Tuesday, December 23, 2008

Merry Xmas

So the festive season is upon us yet again. Unfortunately IP Freely has to enjoy the period as much as the rest and thus will be taking a brief sabbatical until the new year, IP Freely promises to return after taking advantage of the Xmas excess and looks forward to your company once more!


Monday, December 22, 2008

It's all the ISPs fault!

Of interest to those of you following the internet download cases i.e. those involving Atari, Davenport Lyons and a load of unfortunate members of the public will be this revelation in the Guardian (for the latest on the Davenport cases check out this article).

For those of you too lazy to read it (and in all fairness why would you be here if you merely wanted to read the Guardian) the article reveals the Government's plan to make ISPs liable for music and films illegally downloaded by their customers. In 'payment' for this the ISPs will be afforded a small payment for each track or film that their customers download legally, it doesn't take a genius to work out that this would equate to a very considerable amount of money.

The Department for Business, Enterprise and Regulatory Reform has been considering vaious proposals to solve the file-sharing 'crisis' and is due to publish it's report in the new year.

Thursday, December 18, 2008

UK IPO ignores court of appeal!

Despite the Symbian decision (see: IP Freely: Patentability of software programs) the UK IPO has decided to stick with it's previous test on software patents. The IPO's new guidance says as follows: "Since both tests are legitimate for determining excluded matter, examiners will apply the structured approach of Aerotel/Macrossan to address the fundamental question whether a claim falls solely within the excluded matter...The Office considers that as a matter of practice this will achieve outcomes consistent with the Court of Appeal judgment in Symbian more reliably."

Hmmmm so your just completely ignoring the Court of Appeal then!

"The Intellectual Property Office has previously recognised that an invention which either solves a technical problem external to the computer or solves ...What Symbian has now shown is that improving the operation of a computer by solving a problem arising from the way the computer was programmed – for example, a tendency to crash due to conflicting library program calls – can also be regarded as solving "a technical problem within the computer" if it leads to a more reliable computer."

It went on:

"Thus, a program that results in a computer running faster or more reliably may be considered to provide a technical contribution even if the invention solely addresses a problem in the programming,"

IP Freely is not impressed and is expecting further cases to challenge this approach, you heard this rather vague prediction here first, remember that!

Wednesday, December 17, 2008

Hasbro drops Scrabulous dispute in the States

The long running 'Scrabulous' dispute appears to finally be at an end.

Basically though the dispute involves the social networking site Facebook, on Facebook users can install their own add-ons. One such add-on was called Scrabulous and was based on the classic Hasbro word based board game Scrabble. The creators of Scrabulous, RJ Software were threatened with legal action by Hasbro and as such pulled the game. However the dispute did not end there, RJ Software then created two new games Wordscraper and Lexulous to get round the problem but again Hasbro threatened them with legal action for copyright infringement. Hasbro argued that the games were too similar, fortunately for the games' fans RJ Software and Hasbro have now come to an agreement over the games with RJ Software making the "necessary modifications" to satisfy Hasbro.

A joint statement provided as follows:
"The agreement provides people in the US and Canada with a choice of different games and also avoids potentially lengthy and costly litigation,".
Unfortunately for all involved the rights to Scrabble outside of the US and Canada are owned by Mattel. As of yet they have not announced that they will drop their claim against RJ Software.

IP Freely never liked Scrabulous in the first place!

Tuesday, December 16, 2008

Don't go on Facebook you might lose your home!

Well admittedly the title of this post is somewhat sensationalist but it does have merits. I'm pretty sure all practitioners out there have at some point been frustrated by an inability to serve documents on a person who they know are still around. Lawyers in the Oz have solved this problem by serving court papers via Facebook! IP Freely recalls being told a story of a firm sending a bill via Myspace but service of court documents is something else entirely.

Basically in this case (reported in Times Law) a couple had defaulted on their mortgage repayments (sounds familiar) so the lendor obtained a default judgement for the loan amount, unfortunately the lawyers involved then found that the couple had disapeered and so could not serve the relevant documents.

The lawyers: "made at least 10 visits to their home and places of work" but all to no avail. Having: "established that they no longer lived there we looked at the other information we had available to us. Email was one way to serve the papers but some people don't check their email regularly.", but then this instance assumes that people check their Facebook accounts more regularly than email?

One of the lawyers involved then decided to search on Facebook for the couple, found them and having explained Facebook to the judge they were allowed to serve via Facebook.

IP Freely strangely is not sure what he thinks about this. He likes the fact that lawyers and the courts are embracing new technologies and are using the ol' brain matter whilst doing so but is concerned about the issue of whether those involved check their accounts. It may well be that the source material (i.e. Times Law) just left this bit out but IP Freely questions whether the judge considered when the couple last logged onto their 'book account.
"What does everyone else think? Would you be happy to receive important legal documents via your Facebook, Myspace or Bebo account?"

