IP & Technology News - April 2006
Wednesday, April 05, 2006
Inside this issue:
- The Introduction of Resale Rights for Artists in the UK
- More details about the eagerly awaited Public Contracts (Scotland) Regulations
- snIP/ITs:
- Easier Web Access for Disabled People
- An End to 'Cultural Kidnapping' in Sight?
- Tesco Wins Trade Mark Infringement Case
Artists Resale Rights Introduced
From 14 February, British artists have new statutory rights to a royalty on the resale of their works. The Artist’s Resale Right Regulations 2006 give effect to the EU Directive already implemented in a number of other European countries. “Droite de suite”, the French equivalent to the new right, has been enjoyed by artists on the continent since the 1920’s.
Nationals of the EEA or other countries offering a reciprocal right, are now entitled to a royalty of up to 4%, where their works are resold for €1,000 or more on the UK art market. The right endures, along with copyright of the work, normally for 70 years after the death of the artist, and will pass to the artist’s successors.
The introduction of the artist’s resale right in the UK has been challenged for many years by contemporary art dealers who worry that the additional royalty will divert art buyers to countries such as the USA and Switzerland where no resale right exists. In response, the UK government has tried to balance the demands of buyers, sellers and artists in tailoring the new Regulations.
The resale value threshold of €3,000 suggested in the Directive was lowered to €1,000 to give the benefit of the right to less well established artists. In a more restrictive move, the UK will defer extension of the right to works of deceased artists until at least 2010. The most valuable sector of the UK art market is in works by deceased artists and it was feared that applying the resale royalty to these would disrupt the market.
Concerns from dealers seem somewhat unwarranted as the Regulations aim to benefit newer artists while minimising any detrimental effects to the market in higher value works (where the artist is more likely to be deceased). This will be a pleasant change for flourishing artists who struggle to earn from their art in an industry which notoriously prefers a posthumous work. We only need to look at Van Gogh to see the importance of the right in restoring some balance. He sold only one work during a life of desperate poverty. While his works sell for millions today, it is certain that he would have much preferred a resale right while he could enjoy it.
A Welcome Change for Public Procurement
At long last, the EU public procurement regime has been consolidated and clarified by the eagerly awaited Public Contracts (Scotland) Regulations. The Regulations came into force on 31 January 2006 along with an almost identical counterpart which covers England, Wales and Northern Ireland. The Regulations bring together the existing provisions on works, supplies and services and will hopefully bring the regime up to speed with commercial demands.
In our September Bulletin, we reported on a Policy Note issued by the Scottish Executive introducing a 10 day mandatory “standstill” period. This “standstill” period between the written notification of a contract award and the commencement of the contract itself, is aimed to give aggrieved tenderers the opportunity to challenge wrongful award decisions. This requirement is now set out in the regulations.
In a bid to modernise the procurement procedure, the Regulations continue to promote “e-procurement”. This is where public sector bodies benefit from reduced time frames because the contract information is made available online. In addition, tenders can be submitted by email or via the public body’s website.
A new competitive dialogue procedure introduced by the Regulations should also help adapt the regime to commercial demands. Where an organisation feels the contract is “particularly complex”, it may use this procedure to discuss its contractual needs in more detail with potential bidders before selection.
Contractors and suppliers alike have in the past criticised the procurement regime as promoting competition at the expense of efficient commercial operation. Hopefully the the new Regulations should make for a more painless procurement process.
snIP/ITs
Easier Web Access for Disabled People
The Disability Rights Commission has issued guidance on how to develop a website which is user-friendly for disabled people in compliance with the Disability Discrimination Act (DDA). The DDA requires website owners to ensure that internet services are accessible to disabled people. The guidance document aims to reduce the number of disabled people (currently a staggering 10 million) who are still unable to access the web.
An End to ‘Cultural Kidnapping’ in sight?
The Department for Culture, Media and Sport has launched a consultation to address ‘cultural kidnapping’ in the UK. Unlike most of the EU, the UK does not have legislation giving immunity from the seizure of art on loan by other countries. The publicised seizure at a Swiss exhibition of $1 billion worth of paintings owned by the Russian Pushkin Museum has highlighted the increasing use of art as a hostage in trade disputes. Recent seizures have sparked threats by foreign galleries that no more works will be sent to countries without protections in place. This would undermine UK hopes to become a cultural centre of excellence by 2012.
Tesco Wins Trade Mark Infringement Case
The supermarket giant Tesco has won its case for trade mark infringement and has been granted an injunction in a recent domain name dispute. Tesco had participated in an affiliate program which allowed approved websites to display links to the Tesco website. If customers following these links purchase anything from the Tesco website, commission is paid to the approved website owner. Unknown to Tesco, Elogicom had not only registered its own website as part of the program, but also a number of others. Those sites were not genuine and had been branded as Tesco sites with a facility to link to the offical Tesco site. Any purchases made on the Tesco website therefore generated commission for Elogicom amounting to a massive £26K increase in commission over one month. The Court held that Elogicom had infringed the Tesco trade mark and granted an injunction, preventing Elogicom from continuing this practice.