As a practising IP lawyer, I am regularly called by members of the press. What's usually on their minds is that owners of trade marks - that's to say the business community - are completely out of touch with the public. I normally, and immediately go onto the defensive. Thoughts such as 'this is second nature to we lawyers - why can't they grasp these concepts' - spring into my mind.
However, I have a confession to make. Journalists are actually very perceptive people, and having put down the telephone once again with the 'official' response of the lawyer safely into the morning edition, I admit - should this be with shameful face? - I have to agree with them. I began to wonder, speaking as a professional, why this should be so. Being asked to write this article gave me just the excuse to exorcise something which has niggled my mind for decades. Let me explain.
Intellectual property, for as long as I can remember, has been seen as a backwater in business affairs. What's changed is that today it has a higher profile and this is reflected in wider - although still sometimes inaccurate - coverage in the popular press. This profile could threaten the development of rights if IP owners do not adapt by explaining their actions in enforcing such rights so as to carry the hearts and minds of the public. Several recent high profile controversies in different areas of IP show how easy it can be for rights owners to find themselves faced with a public relations backlash.
Take the case of the South African face of the research-based pharmaceuticals industry. It recently suffered a major public relations reverse over the action that a number of companies had brought against the government, challenging the effect of its new drugs legislation on patented pharmaceuticals. Whatever may the rights and wrongs of that action - now settled - the industry allowed itself to wrong-footed by a public relations campaign which saw it portrayed as the enemy of AIDS patients. In the process, generic companies and parallel importers, whose motivation is their own profits and who have nothing to contribute to research into and development of improved treatments for AIDS, were painted as the saviours of such patients. In emotion surrounding the action, the complexities and subtleties were lost, and carefully designed schemes already in place elsewhere in Africa by the pharmaceutical companies to ensure that cheap drugs would be made available to those who needed them, were overlooked.
But should the pharmaceutical industry merely have sat back and let established rights be whittled away by legislation? Clearly not, and there may have been other avenues open to it than the one it chose to take, and ones with less of a public relations downside. It is not clear why, if the action was well founded in the first place, the industry's complaints were not adopted by a country or region such as the USA or European Union and made against South Africa in the more rarefied and measured context of TRIPs and the WTO dispute resolution mechanism. The WTO procedure was used to force India to improve the transitional protection available for patented pharmaceuticals pending the introduction of full pharmaceutical product patenting in 2006. Because it was so carefully handled, there was no public relations backlash against that action, or against that ruling.
Copyright has not escaped controversy either, forcing people to question the nature of the exceptions to infringement for private use, especially in the context of the internet. Although the music industry seems to have won the recent legal battle in the USA against Napster, it has still to win the public relations one. There are signs that the victorious record companies may be playing into the hands of those who wish to see the destruction of copyright on the internet by their negative attitude towards the very artists who have been so instrumental in conferring legitimacy on the fight by copyright owners. Thus it has been reported (Billboard 19 May 2001) that BMG will not share the proceeds of the earlier bout of Internet copyright litigation - that against MP3.com - with those BMG artists whose works were the subject of the litigation, unless such artists have contracts which require the label to split settlements with them. While this may be a contractually sound position for labels to adopt, it deprives them of the very ammunition on which, in other contexts, they seek to rely when they challenge other unauthorised internet music activity. When the next such dispute comes around, which of those artists whose contracts did not require settlements to be split with them will stand up to be counted with their labels? And without the support of the artists, how convincing will the arguments of the labels sound to the public?
The bad news is that we are not immune to such matters in the UK. The current controversy over the approach of trade mark law to parallel imports of luxury goods from outside Europe has the supermarkets winning the public relations battle against the IP-owning luxury goods and branded clothing companies. The powerful and well-funded supermarket public relations machine has been successful in creating the impression that the supermarkets are public benefactors whose only interest lies in challenging rapacious manufacturers. In fact, a moment's thought given to the profitability of supermarkets makes it clear that they are only doing this because it happens to be good business.