Monday, December 15, 2008

Increase in copyright duration in sound recordings....

Now this may be a bit late (i.e. everyone else seems to have reported it on Friday or in fact Thursday in the case of IPKat) but I had an exam so I'm a bit late.

Anyway this is in regards to the extension of copyright term for sound recordings. Regular IPers (I think i've coined a new term) will be aware of the push to extend the copyright term for sound recordings from 50 to 70 years, well actually to "something like 70 years" according to Culture Secretary Andy Burnham. To quote Alan Partridge (a favourite of IP Freely) "that's disconcertigly vague" but in all fairness he is a politician.

Mr Burnham says: "An extension to match more closely a performer’s expected lifetime, perhaps something like 70 years, for example, given that most people make their best work in their 20s and 30s,".

But what seems like the majority of commentators (and IP Freely agrees with them) disagree with Mr Burnham. The legendary Andrew Gowers (the man behind the Gowers review 2006) seems particularly against such a change. In an interview with Out Law last year Mr Gowers stated that far from extending the period: "I could have made a case for reducing it based on the economic arguments," and that "We certainly considered it, and if you look at the report that came from the academics that we commissioned to examine the arguments and examine the evidence they also argued very robustly that 50 years could be arguably more than enough".

In today's Financial Times Mr Gower responded to Mr Burnham's proposals: "You might just as well say sportspeople have a moral case to a pension at 30," he wrote. "All the respectable research shows that copyright extension has high costs to the public and negligible benefits to the creative community." he said.

In summary then, Mr Burnham is none too popular!

Friday, December 12, 2008

Stop using that smiley!

The Guardian reports here that some crazy Russian has registered ;-) as a trade mark and plans to charge businesses "tens of thousands of dollars" to use it...

IP Freely says lay off the vodka I'll give you a week until an application for revocation is made and I dunno 6 months until the mark is revoked. Still though it's funny.



Have just read a quick note on this on Pinsent Masons Out Law site, read it here.

Whitman loses the plot

eBay's former chief Meg Whitman has lost a WIPO claim for megwhitman2010.com and four other domain names that she claims exploit her fame.

There has been widespread speculation that Meg is planning to run for election as Governor of California in 2010 (hence the 2010 part of the domain name), other domains in dispute are: megwhitmanforgovernor.com and meg2010.com. All of which are currently not working!

The WIPO panel agreed that Meg was internationally famous but that this alone was not enough to prove that the domain's were identical or confusingly similar to a trade mark in which she owns rights. Meg had opted for a single member panel (cheapskate, the 3 member panels have better transfer rates if my memory serves me right!) and that single member said: "Merely having a 'famous' name is not sufficient to establish common law trademark or service mark rights in the name," yeah well um that's pretty obvious but it does get more interesting: "To be entitled to protection under the Policy, however, a personal name must function as a trademark, and for common law trademark rights to exist, the Complainant’s personal name must have come to be recognized by the public as a symbol which identifies particular goods or services with a single source,".

For Meg to be successful her name: "must be used such that a relevant segment of the public comes to recognize her name as a symbol that distinguishes her services from those of similarly situated service providers.".

To put it bluntly she just hasn't: "provided services under the name 'Meg Whitman' as a source-indicator to a segment of the relevant buying public based on her performance as President and CEO of eBay."

You got that? so basically it's no good just being famous, you also have to use that fame if you wan't to rely on it. But then we all knew that didn't we? and we're thinking why is this guy writing about this as it is very basic........

You've got a point.

Thursday, December 11, 2008

'Sequin Art' not descriptive of sequin art?

An interesting decision has come out of the High Court.

Kitfix Swallow Group (KSG) had been selling craft kits that allowed purchasers to create pictures with sequins since 1990. In 2005 KSG registered a Community Trade Mark for 'Sequin Art' and then in 2007 KSG sued toy wholesaler 'Great Gizmos' for trade mark infringement and passing off as they were importing and selling similar kits under the same name. In response Great Gizmos applied to the OHIM for a declaration of invalidity of the trade mark on the grounds that it was descriptive. However in November 2007 an application by Great Gizmos to put the court proceedings on hold pending the outcome of the OHIM's decision was refused.

In the High Court Judge Mackie QC summarised the defendants arguement as: "[The words] immediately inform the average consumer that the goods in issue are used to create art of artwork using sequins...there is no lexical invention or any unusual syntactical structure to the term 'Sequin Art'."

