Sunday, 25 April 2021

Menai Science Park's Contribution to World IP Day 2021

Author  Jonathan Calugi  © 2021 WIPO, all rights reserved Licensed courtesy WIPO



 Jane Lambert

For the last 2 years, the Menai Science Park has hosted Wales's main contribution to World Intellectual Property Day (see World IP Day 2021: "IP & SMEs: Taking your ideas to market" 21 Jan 2021). Emily Roberts and I have been discussing this year's contribution since Autumn and we hope it will be the best ever.

Each year, World IP Day has a different theme.  The theme for 2021 is IP & SMEs: Taking your ideas to market. It could not be more appropriate for the Menai Science Park because that is what it does all through the year.  Making full use of the park's expertise and that of its tenants, Emily had invited a panel of world-class experts to discuss this year's theme in an online webinar starting at 12:10 and ending at 13:50 tomorrow.

The speakers will be 


Time

Speaker

Topic

12:10- 12:15

Jane Lambert
Barrister

4-5 Gray’s Inn Square

Introduction and Welcome - Cyflwyniad a Chroeso


12:15- 12:30

Andrew Davies Intellectual Property Office

IP and Funding for Growth

12:30 -12:45

David Wooldridge
Welsh Government Innovation Team

Welsh Government Assistance for Startups and SME

12:45-13:00

Alison Orr
Inngot

Valuing startups; intellectual assets

13:00 -13:15

Mark McGowan
BIC Innovation

Arranging funding for startups

13:15- 13:30

Andrea Knox
Knox Commercial Solicitors

Due Diligence and shareholders agreements`

13:30 -13:45

Steve Livingston
IP Tax Solutions

Tax incentives for startups and SMR

13:45 -13:50

Jane Lambert

Thanks and Closing Remarks - 


If you would like to attend this event, please register here.

If this webinar is successful we hope to hold subsequent ones on scaling up the business covering angel and private equity investment and Stock Exchange flotation later in the year possibly in cooperation with a Wales law and innovation network on the lines of the Scottish Law and Innovation Network (see Does Wales need a Law and Innovation Network? 14 April 2021),

Anyone wishing to discuss this article or any of the topics arising from it may call me on +44 (0)20 7404 5252 or send me a message through my contact page.

Tuesday, 20 April 2021

Wales Law and Innovation Network

Llewellyn the Great

























Jane Lambert

On 14 April 2021, I asked: "Does Wales need a Law and Innovation Network?"  The answer was a deafening yes for all the reasons set out in my article and more. However, as I also said in my article, such a network will not come into existence of its own accord.   We need an initial event to launch it.

As it happens, an important anniversary is coming up.  On 15 June 1215, Prince Llewellyn the Great extracted important concessions for the governance of Wales from King John of England.  I can think of no better way to celebrate that event than by holding the first meeting of the Welsh La\w and Innovation Network.

The event will take place online.  It will begin at 16:30 with a talk from me on Welsh geographical indications after Brexit and finish with a short business meeting at which I hope we shall secure general support for the project and some volunteers to prepare proposals for its mission, governance, funding and initial activities.   We aim to finish by 18:00.   If you want to attend you can sign up here

Anyone wishing to discuss this proposal is welcome to call me on 020 7404 5252 during office hours or send me a message through my contact form.

Monday, 19 April 2021

Copyright Licensing and Information and Communications Technology


 














I am delighted to have been invited to contribute to a short webinar on Copyright Licensing and ICT hosted by Creative North Wales and North Wales Tech on Wednesday 21 April 2021 between 15:30 and 16:00.  The other contributor will be Carwyn Edwards of North Wales Tech, He is a systems architect and software engineer.

