Design Rights Still the "Poor Cousins": Better Design Protection Needed
Christian Gordon-Pullar-to whom huge thanks- and I put forward evidence recently to the IPO on what we thought the future of Design Rights should be. We said the following in our introduction.
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Context:
The existing framework encompassing intellectual property laws that protect designs is overly complex. In the UK, depending on how one characterizes the context, four to six different types of overlapping design protection are available (see below). This creates barriers in effectively protecting creations for designers. Further, the overlapping elements of copyright and design protection in the UK are confusing to many designers and even to some legal practitioners. Designs have traditionally been protected by design law, copyright law, or both, depending of course on whether the respective requirements for protection are met.
For this introductory overview, in context, the Government’s Innovation strategy states that :
‘[D]esign is core to successful innovation’ and that ‘[G]reat design means putting the needs, wishes and behaviours of people at the heart of the innovation process, so that new ideas are truly desirable as well as being technically feasible and financially viable’.
If that is the case, then designers need to be afforded better tools, simpler processes and greater clarity in the law as it applies to designers and the protection of their creative rights. The IPO recognises that SMEs need the right support commercialising their IP and addressing these gaps and complexities in the laws impacting Designs is a key element for SMEs in the design industry.
In 2018, the Design Council reported that the design economy generated £85.2bn in gross value added (‘GVA’) to the UK in 2016, equivalent to 7% of total UK GVA. The Call for Views on Designs states that this ‘demonstrates the importance of designs to the United Kingdom both now and in the future’ Yet, the industry is struggling with the costs and complexities of UK laws on designs, especially post Brexit. Further, adoption of new technologies that might aid or simplify some of the cost and time challenges that the UK’s design industry faces with the current UK laws on designs, post Brexit, is not keeping pace.
Entrepreneurs and designers in SME businesses in the textile, industrial and non-industrial design sectors are perhaps some of the most seriously impacted by the cost of adoption and the additional cost of upskilling staff to address post-Brexit inconsistencies in the law(s) impacting designs and the costs of adoption of new technology, such as 3-D printing, 4-D designs or AI-generated designs.
Perhaps because of its complexity, design protection is often misunderstood by designers and so less used, compared other IP rights. In our conversations with industry groups, a consistent sentiment was expressed that designers are the ‘poor cousins’ of their counterparts in the music, fashion or software industries. Complexity is also, per ACID feedback, being used by some lawyers to exclude the small designer without the funds to instruct lawyers, often an unaffordable expense for SMEs.
This submission advocates the need for a substantial overhaul of the overlapping rights and a resetting of the law relating to design protection in the UK to assist designers in making the most of the UK Designs laws and related IPO processes. This includes maximising the benefits of the rights granted by the law on designs whilst promoting a more efficient, cheaper, simpler and more useable registration system, with the adoption of new AI and machine learning search tools that do not extend the existing lengthy registration process and avoid raising applicant costs any further.
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Scope and Ambit
Any new regime also needs to recognise not only the overlapping challenges of the existing legislative framework but also the challenges of new technologies and their impact, including 3-D printing and 3-D/4-D designs and the future of the 4-D printing pioneers, technologies that are now increasingly available and prevalent in US, the EU and UK and to seek comparable benchmarks – in the US, EU and Asia – to ensure that the UK Designs laws remain competitive, encourage design registrations in the UK and offer clear, cost-effective solutions for the industry’s challenges. The breadth of the consultation suggests that the Government shows willingness and clear intent to assist business in creating a national designs regime that works better for designers. We would therefore encourage the IPO address these concerns with a significant overhaul of the system, helping businesses to leverage the strategic and commercial value of their designs.
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Overview / Summary of Feedback
The headline points of note, in our view are as follows:
- Brexit-related consequences. EU IP post Brexit left the design industry with a problem of registering in EU and UK. Prior to Brexit, it was clearer/easier.
- Higher Legal costs. The industry has lost some confidence in IP attorneys and IP attorneys are not as familiar with registered designs and unregistered design practices or the finer points of application of copyright and design laws, especially post-Brexit;
- The sector has lost confidence in the design registration system, offering no real protection against larger companies who pay for legal advice and continue to infringe.
- Damages. If awarded these are low and do not compensate for costs; statutory guidance on damages or minimum damages provisions would help the industry.
- Novelty searches. Currently, the UK Patent Office does not search for conflicting designs when it receives an application. This area needs attention and redress. Whilst some expressed concerns about the cost of new searches, delays in application procedures and costs of training to use such new tools, there is a significant opportunity to use AI and machine learning in the Registered Design process and to simplify, making registered design searches easier and helping countless businesses through the current quagmire.
- Criminal sanctions. Further criminal sanctions / provisions should exist in UK law beyond those in the existing legislative framework, e.g. s.5 of the RDA. It is worth recalling that the majority of designers rely on unregistered design protection. Therefore, criminal sanctions should exist for unregistered design infringement. We would advocate for a change in the law, making it a criminal offence to infringe unregistered design rights. This reflects the contention that there are more attractive protections elsewhere[i];
- Harmonisation. Globally - there is a lack of registered design law uniformity. Dubai is an example of issues experienced by ACID. The UK should consider EU laws and laws in comparable jurisdictions and frame a harmonizing law for designs. One element to include would be that disclosure (required) should be anywhere, whether in the EU, the UK, or elsewhere. The place where the design is first disclosed has become critical in determining whether the design is protected as either a supplementary unregistered design in the UK or an unregistered community design in the EU.