KSG said that the name merely eludes to the characteristics of the goods, stating: "[The Name] alludes to what the finished product might wish to be considered...the goods themselves are not pictures. The goods merely comprise some sequins and instructions, i.e. nothing more than a collection of plastic bags that contain components that might form a picture in due course if suitable skill and endeavour is expended by someone."

The Community Trade Mark Regulations 1994 effectively allows for descriptive marks that have acquired a distinctive character in relation to the goods or services for which it is registered. Thus KSG also argued that not only was the mark not descriptive it had also gained further distinctiveness through it's use.

Judge Mackie stated: "My own first impression albeit superficial (perhaps like that of a purchaser) was that these products of the same name and nature were part of the same range...although confusion might not happen very often I consider that there is certainly a likelihood that it would given the background, the similarities between the products, the nature of the market and the fact that both kits are called 'Sequin Art'."

In the end Judge Mackie found in KSG's favour ruling that there was both trade mark infringement and passing off, on top of this he dismissed Great Gizmos application for invalidity. He stated:

"I also conclude from the evidence that the mark 'Sequin Art' is distinctive either inherently or because of its use over the years…'Sequin Art' is allusive not descriptive, because while it indicates the nature of the product it does not describe it...further use over the years has made it distinctive."

Damages are to be assessed.

Fancy a refreshing Coke Cola?

The Company Names tribunal has ruled that a company called Coke Cola must change it's name and pay £700 to soft drink behemoth Coca Cola.

Coca Cola argued that the name Coke Cola Limited was misleading and takes advantage of Coca Cola's famous trade marks. Coke Cola made no opposition and must now change their name and pay £400 towards Coca Cola's application fee and £300 towards their costs. The ruling is historic as it is the first to be decided by a Company Name Adjudicator, this role was introduced by the Companies Act 2006 and came into force on the 1st of October (this year).

Under the Companies Act 2006 anyone can file an objection with the Company Names Adjudicator if a new company is incorporated under a name associated with the complainant, for which the complainant has goodwill or in fact a name that is similar and is likely to mislead a consumer by suggesting a connection between the businesses.

IP Freely is a big fan of this part of the new Companies Act (although it is not a fan of the staggered implementation of the act as a whole which merely provides for CONFUSION!) as previously it was difficult to object to 'similar' company names. Basically if it wasn't identical it wasn't worth complaining about and if it was identical then no one else could have registered it anyway!

On a more important note IP Freely has yet to see the Coca Cola Christmas Ad.....................

Wednesday, December 10, 2008

Muxlim Pal joins the virtual world forray

Regular readers will know that I am rather interested in the phenomenon that is virtual worlds. Low and behold there is a new one! and it's actually rather interesting.

Muxlim Pal is it's name and it's USP is that it is aimed at Muslims, although it's creator has stated that: "We are not a religious site, we are a site that is focused on the lifestyle...This is for anyone who is remotely interested in the Muslim culture and the Muslim lifestyle,"

Apart from the Muslim focus the rest of the world is rather standard i.e. users create an avatar, interact with other avatars, improve their avatar etc. Items can be purchased using in game credits, these credits can be purchased with real money (always an interesting IP point). The founder says:
"We were seeing that our users were enjoying certain character developing elements of Muxlim.com, and as no other virtual world offers a family-friendly environment for our community, we felt there was a need to cater for the people who were being left out."

IP Freely thinks it is a noble idea to bring somewhat alienated sectors of society into the virtual world but whether it will prove a success is a matter for time to decide!

Who cares about the credit crunch when you can litigate

This may be old news but the number of IP disputes in the High Court has shot up by a whopping 83 per cent in the past year, this is as many commentators predicted with businesses moving to protect their IP rights in the economic downturn.

Statistics show that 422 IP cases reached the High Court in 2007, this is up from 230 in 2006. Patents and registered design cases rose a massive 95 per cent, while copyright and design rights claims were up 43 per cent.

Obviously this is good news for professionals, although IP Freely is beginning to realise that there is always work for an IP lawyer......in good times clients have more cash to splash and so there is work to be had in advising how to protect rights and yet in the bad times there is a wealth of litigation to play with....can't lose.

Tuesday, December 9, 2008

Data protection act and online businesses

In the UK the collection and use of personal data is governed by the Data Protection Act 1998 (DPA), the act and its accompanying legislation came into force on 01 March 2000. The DPA was implemented in order to satisfy the EC Directive on the protection of individuals with regards to the processing of personal data and the free movement of such data (95/46/EEC) and it replaced the previous Data Protection Act of 1984.

Data Protection issues have hit the headlines in recent years as a variety of businesses and organisations lose data, provide third parties with personal data and in some of the most well known instances refuse to provide seemingly legitimate parties with data that they require . Because of this it is an important and often overlooked consideration for any business, and especially for a business that is looking to establish itself online as a number of additional data protection issues arise.