Copyright is defined by s.1 (1) of the Copyright Designs and Patents Act 1988 as 
"a property right which subsists in accordance with this Part in the following descriptions of work-- 
(a) original literary, dramatic, musical or artistic works, 
(b) sound recordings, films or broadcasts, and 
(c) the typographical arrangement of published editions."
Unlike a patent, trade mark or design there is no need to register a copyright with the Intellectual Property Office or any other government department.  The only conditions for the subsistence of the right are that it should be created by a citizen or resident of the United Kingdom or some other state with which the government has concluded an agreement to protect the works of British nationals. Since most countries of the world are party to the Berne or Universal Copyright Conventions, that is pretty much everyone.  By virtue of those Conventions the books, broadcasts, buildings, choreography, compositions, computer programs, films, plays and sound recordings of British artists, authors and publishers are protected automatically everywhere,

Those rights last a very long time.  In the case of an artistic dramatic, literary or musical work copyright subsists for the life of the author plus 70 years.  Thus, copyright still subsists in the wedding photo of Dylan Thomas taken in 1937. It came as a nasty surprise to the owner of a website advertising holiday cottages in Southwest Wales who had used the photo to underscore the region's associations with that great literary figure  (see Pablo Star Media Ltd v Bowen [2017] EWHC 2541 (IPEC) (13 October 2017)).

The consequences for infringing copyright can be draconian.  In addition to compensatory damages for the depreciation of the value of the copyright as a thing in action, a court can award additional damages under s.97 (2) of the Copyright, Designs and Patents Act 1988 where the justice of the case so requires or art 13 of the enforcement directive (Directive 2004/48/EC on the enforcement of intellectual property rights),.  In some circumstances, an infringement of copyright can be a criminal offence carrying heavy prison sentences and unlimited fines.  Even that is not the end of the story because the photo of Dylan Thomas was protected in the Republic of Ireland by Irish copyright law and in the USA by the Copyright Act of 1976  The unfortunate holiday cottage website owner faced demands for massive statutory damages that are available in those countries.

Most of the creative industries, artists and their publishers regard copyright as a very good thing.  Many of them have established organizations known as collecting societies that sell licences for the performance or other use of their members' works.  Pubs, cafés, restaurants, retailers and other businesses that pipe muzak to the public often display decals with the initials "PRS" which shows that they have been licensed by the Performing Right Society and the Mechanical Copyright Protection Society to play such music. Most of those organizations have agreements with collecting societies in other countries so the works of British artists and publishers are protected around the world and those of other countries are protected here.   Failure to obtain such licences and pay the licence fee can lead to litigation or worse.

In contrast to other creative industries, there has been a measure of ambivalence towards copyright and other intellectual property rights in the computer industry.  While many have been quick enough to asset their rights, others regard it as an unwelcome interference with their work.  

Until the early 1980s, nobody paid much attention to intellectual property in software because there was no way of copying software. In the very early days of computing, software was bundled with hardware. Even after unbundling software was recorded on very bulky media such as punch cards or later heavy magnetic drums the size and shape of fruitcakes. Programmers tended to share handy little programs for calculating dates and similar tasks.  That was the original meaning of "freeware" and it was an issue in Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd and others  [1994] FSR 275 as late as the early 1990s.

The coming of personal computers in the early 1980s  changed all that.  Applications could be distributed on floppy discs or even online.  There was for a time some doubt as to whether copyright could protect software but the Copyright (Computer Software) Amendment Act  1985 settled such uncertainty in the UK.   As a result of this legislation and advances in technology informal collaboration between programmers was no longer possible.  

It was in response to such challenges that the Free Software Foundatiion was established in the early 1980s. It promoted mass collaborations such as the GNU project that enables users to run, copy, distribute, study, change and improve their software.  The Foundation was joined by the Copyleft movement from which Prof Lawrence Lessing established Creative Commons.  In the last 20 years, there have been many other projects that have enabled copyright materials to be made available to the public free of charge. Some are operated by national governments such as Open Government licence in the UK.

Carwyn and I have only 15 minutes each on Wednesday, .  I shall stick to the legal issues and Carwyn to the technical ones.  That is not enough time to explore the topic in any depth but if the talk goes well we may hold another longer one with experts from the industry and academia.

Anyone wanting to sign up for the talk should register here.  Those wishing to discuss this article or its contents should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Wednesday, 14 April 2021

Does Wales need a Law and Innovation Network?

