moving fast: ip meets it - cambridge wireless
TRANSCRIPT
Moving fast: IP meets ITIntellectual property and the digital business environment
Alasdair Poore
Michael Ahyow
Introduction
o A bit about us…
o “Hot Topics” relevant to digital business
… and a fly past on IP rights
1) Dodgy marks
2) Copyright infringement – blurred lines?
3) PERLs of wisdom - what’s the latest on
software patents?
4)Intelligent design – the importance of
being cool
5) The price of enforcement
6) Intermediaries?
7) The pitfalls of digital marketing
8) Big news for big data
9) Consuming digital content
Our 9 Hot Topics
Hot Topic 1 – Dodgy marks
o A trade mark is a sign which can distinguish the goods and services of a particular person or organisation from those of its competitors
o Trade marks can be registered
o Need to specify goods and services
Requirements of a trade marko A sign
o Capable of being represented graphically
o Capable of distinguishing goods and services of one undertaking from those of another
o Must have distinctive character
o Must not be purely descriptive
o Must not be a sign which has become customary in the current language or established practices of the trade
What’s hot
Apple’s trade mark for the design and layout of its Apple
stores – granted by USPTO – and in Europe
What’s hot?
o Candy : have some Kit Kat
o more “Candy” too
Guardian, 8 Dec 2014
What’s hot?
o Not so straightforward on the internet
– How touching: a story of flowers?
Interflora v Marks & Spencer
o …. and not
So …
o Well chosen trade marks are very valuable
o The internet is making “local” or “narrow” trade marks a thing of the past
o The digital world will have to find an accommodation for burgeoning conflicts
o Being strong now is better
Hot Topic 2 - Copyright infringement
– blurred lines?
o What is copyright?
– Copyright protects certain ways in which ideas are expressed, but not the
ideas themselves.
– Originality is required, but artistic merit is not (on the whole)!
– The work must be recorded in some form.
o Permitted acts
– Fair dealing defences
– Personal copies for private use
What’s hot?
o Blurred lines – does it really reach this far
o Quotation
o Parody, caricature and pastiche
o Private use – media shifting
Guardian, 11 March 2015Guardian, 19 March 2015
a work (a) evokes an existing work
while being noticeably different from it,
and (b) constitutes an expression of
humour or mockery
What’s hot?
o No IP
– Maybe you’re better off
Ryanair v PR Aviation:
CJEU finds that contractual terms can be effective where
there is no database right
And so …
o Copyright can be a very powerful tool
o With sometimes murky boundaries
o The media moguls are still out there: don’t think they are less powerful
o Treading carefully there are real opportunities
Hot topic 3 - PERLs of wisdom – what’s the latest on software patents?
o Patent protect “inventions”
o It gives the owner the right to prevent others from making, using
importing or selling the invention without permission
o In order to be patentable the invention must:
– be new
– have an inventive step that is not obvious to someone with knowledge and experience in the subject area, and
– be capable of being made or used in some kind of industry
o Computer programs not patentable “as such”
– Certain exceptions for computer programs which have
“technical character”
– ABS brakes on a car
o Differs from “anything under the sun” approach historically adopted in the US
Patenting computer programs
What’s hot?
o The UK – another rejection: Lantana
o … the EPO
o … and the USA
o and what happens with the UPC
– Paris?
A method of exchanging obligations as between parties,
each party holding a credit record and a debit record with
an exchange institution, the credit records and debit
records for exchange of predetermined obligations, the
method comprising the steps of:
(a) creating a shadow credit record and a shadow debit
record for each stakeholder party to be held
independently by a supervisory institution from the
exchange institutions;
(b) obtaining from each exchange institution a start-of-
day balance for each shadow credit record and shadow
debit record; …..
A data processing system to enable the exchange of an
obligation between parties, the system comprising:
a first party device,
a data storage unit having stored therein
(a) information about a first account for a first party,
independent from a second account maintained by a
first exchange institution, and
(b) information about a third account for a second party,
independent from a fourth account maintained by a
second exchange institution;
… what …
o After 38 years the problems still don’t die down
o New IT technologies play havoc with old (and new) paradigms
o The US system is currently having a nervous breakdown
o But protection is still out there – even for software (implemented) inventions
o Protects “the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shapes, texture or materials of the product or ornamentation”
o A registered design can be 2D or 3D
o The design must be new and have individual character
o The right can be renewed every 5 years up to a total of 25 years from the date of grant
Hot Topic 4 – Intelligent design –
the importance of being cool
What’s hot?Wellies with instantly recognisable Cath Kidstondesign
What’s hot?
“ Apple’s “fat but cool” look left a different impression from Samsung's “thin but uncool” look”
or Birss’ comment:
“they do not have the same understated or extreme simplicity which is possessed by the Apple design. They are not as cool”.
… (still) makes for good IP
o Designs are very powerful
o Brilliant designs have greater protection
o Apple may use them …
o … but many people miss a trick
10 minute break!“In which areas of technology are we likely
to see the most significant IP developments
over the next 10 years?”