- Term for Registered and Unregistered Designs: Extension. We would advocate for a change in the duration of the protection of unregistered design rights. 10 years (from disclosure) is too short and we would recommend to extend to 25 years (given the call for extension of IP protection for AI-generated IP might extend such protection to 25 years)
- Economic Impact. Key members of ACID (Anti-Copying in Design) have indicated[6] that their members and organisations have ‘scaled back on global exports post Brexit as a result of above’.
- Registered design for 3-D/4-D printing. This remains an open question. Whilst 3-D printing is now prevalent[7], 4-D printing is emerging as a new area of industrial and design application that will require new legislative consideration. 4-D printing may forever change the design landscape. 3-D printing or additive manufacturing has already allowed designers to create three-dimensional objects from two-dimensional digital files with obvious implications for counterfeiting, in industrial design sectors, particularly but also in the fashion industry.
In addition to the copyright protection afforded to works of artistic craftsmanship in designs, four specific ‘design rights’ available in the UK prior to 31 December 2020 (IP completion day) are set out below.
- Registered design rights:
- UK registered designs
- Registered Community Designs (RCDs) (in force across the entire EU)
- Unregistered design rights:
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- UK unregistered design right(also known as ‘design right’)
- Unregistered Community Designs (UCDs) (in force across the entire EU)
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Those four different types of overlapping design protection available today in the UK are:
- registered designs,
- supplementary unregistered design,
- continuing unregistered community design (if made public in UK or EU before 1 Jan 2021); and,
- UK unregistered design right (“design right”).
In addition, as mentioned, copyright will also subsist in works of artistic craftsmanship.
Further, there are also two further EU rights – a) Community Unregistered Design Right and b) Community Registered Design Right. Whilst they are not available in the UK, they are available to UK designers if they first publish their designs within the EU.
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Recommendations: Framework and Harmonisation
We encourage the IPO and UK Government to take steps to restore designers’ confidence in the UK Design registration system by simplifying and clarifying the rights into 3 categories:
- Registered designs (including for 3-D and 4-D designs)
- Unregistered Designs.
- Harmonising all elements into a single simpler category of Unregistered designs (removing overlaps with copyright or clarifying that protection for such rights shall subsist in copyright)
- Currently shape and configuration (how the parts are arranged) of 3-dimensional objects is automatically protected in the UK for whichever ends first of:
- 10 years after it was first sold; or
- 15 years after it was created
- Copyright.
- Clarifying which elements applicable to designs can be protected by copyright, including consideration and treatment for 3-D and 4-D designs, adding clarity for applicants and users and removing the current confusion caused by overlapping elements.
- At the international level, Article 2(7) of the Berne Convention on the Protection of Literary and Artistic Works (hereinafter, “Berne Convention”) lets signatory countries decide the extent and mode of application of their copyright laws to works of applied art and industrial designs and models. In the EU, Article 17 of the Design Directive obliges Member States to consider designs protected by design rights also eligible for copyright protection, if such designs comply with the respective protection requirements. The key requirement for copyright protection in the EU is originality, defined as “the author’s own intellectual creation.”
- For this requirement to be fulfilled, the author must have been able to express her creativity in an original manner, Article 17 of the Design Directive also states that “[t]he extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State.”
- The provision seemed thus to leave to Member States the decision of whether to apply the harmonised criterion of originality – “the author’s own intellectual creation” – to designs, or to instead adopt a different protection requirement for this specific type of work. Following this possibility, a few Member States such as Germany, Portugal and Spain required a higher threshold of originality or artistic merit of the work.
- The CJEU has however clarified that the harmonised criterion for copyright protection applies to designs as well. In other words, the only requirement that a design has to fulfil in order to be protected by copyright in the EU is that it is original in the sense that it is the author’s own intellectual creation.
- Clarifying which elements applicable to designs can be protected by copyright, including consideration and treatment for 3-D and 4-D designs, adding clarity for applicants and users and removing the current confusion caused by overlapping elements.
Lib Dems back new policy on Democracy and Public Debate
At our recent conference the Party backed a new policy paper on Democracy and Public Debate.
This is what I said in support
Conference, As we saw from the debate last Autumn, policy on public debate and free speech is a difficult one to get right, particularly online. We have to make sure as a party that we find the proper balance between the right not to experience harm online and the right to freedom of expression.
I admit that none of us are going to agree with every single word of a policy document when the digital world is moving so fast but this is a good motion and we need to make decisions.
I spent 6 months of last year on the Joint Scrutiny Committee looking in detail at the Government’s flawed proposals for the regulation of online harms in the draft Online Safety Bill. We heard evidence from a great number of witnesses about the grievous harms such as revenge porn, cyberflashing, trolling, encouragement to suicide and racism, being experienced online, in particular by children, and those with protected characteristics.
We also heard about the potentially dangerous impact of online platforms on our democracy in the way their algorithms and business models target messages- often extreme-using our own behavioural data.
Frances Haugen-the brave former Facebook now Meta employee in particular gave us a vital insight into the threats to our democracy from online mis and dis-information and the platforms’ failure to take adequate action.
The January 6th Riot at the Capitol in Washington was fuelled by Social Media. We now know the reality of Russian interference in Presidential elections and the Brexit Referendum via opaque social media accounts.
People should have the same rights online as they have offline and we must also recognize the unique dangers that online access sometimes poses.
