This table tracks the progress of selected EU and UK legislation in the fields of intellectual property, information technology (IT) and communications, from consultations and draft proposals to adoption or enactment and implementation.
Following changes to the IPIT & Communications website and e-mail (see Launch of PLC Commercial homepage and changes to PLC IPIT & Communications for more details), with effect from 27 January 2009 environmental legislation of possible interest to the IT sector is no longer covered in this table. The progress of significant environmental legislation of possible interest to the IT sector will continue to be tracked in the PLC Environment Legislation tracker.
With effect from 9 November 2010, the 2007 Lugano Convention, consumer legislation, and legislation concerning the VAT place of supply rules are no longer covered in this table. The progress of legislation in relation to these areas will continue to be tracked in the PLC Commercial legislation tracker.
With effect from December 2012, this table will no cover intellectual property taxation. Practice note, Tax legislation tracker: intellectual property will continue to track the development of notable pieces of proposed legislation in this area.
Legislation which is already in force is shown separately in the Legislation in force table.
Click on an item in the left-hand column to view relevant sources, including the full text of the item.
Item | Status |
Electronic Communications Code reform | The Law Commission has published a consultation on its proposals for reform of the Electronic Communications Code. The Commission's review of the Code is part of the government's wider review of the communications legislative regime, and the Commission proposes publishing its final report on the Code in the spring of 2013. Responses to the consultation were requested by 28 October 2012. For more information, see Legal update, Law Commission consults on reforming Electronic Communications Code (www.practicallaw.com/3-520-1054). In February 2013, the Law Commission published its report on proposals for reform of the Code. It advises that the Code should be completely rewritten. The DCMS is expected to draft a bill to implement the proposals. For more information, see Legal update, Law Commission reports on Electronic Communications Code reform (www.practicallaw.com/3-524-5369). |
Town and Country Planning (General Permitted Development) Order 1995 and Electronic Communications Code (Conditions and restrictions) Regulations 2003 | The government is consulting on amending this legislation both to update it and to increase permitted development rights so that mobile operators can install infrastructure more quickly and easily. For more information, see Legal update, DCMS and DCLG consultation on speeding up mobile broadband roll-out (www.practicallaw.com/0-527-6965). |
In April 2013, the European Commission published a green paper on convergence in audiovisual media. It considers issues to do with the market, finance, interoperability of connected TVs, network infrastructure, the regulatory framework, media freedom and pluralism, advertising, protection of minors, and accessed for those with disabilities. The outcome of the consultation could affect the Audiovisual Media Services Directive, the E-Commerce Directive and the regulatory framework for electronic communications. For more information, see Legal update, European Commission publishes green paper on "converged audiovisual world" (www.practicallaw.com/6-526-3187). | |
On 26 March 2013, the European Commission published a proposal for a Regulation on measures to reduce the cost of deploying high-speed electronic communications networks. The draft Regulation is intended to facilitate and incentivise the roll-out of high-speed electronic communications networks by promoting joint use of existing infrastructure and enabling more efficient deployment of new infrastructure. It proposes measures to reduce the cost of roll-out. In particular, it provides for: reasonable access to existing physical infrastructure; provision of information about infrastructure; co-ordinating civil works; making it easier and quicker to apply for permits; and ensuring that new or renovated buildings are high-speed broadband ready. For more information, see Legal update, Commission proposes Regulation on measures to reduce cost of rolling-out high-speed broadband (www.practicallaw.com/8-525-4380). | |
On 19 December 2012, the government made the Prisons (Interference with Wireless Telegraphy) Act 2012, which allows prison governors authorised by the Secretary of State to use technologies to collect, retain, use and disclose traffic data from devices such as mobile phones. The operative provisions of the Act are not yet in force. For more information, see Legal update, Government passes Act to detect mobile phones in prisons (www.practicallaw.com/7-523-2708). | |
On 16 October 2012, the European Commission issued a consultation on the review of Commission Recommendation 2007/879. The review will take into account major market and technological developments, such as internet-based applications and services, the convergence between different types of networks and services and the development of very fast internet networks and services. The deadline for responding to the consultation was 8 January 2013. For more information, see Legal update, Commission reviews Recommendation on relevant markets (www.practicallaw.com/4-521-8780). | |
700MHz band | Ofcom consulted until 7 June 2012, on a long-term strategy for the use of UHF bands IV and V, and in particular the 700MHz band. This band is currently used for digital terrestrial television (DTT) and a number of other services, but it is also suitable for mobile broadband, demand for which is likely to increase by 80-300 times by 2030. The necessary international agreement for the 700MHz band to be used for mobile broadband could be in place by 2018, and Ofcom proposes that by then technology improvements may mean that DTT needs less of the 700MHz band, and that it could also use the 600MHz band, before shifting to internet protocol television in the long term. For more information, see Legal update, Ofcom consults on use of DTT spectrum for mobile broadband. In November 2012, Ofcom published a statement in response to its March 2012 consultation. See Legal update, Ofcom statement on securing long term benefits from scarce low frequency spectrum (www.practicallaw.com/7-522-4789). |
Review of fixed-link spectrum bands | Ofcom is reviewing its spectrum-management policy across a number of bands between 1.4GHz and 86GHz, which are currently mainly used for fixed links by the mobile networks, in the light of an expected increase in demand for this spectrum from other sectors over the next five to ten years. Following the review, Ofcom may change the way it regulates the reviewed spectrum. Input was requested from stakeholders by 30 April 2012. For more information, see Legal update, Ofcom reviews fixed-link spectrum bands (www.practicallaw.com/0-517-7036). In December 2012 Ofcom published its priorities for action. For more information, see Legal update, Ofcom update on spectrum review (www.practicallaw.com/2-523-1400). |
Integration in the card, internet and mobile-payment markets | On 11 January 2012, the European Commission published a green paper that seeks to identify the obstacles that potentially prevent European integration in the card (debit and credit), internet and mobile-payment markets, and what can be done to improve integration. Responses were requested by 11 April 2012. For more information, see Legal update, Commission consults on Green Paper on payments and publishes Communication on e-commerce (www.practicallaw.com/0-517-2048). |
EU Regulation on EU hotlines for missing children | The European Commission proposes to publish a Regulation to follow on from the 2010 Communication on the 116 children hotline, which will aim to ensure appropriate functioning of the hotline in all member states. The Commission expects to publish the Regulation in 2013. For more information, see Legal update, European Commission 2012 work programme: IP, IT and communications (www.practicallaw.com/3-512-9671). |
European Commission consultation on non-discriminatory access to telecoms networks | On 3 October 2011, the European Commission published a consultation on non-discriminatory access to telecoms networks, as it is concerned that there is divergence in how national regulatory authorities are imposing non-discrimination obligations, and wants to develop guidance in the form of a regulation to ensure regulatory predictability and clarity. The Commission published its consultation on wholesale access prices at the same time (see separate entry). For more information, see Legal update, Commission consults on non-discriminatory access to telecoms networks and wholesale access prices (www.practicallaw.com/5-508-7298). |
European Commission recommendation on wholesale access prices | On 3 October 2011, the European Commission published a consultation on wholesale access prices, as it is concerned that there is divergence in how national regulatory authorities are imposing wholesale access charge control regulatory obligations, and wants to develop guidance in the form of a regulation to ensure regulatory predictability and clarity. The Commission published its consultation on non-discriminatory access to telecoms networks at the same time (see separate entry). For more information, see Legal update, Commission consults on non-discriminatory access to telecoms networks and wholesale access prices (www.practicallaw.com/5-508-7298). On 12 July 2012, the Commission published a note in response to this consultation, setting general conclusions on the Commission's regulatory approach to facilitate investment in high-speed, next generation access broadband networks. In the autumn, the Commission intends to present a recommendation on non-discrimination and a recommendation on cost methodology for regulated wholesale prices for network access. It is also proposing that, in specific circumstances, national regulators will no longer be required to apply cost-oriented price regulation. See Legal update, Commission announces policy on enhancing the broadband investment environment (www.practicallaw.com/9-520-3658). On 5 December 2012, Vice President Kroes sought the opinion of BEREC on the draft Commission Recommendation on non-discrimination and costing methodologies to promote competition and enhance the broadband investment environment. On 26 March 2013, BEREC published its opinion on the draft Recommendation (see Legal update, BEREC publishes opinion on Commission draft Recommendation on non-discrimination and costing methodologies (www.practicallaw.com/9-525-4619)). |
Reforming the telecoms appeals framework | In August 2011, the DCMS consulted on proposals to reform the telecommunications appeals framework by amending the standard of review in appeals under section 192 of the Communications Act 2003 from appeal on the merits to appeal on the basis of judicial review (while ensuring that the merits of the case are duly taken into account). The aim of the proposed reform was to ensure that only appeals that are material are considered. For more information on the consultation, see Legal update, DCMS publishes consultation on proposals to reform telecommunications appeals framework. In March 2012, the DCMS Minister, Ed Vaizey, announced that the government would not be amending section 195(2), at least for the time being. Although he accepted that a more streamlined process would be of benefit, he was not convinced that changing the standard of appeal as proposed would, on its own, speed up decision-making at Ofcom or reduce the time and costs of appeals (see Letter from Ed Vaizey, 6 March 2012). |
Outer Space Act 1986 | The government is planning to reform the Outer Space Act, which governs the operation of the UK’s satellites and space vehicles, by introducing an upper limit on liability for UK operators. The current regime includes no upper limit, and the licensing regime also places a requirement on operators to insure for £100 million against third-party claims for the launch and in-orbit operational life of the space vehicle, which is more onerous than in other countries and puts the UK at a competitive disadvantage. See Legal update, Budget 2011: implications for IP, IT and communications (www.practicallaw.com/3-505-3992). The UK Space Agency planned to launch a public consultation on by the end of 2011 (see Legal update, Government publishes implementation update on Plan for Growth: IP, IT and communications (www.practicallaw.com/1-514-5375)). In May 2012, the UK Space Agency published a consultation on reform of the Act (see Reform of the Outer Space Act 1986: Consultation). |
Sale of public sector spectrum | The government said in its March 2011 Budget that it will publish an implementation plan for the phased release of 500MHz of surplus spectrum from the public sector by 2020 for mobile services including mobile broadband services (see Legal update, Budget 2011: implications for IP, IT and communications (www.practicallaw.com/3-505-3992)). In March 2011, the government published a call for evidence on its proposed release of at least 500MHz public-sector spectrum by 2020. The Ministry of Defence has already identified two bands, 2310-2390MHz and 3400-3600MHz, from which it could release 160MHz of spectrum, and the government expects that spectrum from these bands will be available for release by 2015. The government has also identified three other bands that it thinks are priorities for further investigation, and a further ten bands that could yield spectrum towards the 500MHz target. The government was seeking views on its plans by 23 June 2011. For more information, see Legal update, Government call for evidence on release of public-sector spectrum (www.practicallaw.com/8-505-5743). As a result of the responses to the call for evidence, the government announced in December 2011 that it had updated its plans for the release of public spectrum. On 17 December 2012, the Ministry of Defence announced that in 2014 it will auction 200MHz of its radio spectrum usage rights. The spectrum is all below 15GHz and has potential for a number of uses, such as fourth generation mobile services or wireless access to fixed-line broadband services. For more information, see Legal update, MOD to sell radio spectrum (www.practicallaw.com/4-523-2408). |
Communications Bill | In January 2011, the Secretary of State for Culture, Media and Sport announced a review of media and communications with a view to drafting a new Communications Act. The government will publish a discussion document containing the full scope of the Bill towards the end of 2011, but the new Act is unlikely to come into force before 2015. For more information, see Legal update, New Communications Act review (www.practicallaw.com/4-504-5459). In May 2011, the government launched a review of the regulation of communications with a view to drafting a parliamentary bill and for a new communications regulatory framework to be in place by 2015. An open letter from the Secretary of State for Culture, Media and Sport, Jeremy Hunt, sets out three key themes for consultation: growth innovation and deregulation; a communications infrastructure that provides the foundations for growth; and creating the right environment for the content industry to thrive. Responses were requested by 30 June 2011. For more information, see Legal update, Government review of communications regulation (www.practicallaw.com/1-506-1295). In July 2011, the Law Commission announced that it will review the Electronic Communications Code (the Code), as part of the government's wider review of the Communications Act 2003. For more information, see Legal update, Law Commission to review Electronic Communications Code (www.practicallaw.com/9-506-9810). In September 2011, the Culture Secretary gave a speech on the new Act. The main new points he made in relation to communications infrastructure were:
See Legal update, Jeremy Hunt speech at television conference: communications infrastructure. (www.practicallaw.com/6-508-2158) For information on other points made in the speech about media, the press and online content, see Legal updates, Jeremy Hunt speech at television conference: media (www.practicallaw.com/1-508-2170) and Jeremy Hunt speech at television conference: press and online content regulation (www.practicallaw.com/3-508-2145). The DCMS plans to publish a green paper early in 2012 (see Legal update, Government publishes implementation update on Plan for Growth: IP, IT and communications (www.practicallaw.com/1-514-5375)) and a white paper towards the end of 2012. In June 2012, the DCMS announced that, following the responses to its May 2011 review, it had concluded that there was no need for a complete overhaul of the legislation, although there was a need to update regulations to ensure they are fit for the digital age. The government will not now issue a Green Paper, but will instead hold a range of seminars in order to gain views on: driving investment in TV content; competition in the content market; the consumer perspective; maximising the value of spectrum; and supporting growth in the radio sector. The DCMS will shortly publish a series of policy papers outlining the key questions that each seminar will consider. The DCMS will publish a White Paper in early 2013 and introduce a Communications Bill by the final session of this Parliament. See Legal update, DCMS update on review of communications sector (www.practicallaw.com/3-519-7962). On 26 June 2012, the DCMS published, and invited views on, the policy papers for the seminars. The DCMS invited comments on the published discussion papers by 14 September 2012. For more information, see Legal update, DCMS publishes and seeks views on seminar papers on communications review (www.practicallaw.com/1-520-0692). On 2 August 2012, the House of Lords' Communications Committee launched an inquiry into media convergence, which asks a number of questions about the regulation of communications and media in this context. The Committee requested submissions by 24 September 2012. For more information, see Legal update, Lords launch inquiry on media convergence (www.practicallaw.com/8-520-7893). On 27 March 2013, the House of Lords' Select Committee on Communications published a report on media convergence in advance of the government's anticipated white paper on communications regulation. For more information, see Legal update, Lords committee reports on media convergence (www.practicallaw.com/4-525-4693). |
Ofcom reform | In October 2010, the government announced some reforms to Ofcom, with an eye to reducing unnecessary expense and avoiding duplication. For more details, see Legal update, Government announces communications regulatory changes as part of public bodies reform (www.practicallaw.com/6-503-6232). More reforms are expected as part of a forthcoming review of the Communications Act 2003. In April 2013, the Department for Culture, Media and Sport published a consultation document on proposed changes to Ofcom's statutory duties and functions, with the aim of reducing duplication and unnecessary expenditure. Ofcom plans to make these changes by amending the relevant sections of the Communications Act 2003. Comments are requested by 25 June 2013. For more information, see Legal update, DCMS consultation on proposed changes to Ofcom's statutory duties and functions (www.practicallaw.com/7-526-3865). |
Radio Equipment Directive European Commission consultation on revisions to the Radio & Telecommunications Terminal Equipment Directive (1999/5/EC) European Commission proposal to replace Directive 1999/5/EC BIS consultation on Commission proposal to replace Directive 1999/5/EC | The European Commission is consulting on the impact of proposed revisions to the Radio & Telecommunications Terminal Equipment Directive (1999/5/EC). Among other things, the consultation identifies a low level of compliance with the Directive and suggests two options: introducing product-conformity assessment requirements and market-surveillance mechanisms in line with the EU "products marketing" package (Decision 768/2008/EC); or introducing an obligation for manufacturers to register their products on a EU-wide system before placing them on the market. The consultation closed on 15 September 2010. See Legal update, European Commission consults on revisions to R&TTE Directive (www.practicallaw.com/0-502-8367). In its 2011 work programme published on 4 November 2010, the European Commission indicated that it intends to amend Directive 1999/5/EC in order to replace impractical and ineffective administrative provisions and create an environment more conducive to innovative technologies. See Legal update, European Commission publishes 2011 work programme (www.practicallaw.com/8-503-8065). On 17 October 2012, the European Commission adopted a proposal to update and replace Directive 1999/5/EC. The main objectives of the proposal are to strengthen compliance with the Directive and to clarify and simplify obligations under it. More specifically, it will introduce requirements ensuring that software can only be used with radio equipment after the compliance of that particular combination of software and the radio equipment has been demonstrated, and will introduce specific requirements regarding interoperability with accessories such as chargers. As the regulatory approach is considered to remain valid, the Commission believes that a fundamental revision of the Radio Equipment Directive is not necessary. For more information, see Legal update, Radio Equipment Directive: European Commission proposes update (www.practicallaw.com/5-521-9185). On 8 March 2013, the Department for Business, Innovation and Skills opened a consultation on the Commission's proposal to update and replace Directive 1999/5/EC. The UK government broadly supports revising the Directive insofar as this will simplify and clarify its scope, and observes that removing the current notification process and reducing marking requirements should result in cost reductions to business. It is not supportive of new registration proposals for equipment with low levels of compliance or of powers being delegated to the Commission in relation to this. The consultation closed on 3 June 2013. For more information, see Legal update, BIS consults on draft Radio Equipment Directive (www.practicallaw.com/4-525-1265). |
Amending Electronic Communications Code for overhead deployment of telecoms cables DCMS consultation, Relaxing the restrictions on the deployment of overhead telecommunications lines The Electronic Communications Code (Conditions and Restrictions) (Amendment) Regulations 2013 | On 4 September 2009, under the Labour government, the Department for Business Innovation & Skills published a consultation document seeking views on whether it is appropriate to amend the Electronics Communications Code to allow for the overhead deployment of telecommunications cables. For more information, see Legal update, BIS consults on amending Electronics Communications Code for overhead deployment of telecommunications cables (www.practicallaw.com/5-500-1247). In March 2010, BIS concluded that there was a strong case for amending the Code on the basis of the cost savings involved in overhead deployment compared with burying cables underground (as currently required by the Code), and because it would lead to more options for rural broadband deployment. However, the government also recognised the need to consider the impact the changes may have on the planning process and the need to ensure appropriate local-level consultation. It proposed consulting further on amendments to the Code before the Summer 2010. See Legal update, BIS responds to consultation on deployment of overhead cables (www.practicallaw.com/5-501-8865). In July 2011, the Law Commission announced that it will review the Electronic Communications Code (the Code). The review will form part of the government's wider review of the Communications Act 2003. The Law Commission will publish a consultation paper in the summer of 2012, and a report of its recommendations to the Department for Culture, Media and Sport in spring 2013. For more information, see Legal update, Law Commission to review Electronic Communications Code (www.practicallaw.com/9-506-9810). In November 2011, the DCMS published a consultation on relaxing the restrictions on deploying new overhead telecoms lines contained in the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (SI 2003/2553), so that new overhead lines can be deployed where it is not possible or not commercially viable for communications providers to use or share existing infrastructure. The DCMS invited comments by 21 February 2012. For more information, see Legal update, DCMS consultation on relaxing restrictions on deployment of overhead telecommunications lines (www.practicallaw.com/7-514-2388). On 23 April 2013, the DCMS announced that it would not be publishing a statement in response to its November 2011 consultation on relaxing the restrictions on deploying new overhead telecoms lines, as this has been overtaken by other work in this area (see DCMS: Consultation on relaxing the restrictions on the deployment of overhead telecommunications lines). On 10 June 2013, the government published the government published regulations to implement the government's decision to allow broadband street cabinets and new poles and overhead lines to be installed in any location, other than a site of special scientific interest (SSSI) without the need for prior approval from local planning authorities for a period of five years. The Regulations come into force on 27 June 2013 and most of the provisions cease to have effect on 5 April 2018. For more information, see Legal update, Electronic Communications Code (Conditions and Restrictions) (Amendment) Regulations 2013 published (www.practicallaw.com/7-531-6656). |
Ofcom consultation on proposals for authorising use of the 872/917 MHz bands Interim statement on the award of the band 872-872 MHz paired with 917-921 MHz | Ofcom issued a consultation on 11 August 2009 on the use of the spectrum bands 872 to 876 MHz paired with 917 to 921 MHz. Ofcom is considering two general approaches to authorising the use of these bands. Ofcom considers that a light regulatory approach could be feasible for use of the bands for short-range devices and radio frequency identity devices. The consultation closed on 3 November 2009. (For more information, see Legal update, Ofcom consults on proposals for authorising use of 872/917 MHz bands.) In February 2010, Ofcom issued an interim statement saying that it will delay making further decisions about the release of the 872/917 MHz bands until later in 2010, because there is work under way in Europe on the possibility of co-channel sharing between GSM-R, short-range devices and radio-frequency identification, that may open up the possibility of a hybrid authorisation approach, which Ofcom did not consider in its August 2009 consultation, and because the responses to the consultation provided limited evidence on the relative merits of releasing the spectrum through a full licensing or light regulatory approach. See Legal update, Ofcom interim statement on 872/917 MHz bands (www.practicallaw.com/7-501-6182) for more information. In January 2013, Ofcom consulted further on the release of the 872-876MHz and 917-921MHz bands, which it hopes to release with the 870-872MHz and 915-917MHz bands currently managed by the Ministry of Defence. For more information, see Legal update, Ofcom consults on release of 870-876MHz and 915-921MHz bands (www.practicallaw.com/5-523-7207). |
Universal service European Commission report on future of universal service Questionnaire for the Public Consultation on Universal Service Principles in E-Communications | On 25 September 2008, the European Commission published a report on the scope of the universal service in electronic communications networks and services. This considers the issue of whether broadband services should be included within the scope of the universal service obligation. (For more information see Legal update, Commission publishes report seeking views on the future of the universal service (www.practicallaw.com/8-383-5065).) In March 2010, the European Commission published a questionnaire on the principles of universal service provision in electronic communications. It is considering whether the current universal service rules, contained in the Universal Service Directive (Directive 2002/22), need to be updated to reflect market developments. It is seeking views on the basic concept of the universal service, and on whether the universal service principles should be used as a means to support the policy objective of achieving 100% broadband coverage in the EU, and if so, whether it would be necessary to reflect national differences or to provide for national flexibility. It is also considering how the universal service should be funded in the future. See Legal update, Commission consults on universal service in electronic communications (www.practicallaw.com/9-501-6204) for more information. In its 2011 work programme published on 4 November 2010, the European Commission indicated that it may revise or clarify the universal service provisions in Chapter II of the Universal Service Directive (2002/22/EC). See Legal update, European Commission publishes 2011 work programme (www.practicallaw.com/8-503-8065). In November 2011, the European Commission published a Communication concluding that it would not be appropriate, at this stage, to extend the universal service obligation to include mobile telecommunications services or broadband connections. The Commission indicated areas where further guidance may be needed to help implement the universal services rules consistently and effectively. For more information, see Legal update, Commission announces conclusions on universal service in electronic communications (www.practicallaw.com/3-513-6214). |
Government's draft legislative programme 2008/2009 Home Office consultation on increased access to communications data | A Communications Data Bill was listed in the government's 2008-2009 draft legislative programme published in May 2008. Specifically, the government proposed a Bill on communications data retention for the prevention and detection of crime and the protection of national security. It explained that the Bill would modify the procedures for acquiring and retaining communications data as part of an interception modernisation programme. In a speech in October 2008, the Home Secretary said that the government was considering introducing legislation to create increased powers to intercept and obtain communications data to combat terrorism and serious crime. She said that the government would consult on the proposals in 2009 (see Legal update, Government to consult on increased access to communications data (www.practicallaw.com/0-386-0186)). On 27 April 2009, the Home Office launched a consultation on proposals to create increased powers to retain and access communications data. On 6 November 2009, the government published a summary of responses to the consultation. 50% of respondents did not believe the safeguards outlined were adequate. See Data protection (below) for more details regarding the background to the Communications Data Bill, the consultation and responses. The proposals were not pursued further by the Home Office prior to the change of government in May 2010. However, the new government's Strategic Defence and Security Review, published on 19 October 2010, states that the government will introduce a programme (including legislation) "to preserve the ability of the security, intelligence and law enforcement agencies to obtain communication data and to intercept communications within the appropriate legal framework", which it says is required to keep up with changing technology. This appears to be reviving the Labour government's proposed Communications Data Bill or interception modernisation programme, as it is also called. However, a Home Office spokesperson has indicated to PLC that the programme will not be the same as the programme proposed by the Labour government, but a different form of that programme, and, in particular, would not involve a government database, with data being instead held by ISPs and law enforcement agencies having access to it if required in an investigation. See Legal update, Government publishes Strategic Defence and Security Review including cyber-security programme (www.practicallaw.com/5-503-6666). In May 2012, the government announced in the Queen's Speech 2012 that it will introduce a new Communications Data Bill to enable authorities to monitor internet communications "to maintain the ability of the law enforcement and intelligence agencies to access vital communications data under strict safeguards to protect the public, subject to scrutiny of draft clauses", see Legal update, Government announces draft Communications Data Bill. On 14 June 2012, the Home Office published the draft Communications Data Bill. For more information, see Legal update, Communications Data Bill proposes new framework for the retention and use of communications data (www.practicallaw.com/8-519-9968). |
See Legislation in force: Communications (www.practicallaw.com/7-107-4973) for legislation now in force.