Hot Topic 5 – The price of enforcement
o Intellectual Property Enterprise Court
– Simpler, less costly alternative to litigation in the High
Court
– Handles all types of intellectual property claims
– Cap on damages of £500,000
– More attractive option for SMEs
– Cap on costs: £50,000 + £25,000
What’s hot?
o Small claims – a changing paradigm
– Copyright
– Trade marks
– Unregistered designs
What’s hot?
o Suitable for 2 days cases
– Streamlined procedure
– Active case management
– Focus on the key issues only
o Unilever v S C Johnson & Sons
The action was commenced in the Patents County Court on 27th
July 2011 and has been conducted under the PCC rules. One might ask whether a case between two multinational
corporations is suitable for the PCC. Since neither side
suggested the matter should be transferred, the question did not
arise. I can say this much. In terms of the issues to be decided,
the case is clearly suitable for the PCC. There has been no
disclosure and the evidence consists only of reports from in-
house experts on both sides. The legal representation consisted
of junior intellectual property counsel (Andrew Norris and Simon
Malynicz) instructed by firms of patent attorneys (Potter Clarkson
and Carpmaels & Ransford) for Unilever and SC Johnson
respectively. The trial took 1 ½ days. As far as I can tell it has been run expeditiously and without major cost.
But it is still too expensive
o IPEC is a culture change
o And it is changing culture
– of lawyers
– of those who thought they could get away with it
o It’s not the cost that matters, it’s the perception that an injunction is a realistic possibility even for the small player
o Intermediaries
– Includes providers of hosting services, digital content
platforms, social media, e-commerce websites
o Who to sue?
Hot Topic 6 – Intermediaries?
Hot Topic 6 – Intermediaries?o Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013)
(the “E-Commerce Regs”)
– Provide “information society service providers” with a defence to liability for copyright infringement resulting from certain acts by their users (for example, an infringing videos on YouTube) provided that:
o the service provider is a mere conduit, cache or host; and
o complies with certain requirements, including acting expeditiously to remove or disable access to the infringing material as soon as it becomes aware of it
What’s hot?o Case: Joined cases C-236/08 to
C238/08 Google France SARL v Louis Vuitton Malletier SA and others
o Interflora v Marks & Spencer
o Twentieth Century Fox v BT Telecommunications
o MediaCat v Adams
New business models
o The digital environment is changing business models
o … and the Courts are following, not even very slowly
o The balance between freedom of intermediaries and intermediaries being an enforcement route is drifting towards the enforcement route
Hot topic 7 - the pitfalls of digital
marketing
o Advertising and marketing communications
– Online adverts
– Electronic kiosks and billboards
– Price comparison websites
– In-game advertisements and advergames
Digital marketing – what’s the law?
o CAP Code (advertising standards agency)
o E-commerce Regs
o Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) (as amended) (the “Privacy Regs”)
o The Consumer Protection from Unfair Trading Regulations (SI 2008/1277) (the “CPUT Regs”)
Digital marketing techniques
o Online behavioural advertising
o Affiliate marketing
o Viral marketing
o Native advertising
o Social media advertising
o “Blackhat”marketing
What’s hot?
Katie Price / Jordan @MissKatiePrice
OMG!! Eurozone debt problems can only be solved by true fiscal union
#comeonguys
Katie Price/Jordan @MissKatiePrice
Chinese leaders now likely to loosen moetary policy to stimulate growth.
Yay!!
Katie Price/Jordan @MissKatiePrice
Great news about China’s latest GDP figures!!
Katie Price/Jordan @MissKatiePrice
You’re not you when you’re hungry @snickersUk #hungry
#spon lockerz.com/s/176796815
… but
o is also threatening consumers
o And the authorities are fighting back
o So
– More bureaucracy?
– More opportunity �
Hot Topic 8 – Big news for big data
o Big data is changing the way we do business
– Collection of data via:
o Mobile
o Social media
o IoT
o Smart cities
o wearables
o What does the law say?
– Data Protection Act – 1998 (i.e. Pre Hadoop, pre Map-reduce, pre
parallel processing)
What’s hot?
o A right to be forgotten
o The General Data Protection Regulation
– increased fines … 2% of turnover?
– protection by design
– territorial reach
– consent
– compliance officer
As of June 2014, Google has established a form
where people can request removals, as our story
explains: How Google’s New “Right To Be Forgotten”
Form Works.Searchengineland.com
Big data
o Is an unsolved problem not just for the technicians
o … but for the bureaucrats as well
o Watch this space
Hot Topic 9 – Consuming digital content
o What rights intellectual property rights are there in digital content?
– Copyright
– Trade marks and database rights
How is digital content protected by
copyright?
o Software, e-books, apps, games, music, video
o “Click-to-agree” terms for digital content are
essentially a licence of copyright
What’s hot?
o Consumer Rights Act 2015
o It’s due to come into force in October
– Satisfactory quality � Repair or Replacement
– Fit for purpose � R or R
– Meet description � R or R
– Not cause damage � compensation
What’s hot?
o Digital Single Market
Digital marketing techniques
o are still threatening consumers
o and the European Commission is fighting back:
– To try and ensure a level playing field
– (and a corollary is more uniform consumer rights)
o So
– More bureaucracy?
– More opportunity �
Conclusion
o We live in interesting times
