BriffaWay – What has the EU ever done for IP? Chapter 1

As a law student in the mid 1980’s I well remember my pen hovering over the list of module choices and selecting EEC law and competition. It promised a taste of things continental and potentially two topics for one choice. This is a case where a closer inspection of the tin would have been a good idea. First up an introduction to the Common Agricultural Policy which was dull and more political than legal. We learnt that its purpose is to guarantee minimum levels of production by subsidies farmers to produce certain things. Even then the way in which the CAP worked seemed deeply dysfunctional leading to the creation of cheese mountains and milk lakes. Where it had merit it was about as far removed from the concept of competition as it could possibly be. Just at the point at which I was wondering whether it was too late to switch to the more topical ‘Law of Industrial and Labour Relations’ where it was rumoured that the Professor was organising exchange visits with striking Welsh miners we moved onto aspects of the Treaty of Rome designed to create a level playing field for business, including included dismantling customs tariffs to allow free movement of goods and a common rule book. There would be a vast and fair market where the barriers to trade would be removed and which would bring prosperity to all.

The remainder of the course focused on the law-making bodies of the European Economic Community and the types of legislation that emanated from its institutions. We were to be directed and regulated by Europe. Confusingly a regulation had so called ‘direct effect’ and would be adopted by the UK word for word into our own domestic legislation. Think curvy bananas or the General Date Protection Regulation. A Directive, oddly, was way more flexible – it would set out the principles to be incorporated into the law and leave the wording to each member state. In our system, Directives suit us better than Regulation where our common law leaves judges to interpret legislation to bring about what they believe to be the correct result. Then right at the end we learn there is a rule that is so important and fundamental that frankly it should have been written up on the chalk board at the beginning of each lecture because it is the thing that has created so much unhappiness and the thing that has hugely contributed to the situation we now find ourselves in. It is this? That the law of the European Economic Community or the EU as it has been renamed is superior to and overrides our own domestic law.

After University I thought very little further on the machinations of the EEC for a very long time. It was effectively parked. When I qualified in 1987, the Copyright Designs and Patents Act 1988 was still making its way through our law-making process and here legal debate was focused on that.  We were looking forward to a major piece of legislation it the field of IP which would update our copyright laws and create a new form of copyright called Design Right. For years, until the early 2000’s and the introduction of the customs union we really only concerned ourselves with laws made here and without reference to Europe. Then things changed and as part and parcel of creating a level playing field we started the journey of so called harmonisation of laws. Then the intellectual property promised land included common rules for trade marks and designs that would apply across all member states including a system for making a filing to secure registration in all member states.

From where we are now it is hard to remember what practice was like before the EU became the law-making machine for many areas of intellectual property. We have become bound together by our common rules. The continental codified Roman law system and our common law do not make an easy marriage but have been fused together through the application of the same laws. Disentanglement is not going to be easy or pain free. Over the coming months as the fog on what the position will be after Brexit hopefully begins to lift we will look at life after Brexit while we ask ‘What has the EU ever done for Intellectual Property ?… Watch this space.