Item | Status |
The independent panel set up by the Department for Culture, Media and Sport to look into e-lending in public libraries in England (see Legal update, DCMS panel issues call for evidence on e-lending in libraries (www.practicallaw.com/4-521-8841)) has published its review and the government's response to it. While the government welcomed the panel's recommendation that public libraries should be able to offer remote e-lending services to their readers free at the point of use, it was non-committal about enacting the provisions in the Digital Economy Act 2010 extending the public lending right to on-site audio and e-books (see Digital Economy Act 2010: content issues, below), blaming the economic climate. For more information, see Legal update, Library e-lending review and government response published (www.practicallaw.com/0-525-4968). | |
IPO consultation on the term of copyright and certain related rights | In January 2013, the Intellectual Property Office (IPO) issued a consultation on proposals for the implementation of Directive 2011/77/EU which amends Directive 2006/116/EC on the term of copyright and certain related rights. The consultation closed on 4 March 2013. For more information, see Legal update, IPO consults on implementation of Directive extending copyright term for sound recordings to 70 years (www.practicallaw.com/4-523-4332). On 15 April 2013, the IPO published its response to the consultation. For more information, see Legal update, IPO publishes response to consultation on implementing Directive extending sound recordings' copyright term (www.practicallaw.com/7-525-7925). |
In May 2011, the European Commission published a new strategy for intellectual property rights, setting out short-term and long-term policy actions in various areas, including copyright. In relation to copyright the Commission said that, among other things, it would put forward a proposal for a legal instrument to create a European framework for online copyright licensing in order to create a stable framework for the governance of copyright at the European level in the second half 2011 (see Legal update, European Commission publishes new strategy for IP rights (www.practicallaw.com/0-506-2323)). In July 2012, the Commission adopted a proposal for a Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market. The aim of the Directive is to make the work of collecting societies more transparent and to facilitate the licensing across borders of rights in musical works for online uses. The Commission claims that the new rules would change the way in which collecting societies work across Europe, with new requirements such as improved management of repertoire, quicker payments to members, clarity in revenue streams from exploitation of rights and an annual transparency report. For more information, see Legal update, European Commission adopts proposal for Directive on collective rights management and cross-border online music licensing (www.practicallaw.com/6-520-3283). | |
Repeal of section 52, CDPA (exploitation of design derived from artistic work) | In May 2012 the government published the Enterprise and Regulatory Reform Bill 2012-13, which includes a number of copyright and design-related provisions, including a provision repealing section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) (relating to the exploitation of design derived from artistic work). The Intellectual Property Office indicated that this proposal was separate from the government's review of copyright and design law following the Hargreaves Review. The Bill also included provisions enabling certain exceptions to copyright and performers' rights under the CDPA to be amended by secondary legislation, in order to implement recommendations of the Hargreaves Review (see Hargreaves Review: Implementation of copyright recommendations, below). On 25 April 2013, the Enterprise and Regulatory Reform Act 2013 (ERRA) received Royal Assent. Some of its provisions came into force immediately, including most of the copyright and design-related provisions. See Hargreaves Review: Implementation of copyright recommendations, below for information regarding the provisions of the ERRA implementing the recommendations of the Hargreaves Review. Section 74 of the ERRA, which contains the repeal of section 52 of the CDPA, is expected to come into force in either October 2013 or April 2014. For more information, see Legal update, Enterprise and Regulatory Reform Act 2013: copyright aspects (www.practicallaw.com/2-527-7445). BIS has published indicative timetables for commencement of the provisions of the ERRA. However, no indicative date was given for the commencement of section 74 of the ERRA, as this repeal date will be determined only after consultation with interested parties. See Legal update, BIS announces implementation dates for copyright provisions of Enterprise and Regulatory Reform Act 2013 (www.practicallaw.com/2-531-6748). |
Green Paper on the online distribution of audiovisual works in the EU | On 13 July 2011, the European Commission published a Green Paper on the online distribution of audiovisual works in the EU. The paper set out the challenges and opportunities raised by the changes in the way audiovisual works are produced, marketed and distributed due to digital technology and the internet, and asked various questions regarding whether and how the regulatory framework needed to be adapted to reflect this. The consultation period ended on 18 November 2011. See Legal update, Green Paper on online distribution of audiovisual works in EU published (www.practicallaw.com/9-506-8844) for more information. |
On 25 May 2011, the European Commission published a new strategy for intellectual property rights, setting out short-term and long-term policy actions in various areas, including copyright. In relation to copyright, the Commission identified the following areas for action:
The strategy also identified other long-term approaches to explore, including creation of a European Copyright Code and examining the feasibility of creating an optional "unitary" copyright title. The Commission will examine these issues, inter alia, in the context of the dialogue with stakeholders foreseen in the Digital Agenda for Europe and will report in 2012, in particular on whether the Copyright Directive needs to be updated. See Legal update, European Commission publishes new strategy for IP rights (www.practicallaw.com/0-506-2323) for a detailed report on the strategy document. See General IP for details of policy actions set out in the strategy relating to other IP rights. | |
Culture, Media and Sport Committee intellectual property rights inquiry | On 10 November 2010, the House of Commons Culture, Media and Sport Select Committee called for evidence to be submitted as part of its inquiry into the protection of intellectual property rights (IPRs) online. The Committee intended to consider the new framework for the protection of IPRs online that was to be established under the Digital Economy Act 2010. The deadline for written submissions was originally 5 January 2011, but was extended until 23 March 2011, following the decision of the High Court to allow BT and TalkTalk to apply for judicial review of sections of the Digital Economy Act. See Legal update, Commons Committee extends deadline for submissions to online IPR inquiry (www.practicallaw.com/3-504-1485) for further information. On 27 April 2011, the Committee indicated that it had suspended its inquiry into the protection of IPRs online in light of the judicial review of some provisions of the Digital Economy Act 2010 (see Legal update, Commons Committee suspends online IPR inquiry (www.practicallaw.com/9-505-9024)). See Practice note, Anti file-sharing measures under the Digital Economy Act 2010: Judicial review of copyright infringement provisions (www.practicallaw.com/8-525-1131) for more information on the judicial review. |
Hargreaves review: Implementation of copyright aspects HM Government Blueprint For Technology A Review of Intellectual Property and Growth The Government Response to the Hargreaves Review of Intellectual Property and Growth IPO Consultation on proposals to change the UK's copyright system Enterprise and Regulatory Reform Bill 2012-13 Enterprise and Regulatory Reform Bill as amended in Public Bill Committee Government policy statement: consultation on modernising copyright | On 4 November 2010, the government announced the launch of an independent review of the UK's intellectual property (IP) laws, to ensure that they are "fit for the internet age" (see Legal update, Government launches review of IP laws (www.practicallaw.com/1-503-8484)). Hargreaves Review. On 18 May 2011, the report on the IP review, written by Professor Ian Hargreaves, was published (see Legal update, Hargreaves review of intellectual property published (www.practicallaw.com/8-506-1414)). In relation to copyright, the report’s recommendations included:
Government response. On 3 August 2011, the government responded to the Hargreaves review (see Legal Update, Government response to Hargreaves review of intellectual property published (www.practicallaw.com/2-507-1246)). The government broadly accepted all of the recommendations, and set out the actions it intended to take. The actions in relation to copyright included:
DCE Feasibility study. In November 2011, the government announced that it was to establish a feasibility study to develop the DCE (see Legal update, Government launches feasibility study on creating digital copyright exchange (www.practicallaw.com/8-513-6419)). On 4 January 2012, Richard Hooper, who was appointed to lead the feasibility study on developing a DCE, issued a call for evidence (see Legal update, Call for evidence on copyright licensing and digital copyright exchange (www.practicallaw.com/1-517-1171)). In his first report, published in July 2012, Mr Hooper recommended that copyright licensing be made easier and cheaper to use (see Legal update, Hooper report concludes copyright licensing needs to be streamlined (www.practicallaw.com/5-518-7066)). In the second phase of the review, Mr Hooper recommended the creation of a not-for-profit, industry-led and funded, UK-based Copyright Hub (see Legal update, Hooper report recommends creation of Copyright Hub (www.practicallaw.com/2-520-6924)). Consultation on reforming copyright system. On 14 December 2011, the IPO launched a consultation on proposals to modernise the copyright system, following up on the recommendations in the Hargreaves review. The consultation set out the government’s proposals to reform the law by:
The consultation sought views on various issues, and options with regard to the reforms. It also explored possible amendment and extension of other existing copyright exceptions. The deadline for responses was 21 March 2012. See Legal update, IPO launches consultation on proposals to modernise copyright system (www.practicallaw.com/9-516-8829) for a full report on the consultation. Orphan works and collective licensing and Enterprise and Regulatory Reform Bill. In May 2012, the government published the Enterprise and Regulatory Reform Bill (see Legal update, Enterprise and Regulatory Reform Bill 2012-13: copyright and designs (www.practicallaw.com/4-519-6189)). Among other things, the Bill enabled the copyright exceptions set out in Chapter 3 of Part 1 of the CDPA to be amended by secondary legislation to empower the government to implement the recommendation of the Hargreaves Review that these exceptions should be widened. In June 2012, the government published a summary of responses to the consultation (see Legal update, Government publishes summary of responses to copyright consultation (www.practicallaw.com/8-519-9322)). On 2 July 2012, the government published a policy statement in the light of the consultation on reforming the copyright system, indicating its intention to introduce legislation as soon as possible on orphan works, voluntary extended collective licensing and codes of conduct for collecting societies. The government said that it would add new clauses to the Enterprise and Regulatory Reform Bill to provide for these new measures. See Legal update, Government announces copyright policy following consultation (www.practicallaw.com/4-520-1826). In mid-July 2012, during the Public Bills Committee stage of the Enterprise and Regulatory Reform Bill, new provisions were added empowering the Secretary of State to establish a system for the mass extended licensing of copyright works (including orphan works) and a clearance procedure for use of individual orphan works (see Legal update, Enterprise and Regulatory Reform Bill as amended in Committee: copyright implications (www.practicallaw.com/5-520-5517). In October 2012, the government published an outline of the minimum standards for UK collecting societies designed to underpin a voluntary code of conduct. For more information, see Legal update, Government publishes minimum standards for UK collecting societies (www.practicallaw.com/4-522-0472). Response to consultation on copyright reform. On 20 December 2012, the government published its response to its consultation on reforming the copyright system (2012 response document). In line with most of the recommendations made in the Hargreaves Review, it said that it would:
The government planned to bring the new provisions into force in October 2013 by means of statutory instruments. For more information, see Legal update, Government announces changes to copyright exceptions (www.practicallaw.com/4-523-2724). Enterprise and Regulatory Reform Act. The Enterprise and Regulatory Reform Act 2013 (ERRA) received Royal Assent on 25 April 2013. Among other things, the ERRA:
Some of the ERRA's provisions came into force immediately, including all of the order-making provisions. Copyright-related provisions that came into force on 25 April 2013 included sections 75 to 78 and Schedule 22, relating to the licensing of orphan works and voluntary extended collective licensing, with a reserve power to require a collecting society to adopt a code of practice. See IP, IT, media and telecoms legislation in force: Copyright (www.practicallaw.com/7-107-4973). BIS has proposed that regulations to implement section 76 (power to reduce duration of copyright in certain unpublished works in transitional cases) will be in force by April 2014, and that regulations to implement sections 77 and 78 and Schedule 22 will come into force by October 2014. See Legal update, BIS announces implementation dates for copyright provisions of Enterprise and Regulatory Reform Act 2013 (www.practicallaw.com/2-531-6748). The IPO has published a factsheet giving details of how the government's proposed orphan works licensing scheme, and its proposals for extended collective licensing, to be included in the implementing regulations made under ERRA, will work in practice. See Legal update, IPO publishes factsheet on extended collective licensing and orphan works licensing (www.practicallaw.com/4-531-6766). Draft exceptions. On 7 June 2013, the IPO published for review new exceptions for private copying, parody, quotation and public administration. Each of the draft exceptions is contained in a separate document with a series of questions, to which the IPO invited responses by 17 July 2013. The provisions of the draft exceptions are largely as the government outlined in its 2012 response document. See Legal update, IPO publishes new copyright exceptions for review (www.practicallaw.com/9-531-6660). |
European Commission consultation on the future of Europeana, Europe's multi-lingual digital library | On 28 August 2009, the European Commission launched a consultation on the future of Europeana, Europe's multi-lingual digital library, which it set up in November 2008. There are currently 4.6 million digital books and other resources available on Europeana, most of which are in the public domain, and no out-of-print or orphan works are included. All of the questions in the consultation have a direct impact on the development of Europeana, and some (particularly questions 7 to 10) have more general policy implications for the digitisation, accessibility and use of content from cultural institutions. The consultation closed on 15 November 2009 (see Legal update, European Commission launches consultation on Europe's digital library (www.practicallaw.com/2-422-3166)). |
IPO Consultation on the development of the UK's future copyright agenda Responses to IPO Consultation on the development of the UK's future copyright agenda Copyright the way ahead: A strategy for copyright in the digital age | On 16 December 2008, the Intellectual Property Office (IPO) launched an initiative to seek input from stakeholders on the development of the UK's future copyright agenda (see Legal update, IPO seeks views on developing future copyright agenda (www.practicallaw.com/5-384-4603)). On 15 May 2009, the IPO published details of the responses it received (see Legal update, IPO launches website and discussion forums on copyright policy (www.practicallaw.com/4-386-1344)). On 28 October 2009, the IPO published a report setting out its strategy for copyright in the digital age. The government also confirmed that it would take various steps specified in the final Digital Britain report, published in June 2009 (see Legal update, Government publishes Digital Britain report: content issues (www.practicallaw.com/4-386-4540)) to improve the licensing process, including implementing a system of extended collective licensing; legislating to enable schemes for dealing with orphan works to be set up on a regulated basis; and taking measure to tackle illegal file-sharing. See Legal update, IPO publishes strategy for copyright in the digital age (www.practicallaw.com/6-500-6070) for more details. These issues were taken forward in the Digital Economy Bill - see Digital Economy Act 2010: Digital content issues and Digital Economy Act 2010: anti file-sharing measures for more information. A clause in the Bill regarding the licensing of orphan copyright works was dropped. |
IPO Consultation: Taking forward the Gowers Review of IP - penalties for copyright infringement | On 11 August 2008 the UK Intellectual Property Office (IPO) consulted on the penalties for copyright infringement following the recommendation of the Gowers Review that penalties for online and physical copyright infringement should match. The IPO put forward three options: making no change in the law; increasing the fines available in the Magistrates' Court from a maximum of £5,000 to £50,000 for copyright offences; and increasing fines in a similar way for all IP-related offences (see Legal update, IPO consultation on penalties for copyright infringement (www.practicallaw.com/2-382-9473)). A majority of responses to the consultation favoured the proposal of increasing the fines available to £50,000 for all IP offences. The government said that it would consider the legislative options for implementing this proposal (see Legal update, Response to consultation on copyright penalties favours maximum fine for all IP offences (www.practicallaw.com/8-386-0088)). In the final Digital Britain report published on 16 June 2009, the government noted that many responses to the consultation endorsed the option of introducing exceptional statutory maxima of £50,000 for all IP offences and said that, as a result of this support, this option would be adopted, and that the government intended to address this issue in line with the other legislative changes detailed in the report (see Legal update, Government publishes Digital Britain report: content issues (www.practicallaw.com/4-386-4540)). Section 42 of the Digital Economy Act 2010, which implemented the final Digital Britain report, amended sections 107 and 198 of the Copyright Designs and Patents Act 1988, which deal with infringing articles and illicit recordings respectively, to increase the maximum fine that may be imposed for these offences from the statutory maximum (£5,000 in England and Wales and £10,000 in Scotland) to £50,000 (see Legal update, Digital Economy Act 2010: summary of main provisions (www.practicallaw.com/9-502-0116)). Section 42 came into force on 8 June 2010 (see Legislation in force: Copyright (www.practicallaw.com/7-107-4973)). The responses to the consultation favoured increasing the fines available to £50,000 for all IP offences. It is not clear when the government will introduce further legislation to provide that this statutory maximum penalty will also apply to other IP offences, such as trade mark offences. |
Digital Economy Act 2010: Digital content issues | As well as dealing with measures to counter illegal file-sharing (see below) and copyright penalties (see above), the final Digital Britain report, published in June 2009 covered, among other things, a number of content-related issues (see Legal update, Government publishes Digital Britain report: content issues (www.practicallaw.com/4-386-4540)), including proposals to:
The Digital Economy Bill was published on 20 November 2009 (see Legal update, Government publishes Digital Economy Bill (www.practicallaw.com/9-500-8591)). The Digital Economy Bill included, among other things, provisions:
The Digital Economy Act 2010 received Royal Assent on 8 April 2010 (see Legal update, Digital Economy Act 2010: summary of main provisions (www.practicallaw.com/9-502-0116)). The provisions amending the 1979 Act were retained and will come into force on such day as the Secretary of State may appoint by statutory instrument. However, the clause which would have allowed the licensing of orphan copyright works was dropped, largely because there was insufficient time to debate it at the second reading. In its March 2013 response to a review of e-lending in public libraries, the government was non-committal about enacting the provisions in the Digital Economy Act 2010 extending the public lending right to on-site audio and e-books, blaming the economic climate (see Review of e-lending in public libraries, above). |
Digital Economy Act 2010: anti file-sharing measures BIS consultation on online infringement of copyright (initial obligations) cost-sharing Next steps for implementation of the Digital Economy Act Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2012 Online Infringement of Copyright and the Digital Economy Act 2010: initial obligations code | Digital Britain report. Following a consultation in July 2008 on legislative options for addressing illicit peer-to-peer (P2P) file-sharing of online content (see Legal update, Government consults on solutions to illicit file-sharing (www.practicallaw.com/3-382-7176)) the government announced that it intended to respond to the consultation in its "Digital Britain report". On 16 June 2009, the Digital Britain final report was published (see Legal update, Government publishes Digital Britain report: content issues (www.practicallaw.com/4-386-4540)). In relation to P2P file sharing, the report indicated that the government would consult by the end of August 2009 on a legislative proposal to require Ofcom to:
A consultation on legislation to address illicit P2P filesharing was also launched on 16 June 2009. Digital Economy Bill. The Digital Economy Bill was published on 20 November 2009 (see Legal update, Government publishes Digital Economy Bill (www.practicallaw.com/9-500-8591)). The provisions on P2P file-sharing followed those set out in the Digital Britain final report, as revised in August 2009. Digital Economy Act. The Digital Economy Act 2010 received Royal Assent on 8 April 2010 (see Legal update, Digital Economy Act 2010: summary of main provisions (www.practicallaw.com/9-502-0116)). Sections 3 to 16 of the Act impose various obligations on ISPs, aimed at the reduction of online infringement of copyright by introducing new sections 124A to 124M in the Communications Act. The Act requires ISPs to:
These obligations are to be subject to and underpinned by an "initial obligations" code of practice. The Secretary of State has the power, after the code has been in force for 12 months, to make an order (subject to the super-affirmative procedure) imposing a technical obligation on ISPs to take a range of technical measures, including suspending the subscriber's service, against subscribers with more than a prescribed threshold number of CIRs made against them. Section 17 of the Act (a re-draft of a previous website-blocking provision) provides that the Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of an internet location which the court is satisfied has been, is being or is likely to be used for, or in connection with, an activity that infringes copyright. Various provisions of the Act have already come into force (see Legislation in force: Copyright (www.practicallaw.com/7-107-4973)). Draft initial obligations code of practice. On 28 May 2010, Ofcom published for consultation a draft code of practice to underpin the initial obligations imposed by the Act on ISPs to reduce online copyright infringement. Ofcom proposed that the draft code would initially cover only fixed-line ISPs with over 400,000 subscribers, that is, the seven largest ISPs. The draft code also proposed that notifications be sent to subscribers on receipt of the first CIR, on receipt of a second CIR a month or more later, and on receipt of a third CIR received a month or more after the second. A subscriber would be included in a CIL if they received three notifications within a year, and the copyright owner requesting the CIL has sent at least one CIR relating to that subscriber within that year. The consultation closed on 30 July 2010. See Legal update, Ofcom publishes draft code on ISPs' initial obligations under Digital Economy Act (www.practicallaw.com/0-502-4369). Consultation on costs sharing relating to initial obligations and response. On 30 March 2010, BIS consulted on the government’s proposals for the sharing of costs relating to the initial obligations imposed on ISPs to address online infringement of copyright (see Legal update, Government consults on costs-sharing under Digital Economy Bill online copyright infringement notification obligations (www.practicallaw.com/7-501-8869)). On 14 September 2010, the government published its response to the consultation. The government concluded that the costs of ISPs and Ofcom in relation to the initial obligations should be split 75:25 between copyright owners and ISPs, and that no fee should be charged for subscribers to appeal against a notification letter from an ISP. (See Legal update, Government to require ISPs to share 25% of costs of Digital Economy Act initial obligations (www.practicallaw.com/6-503-3257).) Draft costs order. The draft Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2011, confirming the government's response to the consultation, was laid before Parliament on 21 January 2011 (see Legal update, Draft costs-sharing order under Digital Economy Act notification system laid before Parliament (www.practicallaw.com/3-504-5817)). Judicial review of Digital Economy Act - High Court decision. On 11 November 2010, the High Court agreed to an application for judicial review concerning the online copyright infringement provisions of the Act, made by British Telecommunications plc and TalkTalk Telecom Group plc. See Legal update, High Court agrees to judicial review of Digital Economy Act (www.practicallaw.com/2-504-1674). On 21 April 2011, the High Court rejected all of the grounds on which BT and TalkTalk sought judicial review of the provisions of the Act, although it did accept one ground of challenge to the order regarding costs-sharing between ISPs and copyright owners in relation to the obligations (see Legal update, High Court dismisses ISPs' challenge to Digital Economy Act (www.practicallaw.com/8-505-8096)). In October 2011, the Court of Appeal allowed BT and TalkTalk leave to appeal against the High Court's decision (see Legal Update, Court of Appeal reverses decision and grants ISPs leave to appeal against Digital Economy Act ruling (www.practicallaw.com/0-509-0991)). Draft initial obligations costs order. On 3 August 2011, the government announced its plans for the next steps in the implementation of the Act. It published a draft Costs order, revised following the judicial review ruling to remove provisions requiring ISPs to contribute towards the costs of Ofcom and the independent appeals body in setting up and administering the regime. The order was also amended to provide that a £20 appeals fee will be charged for subscriber appeals against copyright infringement notifications, following an Ofcom report published on ways of minimising the costs of the system for appealing against copyright infringement notifications. See Legal update, Government proceeds with copyright infringement notification scheme but puts site-blocking on hold (www.practicallaw.com/5-507-1259) for further details. Report on practicability of site-blocking under sections 17-18. On 1 February 2011 the culture secretary, Jeremy Hunt, asked Ofcom to review whether the powers contained in the Digital Economy Act (sections 17-18), which enable the Secretary of State to obtain a court order to block an internet location that is being used in connection with copyright infringement, were workable. See Legal update, Ofcom to review whether Digital Economy Act filesharing-blocking provisions are workable (www.practicallaw.com/8-504-6824). Following an Ofcom report on the practicability of site-blocking under the powers set out in sections 17 and 18 of the Act as a way of combating copyright infringement, the government also said, on 3 August 2011, that it would not be implementing any regulations on site-blocking for the time being. See Legal update, Government proceeds with copyright infringement notification scheme but puts site-blocking on hold (www.practicallaw.com/5-507-1259) for further details. Judicial review of Digital Economy Act - Court of Appeal decision. On 6 March 2012, the Court of Appeal rejected the grounds on which BT and TalkTalk sought judicial review of the provisions of the Act, although it did accept one ground of challenge to the order regarding the draft Costs Order. See Legal update, Court of Appeal rejects ISPs' appeal in challenge to Digital Economy Act (www.practicallaw.com/6-518-3483). Revised draft initial obligations costs order. On 26 June 2012, the draft Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2012 (which supersedes the draft Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order 2011), was laid before Parliament and Ofcom issued a consultation on its implementation. The consultation closed on 18 September 2012. For more information, see Legal update, Ofcom consults on copyright infringement notification scheme costs under Digital Economy Act (www.practicallaw.com/4-520-0596). Revised initial obligations code. On 26 June 2012 Ofcom also published a revised initial obligations code and opened a one-month consultation period. For more information, see Legal update, Ofcom publishes revised code on ISPs' initial obligations under Digital Economy Act (www.practicallaw.com/0-520-0598). Ofcom anticipated at the time that the code would come into force by January 2013, with the first subscriber notifications sent in early 2014. However, in May 2013, an Ofcom representative said that the first letters would not be sent out until the latter half of 2015 (see Legal update, First copyright infringement notification period under Digital Economy Act 2010 to be delayed until late 2015 (www.practicallaw.com/0-531-6626)). |
Copyright in a digital world – what role for a digital-rights agency? | On 29 January 2009, the government published the Digital Britain interim report (see Legal update, Government publishes Digital Britain interim report: content issues (www.practicallaw.com/2-384-8594)). The report included various proposals on digital content. As well as setting out the government's intention to legislate in the area of illegal file-sharing (see above), the government also indicated that by the time the final report was published, it would have explored the potential for a Rights Agency, which would aim to bring the industry together to: agree on incentives for the legal use of copyright material; facilitate co-operation to prevent copyright infringement; and enable technical copyright-support solutions that appeal to consumers and content creators. On 13 March 2009, the Intellectual Property Office consulted on the role that a digital-rights agency should play in protecting and promoting the legal use of copyright content online (see Legal update, IPO consults on proposed digital-rights agency (www.practicallaw.com/4-385-2636)). On 16 June 2009, the IPO published a summary of responses to the consultation. There was generally a lack of consensus as to the role of a potential digital-rights agency (see Legal update, IPO publishes response to consultation on potential digital-rights agency (www.practicallaw.com/9-386-4420)). Issues arising out of the consultation were fed into the final Digital Britain report published at the same time (see Legal update, Government publishes Digital Britain report: content issues (www.practicallaw.com/4-386-4540)). In the final report, the government recommended the Rights Agency identified in the interim Digital Britain report should collaborate with ISPs and rights-holders to create a code of practice to underpin the ISP obligations regarding measures to counter illegal file-sharing set out in the report. See Digital Economy Act 2010: anti file-sharing measures, above for further information. |
European Commission Green Paper on Copyright in the knowledge economy European Commission Communication on book digitisation proposals | On 16 July 2008, the European Commission published a Green Paper to solicit feedback from stakeholders on the copyright exceptions in the Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC) (Directive) and their impact on the dissemination of knowledge for research, science and education purposes in the online environment. The consultation period ended on 30 November 2008 (see Legal update, European Commission publishes Green Paper on copyright in the knowledge economy (www.practicallaw.com/9-382-5829) for more details). On 25 February 2009, the UK government published its response to the Green Paper (see Legal update, Government publishes response to European Commission's copyright Green paper (www.practicallaw.com/4-385-1199)). On 19 October 2009, the European Commission adopted a Communication setting out the main findings of the consultation on the Green Paper. The Communication also set out the actions which the Commission intended to take to enhance the digitisation and dissemination of copyright material. These included:
See Legal update, European Commission Communication on book digitisation proposals (www.practicallaw.com/7-500-5466) for more details. On 28 October 2012, a Directive establishing a legal framework aimed at improving access to and digitisation of orphan works across the EU came into force. It is expected that the new rules will facilitate the digitisation of, and lawful cross-border online access to, orphan works contained in the collections of libraries, educational establishments, museums, archives, audiovisual heritage institutions and public service broadcasting organisations, who will also be able to use orphan works when fulfilling their public interest missions (see IP, IT, media and telecoms legislation in force: Copyright (www.practicallaw.com/7-107-4973)). |
Copyright in Sound Recordings and Performers' Rights (Term Extension) Bill | The Copyright in Sound Recordings and Performers' Rights (Term Extension) Bill had its first reading in the House of Commons in February 2008. The published text of the Bill, which is a Private Member's Bill, proposed a 95-year term of protection for sound recordings. The Bill superseded a previous Bill introduced in December 2007 (see below) (see Legal Update, First reading for Private Members' Bill to extend copyright term for sound recordings (www.practicallaw.com/9-380-9382)). According to the Public Bill List of 12 July 2008, the Bill has been dropped. |
Department of Culture Media and Sport report: Creative Britain: New Talents for the New Economy | On 22 February 2008, the Department for Culture, Media and Sport published a report on supporting creative industries which included a number of commitments to foster and protect intellectual property (IP). The government said that it would consult on legislation to require internet service providers and rights-holders to cooperate in taking action on illegal file-sharing, with a view to implementing legislation by April 2009 if a voluntary industry agreement is not reached. The report said that the government would also consult on legislation to introduce exceptional summary maxima (above £5000) in magistrates' courts for online and physical copyright offences, and outlined an action plan for the UK Intellectual Property Office to improve enforcement of IP rights (see Legal Update, DCMS creative industries report includes threat to legislate on ISP action against illegal file-sharers (www.practicallaw.com/8-380-9368)). On 24 July 2008, the government launched a consultation on legislative options for addressing illicit peer-to-peer file-sharing of online content such as music and films (for more information, see Digital Economy Act 2010: anti file-sharing measures, above). On 11 August 2008 the UK Intellectual Property Office launched a consultation on the penalties for copyright infringement (see IPO Consultation: Taking forward the Gowers Review of IP - penalties for copyright infringement, above). ). |
IPO consultation on proposed changes to copyright exceptions | On 8 January 2008, the UK Intellectual Property Office (IPO) published a consultation paper on proposed changes to copyright exceptions as part of the follow-up to the recommendations made in the Gowers Review of intellectual property, including introducing a format-shifting exception ; enabling schools and universities to maximise their use of digital technologies and facilitate distance-learning; allowing libraries and archives to use technology to preserve valuable material; and providing a new exception for parody. See Legal update, IPO consults on proposed changes to copyright exceptions (www.practicallaw.com/4-380-0765). On 22 August 2008, the IPO published a summary of the responses it had received to the consultation. The IPO said that it would issue a formal response by way of second consultation later in 2008. See Legal update IPO publishes summary of responses to consultation on changes to copyright exemptions (www.practicallaw.com/3-383-1215). On 11 December 2009, the IPO published the second stage of its consultation on the copyright exceptions, which included an analysis of the responses it received, an outline of its proposals and a draft statutory instrument, the Copyright (Permitted Acts) (Amendment) Regulations 2010 (the Draft Regulations). The draft regulations set out amendments to the educational, research and private study, archiving and preservation exceptions. The consultation closed on 31 March 2010. See Legal update, IPO publishes second stage of copyright exceptions consultation with draft legislation (www.practicallaw.com/9-501-0122) for more details. The IPO anticipated that any amendments to the Draft Regulations would be made in time for them to come into force in October 2010. However, the Draft Regulations were not taken any further. |
The Sound Recordings (Copyright Term Extension) Bill had its first reading in the House of Commons in December 2007. The Bill, which was introduced as a Private Members' Bill, sought to extend the term of copyright for sound recordings beyond 50 years (see Legal update, Private Members' Bill to extend copyright term for sound recordings (www.practicallaw.com/3-379-8664).) The Bill's second reading was scheduled for 7 March 2008. However, the Bill was superseded by the Copyright in Sound Recordings and Performers' Rights (Term Extension) Bill (see above). | |
On 31 May 2007, the UK Intellectual Property Office (IPO) published a review of the operation of the Copyright Tribunal. The review made a number of recommendations, including calling for the replacement of the Tribunal's rules of procedure by the Civil Procedure Rules and practice directions, and the abolition of lay members. The IPO invited comments on the recommendations by 31 August 2007 (see Legal update, IPO publishes review of Copyright Tribunal (www.practicallaw.com/6-364-6056)). | |
The Piped Music and Showing of Television Programmes Bill was introduced as a Private Members' Bill in the House of Lords on 2 May 2006. It provided for the Secretary of State to draw up plans to prohibit the playing of piped background music and the showing of television programmes in the public areas of hospitals and on public transport, and to require people listening to music in such areas to wear headphones. (See Legal update, Private Members' Bill to prohibit playing of background music (www.practicallaw.com/5-202-3506).) The Bill was dropped by Parliament on 11 November 2006 (see Legal update, Private Members' Bill to ban piped background music dropped (www.practicallaw.com/2-205-9101)). The Piped Music etc. (Hospitals) Bill was introduced in the House of Lords as a Private Members' Bill on 17 January 2007. This Bill was narrower than its predecessor above as it did not cover the playing of piped music and the showing of television programmes on public transport. (See Legal update, Private Members' Bill to ban piped music in hospitals (www.practicallaw.com/2-212-5035).) Since the Bill was not passed before the end of the 2006-2007 Parliamentary session, it has fallen or "died" (see Cabinet Office, Guide to Parliamentary work). | |
Consultation on the development of Europe's online music industry | The European Commission published the call for comments on 17 January 2007 in the light of the Commission's recommendation on collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC) (see Legal update, European Commission recommends pan-European copyright licensing (www.practicallaw.com/5-201-4192)). The deadline for responses to the 16 questions set out in the paper was 1 July 2007. (See Legal update, European Commission seeks views on recommendation for online music sector (www.practicallaw.com/0-212-5036).) In March 2007, the European Parliament adopted an own-initiative report in response to the Commission's recommendation (2007 Report), in which it criticised the Commission's decision to put forward a non-binding recommendation and called, instead, for the proposal of a framework directive to deal with the issue (see Legal update, European Parliament calls for framework directive on online music (www.practicallaw.com/0-238-3011)). On 7 February 2008, the Commission published a report summarising the results of its monitoring of the development of Europe's online music industry. There was a wide divergence of views among the various interested parties, with the majority of those representing rights-holders opposed to legislation, whereas users favoured some form of legislation (see Legal Update, European Commission report on monitoring recommendation for online music sector (www.practicallaw.com/1-380-8391)). On 25 September 2008, the European Parliament adopted a resolution calling on the European Commission to put forward a legislative initiative to regulate the cross-border online music market. Referring back to the 2007 report, the resolution was critical of the Commission's failure to put forward legislation saying that a climate of uncertainty had been created for rights-holders and broadcasters. (See Legal update, European Parliament resolution on online music licensing (www.practicallaw.com/3-383-4346).) |
Consultation on the European Commission's communication on a European Digital Library | The European Commission launched an online consultation on its communication, which announced its intention of establishing a digital library of European books, periodicals and audio-visual works, known as the European Digital Library, on 30 September 2005. (The communication was further supported by a staff working document.) The deadline for responses was 20 January 2006. The Commission published the results of the consultation on 2 March 2006 (see Legal update, Results of European Commission consultation on European digital library (www.practicallaw.com/8-202-0709)). The Commission published a Recommendation on the digitisation and online accessibility of cultural material and digital preservation (the 2006 Recommendation) on 24 August 2006 in which it called on member states to contribute to the European digital library (see Legal update, European Commission publishes recommendation on European digital library (www.practicallaw.com/8-204-1028)). On 18 April 2007, as part of the European Commission's digital libraries initiative, a group of experts published a report on digital preservation and orphan works(see Legal update, European digital library experts report on digital preservation and orphan works (www.practicallaw.com/0-315-4952)). On 4 June 2008, the European Commission published a final experts' report on digital preservation, orphan works and out-of print works; a memorandum of understanding on diligent search guidelines for orphan works signed by representatives of libraries, archives and rights-holders; and an experts' report on public-private partnerships for the digitisation and online accessibility of Europe's cultural heritage. The reports contain a number of recommendations for EU member states, rights-holders and libraries to consider, and build on the principles set out in the 2006 Recommendation (see Legal Update, European digital library experts report on digital preservation and orphan works (www.practicallaw.com/2-382-1561)). On 28 October 2012, a Directive establishing a legal framework aimed at improving access to and digitisation of orphan works across the EU came into force (see IP, IT, media and telecoms legislation in force: Copyright (www.practicallaw.com/7-107-4973)). The Commission said, in its May 2011 proposal for the Directive, that the Directive built on the 2006 Recommendation. |
Consultation on content online in the single market Reflection paper: Creative Content in a European Digital Single Market: Challenges for the Future | The European Commission launched a wide-ranging consultation seeking views on how to make Europe's online-content market more competitive on 28 July 2006, with a view to adopting a Communication by the end of 2006. The deadline for responses was 13 October 2006. (See Legal update, European Commission launches consultation on online content (www.practicallaw.com/7-203-9224).) In January 2007, the European Commission published a study on digital content and convergence which took account of the consultation exercise. The Commission said that it would use the study as the basis for an official communication on online content, due to be adopted in late 2007. (See Legal update, European Commission study on digital content and convergence (www.practicallaw.com/7-214-1981).) On 3 January 2008, the European Commission published a Communication on creative online content in the single market (following its 2006 consultation), which included a further consultation with a view to preparing a draft recommendation in mid-2008 for adoption by the European Parliament and Council. For more information, see Legal update, European Commission Communication on online content. (www.practicallaw.com/5-380-1670) On 22 October 2009, the European Commission launched a consultation on a reflection document which considered the challenges to creating a single market for creative content online, and the way those challenges might be addressed (see Legal update, European Commission consults on addressing challenges to creating single market for creative content online (www.practicallaw.com/7-500-5782) for more details). The Commission invited all interested parties to comment by 5 January 2010. In its 2011 work programme published on 4 November 2010, the European Commission indicated that it intended to make a legislative proposal on collective rights management, to provide a clear and stable framework for cross-border services which rely on clearing a variety of copyrights, in the first quarter of 2011 (see Legal update, European Commission publishes 2011 work programme (www.practicallaw.com/8-503-8065)). The Commission published a new strategy for intellectual property rights on 25 May 2011 (see Legal update, European Commission publishes new strategy for IP rights (www.practicallaw.com/0-506-2323) and see European Commission intellectual property rights strategy, above). The actions set out included publishing a proposal for a legal instrument to create a European framework for collective management of copyright in the second half of 2011. In July 2012, the Commission adopted a proposal for a Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market. See Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market, above. |
The European Commission published a consultation paper on 6 June 2006 which sought views on existing copyright-levy systems and the future use of levies as digital markets continue to expand and technologies converge. The deadline for responses was 14 July 2006. (See Legal update, European Commission launches public consultation on copyright levies (www.practicallaw.com/5-203-0677).) On 14 February 2008, the European Commission launched a further public consultation on copyright levies. In the consultation, the Commission was not questioning the entitlement of rights-holders to receive compensation for losses due to private copying, but was looking for a uniform approach among EU member states as to how levies are applied and how to relate the level of levies to the loss suffered by rights-holders. The Commission intended to follow this with a public meeting in June 2008, to see if a common approach could be developed. (For more information see Legal update, European Commission re-launches consultation on copyright levies (www.practicallaw.com/5-380-7974).) | |
The Order, which was made by Order in Council on 11 April 2006, will revoke the extension of the Copyrights, Designs and Patents Act 1988 to Gibraltar, once it is brought into force by the Governor of Gibraltar (see Legal update, Order revokes extension of CDPA to Gibraltar (www.practicallaw.com/1-202-2778)). | |
The Patent Office published the consultation on 8 March 2006. The deadline for responses was 31 May 2006. (See Legal update, Patent Office launches consultation on improvements to Copyright Tribunal (www.practicallaw.com/8-202-0790).) |
See Legislation in force: Copyright (www.practicallaw.com/7-107-4973) for copyright-related legislation now in force.
Item | Status |
None | N/A |
See Legislation in force: Databases (www.practicallaw.com/7-107-4973) for database-related legislation now in force.
Item | Status |
Education (Individual Pupil Information) (Prescribed Persons) (England) (Amendment) Regulations 2013 | The Education (Individual Pupil Information) (Prescribed Persons) (England) (Amendment) Regulations 2013 (SI 2013/1193) were made on 20 May 2013 and will come into force on 28 June 2013. The 2013 Regulations amend the Education (Individual Pupil Information (Prescribed Persons) (Amendment) (England) Regulations 2009 (SI 2009/213) to allow information on individual pupils to be shared for a wider range of purposes than currently, following a consultation on plans to do so in 2012 (see Legal update, DfE publishes consultation on proposed amendments to pupil information prescribed persons regulations (www.practicallaw.com/1-522-3009)). For more information, see Legal update, Regulations made on the sharing of individual pupil information (www.practicallaw.com/7-531-1625). |
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) came into force on 29 May 2013. The Order contains new rules for filtering certain minor and old convictions and cautions from disclosure in criminal record checks in light of the Court of Appeal's decision in R (T and others) v Chief Constable of Greater Manchester and others. See Legal update, New filtering rules for criminal record checks come into force (www.practicallaw.com/3-530-5626) for more information. | |
On 14 May 2013, the Unsolicited Telephone Communications Bill, a Private Member's Bill, received its first reading in the House of Lords. The Bill seeks change the UK's current opt out policy under the E-Privacy Directive (2002/58/EC) for marketing phone calls to an opt in policy. So that marketers know who has opted in, it proposes to require Ofcom to keep a register of people who have opted in to receive marketing phone calls. See Legal update, Unsolicited Telephone Communications Bill: publication and first reading in the House of Lords (www.practicallaw.com/6-529-4626) for more information. | |
On 1 November 2012, the Information Commissioner's Office launched a consultation on proposed changes to the notification process under Part III of the Data Protection Act 1998. The ICO's current approach to notification is to ask data controllers to describe their processing using standard definitions which reflect what they do. It now wants to improve the process to make it easier for those who need to notify the ICO and to make the public register itself more helpful and accessible. The consultation closed on 30 November 2012. The ICO aimed to publish a summary of consultation responses on the ICO website together with its response by the end of January 2013. | |
In July 2012, as part of its "midata" strategy, which aims to give consumers increasing access to their personal data in a portable, electronic format, the government launched a consultation on a proposal to create an order making power, which if utilised, would compel suppliers of services and goods to provide to their customers, upon request, historic transaction and consumption data in an open-standard, machine-readable format. The consultation document also includes an update on the progress of the midata programme. The consultation closed on 10 September 2012. For more information, see Legal update, Government consults on consumer-data access proposals. On 19 November 2012, the government published a response to its July 2012 consultation paper, summarising comments received and setting out its own response. It includes the government's plan to continue the existing voluntary programme and to introduce legislation conferring a power to bring forward regulations relating to certain core sectors. Following further consultation, the government will decide which sectors should be subject to regulation. For more information, see Legal update, Government to proceed with new legislative powers to enable consumers to request personal electronic data from businesses: financial services aspects (www.practicallaw.com/0-522-5141). | |
On 19 October 2010, the government stated in its Strategic Defence and Security Review that it would introduce a programme (including legislation) "to preserve the ability of the security, intelligence and law enforcement agencies to obtain communication data and to intercept communications within the appropriate legal framework", which it said was required to keep up with changing technology. See Legal update, Government publishes Strategic Defence and Security Review including cyber-security programme (www.practicallaw.com/5-503-6666). This appeared to be reviving the Labour government's proposed Communications Data Bill or interception modernisation programme, as it was also called (see Interception modernisation programme, below). However, a Home Office spokesperson indicated to PLC that the programme would not be the same as the programme proposed by the Labour government, but a different form of that programme, and, in particular, would not involve a government database, with data being instead held by ISPs and law enforcement agencies having access to it if required in an investigation. In May 2012, the government announced in the Queen's Speech 2012 that it would introduce a new Communications Data Bill to enable authorities to monitor internet communications "to maintain the ability of the law enforcement and intelligence agencies to access vital communications data under strict safeguards to protect the public, subject to scrutiny of draft clauses", see Legal update, Government announces draft Communications Data Bill. On 14 June 2012, the Home Office published the draft Communications Data Bill. The Bill includes plans for the expansion of existing communications data retention requirements to other forms of data and for access to that data by law enforcement and other public authorities. The Bill is designed to address the increased use of new forms of communication (including voice-over internet protocol, chat and social networks) which are under the control, not of communications service providers, but of information society service providers. The latter are not covered by existing data retention legislation. Under the Bill, local authorities and other public bodies that have access to communications data will no longer be able to obtain that information unless Parliament agrees that their use is essential to tackling crime and protecting the public. Like its predecessor, the Interception Modernisation Programme, the Bill is highly controversial with both privacy groups and providers of (electronic) communications services. For more information, see Legal update, Communications Data Bill proposes new framework for the retention and use of communications data (www.practicallaw.com/8-519-9968). The Joint Committee on the Draft Communications Data Bill published its report on the Bill in December 2012 (see Legal update, Joint Committee finds Communications Data Bill puts competitiveness of UK communications providers at risk (www.practicallaw.com/4-523-1461)). | |
The Justice and Security Bill 2012-13 had its first reading in the House of Lords on 28 May 2012. The Bill proposed numerous amendments to the oversight of the security services and how sensitive information is dealt with in court proceedings. The proposals included making a number of amendments to the Regulation of Investigatory Powers Act 2000 (RIPA). See Legal update, Justice and Security Bill 2012-13: amendment of RIPA (www.practicallaw.com/7-519-6951). The Justice and Security Act received Royal Assent on 25 April 2013. The Act includes the following amendments to RIPA:
The relevant provisions will come into force on such day as the Secretary of State appoints by statutory instrument. | |
European Commission consultation on personal data breach notifications under E-Privacy Directive | On 14 July 2011, the European Commission published a consultation on whether there is a need for the adoption of practical guidelines to harmonise the notification of personal data breaches across the EU. The notification requirement which applies to providers of electronic communications services, came into force following the revision of the E-Privacy Directive (2002/58/EC) in December 2009 which was implemented in the UK through the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208) with effect from 26 May 2011 (see PLC IPIT & Communications legislation in force: Data protection (www.practicallaw.com/7-107-4973)). Among other things, the consultation explored what types of breaches will trigger the notification requirement and what procedure for notification should be followed. Responses were requested to be submitted by 9 September 2011. See Legal update, European Commission consults on practical rules for notifying personal data breaches (www.practicallaw.com/2-506-8932) for more information. |
The Protection of Freedoms Bill had its first reading on 11 February 2011 (see Legal update, Government publishes Protection of Freedoms Bill (www.practicallaw.com/6-504-7971)). On 1 May 2012, the Protection of Freedoms Bill received Royal Assent to become the Protection of Freedoms Act 2012. The Act includes:
Various provisions of the Act have already come into force (see IP, IT, media and telecoms legislation in force: Data protection (www.practicallaw.com/7-107-4973)). However, the provisions relating to the issues set out above have yet to be commenced, except for a number of provisions regarding the appointment of a Commissioner for the Retention and Use of Biometric Material and requiring the Secretary of State to issue guidance as to the making or renewing of national security determinations. The ICO announced that sections 105 to 108 of the Act regarding the Information Commissioner's appointment and tenure were likely to come into force in May or June 2013. See Legal update, ICO announces date that Protection of Freedoms Act 2012 amendments to FOIA will come into force (www.practicallaw.com/4-525-6362). On 26 March 2013, the Home Office published a consultation seeking views on draft statutory guidance on the making or renewing of national security determinations as set out in the Act. The consultation closed on 20 May 2013. For more information, see Legal update, Home Office consults on draft statutory guidance extending period of retention of biometric data under the Protection of Freedoms Act 2012 (www.practicallaw.com/6-525-4710). The government has indicated that the provisions of the Act regarding the destruction, retention and use of fingerprints and other biometric data will come into force in October 2013 (see Written statement to Parliament, 20 May 2013). For more information on the relevant provisions of the Act see Practice note, Protection of Freedoms Act 2012: public sector implications: Part 6: freedom of information and data protection (www.practicallaw.com/8-519-4126). | |
On 2 February 2011 the European Commission published a proposal for a Directive on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (draft Directive). If adopted, it would require member states to set up national passenger information units responsible for collecting, from air carriers, PNR data of passengers on international flights to and from the member state, storing that data, analysing it and transmitting the result of the analysis to national law enforcement authorities. The draft Directive will now be considered by the European Parliament and the Council for adoption under the co-decision procedure. See Legal update, European Commission adopts draft Directive on use of airline passenger data (www.practicallaw.com/4-504-7057). In March 2011, the House of Lords' EU Sub-committee on Home Affairs recommended that the UK should opt in to the proposal for the Directive. See Legal update, House of Lords recommends UK opt in to proposed PNR directive (www.practicallaw.com/5-505-2944) for more information. In March 2011, the European Data Protection Supervisor (EDPS) published an opinion on the proposed Directive. Among other things, the EDPS highlighted that to comply with the proportionality requirement under EU law the need to collect or store massive amounts of personal information must rely on a clear demonstration of the relationship between use and result (necessity principle). In his view, the current proposal and accompanying Impact Assessment fail to demonstrate this necessity. See Legal update, EDPS dismisses proposed PNR Directive for lack of necessity (www.practicallaw.com/5-505-5056) for more information On 5 April 2011, the Article 29 Working Party published an opinion indicating that, like the EDPS, it considered that the necessity of an EU PNR system had not yet been proven and that the collection and retention of "all data on all travellers on all flights", and the systematic matching of all passengers against pre-determined criteria was not in line with the proportionality principle. The Working Party recommended first evaluating existing systems and methods of co-operation for cross-border crime prevention to identify security gaps. If gaps exist, the best way to fill them should be analysed before an entirely new system is introduced. See Legal update, Article 29 Working Party criticises proposed PNR Directive for lack of necessity (www.practicallaw.com/8-505-7172) for more information. | |
Mandate to open negotiations between the EU and US for an "umbrella" data protection agreement governing sharing of personal data between the EU and the US for the purposes of law enforcement and the fight against terrorism. | In May 2010, the European Commission adopted a mandate that would allow it to open negotiations on an "umbrella" data protection agreement governing the sharing of personal data between the EU and the US. The initiative was first announced in April 2010 in the Commission's action plan for the implementation of the Stockholm Programme (see below). The aim of the agreement is to ensure that US authorities comply with EU data protection principles when processing personal data transferred to them under agreements for transatlantic co-operation in criminal matters. While it would not itself provide a basis for specific data transfers, it would include a set of principles that would apply to all transfers agreed under separate data transfer agreements. The European Council must approve the proposed mandate before negotiations can commence. See Legal update, European Commission adopts negotiation mandate for EU-US data protection agreement (www.practicallaw.com/7-502-3903) for more information. On 3 December 2010, the European Council approved the terms of a mandate to open negotiations between the EU and the US for an "umbrella" data protection agreement. See Legal update, European Council approves negotiation mandate for data protection agreement with the US (www.practicallaw.com/3-504-1857). |
Review of data protection framework | For an analysis and noter-up of the draft EU data protection regime reform proposals as they proceed through the EU legislative process, including comments made and amendments proposed or agreed by the relevant EU and UK institutions, see Practice note, EU data protection regime proposals: analysis and noter-up (www.practicallaw.com/9-518-4508). |
On 29 March 2010 the government launched a consultation on its interim code of practice for the acceptable use of body scanners at airports. The interim code of practice, which was published on 1 February 2010, provides for specific measures in relation to various issues with body scanners, including privacy and data protection. The consultation closed on 21 June 2010 (see Legal update, Government consults on interim code of practice for use of body scanners in UK airports (www.practicallaw.com/2-501-8999). | |
ICO report on its review of the European Data Protection Directive | On 12 May 2009, the Information Commissioner's Office (ICO) published the report on a review it commissioned from RAND Europe on the strengths and weaknesses of EC data protection law, examining the Data Protection Directive (95/46/EC). The report argued that the Directive is often seen as burdensome and too prescriptive in practice, and may not sufficiently address the risks to individuals' personal information. It contained a number of recommendations, including that member states should seek agreement on the efficient interpretation, implementation and enforcement of the Directive and that the effectiveness of the rules governing the transfer of personal data to third countries should be improved (see Legal update, ICO publishes report on review of EC Data Protection Directive (www.practicallaw.com/2-385-9262)). |