The Online Safety Bill is due to be published this coming week. The Elections Bill is going through Parliament. We have new digital competition law coming down the track. If we pass this motion today it will give us a distinctive Liberal Democrat approach that we can be proud of.
Our Digital Bill of Rights will set out the principles of the approach. In particular : the right to free expression and participation online without being subject to harassment and abuse which should underpin our Party and Society.
We must regulate so we ensure platforms comply with these principles, are audited for their policies and processes in terms of treatment of users and dissemination of illegal content monitored on how they respond to infringement and sanctioned for failure, with the Communications Court as a backstop.
Media and digital literacy too, so strongly emphasized by the Democracy and Public Debate paper, is vital too. We need, as it says, to combat misinformation with critical thinking.
Conference this motion combines principles, regulation and education in the right proportion. Please back it overwhelmingly.
To Save Democracy We Must Tackle Dis- and Misinformation Online
Recently the House of Lords debated the Report "Digital Technology and the Resurrection of Trust" produced by the Democracy and Digital Technologies Select Committee chaired by Lord David Puttnam, now sadly retired from the House of Lords
This is an edited version of the speech I gave winding up the debate
My Lords, this has been an inspiring debate. Events in Ukraine should make us all cherish our democracy in Britain and reinforce our determination to reinforce democratic values across the world. Nothing can compare with the suffering of the Ukrainian people in the defence of their democracy: they are a shining example to us all.
It is regrettable that we are debating this excellent report, which is still highly topical, nearly two years after it was published. I, like all of us who have spoken in this debate, very much miss Lord Puttnam leading the charge on the issues so important to him, and with which his valedictory lecture last October dealt so brilliantly. We also owe a big debt of gratitude to the noble Lord, Lord Lipsey, for stepping in and for his masterful introduction. It is good to see so many members of the committee participating today.
As the noble Lord, Lord Lipsey, says, what seemed controversial then has become commonplace today. Some of the recommendations of the committee are already in the pipeline, but we need to give far more attention to the other recommendations that are not in the pipeline. Given the crossover with many aspects of the report of the Joint Committee on the Draft Online Safety Bill, I am particularly pleased to be taking part in this debate today.
In a piecemfour years ago, US tech journalist Dylan Matthews wrote:
“The internet was supposed to save democracy… How could we have gotten this so wrong?”
He wrote this in the light of allegedmanipulation by Russia both in the US presidential elections and in the Brexit vote, with the aid of Cambridge Analytica, which used data collected online from millions of personal Facebook accounts, targeting individuals with specific misinformation. As the noble Baroness, Lady Morris, said, we were too slow to see the risks. As the noble Lord, Lord Stevenson, said, who doubts this activity now?
In the intervening years, the power of viral disinformation on social media has become even clearer. The long-delayed report on Russian interference, by the Intelligence and Security Committee in July 2020, said:
“The UK is clearly a target for Russia’s disinformation campaigns and political influence operations and must therefore equip itself to counter such efforts.”
We also had the riots at the Capitol in Washington DC on 6 January 2021, mentioned by the noble Lord, Lord Harris. An investigation by ProPublica and the Washington Post found that Facebook groups swelled —with at least 650,000 posts attacking the legitimacy of Joe Biden’s victory—between election day and the 6 January riot, with many calling for executions or other political violence.
We have had former Facebook—now Meta—employee Frances Haugen’s damning testimony, mentioned by the noble Baroness, Lady Kidron, and the noble Lord, Lord Mitchell, to the USA Senate and our own Joint Committee on the Draft Online Safety Bill, on which I sat. She accused the company of putting
“astronomical profits before people.”
Most of us need little convincing that things have gone badly wrong somewhere, and in 2022, after Covid lockdown, the situation seems worse. But as the report of the Democracy and Digital Technologies Committee says, we must look at the roots of the problem and the accountabilities involved. It is all about the power of the algorithm and data, as the noble Lords, Lord Stevenson and Lord Mitchell, said.
We are being targeted with our own data. Online political microtargeting is used to alter how we vote, especially with misinformation. xtreme content is amplified as part of the platform business model. Outrage is encouraged. Their business models operate directly against the best interests of a democratic society. They prey on us, in that vivid phrase quoted by the noble Baroness, Lady Kidron. Lord Puttnam made the strong point in his valedictory lecture that 6 January was a wake-up call to tackling the problems with microtargeting and algorithm bias which underlie the business models of the social media platforms.
Ownership of data is increasingly concentrated in the hands of big internet brands, as we have heard from a number of noble Lords today. Metcalfe’s law of networks has led to enormous and growing power for social media.
What should the consequences be for social media? How can we prevent these harms to democracy? How can we restore trust—or resurrect it, in the words of the report? The bottom line is that we do have the power, as the noble Lords, Lord Holmes and Lord Stevenson, said. We need government regulation, and quickly. In the phrase used by Avaaz, we need to detoxify the algorithm, not only regarding hate speech, terrorism and cyberbullying but in very clear electoral regulation and action by the Competition and Markets Authority to enforce competition in the tech and data space.
We also need much greater personal control over our data and how it is used. Misinformation and disinformation are particularly hard to define, but as the committee said, if the Government decide that the Online Safety Bill is not the appropriate place to do so, then it should use the Elections Bill, which is currently making its way through Parliament. Tackling societal harms caused by misinformation and disinformation is not straightforward, as our Joint Committee found, but the draft online safety Bill, as we described in our report of last December, needs to go further.