Menai Science Park
☺ 2018 Jane Lambert: all rights reserved




Earlier this month I discussed the Scottish Law and Innovation Network ("SCOTLIN") which describes itself as "a Scotland-focused collaboration and knowledge exchange hub that promotes impactful research, excellence in teaching, and societally beneficial law and policy innovations" (see Jane Lambert Scottish Law and Innovation Network 3 April 2021 NIPC Law).  It is a project in which all Scottish universities and some practitioners participate.

The project has been launched shortly before elections to the Scottish Parliament in which a second independence referendum is an issue.   As I said in my article, very little was said about innovation policy in Scotland's Future, the independence white paper, even though it would have been crucially important.  With the establishment of SCOTLIN, there is the [possibility for both sides in the coming independence debate to be better informed.  Also, intellectual property should gain a higher profile in both law schools and science and engineering faculties of Scottish universities regardless of the outcome of any future independence referendum. 

Although the issues in the Senedd elections are different, the need for a law and innovation network in Wales is at least as great.  As I argued in A Separate Welsh Legal Jurisdiction on 20 Feb 2021,  legislation enabling the Senedd to enact primary legislation necessitates a separate court system along the lines of the arrangements for Scotland and Northern Ireland.  That is as much in the interests of businesses and individuals in England as it is for those in Wales.  A separate Welsh court system will have to deal with specialist matters such as intellectual property that are currently resolved in London.  A Welsh law and information network could play a useful role in training practitioners and judiciary as well as practical matters such as raising awareness of the importance of intellectual property among businesses and the general public in Wales.

Whether Wales remains in or secedes from the Union, its prosperity depends on the creation of knowledge-based businesses such as those in the Menai Science Park, Aberinnovation and elsewhere. Those businesses are helping to reverse decades of economic decline and depopulation in one of the most beautiful locations on the planet.  They require access to specialist advice, forums for the resolution of disputes, angel and private equity funding and other services close at hand.  A law and innovation network could catalyze those developments.

A Welsh law and innovation network will not just happen.  It needs something to gather potential participants together.  Maybe that something will be the Menai Science Park's contribution to World Intellectual Property Day on 26 April (see World IP Day 2021: "IP & SMEs: Taking your ideas to market"  21 Jan 2021). We have gathered experts from the Intellectual Property Office, the Welsh government, Inngot, BIC Innovation, Knox Commercial Solicitors and IP Tax Solutions to speak on the day's themes "Taking your Ideas to Market",   We shall keep with that panel after the webinar and expand it until it becomes a law and innovation network for Wales.  Probably we need to adopt another name because neither "Wales Law and Innovation Network" nor "Rhwydwaith Cyfraith ac Arloesi Cymru" condenses into a memorable acronym like SCOTLIN. To help us clear the ground I have a presentation on geographical indications in Wales that I should be glad to deliver (see Jane Lambert The New Protected Food Names Scheme as it will apply in Wales 25 Oct 2020).

Anyone wishing to discuss the proposal further is welcome to call me on 020 7404 5252 or send me a message through my contact page.

Wednesday, 24 March 2021

Big Ideas Wales- Understanding IP

 Contains public sector information licensed under the OG Licence v3.0.

 








Jane Lambert

Yesterday I attended a webinar given by the Intellectual Property Office to Big Ideas Wales entitled Understanding IP.  It consisted of a presentation given by Nich Chard, one of the business engagement officers at the Intellectual Property Office and a Q&A at which Nick and Emma Richards, Business outreach manager at the Office, answered questions from members of the audience.  It was advertised to begin at 17:30 and end at 18:00 but there were so many questions that it continued until 18:15. According to Nick, there were about 20 individuals on the call including him and Emma.

I attended the webinar because I have given a lot of talks on IP and held a lot of clinics across Wales mainly at the Menai Science Park on Anglesey but also at Parc Menai near Bangor, Aberystwyth University, the Beacon Centre at Llanelli and Glyndwr University at Wrexham.  I do that work because IP is essential to securing investment in branding, design, technology and creativity.  Such specialist advisory services as Wales enjoys are concentrated around Cardiff, Newport and Swansea.  If Wales is to attract investment to establish new knowledge-based industries to reverse the decline of so many of its industries and depopulation of its rural communities that have occurred during my lifetime it must protect such intellectual assets.