Government consultation on retention of DNA data | On 7 May 2009, the government consulted on proposals to limit the length of time for which the DNA profiles and fingerprints of identifiable individuals can be retained on the national DNA database, to achieve compliance with the European Court of Human Rights' (ECHR) ruling that the discriminatory nature of the government's power to indefinitely retain DNA data contravened with Article 8 of the European Convention on Human Rights (see Legal update, Government consults on retention of DNA data (www.practicallaw.com/9-386-0634)). On 11 November 2009, the government indicated that, in the light of the consultation, it proposed, among other things, to remove profiles of all adults arrested but not charged or convicted of any recordable offence after six years, to remove profiles of 16 and 17 year-old juveniles arrested but not charged or convicted of serious offences after six years, to remove profiles of all other juveniles arrested but not charged or convicted of a recordable offence after three years, and to retain DNA profiles of all other juveniles convicted of all but the most serious recordable offences for five years (see Legal update, Government proposals on retention of DNA data (www.practicallaw.com/6-500-7319)). On 20 November 2009 the Crime and Security Bill, which includes provisions regarding the length of time for retention of DNA profiles, as outlined by the government in the proposals published in November 2009, was published. The Information Commissioner expressed concerns about the proposed time limits for the retention of DNA data in the Bill in February 2010. See Legal update, Information Commissioner's view on proposals for retention of DNA profiles (www.practicallaw.com/9-501-7557). The Crime and Security Act 2010 received Royal Assent on 8 April 2010. The Act provides that DNA profiles of all adults arrested but not charged or convicted of any recordable offence must be removed after six years. (see Legal update, Law limiting retention of DNA data receives Royal Assent (www.practicallaw.com/5-502-0335)). However, the relevant provisions did come into force. On 13 May 2010, the Conservatives and Liberal Democrats published an initial coalition agreement covering a range of issues, including that it would adopt the protections of the Scottish model for the DNA database. See Legal update, Conservative-LibDem coalition agreement: implications for IP, IT and communications (www.practicallaw.com/3-502-2793) for more details. This has been taken forward in the Protection of Freedoms Act 2013 (see Protection of Freedoms Act 2013, above). |
Interception modernisation programme Government's draft legislative programme 2008/2009 Home Office consultation on increased access to communications data | A Communications Data Bill was listed in the government's 2008-2009 draft legislative programme published in May 2008. Specifically, the government proposed a Bill on communications data retention for the prevention and detection of crime and the protection of national security. (Communications data is data about calls, such as the location and identity of the caller, not the content of the calls themselves.) The government indicated that the Bill would modify the procedures for acquiring and retaining communications data as part of an interception modernisation programme, and would transpose the EC Data Retention Directive (2006/24/EC) into UK law (see Legal update, EC Data Retention Directive adopted (www.practicallaw.com/5-202-0517)). It was intended that the Bill would update current provisions on data retention to keep up with changing technology, such as the move to internet protocol (IP) core networks, to ensure that the work of counter-terrorism, crime-prevention and public-safety authorities is not undermined. However, separate regulations transposing the Data Retention Directive were subsequently consulted on and came into force on 6 April 2009 (see Legal update, Legislation taking effect in April 2009: IPIT & Communications (www.practicallaw.com/6-385-5605)). On 27 April 2009, the Home Office's launched a consultation on proposals to create increased powers to retain and access communications data. According to the consultation, the government does not propose to create a centralised database for storing all communications data, having recognised the privacy implications of such a move. It is instead proposing to legislate to ensure that all data that public authorities might need, including third-party data, is collected and retained by communications service providers (CSPs), and that CSPs further process the retained data so as to enable specific requests by public authorities to be processed quickly and comprehensively. CSPs will see the proposals as onerous, and the proposals are also likely to be opposed by privacy groups. See Legal update, Government consults on increased access to communications data (www.practicallaw.com/0-386-0186) for more details. On 15 July 2009, the Information Commissioner's Office (ICO) published its response to the consultation. The ICO was concerned that the current safeguards are not adequate to deal with the further collection and processing of communications data by CSPs (see Legal update, ICO responds to government consultation on increased access to communications data (www.practicallaw.com/5-386-8203)). On 6 November 2009, the Home Office published a summary of responses to the consultation. The majority of respondents opposed the Home Office's plans to extend the existing retention requirement to other forms of communications data and, in particular, to require providers of communications services to further process the retained data on behalf of public authorities. 50% of respondents did not believe the safeguards outlined were adequate. See Legal update, Government publishes responses to consultation on increased access to communications data (www.practicallaw.com/4-500-7117) for more details. The proposals were not pursued further by the Home Office prior to the change of government in May 2010. See Practice note, Data protection aspects of the retention of communications data (www.practicallaw.com/9-227-0953) for more information on the interception modernisation programme. However, the new government published a draft Communications Data Bill in June 2012 which, like the Interception modernisation programme, is controversial and seeks an expansion of existing communications data retention requirements to other forms of data and for access to that data by law enforcement and other public authorities.(see Communications Data Bill, above). |
On 17 April 2009, the Home Office published a consultation paper on a review of the powers of public authorities under the Regulation of Investigatory Powers Act 2000 (RIPA) to grant authorisations in respect of direct surveillance, covert human intelligence and access to communications data. The deadline for responses to the consultation was 10 July 2009. For more information, see Legal update, Home Office publishes consultation on changes to RIPA powers (www.practicallaw.com/9-385-8160). On 4 November 2009, the Home Office published a summary of responses received to the consultation. Considering the 222 responses received, the Home Office found that despite some instances of inappropriate use of RIPA, there was no broad support for removing public authorities from the RIPA framework. Instead, respondents supported greater oversight of local authority RIPA use, and better guidance to help ensure that no further instances of inappropriate use occurred. See Legal update, Home Office publishes responses to consultation on changes to RIPA powers (www.practicallaw.com/7-500-6729) for more details. In the response, the government said that it would bring forward consolidating orders to list the public authorities able to use communications data, directed surveillance and covert human intelligence sources, the ranks of authorising officers and the purposes for which these techniques can be used. See IP, IT, media and telecoms legislation in force: Data protection (www.practicallaw.com/7-107-4973) for the consolidating orders. | |
House of Lords Constitution Committee report on surveillance Government response to the House of Lords surveillance report | On 6 February 2009, the House of Lords Constitution Committee published a report entitled Surveillance: Citizens and the State, following an extensive inquiry it undertook into the impact that government surveillance and data collection have upon the privacy of citizens and their relationship with the State. The report examined recent developments and reports concerning surveillance and data processing, including the Thomas-Walport data-sharing review (see Data sharing review report (below)), as well as the relevant provisions of the Coroners and Justice Bill (see below). The Committee made over 40 recommendations in its report, many of which echo those made in earlier reports, particularly those relating to the Commissioner's powers and the Data Protection Act 1998, which have been welcomed by the Commissioner. Other recommendations concerned, among other things, the Regulation of Investigatory Powers Act 2000 and Article 8 of the European Convention on Human Rights. See Legal update, House of Lords Constitution Committee report on surveillance (www.practicallaw.com/8-385-0089) for full details of the recommendations. On 13 May 2009, the government published its response to the House of Lords Constitution Committee's surveillance report. While it welcomed the Committee's contribution to the debate about surveillance, it rejected many of the recommendations made by the Committee, arguing that it maintained the correct balance between security and liberty. Among other things, it argued that there is no need to introduce a statutory requirement for the government to consult the Information Commissioner on legislation which involves surveillance or data-processing powers; that there are sound arguments for not extending the Information Commissioner's right to serve assessment notices on private-sector data controllers; and that the current system of judicial oversight of surveillance is sufficient. (see Legal update, Government responds to House of Lords surveillance report (www.practicallaw.com/9-386-1469)). |
In November 2007, the Ministry of Justice announced terms of reference for a review of the scope of the sharing of personal information and the protections that apply when personal information is shared in the public and private sectors. For more information see Legal update, Government announces review of information-sharing in the public and private sector (www.practicallaw.com/8-379-7563). On 12 December 2007, a consultation was launched, as part of the independent review of data-sharing, on the use and sharing of personal information in the public and private sectors. The consultation closed on 15 February 2008. For more information see Legal update, Consultation on data-sharing launched. (www.practicallaw.com/3-379-8409) On 11 July 2008, the Information Commissioner (Commissioner) and Dr Mark Walport, Director of the Wellcome Trust published their data-sharing review. The review made clear that it is time to overhaul the current handling of personal information by the private and the public sectors, and made a considerable number of recommendations aimed at (among other things) clarifying and simplifying the legal framework governing data-sharing and enhancing the effectiveness of the Commissioner (see Legal update, Government-commissioned data-sharing review published (www.practicallaw.com/4-382-6077) for more details). On 17 July 2008, the government published a consultation paper on the inspection powers and funding arrangements of the Commissioner, to build upon the results of the review and put forward proposals based on two of its key recommendations (see Consultation on the Information Commissioner's inspection powers and funding arrangements under the Data Protection Act 1998 (above)). On 24 November 2008, the Ministry of Justice published a response to the issues raised in the data-sharing review as well as other consultations on the ICO's inspection powers and funding arrangements (see Legal update, Government response to data-sharing review and consultation on ICO inspection powers (www.practicallaw.com/5-384-1204)). On 14 January 2009, the Ministry of Justice published the Coroner and Justice Bill. The Bill includes provisions for increased powers for the Commissioner and provides for data-sharing. Among other things, the Bill introduces a new right for government Ministers to make an "information-sharing order" that allows it to share personal information held by it with third parties for the purpose of achieving relevant policy objectives. See Legal update, Bill to amend Data Protection Act 1998 published (www.practicallaw.com/7-384-7196). (See Consultation on the Information Commissioner's inspection powers and funding arrangements under the Data Protection Act 1998 (above) for information on the provisions of the Bill regarding increased powers for the Commissioner.) On 17 March 2009, the government confirmed that it had withdrawn clause 152 of the Bill, which had proposed the insertion of a number of provisions on information-sharing into the Data Protection Act 1998 (see Legal update, Government withdraws data-sharing provisions of Coroners and Justice Bill (www.practicallaw.com/2-385-3632)). The clause had been heavily criticised for, among other things, the unprecedented level of information-sharing between government departments that it would have facilitated. Despite the withdrawal of clause 152, the government has voiced its continued support for data-sharing powers and has indicated that it intends to redraft the relevant provisions. The data-sharing review also recommended the removal of provisions (in The Representation of the People Regulations (England and Wales) 2001) allowing the sale of the edited electoral register. On 24 November 2009, the government launched a consultation seeking views on the future of the edited electoral register, following this recommendation. The government seeks views on six proposed options, including abolishing the edited register; abolishing it, but extending access to the full register; retaining it, but with restrictions on who can purchase it; retaining it, but replacing the current "opt out" box with an "opt in" version; and improving guidance for the public about it. See Legal update, Government consultation on future of edited electoral register (www.practicallaw.com/9-500-8464) for more details. | |
In November 2007, the European Commission adopted a proposal for a Council Framework Decision on the use of passenger name records (PNR) for law enforcement purposes. The proposal is designed to harmonise EU member states' provisions on obligations for air carriers which operate flights to or from the territory of at least one member state, regarding the transmission of PNR data to the competent authorities, for the purpose of preventing and fighting terrorism and transnational organised crime. For more information see Legal update, European Commission proposes new framework decision on use of PNR data for law enforcement purposes (www.practicallaw.com/3-379-0564). On 11 June 2008, the House of Lords European Union Committee published a report on the Framework Decision. The UK government has proposed a number of radical changes, although the report warns that if the UK insists on provisions that are unacceptable to other EU member states and the European Parliament it risks having to opt out completely, leaving the UK with the major disadvantage of being unable to share data with the rest of the EU. The report also recommends that all provisions should be set out in detail in the Framework Decision itself, rather than being drawn broadly and left for member states to interpret. (See Legal update, House of Lords Committee report on PNR Framework Decision (www.practicallaw.com/9-382-1911).) In its 2011 work programme published on 4 November 2010, the European Commission indicated that it will work in 2011 on a Directive on the use of PNR for law enforcement purposes. This is described by the Commission in its work programme as "reformatting of the proposal for an EU PNR framework decision following the entry into force of the Lisbon Treaty". The proposal provides that air carriers will be required to make PNR data of their passengers available to the member states' law enforcement authorities (see Legal update, European Commission publishes 2011 work programme (www.practicallaw.com/8-503-8065)). A proposal for a Directive on the use of PNR data was published on 2 February 2011. See draft Directive on the use of PNR for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, above. | |
The EC Article 29 Working Party adopted an opinion (opinion 7/2006, WP 124) on 27 September 2006, dealing with the transfer of passenger data by EU airlines to the US, in which it called on the US to honour the commitments it gave in its agreement with the EU which expired on 30 September 2006 (following the ECJ's ruling in May 2006 in joined cases C-317/04 and C-318/04; see Legal update, ECJ annuls EC-US agreement on airline passenger data transfers to US (www.practicallaw.com/1-202-4800) and Legal update, EC working party opinion on ECJ ruling in EU-US airline passenger data transfers (www.practicallaw.com/8-203-1326)), and urged all concerned to continue to respect passengers' privacy despite the absence of any formal agreement. (See Legal update, EC working party publishes two opinions on airline passenger data transfer (www.practicallaw.com/2-205-0006).) The European Commission and Council published a joint press release on 6 October 2006 announcing that a new agreement had been reached between the EU and US, allowing the US access to EU PNR data. It replaced the previous EC-US agreement which expired on 30 September 2006 and then went to the European Council for approval. On 16 October 2006, the European Council adopted a decision authorising the Presidency to sign the 2006 agreement (2006 agreement) with the US. The decision was adopted under the third pillar of the EU Treaty, this being, in the Commission's view, the correct basis to conclude an international agreement for matters dealing with public security and criminal law matters. The agreement was an interim one, and was scheduled to expire on 31 July 2007 (although it could be extended by mutual agreement). Negotiations for a permanent agreement were due to begin in November 2006. (See Legal update, European Council adopts decision on airline passenger data transfers to US (www.practicallaw.com/8-205-5044).) On 23 July 2007, the European Council adopted a formal decision approving a new bilateral agreement between the EU and the US on the processing and transfer of PNR data to the US authorities (the 2007 agreement). The 2007 agreement was accompanied by an exchange of letters between the US and the EU in which the US sought to explain the way in which the US Department of Homeland Security will handle EU passenger data. The two documents will replace the 2006 agreement. Subject to earlier termination by either party, the agreement will be in force for seven years. (See Legal update, European Council adopts new decision on airline passenger data transfers to US (www.practicallaw.com/0-374-1042) for more details.) | |
Consultation the use of radio frequency identification (RFID) tags in Europe | The European Commission launched the wide-ranging consultation on 9 March 2006. It focused on three main issues: privacy, technical interoperability, and international compatibility. For a timetable for the consultation and more information, see Legal update, European Commission launches consultation on RFID tags (www.practicallaw.com/4-202-0990). The Commission opened an online public consultation on RFID tags on 3 July 2006. The original deadline for responses was 17 September 2006. (See Legal update, European Commission opens online consultation on RFID tags (www.practicallaw.com/2-203-2475).) On 30 August 2006, the Commission announced that it had extended the deadline for responses to the online consultation to 30 September 2006 (see Legal update, Deadline for responses to EC consultation on RFID tags extended (www.practicallaw.com/4-204-1073)). The Commission published a set of frequently-asked questions on 16 October 2006 on the results of its public consultation exercise on RFID. (See Legal update, First analysis of EC consultation on RFID (www.practicallaw.com/7-205-5073).) In March 2007, the Commission published a Communication (the Communication) setting out its current strategy on the use of RFID tags and outlining the steps it would be taking in the next two years towards establishing a legal and policy framework. This would culminate in the publication of a further Communication in 2008, which would include details of whether further legislative steps should be taken to safeguard data protection and privacy (see Legal update, European Commission publishes Communication on RFID tags (www.practicallaw.com/1-239-2005)). In February 2008, the European Commission published for consultation a draft Recommendation on the privacy, data protection and information security aspects of RFID technology. The publication of the draft Recommendation is one of the steps that the Commission said it would be taking in the Communication. Responses were invited by 25 April 2008 and the Recommendation was tentatively scheduled to be adopted before the end of July 2008 (see Legal update, European Commission consults on draft Recommendation on RFID technology (www.practicallaw.com/6-380-8647)). On 12 May 2009, the Commission published a recommendation on the implementation of privacy and data protection principles in applications supported by RFID. Among other things, the Commission recommends that organisations using RFID technologies carry out privacy and data protection impact assessments before the use of RFID applications, publish easily understandable information policies for each RFID application, and inform individuals of the presence of RFID readers and tags using a common European sign. Member states should inform the Commission within 24 months of the recommendation's publication in the EU Official Journal of action taken in response to it (see Legal update, European Commission publishes recommendation on RFID technology (www.practicallaw.com/0-385-9258)). In April 2011, following the Recommendation, the European Commission signed a voluntary agreement – the Privacy and Data Protection Impact Assessment Framework for RFID Applications - with industry, civil society, the European Network and Information Security Agency (ENISA) and EU privacy and data protection authorities to establish guidelines for all companies in Europe to assess the data protection implications of RFID prior to placing them on the market. See Legal update, European Commission signs voluntary agreement on privacy impact assessments for RFID applications (www.practicallaw.com/9-505-6214) for more information. |
Consultation on the removal of barriers to the sharing of non-consensual credit data | On 11 October 2006, the DTI launched a consultation on the removal of barriers to the sharing of non-consensual credit data, in order to promote responsible lending in the credit market as part of its strategy to minimise over-indebtedness. The DTI set out four possible options, its preferred option being to enable sharing of non-consensual accounts data based on an opt-out principle. The deadline for responses was 11 January 2007. (See Legal update, DTI launches consultation on sharing of non-consensual credit data (www.practicallaw.com/5-205-4183).) |
Criminal Justice and Immigration Act 2008 - New custodial offence for misuse of personal data | The Department for Constitutional Affairs consulted in July 2006 on new sanctions for offences under the Data Protection Act 1998 (DPA). It recommended custodial sentences for offences relating to the misuse of personal data under section 55 of the DPA. (See Legal update, Government launches consultation on new sanctions for Data Protection Act offences (www.practicallaw.com/0-203-7657).) The government indicated that since the responses showed support for custodial sentences it would make legislation to achieve this (see Legal update, Government to introduce custodial sentences for misuse of personal data (www.practicallaw.com/5-217-5967)). The Criminal Justice and Immigration Act 2008 (CJIA) was given Royal Assent on 8 May 2008. Among other things, the CIJA provided for possible amendment of the DPA to introduce custodial sentences of up to 12 months on summary conviction and up to two years' imprisonment for a conviction on indictment for the misuse of personal data under section 55 of the DPA. The CIJA also provides for a new defence where a person breaches the DPA for journalistic, artistic or literary purposes. (See Legal update, New data protection provisions given Royal Assent (www.practicallaw.com/5-381-9571).) On 15 October 2009, the government consulted on the custodial sentences for misuse of personal data to be introduced under the CJIA. The government proposed setting the maximum penalty at the upper limit of that available under section 77 of the CJIA. It also proposed commencing, at the same time, the new defence to offences under section 55 of the DPA, where a person has obtained or disclosed the personal data for journalistic, literary or artistic purposes with a view to publication of journalistic, literary or artistic material, and in the reasonable belief that what they have done was justified as being in the public interest. The consultation closed on 7 January 2010. The government said in the consultation that it intended to commence the higher penalties in April 2010, but it has not published the response document to the consultation as yet. See Legal update, Consultation on introducing custodial sentences for misuse of personal data (www.practicallaw.com/9-500-4786) for more details. |
The results of the consultation, which closed on 31 March 2005, on Working Document 105 were published on 28 September 2005 (see Legal update, Results of consultation on data protection and RFID technology (www.practicallaw.com/4-201-3720)). |
See Legislation in force: Data protection (www.practicallaw.com/7-107-4973) for legislation now in force.
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IPO call for evidence on protecting designs Consultation on the Reform of the UK Designs Legal Framework | On 21 September 2011, the Intellectual Property Office (IPO) issued a call for evidence on the UK and EU system for protecting designs. The call for evidence came after the Hargreaves review recommended that the IPO conduct an evidence-based assessment of the relationship between design rights and innovation with a view to establishing a firmer basis for evaluating policy at the UK and European level. The IPO sought submissions by 11 November 2011, to help shape proposals to be set out in a formal consultation on the UK design system (see further Legal update, IPO issues call for evidence on system for protecting designs (www.practicallaw.com/4-508-3516)). On 19 December 2011, the IPO issued its preliminary assessment of the need to simplify the designs system, stating that it would consult on reform of the IP design framework by summer 2012 (see Legal update, IPO issues assessment on need to simplify designs system (www.practicallaw.com/8-516-9787)). In July 2012, the government published a consultation setting out its proposals for improving the framework for UK design law (see Legal update, Government consults on reform of UK legal framework for designs (www.practicallaw.com/0-520-5505)). The proposals include: introducing criminal sanctions as a possible punishment for deliberate infringers of registered UK or Community design rights (although the government has no plans to introduce criminal punishments for infringements of unregistered designs); making unregistered design right more harmonised with the Community unregistered design right, and limiting its scope so that it does not stifle innovation; and changing UK design law to recognise that the designer, and not the commissioner of a design, is ordinarily regarded as the first owner of design rights. The consultation closed on 2 October 2012. In January 2013, the government published a summary of the responses to its consultation (see Legal update, Government publishes summary of responses to designs consultation (www.practicallaw.com/3-523-5006)). In April 2013, the government published its response to the consultation. Among the key proposals set out in the response were the retention and redefinition of UK unregistered design right, the tying of commonplaceness to a specific geographical area, changing the first owner of a design from the commissioner to the designer, and criminal sanctions for deliberate copying. For more information, see Legal update, Government responds to designs consultation (www.practicallaw.com/9-527-2147). On 8 May 2013, an Intellectual Property Bill was announced in the Queen's Speech to implement the changes announced in the government's response to the consultation (see Legal update, Intellectual Property Bill announced in Queen's Speech (www.practicallaw.com/7-528-0997)). On 10 May 2013, the Intellectual Property Bill was published. In relation to designs, the Bill provides, among other things, for the introduction of criminal penalties for the infringement of registered designs; a change in the ownership rules for commissioned designs; amendments to simplify and expand the qualification criteria for unregistered designs; the introduction of new exceptions to infringement of unregistered design right to mirror those in the Registered Designs Act 1949; and proposals for a new registered designs opinion service. The Bill will also introduce amendments that would permit the owner of a UK registered design to seek an account of profits, but not damages, from an unintentional infringer of the design, following a separate consultation on this issue (see IPO consultation on amendments to design legislation below). For more information, see Legal update, Intellectual Property Bill published (www.practicallaw.com/1-528-6105). |
IPO consultation on remedies for innocent infringement of designs | On 1 December 2010, the Intellectual Property Office (IPO) launched a consultation on equalising the remedies available for innocent infringement of UK and Community designs. Currently, financial remedies are available for unintentional infringement of a Community design, but not a UK registered or unregistered design. The IPO suggests either amending the Community Designs Regulation 2005 (SI 2005/2339) so that unintentional infringement of a Community design cannot give rise to an order to pay damages or an account of profits, or, alternatively, amending the Registered Designs Act 1949 so that UK registered design owners can obtain financial compensation for unintentional infringement. The consultation closed on 21 March 2011. See Legal update, IPO launches consultation on remedies for innocent infringement of designs (www.practicallaw.com/2-504-0900) for more details. In August 2012, the IPO proposed to introduce rules that would permit the owner of a UK registered design to seek an account of profits, but not damages, from an unintentional infringer of the design. Further, the IPO proposed to harmonise the existing financial remedies for the unintentional infringement of Community designs with this approach. The IPO stated that it would introduce the changes as soon as possible. For more information see, Legal update, IPO proposes to remove limitation on liability of innocent infringers of UK registered designs. On 10 May 2013, the Intellectual Property Bill was published. As well as implementing various other amendments to the law relating to designs (see Consultation on the Reform of the UK Designs Legal Framework above), the Bill will introduce amendments to permit the owner of a UK registered design to seek an account of profits, but not damages, from an unintentional infringer of the design. For more information, see Legal update, Intellectual Property Bill published (www.practicallaw.com/1-528-6105). |
On 9 May 2009, the European Commission launched a consultation on design and innovation based on a recent Commission staff working document entitled Design as a driver of user-centred innovation. The document analyses the contribution of design to innovation and competitiveness, and concludes that there is a strong positive correlation between the use of design and national competitiveness. Depending on the results, the Commission suggests that future joint European action in the area of design could include non-binding co-operation, sharing of experiences and good practice, and the setting of common targets and benchmarking. The consultation closed on 26 June 2009 (see Legal update, European Commission launches consultation on design and innovation (www.practicallaw.com/9-386-1011)). | |
The Tribunals, Courts and Enforcement Act 2007 (the Act) received Royal Assent on 19 July 2007. Section 143 of the Act provides that section 28 of the Registered Designs Act 1949 (RDA), which provides that appeals from decisions of the registrar under the RDA lie to an Appeal Tribunal, is to cease to have effect. Instead, section 143 of the Act adds a new section 27A to the RDA which provides that an appeal lies to the court. Section 143 also amends section 249 of the Copyright, Designs and Patents Act 1988, which provides that appeals from the registrar as to terms of licences of right lie to the Appeal Tribunal constituted under section 28 of the RDA, to provide that such appeals lie to the court. Section 143 of the Act has not come into force. | |
The Patent Office closed its consultation on the proposal on 31 May 2005 (see Legal update, Patent Office launches consultation on proposed changes to EC designs law of spare parts (www.practicallaw.com/2-200-4260)). For the results of the consultation see Legal update, Results of consultation on changes to EC spare parts designs law (www.practicallaw.com/9-201-3176). The European Economic and Social Committee's opinion on the proposed changes to the Designs Directive was published in the EU Official Journal on 17 November 2005 (see Legal update, EESC publishes opinion on proposal to amend Designs Directive (www.practicallaw.com/8-201-7014)). (The EU Internal Market Commissioner gave a speech on 21 November 2006 in which he stated that the recent study into the safety aspects of spare parts had confirmed that safety issues were unrelated to the issue of design protection. Therefore, he hoped that the European Parliament would lend its full support to the Commission's proposal to amend the Designs Directive in relation to design protection for spare parts (see Legal update, EU Internal Market Commissioner speech on proposed reform of IP (www.practicallaw.com/9-206-2100)). On 12 December 2007, the European Parliament voted in favour of the Commission's proposal, but made some amendments to the Commission's draft text. One key amendment was to provide for a five-year transitional period for member states to introduce any new legislation (see Legal Update, European Parliament votes on Commission proposal to change designs law on spare parts (www.practicallaw.com/5-379-9691) for more details). |
See Legislation in force: Designs (www.practicallaw.com/7-107-4973) for legislation now in force.
