The Hargreaves report, covered previously on this Azrights blog, looked at whether the current copyright regime is detrimental to innovation in the UK. As noted on the SOLO IP blog, the report also questioned whether patent agents are able to offer small businesses the advice they need.
UK IPO’s Publication
Since Hargreaves’ report, the UK Intellectual Property Office has published a paper setting out how it proposes to offer better support to SMEs, which is available here. The SOLO IP report does a great job of summarizing some of the problems and solutions discussed in the paper, so I won’t reiterate that here. However, there are two points I would like to pick up on: awareness, and the way the legal profession is structured.
In my experience, it is not sufficiently discussed within the legal profession (meaning solicitors, barristers, patent and trade mark attorneys) how much the rapid development of the Internet has reduced its ability to service business clients. In particular, the education of legal professionals is not placing due emphasis on the increasing importance of the digital dimension.
Intellectual Property is an extensive field, and creeps up in a diverse range of circumstances, especially in what I call “brand law” (to take account of IP, as well as Internet and IT law). The IPO paper explains:
“Intellectual property is not generally taught in schools, there is only limited teaching within the university curriculum and many of the intermediaries who will advise businesses at the point of start up will themselves have very limited knowledge of IP issues. As a result, entrepreneurs often lack IP knowledge in the crucial start up phase of a new business”
This certainly resonates with my experience, and I would even go as far as to say most established SMEs also have a limited understanding of the way IP affects their business, particularly when it comes to the legal aspects of branding. Further, many IP professionals, though very knowledgeable about trade marks, designs, patents, and know how, lack an appropriate understanding of the internet and social media. Therefore, they are unable to offer their SME clients the rounded , comprehensive advice they often need when looking to turn their ideas into a business. In particular, they need good advice on website and copyright related issues.
What businesses need
All businesses need to understand how the law affects their choice of name, their website development, their reputation and myriad other elements of their brand. However, the legal profession is struggling to keep up with the pace of technology. Even worse, within the Solicitors’ profession, IP is often seen as an esoteric subject which is not a mandatory part of solicitors’ training.
It is little surprise therefore that SMEs do not know about IP, and that those SMEs that do know about it, do not find it easy to find the right type of help.
Social media, globalization and the knowlegedge economy
The explosion of social media, globalization and the knowledge economy has led to the situation where even those engaged in marketing industries often lack a clear idea of how the law impacts on their choices. As it is difficult to find lawyers with a solid understanding of the internet, social media and modern marketing, SMEs tend to rely on their branding and internet professionals to take account of their legal requirements, without realising that IP law is not within the expertise of these professionals.
Hopefully the IPO will deliver on its promise to raise awareness of the risks and opportunities presented by IP. If businesses are to be better equipped to capture the value of their intangibles, and avoid pitfalls that lie in wait for the unwary. The scale of change needed will inevitably mean educating the non IP part of the legal profession, as well as branding and internet professionals, and the wider business community. However, it also entails educating the IP profession in digital media law.
Source of legal advice in the meantime
Beyond the deficit of awareness, where do SMEs go for advice in the meantime?
There has traditionally been a marked divide in the legal profession between Solicitors, and firms of trade mark and patent attorneys who register intellectual property rights, like trade marks, patents and designs. IP solicitors deal with brand strategy, litigation and copyright but don’t register rights. However, the landscape has now changed so that this generalisation is no longer an accurate reflection of the way the IP legal profession operates. More and more firms of solicitors are now registering rights, while an increasing number of firms of patent and trade mark attorneys are dealing with litigation and contract drafting.
But branding advice (by which I mean internet, IP and IT law advice, as well as guidance on marketing and advertising laws) is patchy, and requires the involvement of a range of different IP professionals. Often an SME may need to visit 2-3 law firms in order to receive a comprehensive range of legal services to start up in business.
I worry in case the Hargreaves criticism about the lack of affordable and accessible advice results in inappropriate solutions, such as introducing yet more specialists for SMEs to choose from. If they focus on bringing in yet more of the same type of education and free 1-2-1 advice that currently exists they may overlook the fact that the problem may partly exist due to the way the legal profession is currently structured. If all IP professionals received training in digital media then I suspect there would be adequate advice available to SMEs.
In my view, the fact that the legal profession has been blind sided by the rapid development of internet technologies is the reason for the lack of affordable legal help. Currently few small law firms are capable of dealing with the broader spectrum of brand law advice that I see start ups needing when they come to us.
This is why I have written a book on the subject, Legally Branded: to raise awareness, and to encourage a change in the way lawyers advise start ups and SMEs on their branding needs. Hopefully this will contribute to the convergence of these distinct groups so that we as a profession can better help our clients.
I think a sea change is a long way off, but I hope the round table discussions on IP policy planned this month and next in London and Newport (which I am sadly unable to attend) will take these issues on board. That is how the IPO will be best able to arrive at creative proposals for the legal profession to help UK businesses to take advantage of their brand and other intangibles.
Stop trying to point SMEs to patent and trade mark attorneys
One way I feel SMEs would be helped is for the IPO to guide SMEs in the general direction of the legal profession, be they solicitor, trade mark agent, or patent attorney. Leave it to these professionals to point their SME clients towards other IP experts if they themselves are unable to assist. The public does not need to be warned against using any group of regulated professionals. Solicitors can be trusted to send SMEs to an appropriately qualified IP professional. If any solicitor were unwise enough to start offering patent drafting services when they have no training, not only will they be in breach of a fundamental regulatory principle laid down by the SRA, but their SME clients will nevertheless have recourse to the firm’s professional indemnity if anything goes wrong.
The professional jealousies, the undercurrent of which appear to be to try to prevent having an SME consult a solicitor who is not an IP specialist mean that the IPO is actually unwittingly adding to the confused landscape that SMEs are complaining about. For example, a lot of detail is given as to the skills of each type of professional and the IPO website currently actually recommends that SMEs consult a member of ITMA or CIPA by saying that these are especially useful to consult.
I am actually surprised that the Law Society and SRA are not making it part of the core skills of solicitors to register trade marks, given how ubiquitous names are in business. However, in the meantime, any solicitor who wants to register trade marks will need to seek the additional knowledge they need. As someone who has engaged in both the transfer of land and the registration of trade marks, I can confidently say that any solicitor is capable of undertaking trade mark registration work, if they are prepared to devote a couple of years to acquiring the necessary skills.
Involve solicitors in raising awareness of IP
In my opinion if solicitors were involved in raising awareness of IP this would make the task of the IPO a lot easier.
SMEs are likely to visit a solicitor’s office for drawing up wills, buying and selling property, divorce and other reasons. Therefore, if basic knowledge of IP were disseminated to solicitors, then it would more quickly spread to SMEs. Recently, a new client came to us who had accidentally discovered our website when doing a Google search for property solicitors. The business has been up and running successfully for 6 years, without knowing about IP because being an online business, its IP is mainly in its name and online web properties – its brand effectively. Such businesses will not relate to an IP awareness raising that focuses on patents and the creative sector.
The current confusing landscape means that all sorts of unregulated individuals of dubious quality are taking advantage of SMEs who have potential IP to protect. It is perfectly possible for the legal profession to offer SMEs the type of advice they need. I know this, because we are doing it.