There is of course a tension with freedom of expression and as we emphasised, we must prioritise tackling specific harmful activity over restricting content.
In our Joint Committee report, we recommended safety by design requirements, such as increasing transparency and countering algorithmic power and virality; as Fair Vote says, it is a proven way to preserve free speech, while limiting free reach of content that poses societal harm at scale. For example, we heard that a simple change—introducing more friction into sharing on Facebook—would have the same effect on the spread of misinformation and disinformation as the entire third-party fact checking system.
We do not yet know what the Government’s response to these recommendations is—that may come next week—but we do have the Elections Bill in front of us. The real government reluctance is in reform of electoral law and regulation of digital political activity. Apart from the digital imprint provisions, the Bill fails to take any account of the mounting evidence and concerns about the impact on our democracy of misinformation and disinformation. The Government are yet even to adopt the Electoral Commission report of June 2018, Digital Campaigning: Increasing Transparency for Voters, which called for urgent reforms to electoral law to combat misinformation, misuse of personal data and overseas interference in elections amid concerns that British democracy may be under threat. Why are these recommendations not contained in the Elections Bill? We heard in the previous debate today about the flaws in that Bill
How prescient was the ISC in its Russia report:
“The links of the Russian elite to the UK – especially where this involves business and investment – provide access to UK companies and political figures, and thereby a means for broad Russian influence in the UK. To a certain extent, this cannot be untangled and the priority now must be to mitigate the risk and ensure that, where hostile activity is uncovered, the tools exist to tackle it at source.”
Most recently, the Committee on Standards in Public Life has made a number of other important recommendations regarding digital and social media campaigning.
But, as have heard today, this is not enough. Regulation by itself will not deal with all the issues. Even though we are facing issues that threaten democracy, we should be trying to preserve the good that the internet has done as we work to mitigate itsharm to our political system. So, as well as regulation, there needs as be—as the Democracy and Digital Technologies Committee report says—public engagement to support digital understanding at all levels of society. As several noble Lords said, digital literacy and digital skills are of huge importance, as also emphasised by the Committee’s report. We must do more than simply expect Ofcom—even under the chairmanship of the noble Lord, Lord Vaizey—to deliver a digital media strategy. This needs a whole-of-government and whole-of-society approach. We are supposed to be the cradle of democracy, yet the EU is way ahead of us in its proposals to regulate political advertising. This needs cross-governmental action and much greater action from social media platforms themselves.
At the end of the day, however,we need to look in the mirror. We deserve a better system. The Government are playing into the hands of those who wish to erode our democracy by digital means. Why are they intent on reducing the independence of the Electoral Commission? As the noble Lord, Lord Griffiths, said, trust in our democracy has been eroded by this Government—certainly by the negative response so graphically described by the noble Lord, Lord Mitchell. The Government must change tack and provide effective safeguards.
Where should facial recognition be used?
14 February 2022
Interview with
Gareth Mitchell, BBC & Stephanie Hare, Author & Lord Clement-Jones
When we think of our personal data, we often consider information like our phone number, bank details, or email address. But what about our eyes, ears, mouth, and nose? Facial recognition is increasingly being used to tag and track our individual activities, and while commonplace in unlocking personal devices like laptops and phones, certain institutions are keen to use our features for much more than mugshots. This includes the US Treasury, who last week backtracked on plans for mandatory facial verification for people logging their tax returns. So why are some people wary of firms having their faces on file? Robert Spencer finds out more...
Robert - It's a question that appears time and time again. How comfortable are we as a society with facial recognition? As unlocking your phone shows, in some respects the answer is clear, but when it comes to having your face scanned as you walk down the street, the issue becomes more murky.
Gareth - It's a biometric identifier. That means using aspects of your body for identification. The issue is that all of us are walking around in public showing our faces, meaning that anybody with a scanner, if they want to can mount a camera, and use an algorithm to identify us. We don't have any control over who is using our face as the identifier.
Robert - That's Gareth Mitchell who presents Digital Planet on the BBC world service. This lack of control and consent is key to one of the central paradoxes in the discussion around facial recognition. It speaks to the differences in technologies involved as Stephanie Hare explains in her new book, Technology Is Not Neutral: A Short Guide to Technology Ethics.
Stephanie - There are different types of facial recognition technology. So let's start with facial verification. That's the kind that you would use to unlock your own smartphone. That's not a very high risk use of facial recognition technology because the biometric never leaves your phone. A higher risk example is going to be when the police are using live facial recognition technology to identify people in a crowd. This might be high risk because it can have a chilling effect on free speech. If people fear that when they're going to these protests, they're being scanned by the police.
Robert - But it's not just about giving consent and having control of your biometrics. The algorithms themselves are large complex computer programs, often hidden behind company secrets. And it turns out, they aren't always as accurate as we'd like.
Stephanie - It doesn't work as well on people with darker skin. It works particularly poorly on women with darker skin, but it can also be a problem with children, with trans people and with elderly people.
Robert - The fix though might not be as simple as it seems.
Gareth - In order for the algorithms to get better at recognizing a whole diversity of faces, that would mean training those algorithms on more and more faces. And so opponents would say, well, that just adds to the problem. One problem is the algorithms are not very good at identifying a particular group of people. So let's just go and get loads of profiles of these kinds of people and put them into our databases. Well, then you scanned even more faces you've potentially compromised more people's privacy and that's made the problem even worse.