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Making Open Data Real: A Public Consultation | On 4 August 2011, the government published two consultations on the future of public data:
The consultations closed on 27 October 2011. See Legal update, Government publishes two consultations on public data (www.practicallaw.com/0-507-1940) for more information. In June 2012, the government published a White Paper setting out its open data strategy following the consultation (see Legal update, Government publishes open data White Paper (www.practicallaw.com/0-520-2012).) |
Proposal to extend Public Access Regulation | The European Commission has adopted a proposal to extend the Public Access Regulation (1049/2001/EC), which concerns public access to information held by the European Parliament, the Council and the Commission, to cover all EU institutions, bodies, offices and agencies. The proposal is intended to bring the Regulation in line with the Lisbon Treaty. See Legal update, European Commission adopts proposal to extend Public Access Regulation (www.practicallaw.com/3-505-4449) for more information. |
The Bill was introduced as a Private Members' Bill in September 2010. The Bill includes provisions to amend the definition of public authorities to bring certain public sector contractors and publicly funded companies within the ambit of the Freedom of Information Act 2000. It also limits the time allowed for public authorities to respond to requests for information involving consideration of the public interest and removes provisions which allow Ministers to overrule decisions of the Information Commissioner and Information Tribunal. The Bill had its second reading in the House of Commons on 17 June 2011. See Legal update, Private Members' Bill to amend Freedom of Information Act 2000 scheduled for second reading (www.practicallaw.com/0-504-7257). | |
European Commission consultation on the Directive on the re-use of public-sector information (2003/98/EC) | On 9 September 2010, the European Commission has launched a consultation on the Directive on the re-use of public-sector information (2003/98/EC), which regulates the way in which public sector bodies make sets of data available for re-use. Revising this Directive is one of the key aims of the Commission's Digital Agenda for Europe, announced in May 2010; it considers that the availability of public sector information (PSI) is an important source of potential growth of innovative on-line services. In the consultation, the Commission is asking all interested parties to complete its online questionnaire on the key issues concerning the re-use of PSI and on potential amendments to the Directive. These relate (among other things) to the scope of the Directive, the licensing of data, the digital format available to users, the effects of the changes that have taken place since the Directive's implementation and the barriers that still exist. The consultation closed on 30 November 2010. See Legal update, European Commission consults on re-use of public sector information Directive (www.practicallaw.com/5-503-3111). In its 2011 work programme published on 4 November 2010, the European Commission indicated that it intends to review the Directive in 2011 (see Legal update, European Commission publishes 2011 work programme) (www.practicallaw.com/8-503-8065). |
On 21 May 2010, the Conservative and Liberal Democrat coalition published its programme for government. Section 3 of the document set out the government's proposals on civil liberties. The measures included the introduction of a Freedom or Great Repeal Bill, to cover a number of the issues, including the extension of the scope of the Freedom of Information Act 2000 (FOIA) to provide greater transparency. See Legal update, Coalition agreement final version: implications for IP, IT and communications (www.practicallaw.com/0-502-3223). On 7 January 2011, the government announced that it proposed to extend the FOIA to, among other things, apply the FOIA to companies that are jointly owned by more than one public authority. See Legal update, Government announces FOIA extension (www.practicallaw.com/1-504-4296). On 11 February 2011, the Protection of Freedoms Bill had its first reading in the House of Commons. The Bill contained a number of amendments to the FOIA including amending the FOIA to make provisions for publication of datasets by public authorities, and extending it to companies that are jointly owned by more than one public authority. See Legal update, Government publishes Protection of Freedoms Bill (www.practicallaw.com/6-504-7971). On 1 May 2012, the Protection of Freedoms Bill received Royal Assent to become the Protection of Freedoms Act 2012. The Act includes the following provisions amending the FOIA:
The ICO announced that sections 102 and 103 of the Act were likely to come into force in May or June 2013. See Legal update, ICO announces date that Protection of Freedoms Act 2012 amendments to FOIA will come into force (www.practicallaw.com/4-525-6362). For more information on the Act, see Practice note, Protection of Freedoms Act 2012: public sector implications (www.practicallaw.com/8-519-4126). | |
The Constitutional Reform and Governance Act 2010 received Royal Assent on 8 April 2010. The Act makes some amendments to the Freedom of Information Act 2000 (FOIA), in particular through the reduction of the 30-year rule for disclosure of government records to 20 years. Consequential amendments are also made to the maximum duration of some of the key FOIA exemptions, except where to do so would harm the UK's relationship with devolved administrators or where commercially sensitive data is concerned. See Legal update, Constitutional Reform and Governance Act 2010 receives Royal Assent making FOIA changes (www.practicallaw.com/2-502-0539) for more details. | |
The draft Freedom of Information (Parliament) Order 2009 was laid before Parliament and a vote was expected on 22 January 2009. However, on 21 January 2009, the order, which planned to exempt information about MPs' expenses from disclosure under the Freedom of Information Act 2000, was abandoned. The Prime Minister announced in the House of Commons that the vote would not take place and that the government would hold further discussions on how to proceed. For more information, see Legal update, Government abandons plans to exclude MPs expense claims from FOIA disclosure (www.practicallaw.com/0-384-6355). | |
On 6 June 2008, the European Commission launched a consultation on the EC Directive on the re-use and commercial exploitation of public-sector information (2003/98/EC), which required member states to implement, by 1 July 2005, minimum measures to ensure the free circulation of information produced by governments and public authorities. Under Article 13 or the Directive, the Commission was required to carry out a consultation by 1 July 2008. The deadline for responses was 31 July 2008 (see Legal update, European Commission consults on Directive on re-use of public-sector information (www.practicallaw.com/0-382-2123)). | |
Proposal to amend the EC Public Access Regulation (1049/2001) | On 18 April 2007, the European Commission published a Green Paper reviewing the EC Public Access Regulation (1049/2001). The Green Paper provided an analysis of the operation of the Regulation and considered whether any amendments are necessary. The Commission looked in particular at the exceptions to disclosure of documents, such as data protection issues, and suggested that further clarification was required. The paper contained a questionnaire for all interested parties. The consultation closed on 15 July 2007. (See Legal update, European Commission consultation on Public Access Regulation (www.practicallaw.com/1-313-0994).) On 30 April 2008, the European Commission adopted a proposal to amend the EC Public Access Regulation (1049/2001). The Commission believes that its proposals are largely in line with its objectives in increasing public access to documents of the EU institutions, although their effect has been criticised in some quarters (see Legal update, European Commission adopts proposal on revised Public Access Regulation (www.practicallaw.com/5-381-8487)). |
The Bill was introduced as a Private Members' Bill in the House of Commons on 18 December 2006 and sought to amend the Freedom of Information Act 2000 (FOIA) to remove the House of Commons and the House of Lords from the list of public authorities which are subject to the FOIA (clause 1(2)) and to exempt correspondence between Members of Parliament and public authorities from disclosure under the FOIA (clause 1(3)) (see Legal update, Private Members' Bill to amend FOIA (www.practicallaw.com/9-212-5051)). On 20 April 2007 the Bill was defeated by filibustering at its report stage in the House of Commons. However, it was due to be read again at a parliamentary session on Friday 27 April 2007, when it was likely to be "talked out" again, or conceivably voted down (see Legal update, Private Member's Bill to amend FOIA expires and is revived (www.practicallaw.com/5-305-8953)). On 18 May 2007, the Bill passed its report stage in the House of Commons, by 96 votes to 25, and passed to the House of Lords (see Legal update, FOIA amendment Bill passes report stage in Commons (www.practicallaw.com/9-362-3992)). However, the Bill failed to find a sponsor in the House of Lords by the relevant procedural deadline. Since there was too little parliamentary time to enable the Bill to be taken up again before the summer recess, the Bill has fallen or "died" (see Legal update, FOIA amendment Bill unlikely to succeed (www.practicallaw.com/5-367-4993)). | |
The Department for Constitutional Affairs (DCA) launched on 14 December 2006 a consultation on draft regulations, intended to replace the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, which give effect to some of the recommendations made in the DCA's 2006 report that contained the results of an independent review of the operation of the FOIA (see Legal update, Independent report recommends change in FOI fee structure (www.practicallaw.com/2-205-5075)). The deadline for responses was 8 March 2007. (See Legal update, DCA launches consultation on new FOI fee regime (www.practicallaw.com/7-207-5085).) However, a supplementary consultation was launched on 29 March 2007, asking for views on whether the draft regulations were the right way of dealing with disproportionate requests for information under the FOIA and unstructured personal information under the Data Protection Act 1998. Responses were due by 21 June 2007 (see Legal update, Consultation extended on fees for information requests (www.practicallaw.com/5-243-1953)). The Information Commissioner's Office published a highly critical response to the consultation (see Legal update, ICO publishes response to DCA's consultation on new fee structure (www.practicallaw.com/7-261-3952)). The House of Commons Constitutional Affairs Committee also published a report on the proposed changes in which, among other things, it criticised the draft regulations, finding that there was insufficient evidence of the need for such changes (see Legal update, Constitutional Affairs Committee criticises proposed changes to FOI fee regime (www.practicallaw.com/4-369-5967)). On 25 October 2007, the government announced its intention to drop its plans to make changes to the way in which the costs of complying with requests under the FOIA are calculated. Instead, it plans to work with the Information Commissioner's office to promote guidance on using the existing rules to block vexatious requests. (See Legal update, Government drops planned changes to FOIA fee regime (www.practicallaw.com/6-378-8692).) |
See Legislation in force: Freedom of information (www.practicallaw.com/7-107-4973) for legislation now in force
NOTE: Following changes to the IPIT & Communications website and e-mail (see Launch of PLC Commercial homepage and changes to PLC IPIT & Communications (www.practicallaw.com/0-384-8000) for more details), with effect from 27 January 2009, environmental legislation of possible interest to the IT sector (such as the WEEE, RoHS and REACH regulations) is no longer covered in this table. The progress of significant environmental legislation of possible interest to the IT sector will continue to be tracked in the PLC Environment Legislation tracker (www.practicallaw.com/3-204-3968).
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On 7 February 2013, the European Commission published a proposal for a directive to ensure a high common level of network and information security across the EU and, at the same time, a communication setting out an EU cybersecurity strategy, a key element of which is the directive. The draft directive includes measures requiring member states to designate a national competent authority to handle network information security risks and incidents, and to create a co-operation mechanism to share early warnings. It also imposes certain obligations to manage risk and report major security incidents. For more information, see Legal update, European Commission publishes cybersecurity strategy and draft directive: IP and IT issues (www.practicallaw.com/3-524-0890). On 22 May 2013, the government issued a call for evidence on the proposed directive in relation to an initial impact assessment it is preparing on the potential effects of the directive in the UK (see Legal update, Government calls for evidence on proposed cybersecurity directive (www.practicallaw.com/1-530-5731)). | |
European Commission's proposal for a directive on attacks against information systems, repealing EU Council framework decision (2005/222/JHA) | On 30 September 2010, the European Commission published a proposal for a directive on attacks against information systems. The proposed directive, while repealing the EU Council framework decision (2005/222/JHA), will retain its current provisions including the offences of unauthorised access to information systems, system interference and data interference. New provisions in the proposed directive include penalising the use of tools for committing the offences and raising the level of criminal penalties for offences committed under aggravating circumstances (such as using a tool designed to launch attacks affecting a significant number of information systems) to a maximum term of five years imprisonment. See Legal update, European Commission proposes Directive on attacks against information systems (www.practicallaw.com/9-503-5146). |
European Commission consultation on network and information security | On 7 November 2008, the European Commission launched an online public consultation with a view to developing a policy on strengthening network and information security in Europe. The consultation was prompted by the ongoing debate over the reform of the EU telecoms regulatory framework. The consultation closed on 9 January 2009. For more information, see Legal update, European Commission consults on network and information security (www.practicallaw.com/3-384-0286). |
The European Commission published a Communication on 18 December 2006, accompanied by a press release, setting out its proposals for new measures on export of dual-use goods and technologies (see Legal update, EU to review rules on export of dual-use goods and technologies (www.practicallaw.com/3-208-6972)). (For more background on the law in this area, see Legal update, Regulation amending Dual-Use Regulation is published in Official Journal (www.practicallaw.com/0-202-1034).) | |
Interception of Communications (Admissibility of Evidence) Bill | The Bill, which provided for the use of intercept evidence and evidence of communications data in legal proceedings involving serious crimes or terrorist offences, was re-introduced in the House of Lords as a Private Members' Bill on 23 November 2006 (see Legal update, New Private Members' Bill on admissibility of intercept evidence (www.practicallaw.com/1-206-7955)). The previous version of the Bill was introduced in the House of Lords on 10 October 2005 (see Legal update, Private Member's Bill on admissibility of intercept evidence (www.practicallaw.com/4-201-4183)), but was dropped by Parliament on 11 November 2006 (see Legal update, Private Members' Bill on admissibility of intercept evidence dropped (www.practicallaw.com/8-205-9099)). |
See Legislation in force: Information technology (www.practicallaw.com/7-107-4973) for legislation now in force.
NOTE: With effect from 9 November 2010, consumer legislation and legislation concerning VAT place of supply rules are no longer covered in this table. The progress of legislation in these areas will continue to be tracked in the PLC Commercial legislation tracker (www.practicallaw.com/5-379-8248).
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On 14 May 2013, the Online Safety Bill 2013-14 had its first reading in the House of Lords, following its introduction as a Private Member's Bill by Baroness Howe of Idlicote. Its provisions are similar to those contained in the earlier eponymous Private Member's Bills also introduced by Baroness Howe in March and again in May 2012, both of which ran out of parliamentary time (see Online Safety Bill 2012 (dropped) below). The 2013-14 Bill is stated to make provision about the promotion of online safety, to require internet service providers and mobile phone operators to provide a service that excludes adult content, to require electronic device manufacturers to provide a means of filtering content, and for parents to be educated about online safety. See Legal update, Online Safety Bill reintroduced (www.practicallaw.com/2-529-3365). | |
Department for Education consultation on parental internet controls | The Department for Education, in conjunction with the UK Council for Child Internet Safety (UKCCIS), has launched a consultation on parental internet controls. This follows the publication of the Bailey review in 2011 and the steps taken by the government, working with UKCCIS, to strengthen practical steps to improve child internet safety. The consultation is looking for feedback from members of UKCCIS, parents and organisations (particularly those in the information and communications sector) on what approaches are effective and technically practical, what improvements are already in development, and what more could be done. The consultation closed on 6 September 2012 and the government plans to set out its proposed action later in 2012. See Legal update, Government launches consultation on parental internet controls (www.practicallaw.com/5-520-1755). |
The European Commission has issued a consultation paper on the procedures for notifying and acting on illegal content hosted by online intermediaries in Article 14 of the E-Commerce Directive (2001/31/EC) (notice and take-down procedures). The consultation closed on 11 September 2012. See Legal update, European Commission consults on notice and take-down procedures for online content. | |
Proposed Regulation on electronic identification and trust services for electronic transactions | On 4 June 2012, the European Commission adopted a proposal for a Regulation on electronic identification and trusted services for electronic transactions in the Internal Market. According to the Commission, it seeks to enable secure and seamless electronic interactions between businesses, citizens and public authorities, thereby increasing the effectiveness of public and private online services, e-business and electronic commerce in the EU. For more information, see Legal update, Cross-border electronic signatures: European Commission adopts proposal for a Regulation on electronic identification and trusted services for electronic transactions in the Internal Market. In October 2012, the European Data Protection Supervisor (EDPS) published an opinion on the proposal. The EDPS in general welcomes the proposal and the fact that many of his informal comments (provided before it was adopted) have been taken into account, leading to a strengthening of the data protection safeguards. However, in his opinion he sets out a number of further recommendations. For more information, see Legal update, EDPS opinion on European Commission proposal for electronic identification and trust services Regulation (www.practicallaw.com/9-521-6255). |
The Crime and Courts Bill has received its second reading in the House of Lords. It includes (in Part 1) the establishment of the National Crime Agency (NCA) which is to replace the Serious and Organised Crime Agency. The NCA will have responsibility for investigating and preventing serious, organised and complex crime; enhancing border security; and tackling the sexual abuse and exploitation of children, where it will work with the Child Exploitation and Online Protection Centre. It will also have a dedicated national cyber-crime unit, which the government envisages will support the work of the entire NCA, see Legal update, Crime and Courts Bill: IT and communications aspects (www.practicallaw.com/7-519-6753). On 25 April 2013, the Crime and Courts Act 2013 received Royal Assent, enacting provisions for the award of costs and exemplary damages in certain types of claim against publishers who fail to participate in the forthcoming scheme of press regulation (and also in certain limited circumstances against those who have signed up to it). The provisions on exemplary damages will come into force a year after establishment of the new press regulator, and those on costs will be brought in by statutory instrument. See Legal update, Crime and Courts Act 2013 creates new rules on award of costs and exemplary damages against news providers (www.practicallaw.com/6-526-9405). | |
Online Safety Bill 2012 (dropped) | On 28 March 2012, Baroness Howe of Idlicote brought a private member's bill (the Online Safety Bill) in the House of Lords which would require internet service providers and providers of mobile phone networks to use filtering technology to withhold graphic images from their services, and an "opt-in" system for releasing such content to their subscribers (see Legal Update, Private member's bill for filtering of pornographic images). On 11 May 2012, the Bill in the same form had its first reading in the House of Lords, see Legal update, Online Safety Bill published. |
On 10 August 2010, the European Commission launched a consultation on the future of electronic commerce in the internal market and the implementation of the E-Commerce Directive (2000/31/EC). The consultation is seeking information and views on a range of issues, including the level of development of information society services, contractual restrictions on cross-border online sales, the resolution of online disputes and on various aspects of the Directive. The consultation closed on 15 October 2010, and the Commission hoped to adopt a Communication on e-commerce in early 2011. See Legal update, European Commission begins consultation on e-commerce (www.practicallaw.com/5-503-0377) for more information. On 11 January 2012, the European Commission published a Communication on building trust in the digital single market for e-commerce and online services. The Communication identifies various obstacles to such a market and sets out an action plan to remove them. The actions identified in order to address the fact that the supply of legal cross-border online services is still inadequate include: improving the implementation of the E-Commerce Directive by carrying out an evaluation of its transposition and implementation during 2012; and ensuring that the European strategy for intellectual property rights (IPRs) is implemented rapidly. To address the obstacle that there are too many cases of abuse and disputes that are difficult to settle, the Commission says that it will, in 2012, adopt a horizontal European framework on notice and action procedures under the E-Commerce Directive, and will also revise the Directive on the enforcement of IPRs (2004/48/EC) to combat illegal content more effectively. See Legal update, European Commission publishes Communication on e-commerce and online services (www.practicallaw.com/8-517-2209) for more information. | |
On 16 September 2009, the government launched a consultation on whether the existing multiple publication rule, which states that each publication of defamatory material triggers a new cause of action, should be retained, or whether a single publication rule should be introduced. The multiple publication rule raises particular issues for online publications, not least because each time a webpage is opened a fresh publication occurs for current purposes. However, it is proposed that any changes to the law will apply equally to offline publications. The government is also consulting on possible changes to the limitation period for defamation actions. In the government's opinion, if the multiple publication rule is maintained, the existing limitation period should continue. The consultation period ended on 16 December 2009. See Legal update, Government consults on defamation multiple publication rule (www.practicallaw.com/9-500-2320) for more details. On 23 March 2010 the government indicated that it intended to abolish the multiple publication rule and instead introduce a single publication rule, in the light of the responses to its consultation on the matter. The Justice Secretary, Jack Straw, said that the reforms of the law of libel would be taken forward in the next Parliament, although it was unclear whether that would happen given that a general election was imminent. See Legal update, Response to consultation on defamation multiple publication rule published (www.practicallaw.com/5-501-8182) for more information. The review of libel laws was listed in the Conservative and Liberal Democrat coalition's programme for government, published in May 2010, as one of the measures the government intends to take (see Legal update, Coalition agreement final version: implications for IP, IT and communications (www.practicallaw.com/0-502-3223)). The Defamation Bill, which was introduced as a Private Members' Bill by Lord Lester of Herne Hill, received its first reading in the House of Lords on 26 May 2010. Lord Lester said that he had published the Bill to help the government to review the law of libel. The Bill includes, among other things, a provision to abolish the multiple publication rule (clause 10). Private Members' Bills generally have relatively little chance of becoming law. However, the Bill may at least provide a template for the government's proposed reform of libel law. See Legal update, Private Members' Bill to amend defamation law has first reading (www.practicallaw.com/2-502-4542) for more information. | |
Digital Britain: interim report: internet governance | On 16 June 2009, the government published the Digital Britain final report. Among other things, in the report, the government said that, internationally, it would continue to develop the UK's role in global internet governance structures through the Internet Governance Forum, whose continuation the government would support for a further five-year term. The government would also support ICANN's continuing to be responsible for management of the domain name system. While the government supported self-regulation of the .uk domain name industry, it proposed to seek reserve powers which could, for example, enable the government to direct Ofcom to regulate the distribution of domain names in the UK. (See Legal update, Government publishes Digital Britain report: content issues (www.practicallaw.com/4-386-4540) for more details.) The Digital Economy Act 2010 received Royal Assent on 8 April 2010. It includes provisions (sections 19 to 21) which provide that the Secretary of State can intervene in the operation of domain name registries (by appointing a manager or intervening in relation to the registry’s constitution by court order) where:
Possible examples of misuse of domain names include registering intentionally misleading domain names and spamming. Possible examples of unfair practices include cybersquatting and pressure sales tactics. The Secretary of State is required to consult before making regulations prescribing the unfair practices and misuse of domain names, or the prescribed complaints requirements. (This requirement was added to the original wording of the clause.) The powers are only exercisable in relation to top and second-level domain name registries where the domain is UK-related. See Legal update, Digital Economy Act 2010: summary of main provisions (www.practicallaw.com/9-502-0116) for more details. Sections 19 to 21 are to come into force on a day appointed by the Secretary of State by statutory instrument (section 47, Act). |
Online Purchasing of Goods and Services (Age Verification) Bill | On 14 January 2009, the Online Purchasing of Goods and Services (Age Verification) Bill received its first reading in the House of Lords. The Bill was introduced as a Private Members' Bill by Baroness Massey of Darwen. The Bill would make it a requirement for businesses engaged in online sales to take reasonable steps to determine that the customer making the purchase met any relevant age restriction. For more information, see Legal update, Private Members' Bill to verify age of customers making online purchases (www.practicallaw.com/2-384-6217). The Bill completed all its stages in the House of Lords, and had a first reading in the House of Commons on 9 July 2009, but has since been dropped by its House of Commons sponsor Judy Mallaber. |
On 6 November 2007, the European Commission published a proposal for a Council Framework Decision which would enhance the harmonisation of anti-terrorism laws across the EU. The document proposed that (by way of amendment to Framework Decision 2002/475/JHA on combating terrorism) member states legislate to criminalise certain acts, including that of public provocation to commit a terrorist offence. The provisional deadline for implementation was 31 December 2008. For more information see Legal update, European Commission proposes amending anti-terrorism framework decision to provide for new terrorism offences. (www.practicallaw.com/8-378-9515) On 23 September 2008, the European Parliament adopted a legislative resolution on the Commission's proposal. The legislative resolution made various amendments to the Proposed Framework Decision, including amending the provocation offence to cover "incitement" instead of "provocation", and narrowing the definition of that offence and adding various new clauses to the Proposed Framework Decision (see Legal update, European Parliament votes on proposed framework decision to create new terrorism offences (www.practicallaw.com/9-383-5041)). | |
Consultation on extending E-commerce directive to providers of hyperlinks and other services | The consultation on extending the limitations of liability in Articles 12 to 14 of the E-Commerce Directive (2000/31/EC) to providers of hyperlinks, location-tool services and content-aggregation services closed on 9 September 2005 (see Legal update, Government consults on extending E-Commerce Directive to providers of hyperlinks and other services (www.practicallaw.com/7-200-8944)). On 8 January 2007, the government published its response to the consultation concluding that although there were arguments for extending the limitations of liability to such intermediary service providers, there was not currently enough evidence to justify such an extension (see Legal update, Response to UK consultation on extending E-Commerce Directive to hyperlinkers and other intermediaries (www.practicallaw.com/4-211-3121)). |
European Commission Communication on Fighting spam, spyware and malicious software | The European Commission published on 15 November 2006 a Communication on fighting spam, spyware and malicious software in which it called on member states to co-operate more and on internet service providers to improve e-mail and data security. (See Legal update, European Commission publishes Communication on spam, spyware and malicious software (www.practicallaw.com/5-207-0055).) |
The European Commission presented a proposal for the Recommendation in April 2004. In September 2005, the European Parliament adopted a range of practical suggestions made by Parliament's Committee on Culture and Education aimed at keeping children safe while they are browsing the internet, and amended the Commission proposal for a regulation to reflect its suggestions. The proposals adopted included one to create a new "kid" generic top-level domain for content reserved for children (see Legal update, European Parliament calls for creation of .kid gTLD (www.practicallaw.com/6-201-2545)). On 28 November 2006, the European Parliament announced that it had reached agreement with the European Council on the proposals (see Legal update, European Parliament supports proposals to protect children when using internet (www.practicallaw.com/3-207-0056)). The Recommendation was adopted on 20 December 2006, and was published in the EU Official Journal on 27 December 2006. (For further background information, see the European Parliament's Legislative Observatory.) | |
The European Commission issued, on 21 September 2006, a Communication reporting on the implementation of the Distance Selling Directive (97/7/EC) to date, and seeking the views (in Annex II of the Communication) of member states and other interested parties on how the Directive might be changed. The consultation closed on 21 November 2006. (See Legal update, European Commission consults on Distance Selling Directive (www.practicallaw.com/4-204-5052).) On 8 October 2008, the European Commission proposed a new directive to harmonise and introduce new consumer rights across the EU, replacing and enhancing the provisions of four existing consumer protection directives, including the Distance Selling Directive. If the proposal were to be adopted in its current form, it would update and modernise existing consumer rights, bringing them into line with technological developments such as mobile commerce and on-line auctions. The proposal would also strengthen provisions in the key areas where consumers have experienced problems in recent years, especially in door-to-door selling. See Legal update, European Commission proposes new directive on consumer rights (www.practicallaw.com/0-383-4550). | |
House of Lords Select Committee on Science and Technology - Fifth Report House of Lords Select Committee on Science and Technology - Follow-up report | The House of Lords Select Committee on Science and Technology (the Committee) made the call for evidence on 28 July 2006, accompanied by a press notice, for the purpose of its investigation of security issues affecting private individuals when using the internet. The deadline for responses was 23 October 2006. (See Legal update, House of Lords committee to investigate personal internet security (www.practicallaw.com/9-203-9256).) On 10 August 2007, the Committee published a report on security issues affecting private individuals using the internet. The Committee was heavily critical of the government's approach to internet security. It made a number of recommendations, including setting up a central system for reporting internet crime. It also proposed that internet service providers and hardware and software manufacturers should be made liable for third-party losses see Legal update, House of Lords committee reports on personal internet security (www.practicallaw.com/3-375-9356)). On 25 October 2007, the government published its response to the Committee's report. It welcomed some of the Committee's recommendations, but said that it did not consider that any new legislation was currently necessary. In its response, the government took issue with the Committee's criticism of its approach to the problem of internet crime and sought to dispel the suggestion that it was leaving internet security up to individuals (see, Legal update, Government responds to House of Lords report on personal internet security (www.practicallaw.com/4-378-8805)). On 8 July 2008, the Select Committee published the results of a follow-up enquiry, held following the government's response to its original report. The Committee noted that the government has made some progress in addressing the concerns raised in its original report. However, the Committee remains of the opinion that progress is slow and has reiterated a number of its recommendations, such as the call for a data security breach notification law (see Legal update, House of Lords committee publishes follow-up report on personal internet security (www.practicallaw.com/0-382-5485)). |
The Bill, which required internet service providers to declare whether they block access to online child pornography, was introduced as a Private Members' Bill in the House of Commons on 26 October 2005. The Bill received its second reading in the House of Commons on 12 May 2006 (see Legal update, Bill on internet access to child pornography receives second reading (www.practicallaw.com/3-202-3994)). Since the Bill was not passed in the relevant Parliamentary session, it has fallen or "died" (see Cabinet Office, Guide to Parliamentary work). | |
United Nations Convention on the Use of Electronic Communications in International Contracts | The Convention was open for signature from 16 January 2006 to 16 January 2008, and will enter into force six months after the third ratification (see Legal update, UN adopts new Convention on e-contracting (www.practicallaw.com/1-201-7084)). |
No formal timetable has been announced. (See Legal update, Cross-border traders to benefit from proposed new EU VAT Regulation (www.practicallaw.com/A45299).) |
See Legislation in force: Internet for legislation now in force.