The majority of online businesses will collect non-sensitive personal data such as: name, contact details, credit card details mostly for the purpose of supplying goods or services to users of the site or for contacting users with direct marketing. Under the DPA privacy policies are not a requirement for websites but they can be a useful method of insuring compliance with certain aspects of the DPA. Non-compliance with the DPA is a serious matter that can lead to criminal sanctions with directors and other such company officials potentially being made personally liable, the company will also be liable for damages and potentially a great deal of negative publicity.

Personal data consists of data that relates to a living individual who can be identified from that data or from that and other information that the data user has or is likely to come into the possession of . This brings up the question what is data? Under the DPA 1998 data includes information processed by computers, contained in relevant filing systems and accessible records. Relevant filing systems are defined in S(1) of the DPA 1998 as a set of information that is:

"Structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily available"

The idea of 'accessible records' was introduced following the Gaskin case in which the Court held that some records fall under the heading of 'private and family life' and as such come under the remit of Article 8 of the European Convention on Human Rights, examples of the records that fall within the Gaskin remit can be found in Section 68 and Schedule 12 of the DPA 1998 . On top of this already slightly confusing definition of 'data' the Freedom of Information Act 2000 has added information recorded by a 'public authority' that doesnÕt fall under any of the other categories . Although of course this is unlikely to affect a company moving online.

Before I go in to too much detail about how the DPA 1998 will affect an online business we finally need to look at the three main categories of persons that are defined under it:

  • 'Data subjects': the individuals who are the subject of the personal data.
  • 'Data controllers': the person (or persons) who "determines the purposes for which and the manner in which" the data is processed .
  • 'Data processor': third parties that process the personal data on behalf of the data controller but do not control the contents or use of the data.

A key concept of the DPA 1998 is that for the processing of the majority of personal data consent must be given by the data subject (processing being defined under S1 DPA ). But under Schedule 2 of the DPA data controllers can process certain data without the data subjects consent, the most relevant provision of which is where the performance of a contract is subject to the processing of said data. For a company looking to start an online business they will be able to rely on Schedule 2 if their data processing is for example to process an online transaction. But the majority of businesses will opt for the 'consent' route as this provides the safest option, such consent must be "freely given, specific and informed" . It remains unclear as to exactly what this contains although it is widely believed that not clicking 'opt out' boxes for example is not sufficient to show implied consent. Academics identify the lack of clarification in the DPA 1998, this position has been defended by the Government:

"The Government are content for the issue of whether consent has been validly given to be determined by the courts in the normal wayÉ.It is better for the courts to decide according to ordinary principles of law than for the Act to contain specific consent provisions"

This absence of clarification will allow the data controller a greater deal of flexibility as to how they deal with the issue of consent, but the most sure method would be to include a clear 'agree' or 'accept' button directly on the page of the privacy policy (the privacy policy being the established way of including data protection terms on a website).

The DPA applies only to data controllers who are established in the UK, this is determined as follows :

  • UK registered companies.
  • Those who maintain an office, branch or agency in the UK.
  • Individuals who are ordinarily resident in the UK.

Needless to say there has been considerable trouble regarding online businesses who arguably have a worldwide presence due to the worldwide nature of the internet. A company looking to start an online business will have to consider for example the whereabouts of their servers as these would be covered under the DPA .

The DPA 1998 continues with the principles set out in the 1984 act, in basis these are intended to be good practices that data controllers should comply with in order to protect the data that they control. But the DPA 1998 renumbers these principles and dictates that the data controller has a duty to comply with the principles unless an exemption applies . The principles and their affect on online businesses are detailed below:

  1. The first principle requires fair and lawful processing, this refers back to Schedule 2 and 3 of the DPA 1998 and the issue of consent. i.e. where no explicit consent has been given the processing of personal data must be 'necessary' , in the event of any dispute the burden of proof is on the data controller. 'Fair' processing was determined under the Innovation (Mail Order) Limited case and also under the Data Protection Directive . In basis it requires the data controller to provide the data subject with information regarding why the data is being collected and what it is to be used for, except where the data subject already has such information. The data controller is though exempt where a third party has collected the data and it is a 'disproportionate effort' for the data controller to provide the information.
  2. Under the second principle the data controller must obtain data only for specified and lawful purposes and must not carry out any further processing which is incompatible with these purposes. For example if an online business obtains data for the purpose of processing a transaction and uses the data for marketing purposes without prior consent.
  3. The third principle requires that the data controller holds only personal data that is 'adequate, relevant and not excessive in relation to that purpose or those purposes'. For the purpose of an online business it should be made clear if there is optional information, for example if the website is supplying an online quote then there will probably be no need to obtain a customers name or gender etc, whilst it is fine to collect this information it should be marked as optional in order to show that the site is complying with the DPA.
  4. Principle four requires that all personal data 'shall be accurate and, where necessary, kept up to date.
  5. The fifth principle states that personal data 'shall not be kept for longer than is necessary for that purpose or those purposes'. So when the use for which the data was collected has ended such data should be destroyed, so an online business which receives enquiries should ensure that they only keep such data for the time it is used to process the enquiry after such it should be destroyed. A large number of such sites include as part of their privacy policy a term stating that such data will be destroyed after six months if the quote has not been taken any further.
  6. Under the sixth principle data must be processed in accordance with the rights of the data subject under the Act. (Please see below for more detail about a data subjects rights).
  7. Appropriate technical and organisational measures should be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. In order to adhere to this principle an online business should ensure that both employees and any data processors have written contractual obligations to ensure that they do not process data outside of such a remit. They should also ensure that technological measures are taken to protect the data i.e. firewalls on machines with such data, frequent password changes, virus protection etc and from an organisational sense the business should ensure that only those people who need to access data can access such data. It can prove especially difficult with online business that have a need to operate 24 hours a day and thus employees are remotely connected at all times, so all mobile equipment must have adequate encryption software especially since the Inland Revenue lost over 25 million peoples data .
  8. The eighth principle is perhaps the most pertinent to online businesses, it states: Data should not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data. Ideally an online business would include such data transfers in their privacy policy this would ensure consent. Otherwise what is considered as a transfer is quite wide see the case of Lindqvist where placing personal data on a website that can be accessed from overseas was considered as a 'transfer' and thus would come under the eighth principle.
  9. Before a data controller can process data they must register with the Information Commissioner there is a fee of £30 applicable for this. Data subjects themselves must be given information regarding the purpose of the processing. More often than not this is provided in the form of a data protection notice which can frequently be found in application forms, terms and conditions etc. The information must be set out in a data protection notice and must include a description of:

    • Data Controller details.
    • Purpose of the processing.
    • Recipients' details of who they are and what their purposes are.
    • Opt Out/In to any marketing as appropriate.
    • Contact - a description of the methods to be used for contracting individuals for marketing purposes.
    • Information - any further information necessary to make the processing fair.

    As mentioned in principle 6 data controllers must give rights to the data subjects as follows:

    • The right of access to his/her personal data.
    • The right to object to certain processing causing substantial damage or stress.
    • The right to object to automated decision making, and
    • The right to object to direct marketing.

Monday, December 8, 2008

Microsoft sue pirates

Microsft have issued a whopping 63 seperate claims against people selling counterfeit software on auction sites (think eBay). The BBC reports that the legal action targets sellers from a total of 12 nations (including all the big boys). The majority of the defendants have been selling fake "Blue" versions of Microsofts XP operating system, it should though be noted that XP has been replaced by Vista (equally nasty to use in IP Freely's humble opinion) although this hasn't been received particularly well by the business world.
Microsoft claim:

"These dealers are peddling bogus products that can put customers and their personal information at serious risk,"

and that:

"Consumers should be aware that the so-called 'Blue Edition' software is nothing more than low-quality counterfeit software burned onto a CD,"

IP Freely says: 1) The people that are ripping off Microsoft are stupid (seriously Bill doesn't like this malarky and willl come after you) and 2) Microsoft only care because Vista has bombed, if it has been a success then this would have never come to light.

On a serious note, with the wave of counterfeit software cases kicking around at the moment people should really be careful with what they download and what they buy.

Friday, December 5, 2008

So this is how lawyers behave

Now whilst this is not strictly IP related, it is law related (and hilarious to boot). The Times has reported on the Legal Business's Christmas edition which features the debauched antics of the legal profession (it's almost as if the credit crunch doesn't exist!), my personal favourite is:

"Which City firm reacted to a client’s failure to pay its fees by taking a large group of junior lawyers to a bar owned by the client? Having drunk the bar dry, they left without paying the bill."

Surely the best way to get back at a client? or can someone enlighten IP Freely as to any better?

Anyway read the article here and check out he photo to the right which is how IP Freely imagines the law profession to look like having read the article.

Thursday, December 4, 2008

.tel on sale

Today is the day that .tel domains were made available for trade mark owners, for more details see the earlier post here. Interestingly enough (and despite IP Freely's views on the matter) the Guardian reports that the company behind .tel insist: ".tel should not be seen as yet another attempt to extract cash from brand owners and companies desperate to keep control of their online presence."

Apparently .tel allows domain owners more freedom in how they use the internet: "Instead of having to go out onto the web to get further information, you go to the DNS and every single way I can interact with you or a business is delivered straight back," for more details check out the Guardian article here.