On its "About" page, Business Wales states that it "is here to inspire the next generation of entrepreneurs in Wales and encourage young people under 25 to develop enterprise skills whatever the career choice." its website provides an introduction to business for younger audiences and makes the right links to business.wales.gov.uk to help build knowledge of business; with tools, information and help for those who want to start a business.  Big Ideas Wales endeavours to help those under 25:

  • "Get some inspiration about what you might want to do in the future
  • Find out a what it’s like to start your own business
  • Hear from other entrepreneurs in Wales (who share their stories and top tips!)
  • Discover more about yourself with useful guides and self assessments
  • Help you generate ideas and think them through
  • Get involved in enterprise and take advantage of opportunities and workshops
  • Learn about key business topics and links to improve your knowledge
  • Find out what’s happening in your college or university and how to get involved!
  • Find out what “business support” is all about and who might help
  • Join like minded young people on our social media channels Facebook,Twitter and Instagram."

There is certainly a fair amount of information on the Big Ideas site including some guidance on intellectual property on "How to pick a business idea page". 

Nick's presentation covered trade marks, copyrights, design registration, patents and confident all within half an hour.  Clearly, he couldn't cover everything in that time and he did very well to cover as much as he did. While he was talking members of the audience were asking questions in the chat channel which Emma did her best to answer.  On certain aspects of trade mark law, Nick went into quite a lot of detail. However, one matter that could have been emphasized is that with a few exceptions IP rights have to be enforced by the owner in the civil courts and that can be both risky and expensive.  Whenever I give a similar talk I stress the need for adequate funding of enforcement which usually means specialist IP insurance since most legal indemnity policies specifically exclude IP.

Although they are concentrated in the Southeast corner of Wales, the country has some valuable resources. In addition to the Intellectual Property Office at Newport and the Business and Property Courts in Cardiff, there is Inngot IP at Swansea which superseded IP Wales, one of the most useful websites on IP in the UK.  Both initiatives were launched when the present Principal of Bangor University held the Hodge chair of law at Swansea. 

Since it opened in 2018, the Menai Science Park has hosted a lot of talks and other events on IP. It has reached out to neighbouring centres of excellence such as Bangor Law School and the Pontio Centre. It has offered the most ambitious contribution from Wales to World Intellectual Property Day.  It plans the best ever webinar on "IP for Funding and Growth" between 12:30 and 14:00 on World Intellectual Property Day on 26 April 2021 with speakers from the Intellectual Property Office, the Welsh Government, Inngot, BIC Innovation, Knox Commercial Solicitors and IP Tax Solutions.  It hopes to follow that up with another seminar later in the year - with any luck in its boardroom or training room - on "IP for Scale-Up" with speakers from the nearest business angels networks and private equity investors.

Anyone wishing to discuss this article or any of the topics mentioned should contact me on 020 7404 5252 during office hours or send me a message through my contact page.

Saturday, 20 February 2021

"A Separate Welsh Legal Jurisdiction"

King Hywel the Good, the Codifier of Welsh Law








 













On 17 Feb 2021, I attended a webinar organized by Rights, Liberty and Justice (the Liberal Democrat Lawyers Associaton) on the topic of "A Separate Welsh Legal Jurisdiction".  The speaker was Mr Elfyn Llwyd who had been MP for Dwyfor Meirionnydd until 2015 and leader of Plaid Cymru in the House of Commons. He was chair of the Independence Commission which published Towards an Independent Wales in September 2020.

Almost the first recommendation of the report is a separate court system for Wales on the lines of the arrangements in Scotland and Northern Ireland:
"Wales must have a separate Welsh jurisdiction. Independence is not a prerequisite for this, but the general reservation to Westminster of powers relating to the single England and Wales jurisdiction needs to be removed. The recommendations of the Commission on Justice for Wales should be implemented by a Plaid Cymru Government."

The recommendation to which the Independence Commission refers is the report Justice in Wales for the People in Wales which was published in October 2019.