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EU media laws | The European Commission High Level Group on Media Freedom and Pluralism has published a number of regulatory recommendations to harmonise regulation: all EU countries should have independent media councils with strong enforcement powers to investigate complaints and to check compliance, which would have to follow European-wide standards and would be subject to monitoring by the Commission; an EU agency or independent monitoring centre should be established to report on any risks to the freedom and pluralism of the media in any part of the EU; and there should be further harmonisation of EU legislation, particularly libel and data protection laws. However, although the European Commission will consider these recommendations, there is no guarantee that any of them will become law. See Legal update, European Commission group recommends new EU media laws (www.practicallaw.com/0-523-6738). |
On 28 November 2012, the Law Commission issued a consultation paper on proposed reforms to the law on contempt of court, which it says has been prompted in part by the increasing prevalence of contempt by online publication. It considers whether the Contempt of Court Act 1981 is capable of dealing effectively with rapidly-developing media technologies, particularly with regard to social media (on which there is a lack of case law). The consultation closed on 28 February 2013. For more information, see Legal update, Law Commission consults on reforms to law on contempt of court (www.practicallaw.com/8-522-7018). | |
On 18 June 2012, the government launched a consultation of proposals for tax reliefs aimed at making the UK more attractive for film makers, high end televisions productions and the creation of video games (see HM treasury: UK to get world-class creative tax breaks and Legal update, Consultation on creative sector tax reliefs (www.practicallaw.com/7-519-9544). The consultation closed on 10 September 2012. On 1 October 2012, the DCMS launched a consultation on the design of a cultural test to determine whether video games, animation and high-end television are culturally British and, as a result, eligible to benefit from tax relief. The DCMS suggested that the cultural tests already applied in relation to films will be a suitable starting point and that a points system should be developed to evaluate the overall cultural value of a product in these three areas. The deadline for comments was 29 October 2012. For more information, see Legal update, DCMS consults on "Britishness" required for creative sector tax breaks (www.practicallaw.com/7-521-6497). | |
Consultation on Exemptions to the Video Recordings Act and on Advertising in Cinemas | On 9 May 2012, the Department for Culture Media and Sport issued a consultation seeking views on two matters:
Responses were invited by 1 August 2012, see Legal update, DCMS consults on Video Recordings Act exemptions and on advertising in cinemas. On 24 May 2013, the government published its response to the consultation. In the light of the responses received to the consultation, the government has decided to:
The government expects that it would bring the new age rating requirements for music, sports, religious and educational products into force in April 2014. It expects to enact the changes relating to cinema advertising in autumn 2013. See Legal update, Government responds to consultation on Video Recordings Act exemptions and advertising in cinemas (www.practicallaw.com/7-530-5851) for more information. |
DCMS consultation, proposal to examine the deregulation of Schedule One of the Licensing Act 2003 | The Department for Culture, Media and Sport (DCMS) has consulted on a proposal to remove licensing requirements for certain types of "regulated entertainment" as defined in Schedule 1 of the Licensing Act 2003. The consultation closed on 3 December 2011. The government proposes to amend the definition of "regulated entertainment" so that fewer event organisers have to apply and pay for licences. However, it plans to retain the licensing requirements for:
In January 2013, DCMS announced plans to exempt community venues from the requirements of the Licensing Act 2003. The changes will remove the requirement for entertainment licenses, between 8 am and 11 pm for indoor sport activities for audiences of 1,000 or less, plays and dance to audiences of 500 or less, and live and recorded music in alcohol-licensed premises for audiences of 500 or less. The measures will be put to Parliament in early 2013, with the intention of bringing them into effect in England and Wales by April 2013. For more information, see Legal update DCMS announces plans to exempt community venues from Licensing Act 2003 requirements (www.practicallaw.com/3-523-4634). In April 2013, the government published the draft Licensing Act 2003 (Descriptions of Entertainment) (Amendment) Order 2013. The changes will remove the requirement for entertainment licences between 8 am and 11 pm for indoor sporting activities for audiences of 1,000 or less and plays and dance (excluding certain sexual entertainment) to audiences of 500 or less. The date of making of the statutory instrument has yet to be announced. For more information, see Legal update, Draft regulations published exempting certain entertainment from Licensing Act 2003 requirements (www.practicallaw.com/7-527-1605). |
Prohibiting adult material from video-on-demand Ofcom report, Sexually Explicit Material and Video On Demand Services | Ofcom has recommended that the government introduce new legislation to:
For more information, see Legal update, Tighter rules likely for adult material on VOD (www.practicallaw.com/2-507-1901). |
The Defamation Bill, introduced as a Private Members' Bill by Lord Lester of Herne Hill, received its first reading in the House of Lords on 26 May 2010. Lord Lester says that he has published the Bill to help the government to review the law of libel, as they have stated they intend to do. The Bill includes provisions which appear to be intended to codify areas of existing defamation law including, for example, the Reynolds defence and the defences of fair comment and justification. The Bill also includes, among others, a provision to abolish the multiple publication rule, under which each publication of defamatory material can form the basis of a new defamation claim subject to its own limitation period. While Private Members' Bills generally have relatively little chance of becoming law, the Bill may at least provide a template for the government's proposed reform of libel law. See Legal update, Private Members' Bill to amend defamation law has first reading (www.practicallaw.com/2-502-4542) for more information. On 9 July 2010, the Ministry of Justice said it intended to publish a draft Defamation Bill for consultation in 2011, with a view to introducing a bill as soon after that as parliamentary time allows. According to its press release, the government recognises the impact that the current law may be having on freedom of expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism, and will be looking at options for addressing concerns around "libel tourism". This announcement said that Lord Lester's Private Members' Bill to amend defamation law had greatly assisted the government’s thinking on the matter. See Legal update, Government announces plans to reform defamation law (www.practicallaw.com/5-502-7836). On 15 March 2011, the Ministry of Justice published a draft Defamation Bill for consultation. See Defamation Bill, below for more information. | |
Defamation Bill | On 13 May 2010, the Conservatives and Liberal Democrats published an initial coalition agreement covering a range of issues, including a section on civil liberties which sets out the parties' plans to "implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion". These measures include a review of the libel laws to protect freedom of speech. See Legal update, Conservative-LibDem coalition agreement: implications for IP, IT and communications (www.practicallaw.com/3-502-2793) for more details. On 25 May 2010, the Queen's speech was published. It confirmed the commitments made in the Coalition agreement of 20 May 2010, including that the reform of libel laws to protect freedom of speech would be dealt with. See Legal update, Queen's Speech 2010: implications for IPIT & Communications (www.practicallaw.com/6-502-3692). On 9 July 2010, the Ministry of Justice said it intended to publish a draft Defamation Bill for consultation in 2011, with a view to introducing a bill as soon after that as parliamentary time allows. According to its press release, the government recognises the impact that the current law may be having on freedom of expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism, and will be looking at options for addressing concerns around "libel tourism". This announcement said that Lord Lester's Private Members' Bill to amend defamation law (see above) had greatly assisted the government’s thinking on the matter. See Legal update, Government announces plans to reform defamation law (www.practicallaw.com/5-502-7836). On 15 March 2011, the Ministry of Justice published a draft Defamation Bill for consultation. The draft Bill includes provision for a new public interest defence available to defendants; a requirement for claimants to demonstrate substantial harm before they can sue, reducing so-called "libel tourism" by making it more difficult to bring claims which have little connection to the UK in the English courts; and a single publication rule, preventing repeat claims for libel from being made each time a publication is accessed on the internet. The consultation paper includes questions on a number of other issues. These include whether the law should be changed to give greater protection to secondary publishers such as internet service providers and discussion forums, and to introduce a new court procedure to reduce court costs associated with libel actions by encouraging early resolution of key issues. The deadline for responses to the consultation was 10 June 2011. See Legal update, Government publishes draft Defamation Bill for consultation (www.practicallaw.com/8-505-1702) for more information. On 19 October 2011, the Joint Committee on the draft Defamation Bill published its report, in which it welcomed many of the reforms proposed but said that, for a bill that is overdue, the government's current draft "may be thought modest", and recommended further changes. Among other things, regarding publication on the internet, the committee proposed a new notice and take-down procedure, so that those defamed online have a quick and easy remedy. See Legal update, Joint Committee publishes report on draft Defamation Bill (www.practicallaw.com/2-509-3682). On 29 February 2012, the government published its response to the Joint Committee report. It accepted a number of the committee's recommendations, but it considers that it would be more appropriate for some of the recommendations to be dealt with in the explanatory text or by amendments to the Civil Procedure Rules, rather than specifically in the text of the clauses, such as those in relation to libel tourism. It also rejected some of the committee's recommendations and adhered to its original proposals, for example, in relation to the single publication rule. With regard to the proposed new provisions concerning responsibility for publication on the internet, the government has indicated that it will be consulting with interested parties. See Legal update, Government response to Joint Committee's report on draft Defamation Bill (www.practicallaw.com/8-518-3199) for more information. In May 2012, the government announced the introduction of the Defamation Bill in the Queen's Speech 2012, see Legal update, New Defamation Bill announced in Queen's Speech. On 10 May 2012, the Bill had its first reading in the House of Commons, see Legal update, Defamation Bill published. On 24 September 2012, the bill had its first reading in the House of Lords. The most significant amendment made to it at the report stage in the House of Commons was the addition of a new clause 13. Clause 5 has also been changed in two respects. For more details, see Legal update, Defamation Bill goes to House of Lords (www.practicallaw.com/4-521-5588). On 25 April 2013, the Defamation Act 2013 received Royal Assent. The provisions in the Act include a requirement for companies and individuals to show serious harm to establish a claim; protection for those who are publishing material which they reasonably believe is in the public interest; a single publication rule to prevent repeated claims against a person about the same material; a tighter test before claims involving those with little connection to England and Wales can be brought (addressing libel tourism); and protection for operators of websites hosting user-generated content, subject to complying with the procedure to enable the complainant to resolve any dispute directly with the author of the material concerned. The Act is to be brought into force later in 2013 by statutory instrument. For more information, see Legal update, Defamation Act 2013: summary of main provisions (www.practicallaw.com/8-526-7636). |
Proposal to establish a British Bill of Rights | On 21 May 2010, the Conservative and Liberal Democrat coalition published its programme for government. Section 3 of the document set out the government's proposals on civil liberties. The measures listed included a proposal to establish a Commission to consider a British Bill of Rights. It was proposed that this will incorporate and build on the UK's obligations under the European Convention on Human Rights. See Legal update, Coalition agreement final version: implications for IP, IT and communications (www.practicallaw.com/0-502-3223). On 18 March 2011, the government established a Commission to consider the case for a UK Bill of Rights. The Commission's terms of reference are to investigate the creation of a UK Bill of Rights that incorporates and builds on all the UK's obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties. See Legal update, Government establishes Commission on UK Bill of Rights (www.practicallaw.com/1-505-3304). |
Exploratory review of the system of regulating child performances report | On 19 March 2010, the Department for Children, Schools and Families published Sarah Thane CBE's report on her review of the Children and Young Persons Act 1963 and the Children (Performances) Regulations 1968 (SI 1968/1728), which govern performances by children. The report makes various recommendations which the government has accepted in principle, and which will require changes in the primary legislation (see Legal update, Report on child performance regulation published (www.practicallaw.com/2-501-8013)). The Department for Education has published a joint consultation with the Welsh Government on proposed changes to child performance legislation, following an announcement in 2011 that it planned to do so in the light of the Thane Review. The consultation proposals include: clarifying when a local authority licence is required for a child to perform and also to streamline the existing licensing and approval process; reducing the maximum number of children that a chaperone can be responsible for and removing the requirement for; and maintaining the requirement for 15 hours of tuition per week but giving greater flexibility over when this is provided. The consultation closed on 3 August 2012. For more information see Legal update, DfE consults on proposed changes to child performance legislation (www.practicallaw.com/6-519-7041). |
The House of Commons Culture, Media and Sport Select Committee has published a report on libel, privacy and press standards. The Committee rejects calls for legislation on a law of privacy but recommends changes to the Press Complaints Commission (PCC) Code of conduct which would require journalists to notify the subject of their articles prior to publication, subject to a "public interest" test. Among other recommendations, the report calls for the development of a fast-track procedure for appeals from interim injunction decisions. It is not clear whether the Committee's recommendations will be adopted by government, even though they have support from members of all parties. See Legal update, Select Committee report on press standards, privacy and libel (www.practicallaw.com/9-501-5501) for more details. | |
On 19 January 2010 the Ministry of Justice (MoJ) published a consultation paper on controlling costs in defamation proceedings. The key proposal was to reduce the maximum conditional fee agreement (CFA) success fee from 100% to 10%, as an interim measure while the government considered the recommendation made in Jackson LJ's final report on civil litigation costs, that the recoverability of CFA success fees and after-the-event insurance premiums be removed for all types of civil litigation (see Legal update, Ministry of Justice consults on reducing CFA success fees in defamation proceedings (www.practicallaw.com/5-501-3472)). On 3 March 2010, the government published the responses to the consultation and indicated that, in the light of the responses, 53% of which supported the reduction, it would reduce the maximum permitted CFA success fees in defamation proceedings to 10%. According to the report, the Conditional Fee Agreements (Amendment) Order 2010 to implement the change had been laid before Parliament, and was expected to come into force in April 2010 (see Legal update, Maximum success fee in defamation cases to be reduced to 10% (www.practicallaw.com/8-501-6959) for more details). However, on 8 April 2010 a Ministry of Justice spokeswoman confirmed to PLC IPIT & Communications that the draft Conditional Fee Agreements (Amendment) Order 2010 to implement the fee reduction would not be brought forward before the next election. Accordingly, it would appear that the legislation has been dropped, although it remains to be seen whether there will be any attempts to reintroduce it after the election (see Legal update, Legislation to reduce maximum success fees in defamation cases dropped (www.practicallaw.com/1-501-9659)). | |
Consultation on proposal to clarify the definition of "entertainment facilities" | The Department for Culture, Media and Sport (DCMS) launched a short consultation on its proposal to clarify the definition of "entertainment facilities" in the Licensing Act 2003. The DCMS proposed that the provision of musical instruments is excluded from the definition, and also that entertainment facilities are not licensable if they are to be used solely for the provision of exempt incidental music. The consultation closed on 26 February 2010. See Legal update, DCMS consults on clarifying definition of "entertainment facilities" in Licensing Act 2003 (www.practicallaw.com/8-501-2503) for more details. |
DCMS consultation on exempting small live music events from Licensing Act 2003 requirements | On 4 January 2010, the Department for Culture, Media and Sport (DCMS) launched a consultation on a proposal to exempt small live music events from the requirements of the Licensing Act 2003. The DCMS proposed that the exemption should be revocable, and subject to a number of conditions, including that the audience does not exceed 100 people; that the performance takes place wholly inside a building and that it does not take place between 11 pm and 8 am. The consultation closed on 26 March 2010. For further information, see Legal update, DCMS consults on exempting small live music events from Licensing Act 2003 requirements (www.practicallaw.com/2-501-1422). |
House of Commons Select Committee report on the Licensing Act 2003 | On 14 May 2009, the House of Commons Select Committee on Culture, Media and Sport published a report on the Licensing Act 2003. The report concluded that overall the Act has been a success. However, it has a number of shortcomings, for example, in relation to licensing for live music. Evidence shows that live music in smaller venues has been decreasing and the music industry believes the Act is partly responsible. The Committee recommended, among other things, that the government should exempt venues with a capacity of 200 persons or less from the need to obtain a licence for live music performances; reintroduce the exemption enabling venues of any size to put on a performance of non-amplified music by one or two musicians without a licence; abolish the Metropolitan Police's Promotion and Event Assessment Form (considered to go beyond the Act's requirements); and amend the statutory guidance on the Act to remove the overt linkage of live music with public disorder (see Legal update, Select Committee publishes report on Licensing Act 2003 (www.practicallaw.com/5-386-1065)). |
Digital Radio | On 29 January 2009, the DCMS and BERR published the Digital Britain interim report, which included, among other things, proposals on digital radio networks:
On 6 April 2009, Ofcom published its submission to the interim report, in which it recommended that the Government should facilitate the creation of new, UK-wide radio services; ensure the continuation of locally-produced radio content; and encourage the continued growth of the DAB platform. It also made proposals to overcome some of the obstacles that might hinder any future digital migration (see Legal update, Ofcom publishes submission to Government on digital radio (www.practicallaw.com/5-385-6083)). Ofcom published a further submission to the Digital Britain project about the regulation of local commercial radio. Ofcom considered how a policy of allowing radio stations to co-locate might work, on the basis that allowing co-location could be one of the most important factors in ensuring viability for local stations going forward. It also proposed a number of options for regulating the localness of small commercial radio stations (see Legal update, Ofcom publishes further paper on local radio regulation (www.practicallaw.com/0-386-0997)). On 16 June 2009, the newly created Department for Business Innovation & Skills and the Department for Culture, Media and Sport published the Digital Britain final report. Among other things, the report set out specific proposals for a nationwide switch to digital radio. For more information, see Legal update, Government publishes Digital Britain report: media regulation issues (www.practicallaw.com/2-386-4541). The Digital Economy Act 2010 introducted changes to the licensing regime for independent radio services to facilitate digital switchover in sections 30-36, which are in force, and are dealt with in Legislation in force: Media (www.practicallaw.com/7-107-4973). In April 2010, Ofcom published a statement setting out its decisions on reducing "localness" regulation for analogue stations, and the deregulatory decisions it has taken in order to encourage UK-wide radio services. For more information, see Legal update, Ofcom publishes statement on commercial radio localness regulation (www.practicallaw.com/9-502-0338). |
Communications Bill | In September 2011, the Culture Secretary made a speech about the new Communications Act. He made a number of points about media plurality:
For more information, see Legal update, Jeremy Hunt speech at television conference: media (www.practicallaw.com/1-508-2170). On 2 August 2012, the House of Lords' Communications Committee launched an inquiry into media convergence, which asks a number of questions about the regulation of communications and media in this context. The Committee requested submissions by 24 September 2012. For more information, see Legal update, Lords launch inquiry on media convergence (www.practicallaw.com/8-520-7893). On 27 March 2013, the House of Lords' Select Committee on Communications published a report on media convergence in advance of the government's anticipated white paper on communications regulation. For more information, see Legal update, Lords committee reports on media convergence (www.practicallaw.com/4-525-4693). |
Public service broadcasting | On 29 January 2009, the DCMS and BERR published the Digital Britain interim report, which included, among other things, proposals to consider a second public service organisation, perhaps comprising Channel 4 and BBC Worldwide (as at June 2010, nothing has come of this). On 16 June 2009, the newly created Department for Business Innovation & Skills and the Department for Culture, Media and Sport published the Digital Britain final report. Among other things, the report set out specific proposals in relation to public-service broadcasting, such as the role of the BBC, the creation of a competitor to the BBC (through partnerships between Channel 4 and BBC Worldwide) and provision of local news. For more information, see Legal update, Government publishes Digital Britain report: media regulation issues (www.practicallaw.com/2-386-4541). Sections 22-23 of the Digital Economy Act 2010 extended the public-service functions of Channel Four Television Corporation to encompass public-service content online as well as on television, and to include film financing. These provisions are in force. On 28 September 2010, the Secretary of State for culture, Jeremy Hunt, announced the government's intention to introduce secondary legislation in relation to local media rules. Among other things, the government will ask Ofcom to "redefine" public-service broadcasting (PSB) to ensure that broadcasters deliver more local content as a condition for holding a licence. The government also intends to introduce legislation to clarify which PSB channels should get guaranteed positioning on page one of the digital electronic programme guide and its future online equivalents. The government will also be looking at a variety of ways in which the existing PSB operators can support the development of a viable and sustainable local-TV landscape. The government intended to publish its full local-media action plan before the end of 2010. For more details, see Legal update, Culture Secretary confirms removal of local cross-media ownership rules (www.practicallaw.com/9-503-4788) In September 2011, the Culture Secretary made a speech about the new Communications Act. He said that there should be strong commitments to PSB but that ministers and regulators should not and probably will not be able to continue to micro-manage these. He wants to continue to have standards for PSB but also wants PSB operators to have flexibility to develop new business models. For more information, see Legal update, Jeremy Hunt speech at television conference: media (www.practicallaw.com/1-508-2170). |
Council of Europe's proposed amendments to the European Convention on Transfrontier Television | The CoE proposed revising the Convention on Transfrontier Television, to bring it into line with the Audio-Visual Media Services Directive (Directive 89/552/EEC amended by Directive 97/36/EC and Directive 2007/65/EC). Negotiations on the proposed amendments were terminated in 2011. In a letter to the Secretary General of the Council of Europe, Ms Neelie Kroes, vice-President of the European Commission, confirmed that the European Union has exclusive competence for the issues covered by the draft revised Convention and that EU member States were not allowed to become party to the Convention on their own. The letter also indicates that the EU does not intend to become a party to the Convention as this would constrain the speed and scope of any future policy response in the areas covered. |
The Food Products (Marketing to Children) Bill, a Private Members' Bill introduced by Nigel Griffiths MP, received its first reading in the House of Commons on 5 December 2007. The Bill would make it an offence to advertise and promote "less healthy" food and drink products to children under 16 on broadcast media before the 9pm watershed and across a range of non-broadcast medial. It would place a duty on the Food Standards Agency to use its nutrient profiling model to identify "less healthy" foods. The Bill attracted cross-party support from over 190 MPs. (See Legal update, Private Members' Bill to make offence of marketing less healthy food to children (www.practicallaw.com/3-381-2429)). The bill was debated at its second reading on 25 April 2008. Since the Bill was not passed in the relevant Parliamentary session it has fallen or "died" (see Cabinet Office, Guide to Parliamentary work) | |
British Board of Film Classification (Accountability to Parliament and Appeals) Bill | The British Board of Film Classification (Accountability to Parliament and Appeals) Bill 2007-2008 (the Bill) was introduced as a Private Members' Bill and received its first reading in the House of Commons on 5 December 2007. It provides for senior appointments to the British Board of Film Classification (BBFC) and (once every Parliament) the BBFC's guidelines on classification of videos to be subject to approval by the House of Commons Home Affairs Select Committee. The Bill also seeks to establish a new body to consider appeals against, or reviews of, BBFC classification decisions, as well as increased penalties for offences. The Bill had its second reading on 29 February 2008 (see Legal Update, Private Members' Bill to bring BBFC under parliamentary scrutiny (www.practicallaw.com/8-380-8298)). Since the Bill was not passed in the relevant Parliamentary session it has fallen or "died" (see Cabinet Office, Guide to Parliamentary work |
The Bill, which was introduced as a Private Members' Bill in the House of Lords on 29 November 2006, proposed the introduction of a number of new corruption offences, including an offence which seeks to prevent corruption in sport. Broadly, the offence seeks to prevent bribery which would threaten the integrity of a sporting event, including by influencing the run of play or outcome of such an event. (See Legal update, Private Members' Bill proposes new offence of corruption in sport (www.practicallaw.com/9-207-8993).) The Bill had its first reading in the House of Commons on 15 June 2007. Since the Bill was not passed in the relevant Parliamentary session it has fallen or "died" (see Cabinet Office, Guide to Parliamentary work |
See Legislation in force: Media (www.practicallaw.com/7-107-4973) for legislation now in force.
NOTE: With effect from 9 November 2010, the 2007 Lugano Convention is no longer covered in this table. The progress of the 2007 Lugano Convention will continue to be tracked in the PLC Commercial legislation tracker (www.practicallaw.com/5-379-8248).