Robert - Police forces around the UK also disagree on the use of the technology known as live facial recognition. The Met uses facial recognition to find offenders on watchlists, but Scottish police have halted its use.
Stephanie - Right now, our experience of this technology who's using it and how it's even discussed in law differs depending on your postcode.
Gareth - And another reason why facial ID has been so controversial is that some of these police forces have been rolling it out before there was a regulatory framework in effect to protect us and, if necessary, them.
Robert - This lack of legal framework also concerns Lord Clement-Jones who debated the issued last week in the house of Lords.
Lord Clement-Jones - And the general conclusion was that there was no single piece of legislation that really covered the use of live facial recognition. It's very easy to say, we need to ban this technology and I'm not quite in that camp. What I want to see, and this was the common ground, is a review. We want to see what basis there should be for legislation, we want to see how the technology performs, and then we want to be able to decide whether we should ban it or, whether there are some uses to which it could be put with the right framework.
Robert - It's hard to ignore the distinct advantages facial recognition carries. It's fast and hands free. The ability to accurately and instantly identify a fugitive in a crowd would make the world a safer place.
Gareth - There was bound to be a trade off between our liberties and our security. We should be having conversations that are diverse, where a wide range of people are coming to the table with their views and their issues.
Stephanie - I would want to be hearing from scientists, the people who manufactured this tech, from the military, from the police, from medical professionals, from civil liberties groups. And I think it's the first step on a long journey that we have to have in the United Kingdom.
Robert - Lord Clement-Jones is optimistic.
Lord Clement-Jones - The public ought to take away from this debate, that there are a great many parliamentarians concerned about the use of new technology without proper oversight. But they should put pressure on their own MPs, to say, well, what is happening much more seriously.
Robert - It's clear then that we need to have this discussion sooner rather than later. In the meantime, though, I'm going to keep using my face to unlock my phone. I'm not sure where the line in the sand is, but for me, it's a bit past this level of convenience.
New Surveillance Code Incompatible with Human Rights
Recently the Government Introduced a revised Surveillance Camera Code of Practice which it claims make the police's use of live facial recognition compliant with the Bridges Case. This is my my speech on the regret motion I tabled in response with very helpful support from Liberty.
That this House regrets the Surveillance Camera Code of Practice because (1) it does not constitute a legitimate legal or ethical framework for the police’s use of facial recognition technology, and (2) it is incompatible with human rights requirements surrounding such technology.
The Road to Trustworthy Use of Healthcare Data: Good Governance and a Sovereign Health Fund
I recently did a Guest blog for Future Care Capital on Data in the Health and Care Bill
https://futurecarecapital.org.uk/latest/guest-blog-lord-clement-jones-3/
The Health and Social Care Bill currently passing through Parliament potentially contains major changes to the way that our public health data will be treated with the merging of NHS Digital and NHSX with NHS England. Important amendments are needed.
All of us recognize the benefits of using health data which arises in the course of treating patients in the NHS for research that will lead to new and improved treatments for disease and for the purposes of public health and health services planning. It has in particular been of great benefit in helping to improve the treatment of COVID during the pandemic.
The introduction of Shared Care Records is a key part of this revolution. These allow staff involved in a person’s care, to access health and care records to provide better joined-up care across different parts of the health and social care system.
But increasingly the Government and, I am sad to say, agencies such as NHS Digital and NHSX seem to think that they can share patient data with private companies with barely a nod to patient consent and proper principles of data protection.
We can go back to December 2019 and the discovery by Privacy International that the Department of Health and Social Care had agreed to give free access to NHS England health data to Amazon allowing them to develop, advertise, and sell new products, applications, cloud-based services and/or distributed software.
Take the situation last year where we had what has been described as the biggest data grab in the history of the health service of GP patient data. In May, NHS Digital with minimal consultation, explanation or publicity and without publication of any data protection impact assessment (DPIA) published its plans to share patients’ primary health care data collected by GP practices giving patients just 6 weeks to opt-out.
As a result of campaigners’ efforts, including a group of Tower Hamlets GPs who refused to hand over patient data, Ministers first announced that implementation would be delayed until 1 September and then by letter to GP’s in July put the whole scheme on hold including data collection.
As a result of this bungled approach more than a million people have now opted out of NHS data-sharing.
The government have had to revise their approach and devise a simpler opt-out system and commit to the publication of a data impact assessment before data collection starts again. They have had to commit that access to GP data will only be via a Trusted Research Environment (TRE) and commit to properly thought through engagement and communications strategy.
But if we areto retain and build trust in the use of health data, we need a new governance framework.
The Government must gain society’s trust through honesty, transparency and rigorous safeguards. The individual must have the right to choose whether to share their data or not and understand how it will be used.
We need to retain NHS Digital’s statutory safe haven functions separate from NHS England and all health data must be held anonymously and accessed through an accredited data access environment, designed to cover not only the promised TRE but also where data is used for planning purposes.
The data held by the NHS must be considered as a unique source of value held for national benefit. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator.
We need a guarantee that our health data will be used in an ethical manner, assigned its true value and used for the benefit of UK healthcare. Any proceeds from data collaborations that the Government agrees to, integral to any replacement or new trade deals, should be ring-fenced for reinvestment in the health and care system with a Sovereign Health Fund.
