Does more intellectual property knowledge lead to less infringement?

Ahead of the game as usual, JIPLP is delighted to inform readers that the editorial for the coming January issue is already online.  In keeping with our traditional policy, we make all editorials available to everyone and make no charge for doing so.  This editorial is written by Tim Pinto, a founder member of the JIPLP editorial board and Senior Counsel in the London office of Taylor Wessing LLP:

Does more intellectual property knowledge lead to less infringement?

"Intellectual property infringements happen for various reasons, such as ignorance of the law; not appreciating or caring about the risk; deliberate infringement; taking a chance or simply because (unluckily for the loser), as a result of uncertainties in the law, the court ultimately prefers one reasonable argument over another. Intellectual property rights owners cannot do much in advance to prevent the majority of defendants, who are prepared to take a chance, from infringing. However, the first reason - knowledge of the law – is something which could be changed in principle. Imagine if society were better educated about IP rights. Would there be fewer infringements?

A person making a fundamental error about intellectual property law could be described as having believed an “IP myth”. Assume, for example, that many people in the UK copy their music CDs on to their portable devices, so that they can listen to the tracks on the move. Assume also that they believe the myth that they can legally do this because their copy is for their own private use. However, there is no “private use” exception to infringement under UK copyright law. The closest defences are fair dealing for the purposes of research for a non-commercial purpose or of private study. But these would not apply and, putting aside the likelihood of enforcement action, many people may unwittingly be infringing as a result of believing the private copying myth. The UK is proposing to implement the private copying exception from Article 5(2)(b) of the InfoSoc Directive (without the fair compensation provision – although that is another story). Assuming the InfoSoc private copying exception is adopted, it appears that the infringing practices of the many may perhaps have contributed to turning a myth into a lawful practice, like a self-fulfilling prophecy.

However, most infringements based on IP myths are not going to result in legislation which legitimises them. One anecdotal example of an IP myth is that if you change the colour of a product by two Pantone® shades, it is sufficient to avoid infringement. There are variations of this myth, such as one can prevent infringement by making 5 or 7 changes to a design or copying only 10% of a work. Other possible IP myths are “it's OK to copy because the work is on the Internet” or “because I've acknowledged the source”. IP myths lead the ignorant defendant into infringement. If these false beliefs are commonly held (possibly an area for empirical research), then there could be fewer infringements if society were better educated.

There are some myths which can have the opposite effect, where a claimant believes a myth thinking there is infringement where there is none. An example is “I own the domain name and the company name, therefore I can stop the defendant's use of my trade mark.” An IP lawyer would explain that domain names and company names give no rights in themselves.

A myth which, unlike the others mentioned above, might perhaps even be propagated by the occasional practitioner, relates to claiming “advertising services” in a trade mark specification when the trade mark applicant is not in the business of providing advertising services to third parties. The myths are that (a) use of the mark in advertising materials amounts to genuine use of the mark in relation to such services and (b) such a specification can prevent a third party from using an identical mark in advertising on a double-identity basis (where the third party is not in the advertising business). The reality is that most applications claiming “advertising services” are not made by entities trading in such services and this part of the specification may eventually be subject to attack.

If the public becomes more knowledgeable about intellectual property law, perhaps there would be fewer infringements, which must be a good thing. Should IP rights owners therefore club together and spend their time and money on ensuring that the public learns more about IP law? In “IP myth Utopia” would there be fewer IP lawyers too? Surely not in any Utopia!".