Marks and Spencer trade mark infringement

It's not just a trade mark infringement case......it's a Marks and Spencer's trade mark infringement case. Middle class favourite Marks and Spencer have been sued by Interflora (the worlds largest flower delivery firm), also named in the suit is Flowers Direct Online (who do exactly what you might think they do).

Basically Marks and Spencer and Flowers Direct Online are accused of bidding on Interflora's trade mark (that would be 'Interflora') and mispellings of the same on Google's Adwords. Adwords allows users to bid for certain keywords, then when someone searches for those words on Google their site appears in the "sponsored links" section.

Apparently: "when a user enters the search term INTERFLORA or similar into the Google search engine, it is the intention of that user to look for [Interflora or its associates]."

Well that was pretty obvious but the claim went on: stating that the unauthorised use was detrimental "because there will be a blurring or dilution that will lessen the capability of the Trade Marks to distinguish [Interflora] and its goods and or services from those of others." and that using the marks enables M & S and Flower Direct "to free-ride upon the fame of the Trade Marks, thus conferring upon themselves and/or their goods or services an unfair advantage over the Claimants and/or other traders, and/or members of the public."

Avant IPers will be aware of the recent 'Mr Spicy' case where the defendant was not to infringe a mark in the same way because the sponsored word itself was 'plain English'. Applying the same rule in this instance it would appear likely that M & S and Flowers Direct will be found to have infringed Interflora's mark, unfortunately though IP Freely is not the judge and we will have to wait for the verdict.

Wednesday, December 3, 2008

Snow White gets Dopey

The IP Kat features as interesting story just in time for the panto season. Apparently a production of the family favourite Snow White has fallen foul of copyright law (not TM?). A theatre in Bolton was due to put the show on complete with seven dwarves, that is until Disney got involved. The production has been forced to change the name of six of the seven dwarves (as IP Kat rightly mentioned, why only six of them? what about the seventh?). Now there are a number of issues here: firstly is the original article (from The Bolton News) correct? The media industry as a whole seems to intermingle the terms copyright, trade mark and patent as if they are all the same so perhaps they meant to say trade mark? After all since when did copyright protect a name? Secondly the characters appear to be the same (albeit named differently) now if Disney really were enforcing their rights then the characters would potentially be protected by copyright and finally the story itself has been around since the 19th century so surely copyright would be out of time? (although it should be noted that the IP Kat mentions the dwarves were not named until 1937).

In all honesty if the production company involved were to contest this then it is more than likely that they would be allowed to use the names. As it is they probably don't know their rights / don't think it's worth arguing over! Unfortunately most people don't know their rights and are reluctant to seek professional advice.
You can read the IP Kat article here and the original Bolton News article here.

Tuesday, December 2, 2008


Some of you may have noticed that you can now access this site via http://www.theipblog.co.uk as well as direct: http://theipblog.blogspot.com and also http://www.ipfreely.info.

The reason for this?

All will become clear in the new year but basically I have found that IP Freely is getting too serious, this was not the purpose of the blog and as such I plan to revert IP Freely to its original casual stylee and use http://www.theipblog.co.uk as a more serious / sensible site.

Computer hacking: how best to solve it

IP Freely is currently watching episode three of 'The Barristers' (a BBC documentary about barristers for those of you who are unaware) and doesn't have time for blogging, so by way of a stop-gap you may be interested to read the following piece that I wrote for my LLM. Enjoy:

Computer hacking, how best to solve it

With computers now such an integral part of society computer related crimes are inevitable and will evolve as quickly as the technology itself. The most well known form of computer crime is known as "hacking" basically this involves unauthorised access to a computer. Hackers themselves take a number of forms and as such have different motives for gaining access to these systems: the recreational hacker, typically does so from his bedroom and may access systems just to have a look around or leave a "signature" (much like a graffiti artist) . Others may have more disruptive motives such as stealing information for commercial use or hacking in order to facilitate further offences such as identity theft or fraud. Such hacking costs UK businesses billions each year and is a major problem. It is in fact a problem that traditional criminal law has struggled to come to terms with.

On 29 August 1990 the Computer Misuse Act 1990 ('The Act') was brought into effect. This followed a Law Commissions report on computer misuse and pressure on the government from businesses. This pressure was brought about because the UK was trailing behind its European neighbours in implementing such legislation and this had the effect of stunting the growth of the UK IT industry.