Those I believe are the right foundations for health data governance and, alongside other members of the Lords such Lord Hunt of Kings Heath and Baroness Cumberledge -both with enormous experience of the health service- I will be supporting and tabling amendments during the passage of the Bill to secure them.
Artificial Intelligence and Intellectual Property: incentivize human innovation and creation
Christian Gordon-Pullar and I recently responded to the Government's Consultation Paper on Artificial Intelligence and Intellectual Property: Copyright and Patents;
This is what we said;
As Artificial Intelligence (AI) becomes embedded in people’s lives, the United Kingdom (UK) is at a pivotal inflection point. The UK’s National AI Strategy rightly recognises Artificial Intelligence (AI) as the ‘fastest growing deep technology in the world, with huge potential to rewrite the rules of entire industries, drive substantial economic growth and transform all areas of life’ and estimates that AI could deliver a 10% increase in UK GDP in 2030.
The UK is, potentially, well-positioned to be a world-leader in AI, over time, as a genuine research and innovation powerhouse, a hub for global talent and a progressive regulatory and business environment. Achieving this will involve attracting, retaining and incentivising business to create, protect and locate investment efforts in the UK. The UK has the potential to gain impetus from a position of strength in AI research, enterprise and ethical regulation, and, with its recent history of support for AI, it stands among the best in the world. To attract talent, incentivise investment in AI-powered or AI-focused innovation, influence global markets and shape global governance, the nature of the Intellectual Property regime in the UK relating to AI will be crucial.
Specifically in relation to the three headline areas of focus in the Consultation Paper:
1. Copyright: Computer Generated Works
The UK is one of only a handful of countries to protect works generated by a computer where there is no human creator. The “author” of a “computer-generated work” (CGW) is defined as “the person by whom the arrangements necessary for the creation of the work are undertaken”. Protection lasts for 50 years from the date the work is made.
In the same way the owner of the literary work and the copyright subsisting in it, if it were original, would be, alternatively:
- a) the operator of an AI system (aligning its inputs and selecting its datasets and data fields); or
- b) their employer, if employed; or
- c) a third party if the operator has a contract assigning such rights outside of employment context.
To be original, a work must be an author’s or artist’s own intellectual creation, reflecting their personality (see the decisions of the EU Court of Justice in Infopaq, C-5/08, and Painer, C-145/10).
At the other end of the scale, a human who simply provides training datato an AI system and presses “analyse” is unlikely to be considered the author of the resulting work.
In this way we believe that the existing copyright legislative framework under the CDPA adequately addresses the current needs of AI developers. New entrants and disruptors can, in our opinion, work within the existing framework which adequately caters for the existing and foreseeable future.
Indeed realistic hypothetical future scenarios may well involve an AI system having access to content from global providers and creating derivative content (whether under licence or not) and doing so at great speed with little or no investment or “sweat of the brow” and, therefore it can be argued that in fact the level of protection should be reduced to be proportionate to the time effort and investment involved.
Further, we would also urge that copyright law is clarified to ensure that it is the operator (or his /her employer) of the AI system (that is, the person that guides the AI system to apply certain data or parameters and shapes the outcome) that is the copyright owner and not the owner of the AI system.
One can see a future scenario where “AI-as-a-Service” is offered whereby a content user or hirer of the AI system is allowed to apply their own rules, parameters and data/inputs to a problem whilst ‘hiring’ or using the AI system as a service (just as SaaS exists today). The operator of the AI system (not owner of the AI system ) should in that case be the first owner of the copyright in the resulting work (subject to contractual rights that may be transferred, licensed or otherwise assigned thereafter).
Ranking Options in order:
- We would therefore urge the IPO to choose Option 2 – a lesser term of copyright protection should apply e.g. 5-15 Years for AI generated Copyright works e.g. music, art etc. which, as described above, require little investment or “sweat of the brow”
- Failing 1, we would urge the IPO to choose option 0 – Make no legal change.
- Option 1, removing the protection is not a viable or desirable option in our opinion.
2. Copyright: Text and Data Mining
The Government rightly believe that that there is a need to promote and further enable AI development. This must however be balanced with a commensurate and proportionate recognition of the critical importance and value of data as raw material.
AI developers rely on high-quality data to develop reliable and innovative AI-driven inventions and applications. Licensing regimes under existing IP law are designed to cater for the needs of AI developers.
By the same token content and data-driven businesses themselves have seen a rapid increase in the use of AI technology and machine-learning, either for news summaries, data gathering efforts, translations for research and journalistic purposes or to assist organisations to save time by processing large amounts of text and other data at scale and speed. Digital technologies, including AI, are and will continue to be of critical importance to these industries, helping create content, new products and value-added services to deliver to a broad range of corporate and retail clients. Whether in news media or cross-industry research, publishers are themselves investing in AI; continued collaboration with start-ups and academia are creating tailored materials for wide populations of beneficiaries (students, academia, research organisations, and even marketers of consumer publishing products).
It is of paramount importance to balance the needs of future AI development with the legal, commercial and economic rights of data-owners and the need to incentivize new AI adoption with recognition of the rights of existing content owners.
We have however seen no evidence the existing copyright legislative framework fails to adequately address the current needs of AI developers. Moreover it is particularly important, in our view, to ensure that the development of AI is not enabled at the expense of the underlying investment by copyright and data-owners. (see endnote 1).
