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, caf├ęs 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.

Thursday, 21 January 2021

World IP Day 2021: "IP & SMEs: Taking your ideas to market"

Standard YouTube Licence

Jane Lambert

World Intellectual Property Day is an annual worldwide festival of creativity and innovation which takes place on or around the 26 April.   For the last two years, the Menai Science Park ("M-SParc") on the island of Anglesey in Northwest Wales has contributed to the festival (see Celebrating World IP Day at M-SParc: Basic Tips for Startups and other Small Businesses 29 April 2019 and Anglesey to celebrate World Intellectual Property Day with Talks on Protecting and Exploiting Green Innovation at M-SParc 6 March 2020).

Every year's World IP Day has a different theme.  The World Intellectual Property Organization (the UN specialist agency for intellectual property) has just announced that this year's theme will be "IP and SMEs: Taking your Ideas to Market."  That dovetails perfectly with M-SParc's plans for a lunchtime seminar on 26 April entitled How to use your IP to unlock financial opportunities which I mentioned in What Every Startup and Small Business in Wales should know about IP on 7 Jan 2021.

Our plans are still very much in flux but we were inspired by a webinar that was given by Andrew Davies of the Intellectual Property Office on IP and Funding for Growth and Jenny Tooth of the UK Angels Association on IP and Growth Funding a few months ago. We shall tailor our presentation to the resources and opportunities that are available for businesses in North Wales and invite local practitioners or practitioners with a local connection to speak wherever possible.  We shall try to chart a path from the bright idea in the bath to flotation on the AIM.

If the pandemic can be tamed by 26 April 2021 we should love to hold it in M-SParc before a live audience in the building as well as online.  The speakers would then be available for informal person to person consultations.   If that is not possible, you can already consult us by phone or Zoom.  The first step would be to call me on 020 7404 5252 during office hours or send me a message through my contact form.   I will either give you the answer if I happen to know it on signpost you to the right expert or resource if I don't.

Thursday, 7 January 2021

What Every Startup and Small Business in Wales should know about IP

Wales from the International Space Station
Author Chris Hadfield NASA  Public Domain



Jane Lambert

I should first like to wish my readers in Wales and the rest of the world a Happy New Year. With continued lockdowns in Wales and many other parts of the world, there could not be a more depressing start. But the world will recover.  New businesses offering new products and services will continue to be launched creating new highly paid jobs in Wales.

The success of those products and services will depend on their branding, design, technology and creativity. It is those attributes that I call "intellectual assets" that gives one business a competitive advantage over all others.  A good idea by one competitor is likely to be adopted by others. To some extent that is a good thing and is to be encouraged because that is how science and society advance.  But not if the effect is to deprive the person who dreamt up the idea and invested in developing it from benefiting from it.  That would eventually stifle innovation and creativity.

It is obviously fair that an author designer. inventor or other intellectual asset creator who invests his or her time and money on developing a new product or service should recoup his or her investment and maybe earn a little extra on the side but consumers should not have to pay through the nose for the product or service forever.  The laws that strike a balance between the interests of the author, designer, inventor or other creator and the public are known collectively as "intellectual property". Examplers of intellectual property rights are the 20-year monopoly of the manufacturer, sale and use of a new invention known as a "patent" or the lifetime plus 70 years protection against unauthorized copying of a work of art or literature called a "copyright".

Earlier this week I was discussing possible topics for webinars for the Enterprise Hub with Emily Roberts of M-SParc (the Menai Science Park near Gaerwen on Anglesey).  I proposed two topics:

  • One was on IP and funding similar to one that the Intellectual Property Office had run on 8 Dec 2020 entitled 'How to use your IP to unlock financial opportunities' to be presented on World Intellectual Property Day on 26 April 2021; and
  • The other was the changes to intellectual property law following the expiry on 31 Dec 2020 of the transition period provided by the agreement for the UK's withdrawal from the EU.
Emily replied that both topics seemed engaging to her but she asked: " Is there any you’d think more appropriate for a smaller or start-up business?"

I replied with the synopsis of a 40-minute talk that I had given many times before and which I shall give again on 9 Feb to the Bradford Network:
  • "What are your business's assets? Is it its good name, the experience of staff, quality of service, design or technology?
  • Are you making full use of those assets? Licensing revenue, collateral for borrowing and means of attracting investment
  • How can you secure those revenues? Trade marks for brands, patents for tech and design registration for the appearance of goods plus the free IP rights like copyright
  • How do you set about getting those rights? How long does it take and how much does it cost?
  • How do you face down challenges to your rights? Litigation and insurance
  • How do you budget?
  • What licensing and other revenues can you expect."
Obviously, a talk to entrepreneurs and other business owners in  Northwest Wales will have to be different from the one I would give to a similar audience in Yorkshire because the economies and cultures of the two regions are quite different even though some issues and solutions are universal.

Emily liked the proposal and drafted an Eventbrite card for the talk which she will publish when she has chosen a date and time for the event.  I for my part will draw up slides and a PDF handout designed specifically for businesses in Wales with such information as local advice and information services and useful websites that can be downloaded from Slideshare.

Anybody who wants to discuss this article or IP, in general, may call me during office hours on 020 7404 5252/  Like many other people I am working from home for the duration but our new phone system can forward your call to me wherever I happen to be at no extra cost.  Alternatively, you can send me a message through my contact form.  Incidentally, if you do call I would welcome a chance to practise my Welsh conversation.   I am halfway through an internet training course in Welsh, there are not too many Welsh speakers nearby and I can't visit Wales until it is safe and lawful to do so.