So successful has been the lobbying that the UK government now seeks to promote legislation in Europe that would overturn the effect of the Silhouette decision of the European Court of Justice. That case decided that parallel imports from outside Europe should be prevented - a decision which was not unexpected given the passage into force of the Trade Mark Harmonisation Directive. The UK government initiative is however somewhat hampered by the fact that, at the time of the Silhouette case, it supported the position adopted by the European Court of Justice. Now thrust into reverse, the government seeks to challenge the prevention of parallel imports from outside Europe.
So what should IP rights owners do?
A starting point would be to recognise that there are two sides to every argument.
They should give some thought - especially if acting on an industry basis - to the public relations ramifications of their actions, and consider how best to respond to any attempts by the defendants to seize the public relations initiative. Ideally they should have laid the groundwork before they start any action, as the concepts which they may need to convey will rarely be express able in simple sound bites.
Generally, rights owners should be wary about conferring the arrogant impression that they assume that the mere ownership of IP confers an unchallengeable right. Perceived excesses have the greatest risk of bringing backlash in their wake. Emotive expressions such as "pirate" and "counterfeit" are unhelpful, especially when applied to those goods which are clearly not. Rights owners embarking on such an exercise should try to put out of their minds that dangerous old adage from copyright law that "what is worth copying is worth protecting". It is all too easy for this to become the mantra of the IP rights owner, but it misleads by failing to factor in the role of the public interest in deciding what it is worth permitting the rights owner to protect. It also risks distracting attention from the self-evident fact, as Mr Justice Jacob stated in one English patent infringement case "there is no tort of non-infringement".
If rights owners fail to heed this call, what will happen? It would be too alarmist to suggest that existing IP rights will wither away and die, but it is not too alarmist to suggest that it will become ever more difficult to develop or refine those rights which will be needed to meet the changing needs of our society in the future.
The pharmaceutical industry is a good case in point. One of its major successes in recent years in the negotiation for international treaties has been the minimum standards of patent protection mandated by TRIPs. One such minimum standard is product patent protection for pharmaceuticals. Previously, many countries only offered process protection for pharmaceuticals, which rights could be avoided by the use of a different manufacturing process. But by 2006 all WTO members should have patent laws allowing new pharmaceuticals to be protected as products, meaning that the manufacture of or dealing in such compounds will infringe patent rights no matter by what process such compounds are made. However, advances in combinatorial chemistry in recent years have made much easier the synthesis of "me too" pharmaceutical compounds, acting in the same way as the first compound in its class but offering little or no therapeutic benefit over it. New approaches to patent claiming, looking more to mechanisms than to compounds, are being developed in Europe and the USA in response to such pressures, but how will these become widespread elsewhere in the world unless the industry is seen by the public to be keeping the moral high ground?
Explaining its position to the public will not be easy for rights owners, and will perhaps prove harder than enforcing their IP, although the concepts with which one has to grapple are not always as difficult as those which troubled a Judge of the Fifth Circuit Court of Appeal in the USA in 1979, who wrote in Rohm & Haas v Dawson Chemical: "With this we have just about exhausted our present capacity for rational thinking on patent matters. As we noted during the oral argument of this case, patent cases are the only cases argued by professionals and decided by amateurs. We take some comfort in noting that any shortcomings of our efforts can safely be laid to the difficulty of the subject matter. [Counsel] observed on several occasions during the hearing... that patent law is "the metaphysics" of the law and that contributory infringement / patent misuse issues are the metaphysics of patent law."
There is simply no need for IP owners to let themselves be portrayed as wielding perplexing rights which the public do not understand or trust. Instead they need to be seen to be educating the public and engaging their support; explaining why those rights exist, why they matter and why, properly and carefully enforced, such rights ought to be a good thing for all of us.
First published in the European Lawyer in June 2001.