If the content owners of underlying data materials withhold the licensing of, or access to, such materials or attempt to price them at a level that is unfair, the answer is for Government via the Competition and Markets Authority/the new Digital Markets Unit (or indeed other regulators who form part of the Digital Regulation Cooperation Forum) to put in place competition measures to ensure there is a clear legal recourse in such situations.
In summary we do not believe that current copyright law creates a disparity between the interests of AI developers and investors and content owners. The existing copyright regime under the CDPA reflects a balance that fairly protects those investing in data creation without giving an unfair advantage to technology companies offering AI-enabled content creation services. In particular the current framework provides a balanced regime for data and text mining and we believe no changes are required at present. However, we recommend a watching brief, and that the IPO consider and take account of changes to copyright laws in other countries that may make it more attractive for AI operators to base their operations in those extraterritorial locations so that text and data mining activities, machine learning, etc. become more easily performed elsewhere or permitted with incentives not offered in UK.
Ranking Options in order:
- We would therefore urge the IPO to elect Option 0 – Make no legal change. No other option is currently justifiable given the lack of evidence of an adverse commercial environment preventing access to data or text by AI-enabled content creators. Should the Government or IPO consider that there needs to be increased access to data at lower cost, it should look at other policy levers to stimulate such uptake, such as providing tax incentives for content owners to license content, rather than reducing copyright protection.
- We also concur with industry leads who consider that forcing rightsholders to opt in to protection, as suggested in option 3 would be complicated and costly for many businesses and industries who own literally millions of works, when licensing is far simpler, and would be against the spirit of international treaties on copyright.
3. Patents:
If UK patents were to protect AI-devised inventions, how should the inventor be identified, and who should be the patent owner? What effects does this have on incentivising and rewarding AI-devised inventions?
As we described above the author and first owner of any AI-assisted or created work will be the person who creates the work or their employer if that person is an employee or or a third party if the operator has a contract assigning such rights outside of employment context
As the emphasis in copyright law suggests, creating a ‘work’ is in essence a human activity. This is given additional support by the reference to the automatic transfer of copyright from employee to employer; an AI system cannot be said to be an employee.
Similar principles in our view apply to patents as with copyright. For patentability the applicant inventor must be a ‘person’.
Authoritative guidance on how AI-created inventions fit into this scheme, where no human inventor is mentioned is given in the decision in Thaler v Comptroller General of Patents Trade Marks and Designs (aka ‘Thaler’ or ‘DABUS case’) and in particular in our view in the statements by Lord Justice Birss (L.J. Birss) in his dissenting opinion (See paragraphs numbered 8, 58 78 et seq. of the DABUS case, and the Conclusion).
In summary, L.J. Birss. set out his views on the lower courts’ erroneous interpretations of the law and in conclusion stated:
- The inventor of an invention under the 1977 Act is the person who actually devised the invention.
- Dr Thaler has complied with his obligations under s13(2) of the 1977 Act because he has given a statement identifying the person(s) he believes the inventor to be (s13(2)(a)) and indicating the derivation of his right to be granted the patent (s13(2)(b)).
- It is no part of the Comptroller's functions under the 1977 Act to deem the applications as withdrawn simply because the applicant's statement under s13(2)(a) does not identify any person who is the inventor. Since the statement honestly reflects the applicant's belief, it satisfies s13(2)(a).
- It is no part of the Comptroller's functions under the 1977 Act to in any way be satisfied that the applicant's claim to the right to be granted the patent is good. In granting a patent to an applicant the Comptroller is not ratifying the applicant's claim to derivation. Dr Thaler's asserted claim, if correct, would mean he was entitled to the grant. Therefore the statement satisfies s13(2)(b).
- The fact that the creator of the inventions in this case was a machine is no impediment to patents being granted to this applicant.
All three judges in Thaler agreed that under the Patents Act (PA) 1977 an inventor must be a person, and as a machine is not a person it, therefore, cannot be an "inventor" for the purposes of section 7(2) of the Act. L.J. Birss however dissented on the crucial point whether it was an impediment to the grant of an application that the creator of an invention was a machine, as such. He stated that it was simply that a machine inventor cannot be treated as an inventor for the purpose of granting the application.
In Australia the Court has taken a slightly different view but there, the law is different. As L.J. Birss in Thaler remarked in his judgment:
‘After the hearing the appellant sent the court a copy of the judgment of BeachJ of 30th July 2021 in the Federal Court of Australia Thaler v Commissoner of Patents [2021] FCA 879. The judgment deals with another parallel case about applications for the same inventions. Beach J decided the case in Dr Thaler's favour. However yet again the relevant legislation is quite distinct from that in the UK. The applications reached the Australian Patent Office via the Patent Cooperation Treaty (PCT), which meant that a local rule (reg 3.2C(2)(aa)) applied which requires the applicant to provide the name of the inventor. That rule is in different terms from s13(2) and the present case is not a PCT application ( i.e. in Australia the name of the inventor must be provided unlike under UK legislation). If it were then the operation of s13(2) would be affected by a deeming provision (s89B(1)(c)) which we do not have to consider”.
We believe that in principle LJ Birss is correct and that the patentability of such inventions where created by AI, or with the assistance of AI, provided the basic criteria under the relevant legislation are met, has been established. There is therefore absolutely no need for the patent system to identify AI as the inventor or to create entirely new rights
If the IPO takes the view or on appeal it is established that the law has not been correctly expressed by LJ Birss, it should be clarified to accord with his judgment. Failing that , for instance if AI systems themselves are treated as inventors, in our view, the system of innovation and inventorship in the UK will be eroded, the benefits and incentives for human inventors will be reduced, and ultimately firms could invest more in AI systems than in human innovation.