Item | Status |
European Commission consultation on new technology transfer block exemption and guidelines | On 20 February 2013, the European Commission published for consultation a draft of a new technology transfer block exemption regulation and revised guidelines on the application of Article 101 of the TFEU to technology transfer agreements. It invited comments by 17 May 2013. For more information, see Legal update, Commission consults on new technology transfer block exemption and guidelines (www.practicallaw.com/1-524-3149). |
Consultation on the protection of business and research know-how | On 7 December 2012, the European Commission launched a public consultation on the protection of business and research know-how. The consultation follows the publication of the Commission's study on trade secrets (and lookalikes) in January 2012 and forms part of its wider intellectual property rights strategy. The Commission is concerned that the lack of harmonisation of the rules on confidential information across the EU and a perceived weakness of the protective measures available in certain member states might be discouraging EU businesses from sharing their know-how. This in turn might have a chilling effect on innovation. The Commission has therefore decided to launch this consultation, which is available online only. It closed on 9 March 2013. |
Royal Assent has been given to the Act. Section 85 of the Act (which will be brought into force by a commencement order and will extend to England and Wales) removes the £5,000 cap on fines that can be handed down by the magistrates' court. The change affects the penalties on summary conviction for many intellectual property offences (see Legal update, Removal of cap on fines on summary conviction). | |
Threats legislation: Law Commission review Consultation: Patents, Trade Marks and Design Rights: Groundless Threats | In May 2012, the Law Commission set a timetable for review of the statutory intellectual property threats provisions, see Legal update, Law Commission sets timetable for review of intellectual property threats provisions. On 17 April 2013, the Law Commission launched a consultation on two proposed approaches to reform of the groundless threats provisions of intellectual property rights legislation. The consultation closes on 17 July 2013. For more information, see Legal update, Law Commission consults on groundless threats (www.practicallaw.com/5-525-8445). |
Review of technology transfer block exemption and publishes report on IPR and competition policy | On 6 December 2011, the European Commission issued a questionnaire to seek views on the operation of the technology transfer block exemption (Regulation 772/2004) and the Guidelines on the application of Article 101 of the TFEU to technology transfer agreements. Regulation 772/2004 expires on 30 April 2014. In order to inform its review and decision on the regime that will apply in future, the Commission is asking for comments on any difficulties and issues connected with the practical application of the block exemption and the Guidelines, and what, if any, changes should be made to reflect market developments. The Commission has also published an external report on the assessment of potential anti-competitive conduct in the field of intellectual property rights (IPR) and the interplay between competition policy and IPR protection. See Legal update, Commission begins review of technology transfer block exemption and publishes report on IPR and competition policy (www.practicallaw.com/7-515-2792). The Commission has now opened a consultation on a new technology transfer block exemption and guidelines, see European Commission consultation on new technology transfer block exemption and guidelines. |
On 25 May 2011, the European Commission published a new strategy for intellectual property rights, setting out various short-term and long-term policy actions in various areas, including patents, trade marks, copyright and dealing with counterfeiting and piracy. See Copyright for details of policy actions set out in the strategy regarding copyright. Other actions identified in the strategy include:
See Legal update, European Commission publishes new strategy for IP rights (www.practicallaw.com/0-506-2323) for a detailed report on the strategy document. In July 2011 the European Commission published the results of its consultation on its evaluation report of the IPR Enforcement Directive. See Legal update, European Commission publishes results of consultation on IP rights enforcement directive (www.practicallaw.com/1-506-8517) for more information. In its 2012 work programme, the Commission confirmed that it will update the IPR Enforcement Directive (see Legal update, European Commission 2012 work programme: IP, IT and communications (www.practicallaw.com/3-512-9671)) | |
Jackson LJ's final report on civil litigation costs in the UK was published in January 2010 (see Legal update, Final report on proposals to reform Patents County Court published (www.practicallaw.com/1-422-1667)). On 29 March 2011, the government published its response to Jackson LJ's recommendations on reforming civil litigation funding and costs. It intends to implement almost all of his primary recommendations, including abolishing the recoverability of success fees in conditional fee agreements (CFAs) from the losing party, and retaining the maximum success fee under a CFA at 100% of base costs, except in personal injury cases, which will be subject to a 25% cap on damages (excluding special damages for future care and loss). See Legal update, Government response to Jackson LJ's recommendations on reforming civil litigation costs and funding (www.practicallaw.com/6-505-4810) for more information | |
On 27 January 2011, the Intellectual Property Office (IPO) issued a consultation paper seeking views on a proposal to change the rules regarding the receipt of, and allocation of dates to, documents lodged with the IPO. The closing date for responses was 10 March 2011. See Legal update, IPO consults on changes to filing and dating practices for new applications (www.practicallaw.com/8-504-6230) for details of the proposed arrangements. | |
Government review of intellectual property laws HM Government Blueprint For Technology A Review of Intellectual Property and Growth The Government Response to the Hargreaves Review of Intellectual Property and Growth | On 4 November 2010, the government announced the launch of an independent review of the UK's intellectual property (IP) laws, to ensure that they are "fit for the internet age" (see Legal update, Government launches review of IP laws (www.practicallaw.com/1-503-8484)). On 18 May 2011, the report on the IP review, written by Professor Ian Hargreaves, was published (see Legal update, Hargreaves review of intellectual property published (www.practicallaw.com/8-506-1414)). As well as recommendations regarding copyright (see Copyright) the report made various more general recommendations, including recommending that:
On 3 August 2011, the government responded to the Hargreaves review (see Legal update, Government response to Hargreaves review of intellectual property published (www.practicallaw.com/2-507-1246)). The government broadly accepted all of the recommendations, and has set out the actions it intends to take. The actions the government in relation include:
In November 2011, following the recommendations of the Hargreaves review, the government confirmed that it would be introducing a new small-claims service for IP cases in the PCC. The new process will limit fixed costs and allow damages of up to £5,000 per case. The government anticipates that the small-claims service will be in place by the end of 2012. See Legal update, Government to introduce small-claims service for IP claims (www.practicallaw.com/9-512-9673) On 30 November 2011, the IPO issued an update on the change of name of the PCC. It said that it requires further evidence to establish the case for change, and, in particular, to look for a low-cost way to change the court's name. See Legal update, IPO update on Patents County Court change of name (www.practicallaw.com/9-514-6012). On 19 January 2012, the IPO issued a call for evidence on the planned small-claims service for IP cases in the PCC. The IPO was looking for feedback on how the new service should work, in addition to further gauging support for changing the name of the PCC to better reflect the range of IP cases it considers. The deadline for submissions was on 16 February 2012. See Legal update, Call for evidence on Patents County Court small-claims service (www.practicallaw.com/5-517-3677). On 26 March 2012, the government published its response to the results of its call for evidence. It proposed that the new procedure should work in largely the same way as the existing general small claims track with an initial limit of £5,000 on damages and that it should not provide for interim injunctions. For further information, see Legal update, Government responds on IP small claims track (www.practicallaw.com/1-518-6790). |
On 25 March 2010 the European Commission launched a consultation to review the Counterfeit Goods Regulation (1383/2003/EC) with a view to proposing a new regulation. The consultation looked (among other things) at the scope of the Regulation, and at various derogations from this scope. It also considered the possibility of reforming the costs provisions in favour of rights-holders and including small consignments of goods sold over the internet within its scope. The consultation closed on 25 May 2010. See Legal update, European Commission consultation on Counterfeit Goods Regulation (www.practicallaw.com/0-501-8698) for more details. On 26 May 2011, the European Commission published a draft regulation setting out procedures for customs authorities to follow in respect of goods suspected of infringing intellectual property rights, which, if adopted, will replace Regulation (EC) No 1383/2003. The proposed regulation extends customs-enforcement measures to goods suspected of infringing trade names, semiconductor topographies and utility models, and to parallel-traded infringing goods; establishes a streamlined procedure for uncontested customs action against goods; and provides for customs to be able to destroy small consignments of goods where this is not contested within a set time period, at no cost to the rights-holder (see Legal update, European Commission publishes draft counterfeit-goods regulation (www.practicallaw.com/7-506-2659)). On 3 July 2012, the European Parliament (EP) adopted its position at first reading on the proposed Regulation. In its first reading position, the EP substantially amends the Commission proposal. Among other things, it defines "small consignments" as one package containing no more than three items together weighing less than two kilogrammes. It also introduces a simplified procedure to allow small consignments of suspected counterfeit or pirated goods to be destroyed sooner. However, the person who would have received the goods has five days in which to object to their destruction and that buyers who bought them in good faith do not also have to pay the cost of destroying them. For more information, see Legal update, Customs enforcement of intellectual property rights: European Parliament adopts position at first reading on draft Regulation (www.practicallaw.com/8-520-2447). | |
European Commission report and green paper on the application of the Brussels Regulation | On 21 April 2009, the European Commission adopted a report and green paper on the functioning of the existing rules on the jurisdiction of the courts and the recognition and enforcement of foreign judgments (Council regulation 44/2001/EC (also known as the Brussels Regulation)). The report and green paper launched a broad consultation on the possible ways to deal with issues including: the removal of obstacles to the free circulation of judgments; ensuring equal access to the courts and equal protection for European defendants against judgments given by non-member states; avoiding parallel proceedings; and ensuring the sound application of contractual jurisdiction clauses. The Commission invited responses to the consultation by 30 June 2009. For more information see Legal update, Green paper on the application of the Brussels Regulation (www.practicallaw.com/0-385-8193). On 22 July 2009, the Intellectual Property Office (IPO) called for feedback on the European Commission's adoption of the report and green paper, asking interested parties to focus in particular on the industrial property issues in question 4 of the green paper and paragraph 3.4 of the report. The IPO will consider the feedback before advising the Ministry of Justice on the intellectual property aspects of the Brussels Regulation (see Legal update, IPO invites feedback on Brussels Regulation (www.practicallaw.com/8-386-8193)). In August 2009, the European Commission published the responses to the consultation on its green paper (see Legal update, European Commission publishes responses to consultation on Green Paper for Brussels Regulation (www.practicallaw.com/2-422-1539)). In December 2009, the European Parliament's Committee on Legal Affairs published a working document on the green paper on the review of the Brussels Regulation, setting out the rapporteur's "very preliminary" findings regarding some of the points covered by the green paper, with a view to stimulating discussion. See Legal update, Committee on Legal Affairs publishes working document on Brussels Regulation green paper (www.practicallaw.com/9-501-0457). In April 2010, the rapporteur of the European Parliament's Committee on Legal Affairs prepared a draft report on the green paper, the conclusions of which essentially reflect the rapporteur's preliminary findings in his December 2009 working document (see Legal update, Committee on Legal Affairs' draft report on the review of the Brussels Regulation (www.practicallaw.com/4-502-3056)). On 23 June 2010, the Committee adopted the report (see Legal update, Brussels Regulation reforms: European Parliament's Committee on Legal Affairs adopts report (www.practicallaw.com/9-502-7293)). The report will be submitted to the European Parliament for discussion in plenary session in early September 2010. On 7 September 2010, the European Parliament passed a resolution regarding the proposals to reform the Brussels Regulation. The resolution adopts in its entirety the proposals for reform contained in the report of the European Parliament's Committee on Legal Affairs, published on 23 June 2010. The Commission will consider the resolution of the European Parliament (as well as any other responses to its original green paper) and formulate its actual legislative proposals, after which the reforms will move forward under the ordinary legislative procedure. The Commission's work programme for 2010 indicated that it had expected to produce a proposal on 14 December 2010. See Legal update, Brussels Regulation reforms: European Parliament adopts resolution (www.practicallaw.com/9-503-2807). |
On 5 May 2007, the Department for Constitutional Affairs (DCA) published a consultation paper on the law on damages. The paper reconsidered earlier recommendations by the Law Commission on aggravated, exemplary and restitutionary damages in the light of recent case law and considered that no legislative change is necessary. However, the DCA recommended that the term "additional damages" in the Copyright, Designs and Patents Act 1988 be replaced with the term "aggravated and restitutionary damages". Following one of the key recommendations in the Gowers Review of Intellectual Property, the consultation also asked for evidence on how the current system of damages is operating in relation to all areas of intellectual property. The consultation closed on 27 July 2007. See Legal update, DCA launches wide-ranging consultation on damages (www.practicallaw.com/4-339-5030) for more details. | |
The DTI launched on 11 December 2006 a mini-consultation on framing and enforcing criminal sanctions in the legislation to implement the EC Directive on unfair commercial practices (2005/29/EC). This followed on from its earlier consultation on the implementation of the Directive (see above). The deadline for responses to the consultation was 5 February 2007. (See Legal update, Government consults on criminal sanctions in implementation of EC Directive on unfair commercial practices (www.practicallaw.com/1-207-8987).) | |
The government announced on 2 December 2005 that Andrew Gowers would lead an independent review into intellectual property rights in the UK and examine whether improvements can be made to ensure that the current framework is appropriate for the digital age (see Legal update, Government announces review of UK intellectual property (www.practicallaw.com/1-201-7036)). The Gowers Review would be actively consulting stakeholders throughout its duration. A call for evidence was announced on 23 February 2006, and responses were due by 21 April 2006 (see Legal update, Call for evidence in Gowers review of intellectual property (www.practicallaw.com/9-202-0539)). (The British Library launched a manifesto entitled Intellectual Property: a balance on 25 September 2006, in which it made six specific recommendations concerning the current UK copyright framework, which it considered should be addressed in the Gowers Review of intellectual property (see Legal update, British Library launches IP manifesto (www.practicallaw.com/9-204-8086)).) Gowers Review of Intellectual Property was published on 6 December 2006. The Review concluded that the current intellectual property (IP) system in the UK was broadly performing satisfactorily, but that improvements were needed in the areas of enforcement, costs and balanced and flexible rights. (See Legal update, Gowers Review of Intellectual Property published (www.practicallaw.com/3-207-4064).) On 8 January 2008, the UK Intellectual Property Office issued a consultation paper on how the Gowers Review recommendations on exceptions to copyright might be implemented in the UK. See above. | |
Consultation on representative actions for the enforcement of intellectual property (IP) rights | The Patent Office published a consultation paper on 26 September 2006, following its provisional proposals in the draft regulations implementing the IP Rights Enforcement Directive (2004/48/EC), which were later taken out. The Patent Office set out four possible options, its preferred option being to provide for representative actions in IP legislation, but to enable a court to dismiss an action if it considers it inappropriate. The deadline for responses was 18 December 2006. (See Legal update, Patent Office launches consultation on representative actions (www.practicallaw.com/8-204-8119).) |
The European Commission published the Communication on 13 September 2006, together with a press release and memo, setting out a ten-point programme aimed at fostering innovation within the EU, for debate at the summit of European leaders on 20 October 2006 (see Legal update, European Commission tables innovation strategy (www.practicallaw.com/9-204-3084)). (See also Europe INNOVA press release) | |
European Commission proposals of 12 July 2005 for a Directive and a Council Framework decision on criminal measures aimed at ensuring the enforcement of intellectual property rights Amended proposal of 26 April 2006 for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights (the Proposed Directive) European Parliament legislative resolution of 25 April 2007 on the Proposed Directive | The European Commission adopted a proposal for a directive and a proposal for a Council Framework Decision (Proposed Framework Decision) on criminal measures aimed at ensuring the enforcement of intellectual property rights on 12 July 2005 (see Legal update, European Commission proposes to harmonise criminal law on IPR infringement (www.practicallaw.com/3-201-0128)). In response to the ECJ ruling in case C-176/03 (see Legal update, ECJ rules on European Community's powers to legislate on criminal law (www.practicallaw.com/5-201-2904)), the Commission announced on 26 April 2006 that it had adopted a proposal to amend the July 2005 proposals, by withdrawing the Proposed Framework Decision entirely and incorporating those provisions into the directive (the Proposed Directive) (see Legal update, European Commission adopts proposal for directive on criminal penalties for IPR offences (www.practicallaw.com/7-202-3204)). The Proposed Directive also included two other amendments to the wording of the earlier directive (see Legal update, Text of proposed directive on criminal penalties for IPR offences published (www.practicallaw.com/2-202-3517) for details). (The Law published a report commenting on the Commission's proposed directive on 1 September 2006 (see Legal update, Law Society comments on proposed directive on criminal penalties for IPR offences (www.practicallaw.com/3-204-1417)).) On 25 April 2007, the European Parliament adopted a legislative resolution on the Proposed Directive, approving it, but with significant amendments. Among other things, the amendments made by Parliament would remove patents from the scope of the Proposed Directive, and would mean that trade mark rights would only come within its scope insofar as extending criminal protection to them was not inimical to free market rules and research activities (see Legal update, European Parliament votes on Directive on criminal penalties for IPR offences (www.practicallaw.com/2-320-2952) for a summary of the key amendments to the Proposed Directive proposed by the European Parliament). The text of the Proposed Directive, as revised by the European Parliament, was then sent to the Council for its consideration. On 21 May 2007, the UK Intellectual Property Office called for comments on the European Parliament's report on the proposed Directive to harmonise criminal penalties for intellectual property offences. It requested feedback by the end of May 2007, in advance of the next round of European Council discussions on the Directive which were scheduled for June 2007 (or later in the year) (see Legal update, IPO requests comments on proposed Directive on criminal penalties for IPR offences (www.practicallaw.com/6-362-4016)). The withdrawal of the Proposed Framework Decision was confirmed in the EU Official Journal of 25 March 2009. It was announced in the EU Official Journal on 18 September 2010 that the European Commission had decided to withdraw the Proposed Directive (see EU Official Journal, Notice OJ C252/04, 18 September 2010). |
Consultation on draft policy proposals for developing various aspects of the UK's creative economy | The government, on 9 August 2006, published for consultation purposes draft policy proposals for developing various aspects of the UK's creative economy. The areas covered included intellectual property issues in the context of competition, and technology issues. The deadline for responses was 20 September 2006. The government stated that it would then take the recommendations and consultation responses into account in drafting a consultation paper on the future of the UK's creative sector. (For further background and information, see Legal update, Government consults on Creative Economy proposals (www.practicallaw.com/4-203-9881).) |
On 1 February 2007, the Patent Office published its Innovation Support Strategy, which set out the Office's plans to raise awareness of intellectual property (IP) in the UK among businesses and throughout the education system; to assist businesses when analysing, protecting and exploiting IP rights; and to improve IP enforcement mechanisms (see Legal update, Patent Office launches innovation strategy (www.practicallaw.com/5-215-4012)). The publication followed a consultation by the Patent Office in May 2006 on its strategy for supporting the government's proposals to encourage and stimulate innovation in the UK. (See Legal update, Patent Office consults on innovation strategy (www.practicallaw.com/7-202-4430).) | |
The European Commission launched a consultation on the internal market on 20 April 2006 covering a wide range of issues, including intellectual property rights and the EU's public procurement framework. The deadline for responses was 15 June 2006. (See Legal update, European Commission launches consultation on internal market (www.practicallaw.com/2-202-3112).) | |
The European Commission published its strategy for the simplification of the regulatory environment in the form of a communication to the European Parliament and others on 25 October 2005. The simplification programme was devised following extensive consultation with member states and numerous interested businesses. The Commission intends to continually review and update the programme. (See Legal update, European Commission's plans for legislation overhaul include proposals for IP reforms (www.practicallaw.com/5-201-7096).) The Commission published a press release on 21 March 2006 giving details of the progress it has made in streamlining numerous pieces of EC legislation, including several intellectual property laws (see Legal update, European Commission progress report on overhaul of legislation (www.practicallaw.com/9-202-1379)). | |
The deadline for responses was 6 January 2006 (see Legal update, Patent Office consults on proposed changes to document dating practices (www.practicallaw.com/3-201-4193)). |
See Legislation in force: General IP (www.practicallaw.com/7-107-4973) for legislation now in force.
Item | Status |
On 26 March 2013, the Intellectual Property Office launched a consultation on whether to extend the Appointed Person appeals route to patents and supplementary protection certificate cases. Responses were sought by 21 May 2013. | |
Consultation on amended Rule 36 of the Implementing Regulations to the European Patent Convention | On 4 March 2013, the European Patent Office (EPO) issued a consultation on the current Rule 36 of the Implementing Regulations to the European Patent Convention, relating to the time limit for filing a divisional application. Rule 36 was amended in October 2010 and has raised concerns and criticism in the user community. Furthermore, decision G 1/09 of the Enlarged Board of Appeal changed at least some of the circumstances which gave rise to the amendment by extending the possibility of filing divisional applications after refusal of the parent application and until expiry of time limit for appeal. The EPO asked for views on the current Rule 36 and on the possible need to amend it further. The consultation closed on 5 April 2013. For more information, see Legal update, EPO issues consultation on filing of divisional applications (www.practicallaw.com/4-525-1010). |
Consultation on proposed changes to the Patents Act 1977 | On 10 December 2012, the IPO published a public consultation on proposed changes to the Patents Act 1977. The two substantive changes come out of the recommendations of the Hargreaves Report. The first is to allow the sharing with other patent offices of information relating to unpublished patent applications in order to improve international co-operation and reduce backlogs. The second is to allow patent marking to be done by using a website address rather than having to list all the relevant patents on the product itself. The other changes relate to procedural matters; the main change is clarifying when it is necessary to pay renewal fees on European patents that were revoked but restored on appeal. Responses were requested by 4 February 2013. In April 2013, the IPO published the government's response to the consultation. The responses on the proposed amendments to the Patents Act were generally favourable and the government proposed to make the appropriate amendments. For more information, see Legal update, IPO publishes results of consultations on changes to Patents Act and opinions service (www.practicallaw.com/3-527-2046). On 8 May 2013, an Intellectual Property Bill was announced in the Queen's Speech, including provisions to allow the UK to share information on unpublished patent applications with other patent offices in order to help clear application backlogs and speed up clearance times. For more information, see Legal update, Intellectual Property Bill announced in Queen's Speech (www.practicallaw.com/7-528-0997). On 10 May 2013, the Intellectual Property Bill was published. In relation to patents, the Bill amends the Patents Act to allow patent proprietors to mark their products either with specific patent numbers or a relevant internet link which takes the user to a website detailing the numbers; provides for the sharing of information with overseas patent offices; and makes various other minor amendments. The Bill also provides for extension of the IPO's opinions service following a separate consultation (see Consultation on the Patent Opinions Service below) and for the UK to implement the Unitary Patent Court Agreement (see Future EU patent policy below). For more information on the Bill, see Legal update, Intellectual Property Bill published (www.practicallaw.com/1-528-6105). |
On 12 June 2012, the IPO issued a consultation on proposals to extend the opinion service provided under section 74A of the Patents Act 1977. The proposals include expanding the questions relating to validity that can be the subject of an opinion to cover all the grounds for revocation of a patent; offering opinions as to whether a supplementary protection certificate is valid or is infringed; and giving the IPO the power to initiate a revocation action against a patent that an opinion concludes is invalid. The consultation closed on 4 September 2012. See Legal update, IPO consults on extension of its opinion service (www.practicallaw.com/8-519-9548). In April 2013, the IPO published the government's response to the consultation. Responses to the proposal to expand the scope of the IPO opinions service were favourable and the government proposed to legislate to enable that expansion. For more information, see Legal update, IPO publishes results of consultations on changes to Patents Act and opinions service (www.practicallaw.com/3-527-2046). On 10 May 2013, the Intellectual Property Bill was published. Among other amendments to the Patents Act, the Bill replaces the specified limited grounds on which the IPO may give an opinion with a broader power to set out those grounds in the rules; provides for opinions to be requested from the IPO on the validity or infringement of a Supplementary Protection Certificate; and extends the Comptroller-General's powers to revoke a patent on his own initiative, if an opinion concludes that it is invalid because the invention covered was either known or obvious. For more information on the Bill, see Legal update, Intellectual Property Bill published (www.practicallaw.com/1-528-6105). | |
IPO consultation on the research exemption to patent infringement IPO summary of consultation responses The research and Bolar exceptions: government response to formal consultation | On 7 July 2008, the UK Intellectual Property Office launched a consultation seeking evidence on the effect of the current research exemption to patent infringement under section 60(5) of the Patent Act 1977, and requesting views on whether it needs clarification. The exception, which permits certain uses of a patented invention for the purpose of experimentation, was criticised in the Gowers Review. Responses were due by 7 November 2008 (see Legal update, IPO launches consultation on research exemption (www.practicallaw.com/1-382-5357)). On 20 July 2009, the IPO published a summary of responses to its consultation. The majority of respondents had believed that clarification of the exemption, by legislative amendments, clearer guidance, or a combination of the two, was required. In particular, the pharmaceutical and plant-breeding sectors had specific problems with the current law. However, there was no evidence that the exemption was restricting research in the UK (see Legal update, IPO publishes results of consultation on research exemption (www.practicallaw.com/7-386-8155)). On 6 June 2011, the Intellectual Property Office (IPO) consulted on the issue of patent infringement in relation to clinical trials of pharmaceuticals (see Legal update, IPO consults on effects of infringement risk on pharmaceutical industry trials (www.practicallaw.com/6-506-3881)). On 19 November 2011, the IPO published the results of the consultation. The conclusion was that the current wording of the legislation, which exempts certain acts from patent infringement, did not provide enough protection to avoid the possibility that some clinical trials with innovative drugs may lead to the threat of legal action. See Legal update, IPO publishes result of consultation on infringement in pharmaceutical trials (www.practicallaw.com/2-514-6968). On 24 October 2012, the IPO published a consultation on proposals to amend the Patents Act 1977 to provide a broader exception to patent infringement for activities related to regulatory approval of pharmaceuticals, in particular innovative drugs which do not benefit from an exception under European legislation for generic drugs. Responses were invited by 19 December 2012 from any interested party. For more information, see Legal update, IPO consultation on extending exception to patent infringement for drug approval activities (www.practicallaw.com/6-522-0857). On 27 February 2013, the IPO published the results of the consultation. The vast majority of responses agreed that section 60(5) of the Patents Act should be changed to make activities which are carried out when preparing or running clinical or field trials using innovative drugs exempt from infringement. For more information, see Legal update, IPO publishes results of consultation on extending exception to patent infringement for drug approval activities (www.practicallaw.com/8-524-5625). |
IPO consultation on reform of the Patent Cooperation Treaty system | On 20 July 2009, the Intellectual Property Office (IPO) launched an informal consultation on ideas for the reform of the Patent Cooperation Treaty (PCT) system. The IPO says that there is consensus that the PCT system is often slow and inefficient, and that there is a lack of confidence in the quality of the work performed in the international phase, which often leads to unnecessarily duplication in the national phase. The IPO has been taking forward a program of work to identify ways to improve the PCT system. The deadline for responses to its ideas was 21 September 2009 (see Legal update, IPO launches consultation on reform of the PCT system (www.practicallaw.com/8-386-7985)). |
On 24 July 2008, the UK Intellectual Property Office published a list of substantive patent law harmonisation policy intentions with an accompanying discussion guide. The IPO invited comments and feedback from interested parties in advance of a consultation meeting on 8 September 2008 (see Legal update, IPO consultation on substantive patent law harmonisation (www.practicallaw.com/0-382-7427)). | |
On 17 April 2013, the Intellectual Property Office (IPO) launched a consultation on accelerated patent processing at the IPO. Responses were requested by 12 June 2013. The IPO has stated that implementing the proposal will require amendments to patents legislation, in particular, the Patents (Fees) Rules 2007. | |
Consultation on European follow-up study into patent litigation insurance | The follow-up study commissioned by the European Commission to the 2003 study on the introduction of a patent litigation insurance scheme in Europe, which evaluated in detail the feasibility of a small number of alternative schemes of patent litigation insurance, was published on 3 October 2006 (see also the appendices to the final report). The Commission sought views from interested parties on this follow-up study; the deadline for responses was 31 December 2006. (See Legal update, Consultation on European follow-up study into litigation insurance in patent cases (www.practicallaw.com/5-205-0156).) In a Communication on enhancing the European patent system published in March 2007, the European Commission indicated that, although a system of patent litigation insurance had been considered, the preliminary results of the consultation made it unlikely that a mandatory system would be recommended (see Legal update, European Commission issues Communication on enhancing the European patent system (www.practicallaw.com/6-259-4992)). |
Consultation on the inventive-step requirement in UK patent law and practice | The Patent Office launched the consultation on 7 February 2006. The deadline for responses was 31 May 2006. (See Legal update, Patent Office consults on inventive-step requirement (www.practicallaw.com/0-201-9601).) The response document to the consultation was published on 1 August 2006. (see Legal update, Results of Patent Office consultation on inventive-step requirement (www.practicallaw.com/4-203-9305)) and the Patent Office published a final report on the consultation in February 2007. The main conclusions were that there was no need to make any changes to the current law and practice, but that it was important to ensure consistency and to provide examiners with continuing training in technological developments and searching techniques (see Legal update, Patent Office publishes final report on inventive-step consultation (www.practicallaw.com/8-217-5961). |
