Puzzles abound in field of intellectual property rights

Date: 23/11/1995

By Ian S Forrester QC

NO honest person can be against industrial and intellectual property rights (IP rights), and anyone who opposes the invocation of such rights in a particular case risks being accused of unsoundness or worse.

The subjects are highly technical and lend themselves to passion. The debate on how computer software should be protected by copyright involved the most intense lobbying seen in Brussels for a decade. Should it be an infringement of copyright to examine, not duplicate, the computer code of another, with the intention of developing a competing piece of software to perform the same function?

The problem is that even running the program being examined can be said to involve reproducing it. The Commission's legislative solution was Solomonic: yes it is an infringement, but the copyright holder has limited rights to prevent it.

Should it be an infringement to publish listings of Irish TV broadcasts? Surprisingly, it was an infringement of Irish and English law, since the broadcaster had devoted “skill and effort” to compile the next week's viewing; but the Commission found it to be an abuse of a dominant position for the broadcaster to rely on their rights to prevent the emergence of a rival guide.

In the field of biotechnology, where a breeder had developed a new maize seed which resisted insects better than its predecessors and where that development involved a patentable inventive step, should the patentee be obliged to allow farmers to exploit the invention by planting seeds culled from the plant? Farmer's privilege was reluctantly included in the proposed directive on the patenting of biotechnological inventions which was rejected by the European Parliament on the grounds of ethical concern about biotechnology, but the debate continues.

The accession of new member states may involve the modernization of their IP laws. For example, Spain and Portugal agreed to eliminate their long-standing discrimination against patents on pharmaceuticals. Patentees in other member states could oppose the export from Spain of pharmaceuticals made there, until the new regime was in place and for three years thereafter. Does three years mean calendar years? Three years from the time the exported product could have been patented in Spain? As usual, much is at stake because Spanish pharmaceutical market prices are abnormally low.

Not for the first time, the ECJ will be asked to interpret the legal meaning of texts drafted by diplomats happy to reach a compromise on language that could mean different things to the different parties which signed it.

Tricky concepts, wide discrepancies between countries, lots of money, and extreme litigiousness: the moral of this for conscientious Euro-parents? Encourage your children not to pursue criminal law (professionally-speaking of course), but intellectual property.

This article reflects the personal views of the author.