Before the introduction of the Computer Misuse Act the law did not provide adequate sanctions for computer misuse, instead prosecutors had attempted to force such cases under a range of statutes. Including the Forgery and Counterfeiting Act 1981 under which one of the most famous hacking cases was considered, R v Gold (1988) 2 WLR 984. Section 1 states that a person is guilty of forgery if he makes a false instrument, with the intention that it should be accepted as genuine so as to prejudice some other person (instrument includes disks and tapes) the case was rejected under this act because the hacking in question involved entering a BT employees number which did not constitute a disk or tape. Various sections of the Theft Act 1968 have also been applied to computer misuse offences for example where a false statement has been entered in order to gain an unintitled payment (see R v Thompson (1984) 1 WLR 962). Even the Criminal Damage Act 1971 has been used for instances of computer misuse. There is one major stumbling block here, the damage caused by computer misuse is mostly not 'tangible' (i.e. you can't feel or touch it, it has no physical entity). But in some cases applying the act has been successful. In the case of Cox and Riley (1983) 83 Cr App R 54 the court found that according to the dictionary damage meant "injury impairing value or usefulness" hence damaging computer programs by hacking was brought under the Criminal Damage Act (see also The Mad Hacker: The Mad Hacker (Times 25th May 1990) ).

The Computer Misuse Act introduced three new categories of offence into UK criminal law: Unauthorised access to computer material, unauthorised access with intent to commit a further offence and unauthorised modification.

Unauthorised access is the basic idea of "hacking". The Act makes it an offence for a person to conduct an act which causes a computer to perform a function, when at the time, he possesses an intention to access a program or data held in a computer. The access must be unauthorised and he must known this at the time he makes the computer perform these functions, although under S1(2) the intent does not need to be directed at a particular computer or program (etc). It is interesting to note that the Act does not include a definition of a 'computer', according to the Law Commission this is because such a definition would be:

"so complex, in an endeavour to be all-embracing, that they are likely to produce extensive argument"

Presumably the exclusion of such a definition also effectively 'future-proofs' the legislation by allowing changes to be made as technology advances. At present the definition of a 'computer' in the Civil Evidence Act 1968 is widely recognised as being the accepted definition: "any device for storing and processing informationÉ" .

The offences under Section 1 carry with them the potential of six months imprisonment or a fine of up to £2000 (although there are time limits see Morgans v DPP (1999) 1 WLR 968, DC). They are also the subject of much dispute. It is the view of many commentators that the offences under Section 1 are too wide ranging the Data Protection Registrar for example took the view that hackers who merely Ôtake a look aroundÕ should not be criminalised . In fact there is so much cross over with Sections 2 and 3 that many believe Section 1 to be useless, for example pretty much every hacking offence will be covered by Sections 2 and 3 anyway. I am of the opposite view from many of the commentators, it seems to me that perhaps the most adequate method of legislating against such a complicated field as hacking would be to make penalties for the lower offences i.e. Section 1 harsher thus discouraging people from starting hacking. This is also the point where hackers are easiest to detect.

Section 2 of the Act covers unauthorised access with intent to commit or facilitate the commission of further offences. Much of the remit of this section has been covered in previous legislation as mentioned early in this work but the Act brings all of these into one location and ensures that everything is directly specific to computer misuse. Section 2 (1) imposes criminal sanctions on a person who commits an offence under Section 1 and does so with an intention to commit or facilitate the commission of a further offence. Relevant further offences are those for which the sentence is fixed by law or where imprisonment may be for a term of five years or more . The access and further offences do not have to be intended to be carried out at the same time and it does not even matter if the further offence was impossible . The requirement of 'intent' under Section 2 is what is known as 'ulterior intent' and by application of previous criminal cases it would not be enough to show that the person who gained the unauthorised access was reckless as to whether he was going to commit a further offence . The link between the Criminal Damage Act 1971 and Section 2 of the Act is unmistakable. Section 3(6) of the Criminal Damage Act states that it is an offence to gain unauthorised access to a computer with a view to damaging it. If a person were to be convicted under this section then they could also be convicted under Section 2 of the Act, this is perhaps an issue that should be tidied up and amalgamated into one piece of legislation.

During the drafting of the Act there was an attempt to add a defence for Section 2 offences, this being that the computer users had not implemented security measures . Other jurisdictions such as Norway already have such defences. Whilst the defence was not included in the act at Section 2, the security measures idea was included at Section 17 in determining whether access was considered unauthorised. It would perhaps be prudent to add such a defence to Section 2 in an amendment to the Act or as a whole new statute. I would suggest adding the clause Ôadequate security measures, this would have the effect of forcing businesses to invest in and focus on computer security which in any case would make life harder for hackers and would hopefully prevent hacking rather than punishing people for doing it.

Section 3 of the Act imposes criminal liability on a person who has done three things:

  • Causes an unauthorised modification of the contents of the computer.
  • Intends to make such a modification.
  • Knows that what he intends to do is unauthorised.