Without changes in taxes on AI-inventorship and commensurate incentives to balance the negative impact, such a change would be detrimental to the ethos of the patent system and its focus on “a person” being the inventor mentioned in a patent application.
Whilst it is unclear exactly what the future regulation of AI and associated IP rights will look like in the UK at this stage, it is clear however that an internationally harmonised approach to the protection and recognition accorded to AI generated inventions would be desirable.
it is also our view right in principle, to cite L.J. Birss, that ‘there is no rule of law that a new intangible produced by existing tangible property is the property of the owner of the tangible property’, as Dr Thaler contended, and certainly no rule that the property contemplated by section 7(2)(b) in an invention created by a machine is owned by the owner of the machine. Accordingly, the hearing officer and the judge were correct to hold that Dr Thaler is not entitled to apply for patents in respect of the inventions given the premise that DABUS made the inventions’.
In our view, as with AI creations for copyright purposes, the key is the operation and control of the machine/AI producing the invention not ownership of the AI itself.
Ranking Options in order:
- We would therefore urge the IPO to elect Option 1 whereby it is clarified that “Inventor” includes a human responsible for the inventive activity of the AI system that lead to the invention or which devises inventions (e.g. where that humanoperator selects or guides the AI with relevant data, parameters, data-sets or programming logic for the AI’s function or purpose, which leads it to create an invention). This would also cater for the analogous scenario (to that mentioned above under 1, where AI becomes prevalent in the first instance as “AI-as-a-service”, whereupon there should be a presumption of ownership by the AI Operator (not the AI-system owner) and where transfers of ownership and rights can be addressed contractually at the point of use where AI is used ‘…as-a-service’.
- As a second-best option, as requested-particularly if the opinion of LJ Birss is subsequently confirmed by the Supreme Court - we would advocate Option 0 – no change.
Endnotes
- Reference: In Authors Guild v. Google 721 F.3d 132 (2d Cir. 2015), a copyright case heard in the United States District Court for the Southern District of New York, and on appeal to the United States Court of Appeals for the Second Circuit between 2005 and 2015. The case concerned fair use in copyright law and the transformation of printed copyrighted books into an online searchable database through scanning and digitization. The case centered on the legality of the Google Book Search (originally named as Google Print) Library Partner project that had been launched in 2003. Though there was general agreement that Google's attempt to digitise books through scanning and computer-aided recognition for searching online was seen as a transformative step for libraries, many authors and publishers had expressed concern that Google had not sought their permission to make scans of the books still under copyright and offered them to users.
- Two separate lawsuits, including one from three authors represented by the Authors Guild and another by Association of American Publishers, were filed in 2005 charging Google with copyright infringement. Google worked with the litigants in both suits to develop a settlement agreement (the Google Book Search Settlement Agreement) that would have allowed it to continue the program though paying out for works it had previously scanned, creating a revenue program for future books that were part of the search engine, and allowing authors and publishers to opt-out. The settlement received much criticism as it also applied to all books worldwide, included works that may have been out of print but still under copyright, and may have violated antitrust aspects given Google's dominant position within the Internet industry. A reworked proposal to address some of these concerns was met with similar criticism, and ultimately the settlement was rejected by 2011, allowing the two lawsuits to be joined for a combined trial. In late 2013, after the class action status was challenged, the District Court granted summary judgement in favour of Google, dismissing the lawsuit and affirming the Google Books project met all legal requirements for fair use. The Second Circuit Court of Appeal upheld the District Court's summary judgement in October 2015, ruling Google's "project provides a public service without violating intellectual property law."[1] The U.S. Supreme Court subsequently denied a petition to hear the case.[2]
A big thank you to Christian for all his hard work on this response.
Lord C-J : Protect Pure Maths
During the Report Stage of the Advanced Research and Invention Agency Bill I spoke in favour of changes to the bill to ensure that pure maths research was included in the definition of scientific research.
This is the recording
https://twitter.com/i/status/1470883981973463049
And this is what I said:
My Lords, I have signed and I support Amendments 12, 13 and 14. As someone immersed in issues relating to AI, machine learning and the application of algorithms to decision-making over the years, I, too, support Protect Pure Maths in its campaign to protect pure maths and advance the mathematical sciences in the UK—and these amendments, tabled by the noble and gallant Lord, Lord Craig, reflect that.
The campaign points out that pure maths has been a great British success story, with Alan Turing, Andrew Wiles and Roger Penrose, the Nobel Prize winner—and, of course, more recently Hannah Fry has popularised mathematics. Stephen Hawking was a great exemplar, too. However, despite its value to society, maths does not always receive the funding and support that it warrants. Giving new funding to AI, for instance, risks overlooking the fundamental importance of maths to technology.
As Protect Pure Maths says, the 2004 BEIS guidelines on research and development, updated in 2010, currently limit the definition of science and research and development for tax purposes to the systematic study of the nature and behaviour of the physical and material universe. We should ensure that the ARIA Bill does not make the same mistake, and that the focus and capacity of the Bill’s provisions also explicitly include the mathematical sciences, including pure maths. Maths needs to be explicitly included as a part of scientific knowledge and research, and I very much hope that the Government accept these amendments.