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IPO: throwing the baby out with the bathwater?

Julian Heathcote Hobbins, general counsel at the Federation Against Software Theft, shares his views on the role of the Intellectual Property Office in copyright reform.

The prosperity of the United Kingdom in the 21st century rests on developing a strong ‘knowledge-based’ economy, but knowledge can only be a viable commodity if it has a clear owner. Strong intellectual property
regulations which include copyright are therefore a non-negotiable pre- cursor to securing economic recovery and long-term growth.

However, knowledge, and its application, by its very nature, is constantly evolving and this means that the UK government has an important job ensuring that legislation reflects the needs of rights holders and making sure that they can profit from their creativity without restricting a free and open market economy.

In its recent consultation on copyright reform, the Intellectual Property Office (IPO) asked a number of questions, including how it could expand its role. Whilst FAST welcomed their interest in improving the workings of copyright, the direction of thought in the IPO could challenge the courts as the pre-eminent arbiter in cases – damaging certainty in the legal system and could add unhelpful layers of complexity.

The first issue is that the IPO asked respondents to the consultation if it should produce guidance notices for courts to interpret copyright legislation alongside a legal requirement for the courts to take heed of this advice when making judgements. The judiciary must at all times be free to interpret the law and make judgements based on interpretation of fact. If they cannot do this, then they are not performing the role of an independent court of law. Secondly, the IPO has suggested that it provides its own dispute resolution service, for a fee. There is no need for this as there is a dispute resolution service currently available manned by suitably trained professionals.

It is up to the courts to define how the law applies to facts after legislation is passed and it is important that this single source of authority on interpretation remains. Advice and guidance should be based on statute
together with decisions made by the courts. Any formal advice produced by the IPO would only bring complexity and undermine the court process enshrined under the doctrine of the separation of powers. Furthermore, as there is already an industry of advisors with extensive experience, there is no need for the IPO to attempt to replicate an existing service.

There is, however, a need to improve enforcement measures to put off infringers, as in most cases there is trivial deterrence. Clearly, laws aren’t worth the paper they are written on if there is little bite. The introduction of a small claims court for copyright cases – similar to the existing debt recovery system – would speed up the judicial process and significantly reduce the cost of pursuing a claim.

Many software houses are either small or micro-sized businesses with limited time and resources. It’s important that we make the path to justice as simple and efficient as possible for these organisations. With
this in mind, FAST is urging the government to implement Directive 2004/ 48/EC of the European Parliament and Council on the Enforcement of Intellectual Property Rights, with a particular focus on Article 4. This would grant FAST the right in civil law to take legal action to protect its members in its own name.

Existing legislation and regulation generally serve the software industry well. The guiding principles provide adequate measures that set down clear guidance on copyright ownership ensuring that the software industry can prosper as a viable industry that contributes to the economic growth of the country. We should leave the disputes on the grey areas to the courts and simply seek to make cost effective software IP justice as accessible as possible.

This was posted in Bdaily's Members' News section by Julian Heathcote Hobbins .