Before I discuss those reports I should declare an interest.  I am a barrister of the Bar of England and Wales specializing in intellectual property and technology law. I market my services to businesses throughout the United Kingdom and beyond including. in particular, startups and small and medium enterprises in Northwest Wales.  I, therefore, have an interest in ensuring that businesses in that region can access first-rate professional and financial services in any constitutional settlement.  Broader questions such as whether Wales should remain in a union with England, Scotland and Northern Ireland or secede from it are matters for Wales's residents and no one else.  As I do not live in Wales I shall abstain from that part of the debate.

The principal argument of both the Commission for Justice in Wales and the Independence Commission is that the Senedd (the Welsh devolved legislature) enacts primary legislation for Wales.  Gradually but surely the laws in Wales are diverging from the laws in England.  If they are to be enforced justly they must be construed by a judiciary that understands the context in which they were made and the legislative intent.  It may be possible for judges who live outside a jurisdiction to apply its local legislation as the Privy Council has done for centuries, but it is not convenient.  That is one of the reasons is why more and more Commonwealth countries have abolished the right of appeal to London.  As the divergence continues it is certainly in the interests of Wales and probably also in the interests of England for a separate system of courts to be established in Wales. Both unionists and nationalists can agree on that point.

Should that happen the courts of Wales will have to hear intellectual property cases.  Most of the intellectual property cases falling within para 16.1 of the Part 63 Practice Direction can be issued out of and proceed in Caernarfon, Cardiff and Mold pursuant to CPR 63.13 and para 16.2 of the Part 63 Practice Direction.  Those involving patents, registered designs, plant varieties and chip topographies must be issued out of the Patents Court or the Intellectual Property Enterprise Court ("IPEC") in London by reason of CPR 63.2.  Caernarfon and Mold do not have jurisdiction to hear trade mark cases because of para 16.3.  A software developer in Anglesey or Gwynedd that needs to restrain an infringement of copyright in its source code could seek an injunction in Caernarfon or Mold but a fashion designer from those regions would have to travel to Cardiff, Liverpool or London to obtain an injunction to restrain the infringement of her trade mark.  If the designer's registered design were infringed, she would have to go to London.

The journey across the Cambrian mountains is a delightful one as I discovered just before lockdown when my clerk booked me into a conference with a solicitor in Colwyn Bay and a hearing in the Trade Marks Registry the next day "on the basis that they are both in Wales and they don't look so far apart on the map."  The problem is that there is no motorway or dual carriageway between Gogledd and De with the consequence that a journey between the northern and southern coasts of the Welsh peninsula takes all day.  Train services are no better.   According to Trainiine, it takes 4 hours and 16 minutes to make that journey not to mention a 20-minute taxi ride to the Intellectual Property Office which is on the outskirts of the town. A rail journey from Bangor to Cardiff where the Business and Property Courts are located would take more than 5 hours.  By contrast, the trip to Liverpool takes 2 hours and London 3 hours 20.

I pointed that out to Mt Llwyd in the Q & A and he agreed with me.  Resources in Wales are lopsided with specialist courts, law firms and patent and trade mark agencies concentrated in Cardiff and Newport but not much else in the rest of the country.   At present, businesses in the North and Centre can travel conveniently to England for specialist services.  A trip to Cardiff would be far more time-consuming and expensive. The solution, I suggested, would be to upgrade Caernarfon into a Business and Property Court and establish new Business and Property Courts in Aberystwyth and the Southwest.

A commercial jurisdiction can be a stimulus to the economic development of a region as The Commission for Justice in Wales acknowledged at page 371 of their report.  Many years ago the government of the day had the bright idea of abolishing the chancery jurisdiction of the North of England.  Peter Keenan of Bridge Street Chambers in Manchester mobilized the legal and business communities in the North of England to oppose the idea.  Submissions were made to Sir Tom Legg to which I contributed the economic argument. I contended that a commercial jurisdiction in Manchester, Liverpool and Leeds would attract all sorts of professionals and not just lawyers to those cities. They could provide all sorts of financial, cultural and other services to businesses. Sir Tom listened and arranged for a High Court Judge to sit permanently in the North for at least half a term as an experiment.  The experiment was successful and similar arrangements were made for Birmingham, Bristol and Cardiff. In many ways, it was the foundation of the Northern Powerhouse and the Midlands Engine.