Needless to say this Section must be read in conjunction with Sections 1 and 2 of the Act as a person liable for an offence under Section 3 will also be liable for an offence under Section 1 or 2.

A modification is one which impairs the operation of a computer or prevents or hinders access to a program or data or the operation of the program or data or affects its reliability . It also includes alteration or erasure of any program or data held in the computer or adding a program or data to the computer (for example adding a virus). There are a vast number of examples that I could use to illustrate unauthorised modification for example in Scotland hackers accessed the District Treasurers computers and deleted the records of all people over 18 and eligible to pay the Community Charge and substituted those of dead people in their place .

At present society in general does not see computer hacking as a particular problem, films and the entertainment industry promote characters who are often young and perceived in a Robin Hood esque manner attacking the massive "evil" corporations of the world. Whereas the reality is somewhat removed from this, with hackers often working with much more sinister motives. On top of this problem prosecutors face many others. Firstly the difficulty in tracing and gaining enough evidence in order to prosecute offenders, more often than not there is simply not enough backing to do this. Secondly the reluctance of businesses to address computer misuse, this is normally for one of two reasons 1) They do not wish to finance extra computer security and 2) Perhaps the most pertinent point they do not wish to prosecute offenders as this would make public their computer security inadequacies. Finally the Courts have for years struggled with outdated laws against ever changing technology. Looking back at how previous legislation was shoehorned into use against computer misuse offences it is remarkable that it took so long for the Computer Misuse Act itself to come into fruition and given the speed of which technology advances it is equally remarkable that the Act has not been updated or amended. Whilst there are arguments for not changing Statutes too frequently; i.e. with too many changes it is difficult to keep up with the changes in the law for example the numerous Criminal Justice Acts; it has now been nearly two decades since the introduction of the Act. In that time we have seen the dot com boom and the rise of hacking to unprecedented levels. I am of the opinion that it is time for the Act to be updated, bringing into play new technologies such as mobile internet, stiffening sentences for Section 1 esque offences and also ensuring that the Courts themselves are educated as to the nature of these. The best method of deterrence is to increase the number of convictions, this requires work with all of the prosecution services including the police.

However regardless of changes made to the current legislation, the law itself will never keep up with technology it will always be one step behind if for no other reason than that the criminal law is reactive rather than proactive. Therefore it seems prudent that businesses themselves are encouraged to ensure their own computer security is a tight as it can be, this is the best method of deterring hackers. Perhaps legislation could be introduced forcing businesses to reach an adequate level of computer security although this is likely to very unpopular amongst businesses due to the costs associated.

Monday, December 1, 2008

Copyright and your website

It has become apparent from looking at my Google analytics stats and the emails I have been receiving re this blog that a lot (if not the majority of my readers) are new to the subject of intellectual property; one even said (and I quote) "wow people take these trade mark things seriously" um yes yes people do you fool; but I digress. As a caring sharing kind of guy I will start putting up some more basic material for those new to the IP world, now this doesn't mean i'll stop writing about current affairs!

So here's the first one, 'Copyright and your website' enojoy:

As a website owner it is essential that you consider the various forms of intellectual property in order to protect your website from both being copied and also ensure that material you use does not infringe the rights of another party. In what will be a series of articles I begin by looking at copyright.

  • Make sure that all work on the website is original and in order to be protected by copyright it can be shown that it has been created by skill and effort.
  • Keep records of who creates the works and when they are created, consider sending to yourself or a copyright bank service.
  • In the UK copyright is an automatic right but in some countries copyright must be registered, if this is the case in countries you wish to operate in then ensure your copyright is fully registered in order to protect your rights.
  • Include copyright notices both for individual works on the site and the site as a whole. i.e. who owns the copyright for example: © your company name 2007.
  • Also include restrictions / instructions on use and copying from the site. Clearly stating what can and cant be used and if material can be copied what notices have to be included. You should also consider whether you want to put valuable work up on the site as whilst you can put up notices etc there is no physical way to stop people stealing your work.
  • Keep an eye out for infringements and as soon as you become aware of any put them at notice of your copyright.
  • If you are using any third party works on your site then ensure that you have the appropriate licences for it. In the case of work commissioned for the site for example web designing etc then consider a licence or agreement transferring the rights in it to you.
  • Where employees create work for the website the copyright would automatically be held by the employer. This is true for this country at least but not for some others, if you are operating a website from outside of the UK then you should consider an agreement whereby the rights in the work are transferred to the employer.

UKIPO in update shocker

They've changed the IPO site!

Whilst I for one will miss Wallace and Gromit's cheery faces on the home page it seems on the whole to have been a change for the good. Aesthetically it's good and though i've only had a cursory play with some of the features that seems good also, my big bug bear.......that new logo it's horrible!

See for yourself here.