a web address which links to the details of the relevant patent number rather than having to put the patent numbers directly on the product in order to get maximum protection. This sounds a useful practical change as often products are too small to show the full patent details and it will also mean up to date details will always be available on line. Finally, 'continuing programmes of research intended for future publication' would fall outside the Freedom of Information Act.

It is rare that so many changes to copyright and other IP law occur at once and the ERR and in due course the IP Bill are areas to watch.