UK IPO finally speaks about the "facts" of IP post-Brexit

The AmeriKat under yet another Brexit law
update

Unlike many of the UK law firms who quickly climbed on board the Brexit bandwagon, the UK's Intellectual Property Office has been understandably and notably silent.  For the past several weeks they have been in listening mode as they hear from stakeholders about their post-referendum concerns.  Today, they have published a short guide called "IP and Brexit:  The Facts" to dispel the speculation on the future of IP law following the referendum result.  The main message is "The UK is still part of the EU so your EU-derived protections continue and we are considering various post-Brexit options".  Unsurprisingly, the brief is short given that the fate of EU-made rights will be determined by the ultimate relationship between the UK and EU.

On patents, the UK IPO confirmed that it was business as usual for UK businesses applying for patents at the EPO and that the referendum result will not impact the European Patent Convention (EPC).  On the UPC it stated:

"The UK remains a Contracting Member State of the Unified Patent Court at present. We will continue to attend and participate in UPC meetings in that capacity. There will be no immediate changes." 

On trade marks and designs, the UK IPO stated that

"We recognise that for EU trade marks, users will want clarity over the long-term coverage of those rights. The government is exploring various options and we will be consulting users of the system about the best way forward. Even after the UK leaves the EU, UK businesses will still be able to register an EU trade mark, which will cover all remaining EU Member States.  

In addition, the UK is a member of the international trade mark system called the “Madrid System”, which allows users to file one application, in one language, and pay one set of fees to protect trade marks in up to 113 territories including the European Union." 

On rights of representation of UK trade mark lawyers before EUIPO, the UK government stated that they fully recognized those concerns and "welcome views on how to address these concerns and are involving stakeholders in consideration of these issues."

The IPO's Brexit briefing summarizes
what we expected - business as
usual, until something  happens

On designs, the UK IPO reiterated the government's intention to ratify the Hague Agreement:

"in a national capacity, which provides a practical business solution for registering up to 100 designs in over 65 territories through filing one single international application. We are currently working through the steps of joining and hope to introduce the service within the next year." 

On copyright, the UK IPO stated that the continued effect of the EU Directives and Regulations post-Brexit "will depend on our future relationship".

Finally on enforcement, the UK IPO conducted some justifiable self-promotion by declaring that

"The UK is widely seen as a world leader in enforcement of IP. By working in partnership with law enforcement and industry, the government can deliver an IP environment where legitimate businesses thrive and consumers are protected. For the time being the UK’s enforcement framework remains unchanged."

The UK IPO concluded by stating that it

"...will continue to play an active role in the review of the Enforcement Directive, and the Commission’s work on tackling commercial-scale infringement."

The AmeriKat will be back later this week with an update on the Enforcement Directive consultation following June's IPR Enforcement Conference 2016.

Baroness Neville-Rolfe will definitely
need energy when it comes to
Brexit negotiations

In the meantime, Baroness Neville-Rolfe will continue as the minister for IP, but her full title is now Minister of State for Energy and Intellectual Property.  So with energy to her dossier, her full list of responsibilities is as follows:

• energy (with the Minister for Industry and Energy) 
• nuclear 
• oil and gas, including shale gas 
• low carbon generation 
• security of supply 
• electricity and gas wholesale markets and networks 
• energy efficiency and heat, including fuel poverty 
• smart meters and smart systems 
• international energy energy security, including resilience and emergency planning i
• ntellectual property 
• EU single market
• Lords lead on all BEIS issues

"Well if anyone can tackle that job specification," Merpel muses "Baroness Neville-Rolfe surely can...."

Gotta catch 'em all without infringing copyright: Pokémon and Freedom of Panorama

Pokémon Go has seen thousands of people getting off the couch into parks, historical sites, and even railway tracks in search of Pokémon. For those unfamiliar with this addictive new hobby, it is a game app for smart phones that allow players to catch Pokémon; animated creatures that were popularised in the 1990s by a card game, television series, and video games. In Niantic’slatest revival of this craze, Pokémon Go, virtual Pokémon appear in public places, and can be photographed through the app, which raises the question of copyright infringement in countries which do not have Freedom of Panorama.

How does the game work?

                                                                                            

Pokémon Go requires players to search for Pokémon in the real world, a revolutionary move in the gaming industry. Pokémon are randomly generated by the game software, using GPS tracking technology. When a player is near to a Pokémon, it will appear on her phone screen in camera mode and allow her to ‘throw’ a Pokéball at it to ‘catch’ it. The screen shows the Pokémon in the surrounding environment, making it a life-like experience. While photographs of the capture are not saved to the game, players have the option of saving the photos to their phone, thereby reproducing any surrounding works of architecture or sculptures. 

What is Freedom of Panorama?

Freedom of Panoramais a copyright exception derived from Article 5(3)(h) of the InfoSoc Directive;

“Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases… (h) use of works, such as works of architecture or sculpture, made to be located permanently in public places”

It is an exception which has been championed by MEP Julia Reda in her draft report (section 16) on the EU copyright framework. The European Commission had a consultation on Freedom of Panorama from 23 March 2016 to 15 June 2016.  Currently, member states have varying approaches to the this exception, with some allowing it fully, others limiting it to non-commercial use (which France recently did although in limited circumstances), and a handful have no exception whatsoever.

Even in member states where the exception is allowed for non-commercial purposes, people who share such pictures could be committing copyright infringement. This is despite the picture not being used commercially, as the terms and conditions of social media sites, such as Facebook, allow the site to use your photograph for commercial purposes, and requires that you have cleared any rights to your photography, as explained by Julia Reda.

Such requirements blur the line between commercial and non-commercial.

(Previous IPKat posts of freedom of Panorama hereand here)

How does the absence of Freedom of Panorama affect Pokémon players?

Players who catch Pokémon in front of copyright protected sculptures and buildings in countries which do not have Freedom of Panorama, and take a photograph of their capture, are infringing copyright. For example, taking a photograph of the Pikachu you caught in front of Mimmo Paladino’s ‘Untitled’ horse sculpture in Naples, Italy, would be copyright infringement since Italy has no Freedom of Panorama exception. Since player are unlikely to keep these photos to themselves, there is further potential for infringement due to the terms and conditions of social media sites, in countries which only have a limited Freedom of Panorama.

Maybe Paladino's sculpture is a deconstructed Rapidash 

Furthermore, photographs are not currently saved to the game, but rather to the phone. If this changes and photographs are saved to the game, professional players (yes, this is now a career choice) who sell their accounts will be making a commercial gain from the photos, and will be committing copyright infringement even in countries with the non-commercial exception.

           

It is true that Freedom of Panorama is not a highly litigious area, so individual players can continue showing off their Pokémon on their social media accounts. This Kat doubts that this innocuous threat would deter players from sharing their rare captures such as Mewtwo, but it does raise concerns of the clarity of this area of law, especially concerning the line between commercial and non-commercial uses of reproductions of copyright works. Just like the Pokémon Go servers, Freedom of Panorama needs to be fixed so that the law does not hinder public enjoyment.