Intellectual Property Bulletin

COPYRIGHT

The Artist's Resale Right Regulation 2006

The Regulations came into force on 14 February 2006, a welcome St Valentine’s Day gift to UK artists.

The artist's resale right (sometimes referred to as the droit de suite) will entitle artists and their successors in title to a percentage of the sale price, net of tax, whenever original works of art in which copyright subsists are resold in transactions involving art market professionals. Similar rights have been in existence in other EU countries for some time, but this right is new to the UK.

From 14 February, when an artist's work is re-sold on the UK art market for the equivalent of 1,000 euros or more, he or she will receive a royalty of up to four per cent of the sale price. The resale right subsists for the duration of the copyright in the artwork, and cannot be assigned.

The right applies only to works sold after 14 February 2006. It will apply where the work was created before the date of the Regulations.

To protect the most valuable sector of the UK art market, which is works by deceased artists, the UK Government successfully negotiated a delay in the application of the royalty to works by deceased artists until 2010, with a possible extension to 2012, and will seek to extend it indefinitely.

File Sharing on the Internet

Connecting a computer to the internet where the computer is running P2P software, and placing music files containing copies of the claimants' copyright works in a shared directory is an infringement of the copyright in that music. Downloading from the Internet without permission and allowing others to download from a shared directory would also be infringement. Be warned - Ignorance is no defence.

Copyright Infringement Trial Begins

Have you read the Da Vinci Code by Dan Brown? At least 40 million people worldwide have, and Mr Brown has made £45 million from his novel.

However, have you also read “Holy Blood Holy Grail” by Michael Baigent and Richard Leigh? If you have you may be interested to know that Mr Baigent and Mr Leigh have brought proceedings for copyright infringement against Mr Brown in the High Court in London. The trial opened on the 27 February.

While no copyright exists in ideas or historical facts Mr Baigent and Mr Leigh are claiming that Mr Brown has ripped off the specific thesis of HBHG in order to lend his novel “plausibility” without having to spend the time and effort of actually having to do any research himself.

In support of their claim Mr Baigent and Mr Leigh argue that the name of the chief villain of Mr Brown’s work, Leigh Teabing, is a deliberate amalgam of their names, and that the name of the curator of the Louvre found murdered in the novel (Jacques Sauniere) has the same surname as Berenger Sauniere, a monk mentioned extensively in HBHG.

The "central theme" of The Da Vinci Code - that the bloodline from a marriage between Jesus and Mary Magdalene survives today - is the key theory of HBHG, and specific historical events that uniquely appear in HBHG in support of this theme, also appear in Mr Brown’s work.

If they are successful Mr Baigent and Mr Leigh will be entitled to receive a proportion of the profits of sale of Mr Brown’s book in the UK (4 million sold). HBHG sold 2 million copies worldwide – and was still classed as a publishing phenomenon.

Mr Brown claims he had not heard of HBHG until he had already drafted his synopsis and the opening of his novel. The trial continues.

Trade Marks

• Distinctiveness

The Court of Appeal has upheld the decision of the High Court that Philips's shape mark for electric shavers was invalid on the ground that it consisted exclusively of the shape of goods which was necessary to obtain a technical result. This is not allowed within the meaning of section 3(2)(b) of the Trade Marks Act 1994 and means that the mark will be deregistered.

However, it allowed Philips's appeal in respect of its two-dimensional marks.

So if your product’s shape is distinctive, but it has to be that shape in order to do its job, you will not be able to register the shape as a trademark, and if you currently own shape marks which reflected the functionality of the product, be warned – you may be vulnerable to deregistration. This decision marks the end of Philips's battle to protect the shape of its shaver in the UK.

Patents

• Filing Patents

Under the Patent Cooperation Treaty it is possible to make an application to file a patent in any or all of the 128 countries which signed up to the Treaty at once.

134,000 PCT applications were made in 2005. This is a record number. The biggest growth in applications came from Japan, Korea and China.

TABLOID CORNER – WHAT REALLY MATTERS…

• Privacy/Confidential information

Everyone has the right to respect for his private and family life, his home and his correspondence because of the European Directive on Human Rights, which forms part of UK law through the Human Rights Act 1998.

Loreena McKennitt is a Canadian folk singer. She used to have a friend called Niema Ash. Ms Ash and Ms McKennitt had a falling out and Ms Ash decided to tell the world about her former life as Ms McKennitt’s friend and constant companion. The resultant publication contained intimate details relating to Ms McKennitt’s life, loves and home.

The details relating to the home were particularly trivial but it was possible to identify the location of the house from them. Ms McKennitt has in the past been plagued by stalkers, and she particularly objected to the publication of this information.

There is a wide difference between what is interesting to the public and what it is in the public interest to make known. Some details were so trivial as not to merit protection – details of shopping trips and Christmas holidays could stay in, but the sections about the house now have to come out – even details relating to its state of cleanliness merit protection under UK law. Conversations in the home are also protected – as the court held that people are entitled to expect to be able to express themselves unguardedly in their own homes.