Exactly the same arguments can be made for the regions of Wales.   If that country is to develop in a balanced way with important business and cultural centres in each region a separate Welsh jurisdiction has to be accessible from every corner of the land.  Any legislation that the Senedd or the UK Parliament enacts must provide for properly resourced Business and Property Courts with full intellectual property jurisdiction in the North, Centre and Southwest of Wales as well as the Southeast.

Anyone wishing to discuss this article may call me on 020 7404 5252 or send me a message through my contact form.

Thursday, 11 February 2021

Copyright Licensing

Menai Science Park
© 2018 Jane Elizabeth Lambert (all rights reserved)

 







Jane Lambert

On 9 Feb 2021, I was the guest of the Menai Science Park's Enterprise Hub.  I had been invited to give a talk entitled "What every Business in Wales should know about Intellectual Property" which I had previewed in my article of 7 Jan 2021.  I had prepared some slides on the topic which I posted to Slideshare this morning.

Considering that we started the talk at 17:45 we had a good turnout.  Our group would have been a very tight fit had we met in the M-SParc boardroom though there were not enough of us to have filled the training room. It was, therefore, the ideal size for a two-way discussion.  I used the first few slides to start the discussion.  Before long the questions came rolling in.

One of the most interesting questions was about licensing.  An artist told me that she was familiar with the Creative Commons scheme but she really wanted to earn some money from her work.  She asked whether there were any schemes like Creative Commons that generated revenue.  I told her that there were indeed associations of copyright owners that licensed their work on standard terms and distributed the royalties or licence fees to their members.  She could check out some of them but if none of them suited her she could instruct a lawyer to draw up a licence agreement.  

In either case, I stressed the advantage of inserting a copyright notice on her work or its mounting or container to put third parties on notice that copyright subsisted in the work and that she owned that copyright.   This consisted of the word "copyright", an abbreviation or the "©" symbol, the year in which it was created and the name of the copyright owner.  For example, I took the photo of M-SParc that appears at the topic of this article when I attended the Anglesey Business Festival in October 2018.  It will be seen that I have inserted the symbol, year and my name.

Associations of copyright owners that license the use of their work on standard terms are called "collecting societies".  Most people will have heard of the Performing Rights Society ("PRS")  and the Mechanical Copyright Protection Society ("MCPS").  They may have seen their decals "PRS for music" in pubs, cafés and gyms.  They draw up terms for the licensing of their members' works and visit premises that are likely to need their licences to collect the appropriate fees and royalties. Businesses that fail to cooperate may be sued.   They instruct specialist solicitors and counsel and nearly always win their claims.

Although the PRS and MCPS are probably the best-known collecting societies, other societies exist for other copyrights and related rights.  Wikipedia maintains a List of Copyright Collecting Societies from most parts of the world including the United Kingdom.  Freelance writers, for example, might wish to check out The Authors Licensing and Collecting Society ("ALCS").   Artists may want to contact the Artists' Collecting Society ("ACS").   Although it is not strictly a collecting society, designers should be aware of ACID (Anti Copyright in Design) who protect designers and makers against unauthorized copying and dealings with their designs.

Many of these organizations have reciprocal arrangements with foreign collecting societies.   They can help to protect IP owners' works and revenue not just in the UK but in many other markets around the world.

Although collecting societies and similar organizations are great for authors and designers they are not necessarily good for consumers and other users because they create monopolies and impose conditions that some consider to be unnecessarily restrictive.  Licensing schemes are therefore regulated by Chapter VII of Part 1 of the Copyright, Designs and Patents Act 1988.   Some users such as broadcasters and universities are also very powerful and they may challenge a licensing scheme under the Act.   A body known as the Copyright Tribunal resolves disputes between copyright owners and users under Chapter VIII of Part 1.   One case that might interest Welsh speaking readers is BBC v EOS  17 Feb 2021.

Sofie Roberts has invited me to speak at a seminar on licensing for the North Wales creative network on 19 April 2021.   If Covid 19 infections reduce sufficiently to allow M-SParc to reopen it will be great to deliver this talk in person.   If not, I shall deliver it over the internet.   Anyone wanting to discuss this article or any point arising from it may call me on 020 7404 5252 during office hours or send me a message using my contact form.