By John Wilks and Charles Harvey
UK IP legislation is changing.
First, the Enterprise and Regulatory Reform Act 2013 (which received Royal Assent on 25 April 2013), has just been published, and modifies UK copyright law (though not as drastically as some would have liked).
Secondly, the Government announced in the Queen’s Speech that it will be introducing an Intellectual Property Bill to make changes to the law of design and patents.
Copyright provisions of the Enterprise and Regulatory Reform Act 2013 (ERRA)
The ERRA includes (among other things) significant copyright-related provisions. It repeals section 52 of the Copyright, Designs and Patents Act 1988 (CDPA). This provision previously limited the duration of copyright in artistic works exploited by an industrial process to make articles, to just 25 years. The new ERRA provision extends the copyright protection afforded to such works to the usual period for most copyright works, of the life of the author plus 70 years.
The ERRA also introduces a so-called “orphan works” licensing scheme. This allows a party which has undertaken a diligent search for, and been unable to locate, the owner of copyright in a work, to obtain a licence to use that work. The details will be established in secondary legislation.
A significant point to note following publication of the ERRA, is the removal from the final bill of the Secretary of State’s standalone express power to amend the copyright exceptions. This broad power had originally been drafted into the ERRA following Professor Hargreaves’ independent review of UK IP law in May 2011, which proposed various extensions of existing copyright exceptions. However, in the final version of the ERRA, and to the government’s disappointment, the Secretary of State is left with the much more limited existing power for amendment derived from the European Communities Act 1972. This means that further amendments to copyright exceptions will be subject to greater legislative scrutiny than otherwise would have been the case; copyright owners will welcome this.
Intellectual Property Bill announced in Queen’s Speech
The Queen’s Speech was given on 8 May 2013, setting out the government’s legislative plans for the next session of Parliament. Included in this was an Intellectual Property Bill. The Bill will include changes to the law of designs and patents, as outlined below.
Patents: Introduction of the Unified Patent Court (UPC)
In December 2012, two EU regulations were adopted which at last clear the path for a unitary patent (see our earlier alert here).
The UPC will be made up of a Court of First Instance, an Appeal Court and a Registry. The Court of First Instance will consist of a central division (with a seat in Paris and one in each of London and Munich) and several local and regional divisions in the contracting member states. The Court of Appeal will be situated in Luxembourg. The Intellectual Property Bill will include arrangements for the establishment of the UK division of the UPC.
The UK government published its Policy Statement on the 30 April 2013 on reform of UK designs law; see our alert here. The designs-related parts of the Bill are expected to follow the Policy Statement; the government has indicated that the Bill will:
• introduce criminal penalties for the deliberate copying of registered designs;
• allow the UK to join the Hague Agreement in its own right; and
• change the first owner of a commissioned design from the commissioner to the designer.