Draft Regime for regulating use of genetic resources; Draft Recommendation on Certification of origin; and Draft Recommendation on Prior informed consent and mutually agreed terms | The Convention on Biodiversity (CBD) published the draft proposals for an international regime regulating the use of genetic materials on 3 February 2006, which was due to be considered at the following meeting of the CBD at the end of March 2006 (see Legal update, Convention on Biodiversity draft regime for regulating use of genetic resources (www.practicallaw.com/8-201-9602)). |
Future EU patent policy European Commission consultation on future patent policy in Europe European Commission Communication on enhancing the patent system in Europe | In January 2006, the European Commission consulted on future EU patent policy, including an EU-wide patent (see Proposed EU Regulation on the Community patent, below) and centralised patent litigation (see Draft European Patent Litigation Agreement, below). (See Legal update, European Commission consults on future patent policy (www.practicallaw.com/5-201-8562).) On 3 July 2006, the Commission published the preliminary findings of the consultation (see Legal update, European Commission publishes preliminary findings from consultation on patent policy (www.practicallaw.com/9-203-2523)). In April 2007, the Commission released a Communication on enhancing the European patent system (the Communication) which set out the problems of the present system, and discussed the results of the consultation on the future of patent policy in the EU. The Communication made proposals in respect of the Community patent and an integrated jurisdictional system for patents (see Legal update, European Commission issues Communication on enhancing the European patent system (www.practicallaw.com/6-259-4992)). In October 2007, the EU Presidency put forward proposals for a unified system in the EU for litigation of European patents, based on the results of the deliberations of the Council Working Group following the Communication. See Legal update, EU Presidency proposes integrated patent litigation system (www.practicallaw.com/8-378-7804). On 15 November 2007, the EU Presidency issued a progress report on the discussions of the working party on patents (see Legal update, EU progress report on European patent system). (www.practicallaw.com/6-379-8318) On 11 January 2008, the EU Presidency published a working document on European patent litigation, a follow-up to the proposals put forward by the Presidency in November 2007 (see Legal update, EU Presidency publishes working document on patent jurisdiction (www.practicallaw.com/2-380-3963)). On 20 March 2009, the European Commission sent a recommendation to the European Council requesting negotiating directives for an agreement to set up a unified patent litigation system (UPLS) for European patents, and, if and when a Community patent system was agreed, Community patents (see Legal update, European Commission recommends proceeding to negotiate unified patent litigation system (www.practicallaw.com/9-385-4039)). On 4 December 2009, the European Council adopted conclusions on proposals for a UPLS and the creation of the EU patent. The main proposals regarding the UPLS related to establishment of a European and EU Patents Court to provide a unified system for patent litigation across the EU. With regard to the proposals for an EU Patent Regulation (formerly referred to as a Community Patent), the translation arrangements were to be the subject of a separate regulation, to be agreed unanimously, which would come into effect simultaneously with the EU Patent Regulation. See Legal update, EU Council adopts conclusions on enhanced European patent system (www.practicallaw.com/8-500-9483), and see Proposed EU Regulation on the Community patent, below for more information on the progress regarding the EU patent. On 2 July 2010, the Advocates General delivered their statement of position on the compatibility of the proposed agreement to set up a UPLS for Europe with the EU treaties, following a request for an opinion from the European Council to the ECJ. They concluded that the agreement was not, in its present form, compatible with the EU treaties. See Legal update, Advocates General deliver opinion on compatibility of proposed Unified Patent Litigation System agreement with EU treaties (www.practicallaw.com/7-503-1427). On 8 March 2011, the ECJ also held that the agreement to set up the UPLS was not compatible with the EU treaties (see Legal update, European Commission comments on ECJ decision on UPLS (www.practicallaw.com/1-505-0819)). The European Commission has pointed out that the decision does not affect the move to enhanced co-operation in the area of unitary patent protection (see Proposed EU Regulation on the Community patent, below), since the UPLS is separate from that (see Legal update, European Commission comments on ECJ decision on UPLS (www.practicallaw.com/1-505-0819)). The Commission indicated in a new strategy for intellectual property rights published on 25 May 2011, that work on specific jurisdictional arrangements is currently being taken forward, taking into account the recent ECJ opinion on the compatibility of the draft agreement for a UPLS with the EU treaties (see Legal update, European Commission publishes new strategy for IP rights (www.practicallaw.com/0-506-2323)). On 26 May 2011, the EU Presidency put forward proposals for a unitary patent litigation system to meet ECJ objections to such a system (see Legal update, Recent developments on EU unitary patent protection (www.practicallaw.com/3-506-3707)). These proposals were discussed at the meeting of the EU Competitiveness Council on 30 May 2011. In September 2011, the EU Presidency published draft amendments to proposals for an international agreement for a UPLS intended to deal with the issues raised by the ECJ and with comments from member states regarding the UPLS (see Legal update, Revised draft agreement on unified European patent court published (www.practicallaw.com/6-509-0342)). On 22 November 2011 the Legal Affairs Committee of the European Parliament approved a mandate to open formal negotiations with national governments to agree to create unitary patent. The European Parliament's rapporteurs, who will negotiate with national governments, will treat the three proposals (unitary patent, language regime and unified patent court) as a package, meaning none will be agreed without the others. On 24 November 2011 the EU Presidency published a Draft Agreement on the creation of a Unified Patent Court - Guidance for future work. This envisaged finalisation of the agreement on the Unified Patent Court by 22 December 2011. See Legal update, Recent EU unified patent developments (www.practicallaw.com/6-514-1290). However, as at 22 December 2011, not everything had been finally agreed, and negotiations were expected to continue into 2012. On 29 June 2012, the European Council agreed on the location of the proposed Unified European Patent Court and to recommend that Articles 6 to 8 of the proposed Unitary Patent Regulation (on references to the ECJ) be deleted. However, on 2 July 2012, the European Parliament decided to postpone the vote on the Council proposals as the Parliamentary rapporteurs considered the recommendation would "emasculate the proposals". See Legal update, European Parliament postpones vote on unitary EU patent (www.practicallaw.com/0-520-1994). On 27 September 2012, the EU Presidency published a new draft of the Unified Patent Court agreement (see Legal Update, EU Presidency publishes updated draft agreement for Unified Patent Court (www.practicallaw.com/9-521-6868)). On 12 October 2012, the EU Presidency published a revised version of the draft (see Legal update, EU Presidency publishes updated draft agreement for Unified Patent Court (www.practicallaw.com/9-521-6868)). On 14 November 2012, the EU Presidency published another revised version of the draft (see Legal update, Latest draft of UPC agreement and statute published (www.practicallaw.com/0-522-5075)). On 11 December 2012, the European Parliament, in three separate votes, gave general approval to the three components of the EU Patent Package. The first of these is a proposed regulation on the creation of unitary patent protection, which had its first reading and was approved with some amendments. The second item was the proposed regulation on translation arrangements; in its legislative resolution the Parliament proposed extensive amendments. The final item related to setting up a jurisdictional system for patent disputes, for which the Parliament passed a resolution as to its requirements without consideration of any particular text. For more information, see Legal update, European Parliament approves Unitary Patent Package (www.practicallaw.com/0-523-1156). On 17 December 2012, at a meeting of the Environment Council, a decision was taken without a vote to adopt two regulations with a view to implementing enhanced co-operation in the area of the creation of unitary patent protection and its translation arrangements. This follows the approval of the European Parliament for these regulations. In respect of the third item on the patent package, the Unified Patent Court (UPC), it was stated that in the first semester of 2013, a diplomatic conference will be held for the signing of the UPC Agreement by the participating member states. The two regulations will apply from the date of entry into force of the Agreement. The intention is that all the necessary preparatory work shall be carried out in a timely manner so as to enable the first registration of a European patent title with unitary effect in spring 2014. For more information, see Legal update, Council adopts two unitary patent regulations (www.practicallaw.com/6-523-2271). On 11 January 2013, the final version of the Agreement on a Unified Patent Court and related Statute of the Unified Patent Court was published, see Legal update, Final version of unified patent court agreement published (www.practicallaw.com/5-523-5958). On 19 February 2013, twenty-four member states signed the Agreement at an EU Council meeting (see Legal update, Unified Patent Court Agreement signed (www.practicallaw.com/7-524-3330)). The Agreement will come into force on the first day of the fourth month after 13 states, including the three states which had the highest number of European patents (in effect Germany, UK and France), have ratified the Agreement, or 1 January 2014, whichever is the later. On 8 May 2013, an Intellectual Property Bill was announced in the Queen's Speech. The Bill will provide for the establishment of part of the central division of the Unified Patent Court of First Instance in London and local divisions within the UK. For more information, see Legal update, Intellectual Property Bill announced in Queen's Speech (www.practicallaw.com/7-528-0997). |
Proposed EC Directive on patentability of computer-implemented inventions | On 6 July 2005, the European Parliament voted to reject the draft directive. The European Commission has said that it will not prepare a new version. (See Legal update, European Parliament votes to reject software patents directive (www.practicallaw.com/6-200-9859).) |
On 20 November 2003, the Working Party on Litigation, which was set up at the Paris Intergovernmental Conference of the European Patent Convention contracting states on 25 June 1999, agreed on the draft EPLA, along with a draft Statute of the European Patent Court. At the same time, the Working Party announced in a declaration that the establishment of the new system would be held up owing to the work being done by the EU on a Community patent (see Proposed EU Regulation on the Community patent, below) with a jurisdictional system of its own. Despite agreeing general principles in March 2003, the EU's Competitiveness Council failed to reach agreement on the Community patent system at a number of meetings held in 2003 and 2004 (see Legal update, Final attempt to salvage Community patent fails (www.practicallaw.com/2-102-7984)). The European Commission has since issued a consultation on future patent policy in Europe, including questions relating to the EPLA, on 16 January 2006 (see Future EU patent policy, above).) The European Patent Office, acting as secretariat to the Working Party, published an impact assessment on the proposed EPLA on 27 February 2006 (see Legal update, Impact assessment for draft European Patent Litigation Agreement published (www.practicallaw.com/5-202-0560)). In preparation for the establishment of a European Patent Court under the EPLA, a group of patent judges from various European jurisdictions approved on 4 November 2006 a resolution setting out proposed principles for the procedure of such a court (see Legal update, European patent judges agree procedure principles for EPLA court (www.practicallaw.com/9-206-0021)). In March 2007, the European Commission published a Communication on enhancing the European patent system which set out various proposals aimed at providing a compromise between the draft EPLA and the Community patent, including the creation of a unified and patent litigation system (UPLS) with competence for litigation on European patents and future Community patents, based on the EPLA model but allowing for harmonious integration in the Community jurisdiction (see Legal update, European Commission issues Communication on enhancing the European patent system (www.practicallaw.com/6-259-4992) for more details). For further information on developments regarding proposals to create the UPLS , see Future EU patent policy. | |
In 2002, WIPO and the Trade-Related Aspects of Intellectual Property (TRIPS) Council of the World Trade Organisation (WTO) began discussing, under the Convention on Biological Diversity (CDB), ways of allowing countries to keep track, at a global level, of all patent applications claiming inventions using "genetic resources". The EC agreed to examine a global disclosure system in 2002, and it issued a proposal to WIPO on 16 December 2004. (See Legal update, EC proposes system for disclosure of genetic resources (www.practicallaw.com/4-200-3146).) A number of developing countries (India, Brazil, Pakistan, Peru, Thailand and Tanzania) published their proposal for a system of disclosure, which was more stringent than that proposed by the EC, on 31 May 2006 (see Legal update, Developing countries propose system for disclosure of genetic resources (www.practicallaw.com/2-203-0688)). Japan and Norway have made communications to the TRIPS Council regarding the system of disclosure. Norway's proposal, dated 13 June 2006, in part supports the developing countries' proposal (see above). However, Japan's proposal, dated 9 June 2006, argued that no changes to the patent regime were required to comply with the CBD. (See Legal update, Further proposals for disclosure of origins of genetic resources (www.practicallaw.com/6-203-1351).) | |
In August 2000, the European Commission published its draft Proposal for an EU Regulation on the Community patent. However, the EU's Competitiveness Council meeting held on 17-18 May 2004 failed to reach agreement on the outstanding issues relating to the translation of the claims of a Community Patent and their legal effect (see Legal update, Final attempt to salvage Community patent fails (www.practicallaw.com/A40697); and European Commission, Community patent). The Commission later issued a consultation on future patent policy in Europe, including questions relating to the Community patent, on 16 January 2006 (see Consultation on future patent policy in Europe, above).) The EU Internal Market Commissioner gave a speech on 21 November 2006 in which he said that, in his opinion, the Community patent and the EPLA (see Draft European Patent Litigation Agreement above) were not mutually exclusive, and the aim should be to ensure that the two initiatives eventually converge (see Legal update, EU Internal Market Commissioner speech on proposed reform of IP (www.practicallaw.com/9-206-2100)). Further, in March 2007, the European Commission published a Communication on enhancing the European patent system which set out various proposals aimed at providing a compromise between the draft EPLA and the Community patent (see Legal update, European Commission issues Communication on enhancing the European patent system (www.practicallaw.com/6-259-4992) for more details). On 28 February 2008, the EU presidency published a working paper in an attempt to revive proposals for a European patent system. The paper included proposals to overcome some of the previous problems, namely translation of claims and the distribution of renewal fees to national patent offices (see Legal update, Slovenian EU presidency publishes Community patent proposal on language and fees (www.practicallaw.com/1-380-9767)). On 20 March 2009, the European Commission sent a recommendation to the European Council requesting negotiating directives for an agreement to set up a unified patent litigation system for European patents (UPLS) (see Future EU patent policy above), and if and when a Community patent system is agreed, Community patents. For more information, see Legal update, European Commission recommends proceeding to negotiate unified patent litigation system (www.practicallaw.com/9-385-4039). On 4 December 2009, the Council of the European Union adopted conclusions on proposals for a UPLS and for the creation of the EU patent. The main proposals relate to establishment of a European and EU Patents Court to provide a UPLS across the EU (see Future EU patent policy (above)). With regard to the proposals for an EU Patent Regulation (formerly referred to as a Community Patent), the translation arrangements were to be the subject of a separate regulation, to be agreed unanimously, which would come into effect simultaneously with the Patent Regulation (see Future EU patent policy (above)). See Legal update, EU Council adopts conclusions on enhanced European patent system (www.practicallaw.com/8-500-9483) for more information. On 1 July 2010, the European Commission issued a proposal for a Council Regulation on the translation arrangements for the EU patent in an attempt to revive previously stalled proposals for a European patent system (see Legal update, European Commission proposes translation arrangements for EU Patent (www.practicallaw.com/6-502-7077)). In October 2010, a meeting of the EU Competitiveness Council failed to agree on the European Commission's proposal for a language regime for a future EU patent system. See Legal update, Proposal for language regime for EU patent fails to achieve agreement (www.practicallaw.com/0-503-6206). On 14 December 2010, the European Commission presented a proposal for initiating an enhanced co-operation regime for a unified EU patent, following the failure to reach the unanimous agreement required to adopt the Commission's proposal for an EU patent language regime in October 2010 (see above) and a request from a majority of the EU Competitiveness Council. The unitary patent, which would be valid in all participating member states, would be examined and granted in one of the existing official languages of the European Patent Office (EPO). Applicants from any EU member state whose language was not English, French or German will be able to file applications in any other official EU language. The costs for translation into one of the official languages of the EPO would be eligible for compensation. See Legal update, European Commission proposal for enhanced co-operation regime for unified EU patent system (www.practicallaw.com/1-504-2693). Following the acceptance by 23 EU member states of the European Commission's proposal for an enhanced co-operation procedure to establish a unified EU patent system, the European Parliament approved the Commission's proposal in February 2011, just two months after the procedure was proposed. See Legal update, European Parliament approves enhanced co-operation regime for Community patent (www.practicallaw.com/6-504-8126) for more information. On 10 March 2011, the EU Council adopted the proposal for initiating an enhanced co-operation regime for a unified EU patent (see Legal update, EU Council approves draft proposal for enhanced co-operation regime for Community patent (www.practicallaw.com/0-505-0462)). The ECJ's decision of 8 March 2011 that the proposed UPLS is incompatible with the EU treaties (see Future EU patent policy (above)) does not affect this, since the enhanced co-operation is separate from the UPLS. On 13 April 2011, the Commission published two proposals for regulations. The first of these is for implementing enhanced co-operation in the area of the creation of unitary patent protection, and the second deals with the translation arrangements for this unitary patent scheme. Unitary patent protection is provided through the existing arrangements for European patents granted through the European Patent Office. The translation arrangements are essentially those currently in use for European patents, except that there would be no need for the proprietor of a unitary patent to have the granted patent translated into any other language unless the patent were to be asserted against an infringer, in which case a translation into the official language of the member state in which the alleged infringement took place or where the defendant was domiciled must be provided. See Legal update, European Commission publishes proposed regulations for Community patent (www.practicallaw.com/4-505-7051) for more information. On 26 May 2011, the EU Presidency proposed some amendments to proposals put forward by the European Commission for implementing enhanced co-operation in the area of unitary patent protection, in order to meet concerns of some member states (see Legal update, Recent developments on EU unitary patent protection (www.practicallaw.com/3-506-3707)). These proposals were discussed at the meeting of the EU Competitiveness Council on 30 May 2011. On 7 June 2011, it was announced that Italy and Spain have filed a complaint with the ECJ against the planned enhanced co-operation regime for a unitary EU patent (see Legal update, Italy and Spain complain to ECJ about plan for unitary EU patent (www.practicallaw.com/9-506-4025)). On 27 June 2011, after minor revisions following discussions by a working group, the proposed regulations for implementing an enhanced co-operation regime for a unified EU patent were approved by the Competitiveness Council (see Legal Update, Proposed regulations for Community patent approved by Council (www.practicallaw.com/0-506-6769)). The proposed regulations will now go to the European Parliament for approval. Regarding the UPLS, in September 2011, the EU Presidency published draft amendments to proposals for an international agreement for a UPLS intended to deal with the issues raised by the ECJ and with comments from member states (see Future EU patent policy (above)). On 22 November 2011 the Legal Affairs Committee of the European Parliament approved a mandate to open formal negotiations with national governments to agree to create unitary patent. The European Parliament's rapporteurs, who will negotiate with national governments, will treat the three proposals (unitary patent, language regime and unified patent court) as a package, meaning none will be agreed without the others. On 24 November 2011 the EU Presidency published a Draft Agreement on the creation of a Unified Patent Court - Guidance for future work. This envisaged finalisation of the agreement on the Unified Patent Court by 22 December 2011. See Legal update, Recent EU unified patent developments (www.practicallaw.com/6-514-1290). However, as at 22 December 2011, not everything had been finally agreed, and negotiations are expected to continue into 2012. On 29 June 2012, the European Council agreed on the location of the proposed Unified European Patent Court and to recommend that Articles 6 to 8 of the proposed Unitary Patent Regulation (on references to the ECJ) be deleted. However, on 2 July 2012, the European Parliament decided to postpone the vote on the Council proposals as the Parliamentary rapporteurs considered the recommendation would "emasculate the proposals". See Legal update, European Parliament postpones vote on unitary EU patent (www.practicallaw.com/0-520-1994). On 11 December 2012, the European Parliament, in three separate votes, gave general approval to the three components of the EU Patent Package. The first of these is a proposed regulation on the creation of unitary patent protection, which had its first reading and was approved with some amendments. The second item was the proposed regulation on translation arrangements; in its legislative resolution the Parliament proposed extensive amendments. The final item related to setting up a jurisdictional system for patent disputes, for which the Parliament passed a resolution as to its requirements without consideration of any particular text. For more information, see Legal update, European Parliament approves Unitary Patent Package (www.practicallaw.com/0-523-1156). Also on 11 December 2012, Advocate General Bot gave his opinion on the challenges from Spain and Italy to the Council decision to use the enhanced cooperation procedure in the creation of unitary patent protection for the EU. After setting out the principle that the separation of powers gave the ECJ only a limited power to review legislative decisions, he gave reasons for his recommendation that the Court should reject all the arguments put forward by Spain and Italy as to why the Council decision was unlawful. In particular, the decision about whether the conditions for establishing an enhanced cooperation had been satisfied was in the discretion of the Council and could only be overturned if the Council had made a manifest error of assessment. The actual grounds for the Spanish and Italian objections were the proposed language regime; an individual act adopted under enhanced cooperation could be challenged separately. For more information, see Legal update, AG gives opinion on Spanish and Italian challenges to enhanced cooperation for Community patent (www.practicallaw.com/3-523-1070). On 16 April 2013, the ECJ rejected all the legal challenges made by Spain and Italy in agreement with the Advocate General's opinion. For more information, see Legal update, ECJ rejects challenges by Spain and Italy to unitary patent enhanced co-operation (www.practicallaw.com/8-525-8694). On 17 December 2012, at a meeting of the Environment Council, a decision was taken without a vote to adopt two regulations with a view to implementing enhanced co-operation in the area of the creation of unitary patent protection and its translation arrangements. This follows the approval of the European Parliament for these regulations. In respect of the third item on the patent package, the Unified Patent Court (UPC), it was stated that in the first semester of 2013, a diplomatic conference will be held for the signing of the UPC Agreement by the participating member states. The two regulations will apply from the date of entry into force of the Agreement. The intention is that all the necessary preparatory work shall be carried out in a timely manner so as to enable the first registration of a European patent title with unitary effect in spring 2014. For more information, see Legal update, Council adopts two unitary patent regulations (www.practicallaw.com/6-523-2271). On 11 January 2013, the final version of the Agreement on a Unified Patent Court and related Statute of the Unified Patent Court was published, see Legal update, Final version of unified patent court agreement published (www.practicallaw.com/5-523-5958). On 19 February 2013, twenty-four member states signed the Agreement at an EU Council meeting (see Legal update, Unified Patent Court Agreement signed (www.practicallaw.com/7-524-3330)). The Agreement will come into force on the first day of the fourth month after 13 states, including the three states which had the highest number of European patents (in effect Germany, UK and France), have ratified the Agreement, or 1 January 2014, whichever is the later. On 8 May 2013, an Intellectual Property Bill was announced in the Queen's Speech. The Bill will provide for the establishment of part of the central division of the Unified Patent Court of First Instance in London and local divisions within the UK. For more information, see Legal update, Intellectual Property Bill announced in Queen's Speech (www.practicallaw.com/7-528-0997). |
See Legislation in force: Patents (www.practicallaw.com/7-107-4973) for legislation now in force.
Item | Status |
Council regulations establishing Joint Technology Initiatives on Innovative Medicines (IMI) and Embedded Computing Systems (ARTEMIS). | On 20 December 2007, the European Council adopted two regulations establishing Joint Technology Initiatives (JTIs) on Innovative Medicines (IMI) and Embedded Computing Systems (ARTEMIS). The JTIs are established as Community bodies with the aim of supporting European research and development activities through public-private partnerships. They will be funded through the contributions of their members, including the European Community and participating member states. The activities will be funded on the basis of calls initiated by the JTIs, in accordance with annual implementation plans. The first calls for proposals were expected to be issued early in 2008 (see Legal Update, European Council adopts regulations establishing Joint Technology Initiatives (www.practicallaw.com/3-380-7767)). |
The Private Members' Bill was introduced in the House of Commons on 7 February 2006 (see Legal update, Private Members' Bill on procurement of innovative technologies and research (www.practicallaw.com/1-201-9568)). The Bill was withdrawn on 19 October 2006 (see Legal update, Private Members' Bill on procurement of technologies and research withdrawn (www.practicallaw.com/1-205-5448)). | |
European Commission's proposal for a regulation establishing the European Institute of Technology | The European Commission adopted on 18 October 2006 a proposal to establish a European Institute of Technology (EIT) to pool European talent and offer training and research facilities. Establishing the EIT, which will be made up of a governing board and joint-ventures of organisations representing universities, research organisations and businesses, was part of the Commission's innovation strategy (see Legal update, European Commission tables innovation strategy (www.practicallaw.com/9-204-3084)) For more information, see European Commission, European Institute of Technology and Legal update, European Commission adopts proposal to establish European Institute of Technology (www.practicallaw.com/0-205-5062). |
The European Commission carried out the consultation between 12 May 2006 and 31 July 2006. On 1 September 2006, the Commission published a draft report summarising the outcomes of the consultation. For a summary of the key points from the draft report, see Legal update, European Commission publishes draft report on exploitation of publicly-funded R&D (www.practicallaw.com/9-204-1438). |
Item | Status |
On 22 March 2013, the Intellectual Property Office launched a consultation on proposals for a fast-track, low-cost procedure for oppositions on relative grounds under sections 5(1) and (2) of the Trade Marks Act 1994. The proposed procedure would involve a reduced opposition fee and would require the opponent to file evidence of use in respect of any cited marks that have been registered for five years or longer. No opponent would be able to cite more than two earlier marks. Consultation responses were requested by 17 May 2013. For more information, see Legal update, IPO consults on fast-track trade mark opposition procedure (www.practicallaw.com/5-525-4065). | |
Comparative Advertising Directive | On 27 November 2012, the European Commission published a Communication detailing ways in which it intends to amend the Directive on misleading and comparative advertising (2006/114/EC). The proposed changes relate primarily to misleading marketing practices, but the Commission also plans to look at the scope of the definition of comparative advertising in the light of ECJ jurisprudence (see Legal update, European Commission to review Comparative Advertising Directive (www.practicallaw.com/4-522-8425)). |
Revision of the CTM Regulation (207/2009/EC) (codified version) and the Trade Marks Directive (2008/95/EC) European Commission intellectual property rights strategy European Commission proposals for changes to the trade mark system | In its 2011 work programme published on 4 November 2010, the European Commission indicated that in 2011 it intends to revise the CTM Regulation (207/2009/EC) (codified version) and the Trade Marks Directive (2008/95/EC), with the aim of upgrading, streamlining and modernising them, where appropriate, and to establish an enhanced cooperation between the OHIM and national trade mark offices (NTMOs) to make the trade mark system in Europe, as a whole, more effective, efficient and consistent (see Legal update, European Commission publishes 2011 work programme (www.practicallaw.com/8-503-8065)). This follows the EU Competitiveness Council's May 2010 call on the Commission to present proposals for the revision of the CTM Regulation and the Trade Marks Directive, to include, among other things, the introduction of a specific provision to define the framework for co-operation between OHIM and NTMOs, and measures to make the Trade Marks Directive more consistent with the CTM Regulation (see Legal update, European Council adopts conclusions on future revision of EU trade mark system (www.practicallaw.com/3-502-3882)). The Commission confirmed in a new strategy for intellectual property rights published on 25 May 2011 that the Commission will present proposals to modernise the CTM Regulation and the Trade Marks Directive in the second half of 2011, and also gave details of the areas the review would focus on (see Legal update, European Commission publishes new strategy for IP rights (www.practicallaw.com/0-506-2323)). In its 2012 work programme, the Commission said that it would modernise the CTM Regulation and the Trade Marks Directive, having carried this commitment over from the 2011 work programme (see Legal update, European Commission 2012 work programme: IP, IT and communications (www.practicallaw.com/3-512-9671)). On 27 March 2013, the Commission published its proposed reforms, involving amendments to the Trade Marks Directive and the CTM Regulation. Most of the proposed changes are designed to iron out inconsistencies between the treatment of pan-European marks and national marks and between the practices and procedures of OHIM and NTMOs, and to make clarifications arising from case law since the Directive and the Regulation came into effect. However, some of the proposals would change the substance of the law. The Commission says that it hopes to adopt the proposals by spring 2014, and that member states will then have two years to transpose the new rules of the Directive into national law. For more information, see Legal update, European Commission publishes proposals for reform of trade mark law (www.practicallaw.com/9-525-4775). |
European Commission proposals for changes to the trade mark system | The European Commission adopted the Communication on 22 December 2006, accompanied by a press release, stating its intention to put forward proposals to amend the EC Trade Mark Fees Regulation (2869/95/EEC) to provide for a regular review of CTM fees in order to ensure a reasonable balance in the OHIM budget (see Legal update, European Commission proposes regular review of Community trade mark fees (www.practicallaw.com/0-209-2955)). On 22 May 2007, the EU Competitiveness Council recommended an immediate reduction in the fees charged by OHIM, particularly for Community trade mark applications, registrations and renewals. The Council also recommended that a detailed study on the overall functioning of the CTM system be carried out, which should include an evaluation of the existing framework of cooperation between OHIM and national trade mark offices (see Legal update, European Council calls for CTM fee reduction (www.practicallaw.com/7-362-5954) for more details). On 27 March 2013, the Commission published its proposed reforms, including amendments to the Trade Mark Fees Regulation. Although, no detail was given of any proposed amendments to the text of the Regulation, the Commission sets out a comparison table showing proposed fees alongside current ones in its FAQs on the modernisation package. For more information, see Legal update, European Commission publishes proposals for reform of trade mark law (www.practicallaw.com/9-525-4775). |
Consultation on reclassification of "legal services" for Nice trade mark registrations | The Patent Office requested comments on a change to the Nice trade mark classification on 31 March 2006. The deadline for responses was 30 June 2006. Following the results of the consultation, any change will be implemented by revision to the Trade Marks Rules 2000 (SI 2000/136). (See Legal update, Patent Office seeks comments on reclassification of legal services for trade mark registrations (www.practicallaw.com/8-202-1940).) |
See Legislation in force: Trade marks (www.practicallaw.com/7-107-4973) for legislation now in force.
