Why renewing the extension for least-developed country members at the WTO makes sense
enter site Should global intellectual property rules be applied to and enforced against the world’s poorest nations?
https://www.broommanufacturers.com/2024/01/31/3byee18qs First, a bit of background. In November 2005, the application of the TRIPS Agreement to the (34) WTO least-developed country members (out of a total of 159 members) was suspended until “1 July 2013, or until such a date on which they cease to be a least-developed country Member, whichever date is earlier.” In a separate decision made in July 2002, the Council on TRIPS, extended the deadline for the application of certain sections of the TRIPS Agreement for least-developed countries until January 2016 (essentially to deal with pharmaceutical patents). Least-developed countries are recognized as such by the UN. They are not to be confused with the broader category of “developing countries” which is a self-selected but also negotiated status at the WTO.
https://feriadelavivienda.co/k6njwopfv3 The July 2013 deadline for the end of the extension now looming, discussions at the WTO last week (March 5-6, 2013) failed to reach consensus on what to do next. Nepal on behalf of a group of least-developed countries, suggested basically to suspend TRIPS obligations until a country is no longer considered least-developed. This is reminiscent of the second part of the November 2005 decision quoted from above. I believe it is likely to pass, but conditions may be attached.
https://comercialfuentes.com/3v7j3xyfh As things now stand, the United States said it might support a further extension but also said that important “details” still had to be agreed upon. The European Union argued in favor of a fixed deadline rather than the open-ended extension. Australia, Canada and Switzerland wanted to link the decision to ways to bring least-developed countries closer to compliance with their TRIPS obligations. Most developing countries, though not all, seemed to support that request. Members are looking for a consensus on the issue rather than a majority vote.
https://www.ipasticcidellacuoca.com/6f0jvuj2o The need to attach conditions to an extension is understandable, even if only for “optical” reasons. Then efforts to assist least-developed countries are also part of the WTO’s mandate. However, analyses show that, in aggregate, high levels of intellectual property protection produce few gains and may impose substantial costs on least-developed countries. As such, a decision to suspend TRIPS would make economic sense, and would avoid the potential political pitfalls of a TRIPS case being filed by one of the WTO richest members against a least-developed nation.
When Trade and IP Collide
https://bakingbrew.com/recipe/cssjt9j0 Guest post on IP Osgoode concerning the authorization given by the WTO to Antigua and Barbuda to retaliate in “copyright value” for the US non implementation of the online gambling panel report. More at http://www.iposgoode.ca/2013/01/when-trade-and-intellectual-property-collide/go
Patent Wars: Part II on “Trolls” and Enforcement Issues
https://nmth.nl/sh98sdyfve Available at http://blogs.blouinnews.com/blouinbeattechnology/2013/01/23/patent-wars-trolls-and-enforcement/
Patent Wars, Part I: Link to Blouin News
Buy Ambien Online Australia I am happy to report that most blog-posts will now be posted on https://ipaxcabinetsdirect.com/uncategorized/w1p4xlxt7k Blouin News and hyperlinked from this site.
see The first part of a blog-post of the “patent wars” is now available at http://blogs.blouinnews.com/blouinbeattechnology/2013/01/17/patent-wars-patentability-problems/
IP & Investment: Eli Lilly Claims Utility Can Be Defined under NAFTA 11
go here Eli Lilly has reportedly notified that it might file under NAFTA Chapter 11 (investment protection) because Canadian courts have applied the utility requirement in a way that led to the invalidation of some of its patents. The utility industrial applicability requirement is a recognized patentability criteria in TRIPS 27.1 but it is not defined.
https://nmth.nl/1t6fz56q This would be a novel use of investment law to impose a definition of utility (or industrial applicability as it is known elsewhere) based on (I assume) the US Federal Circuit’s definition because there is no formally accepted international benchmark . In the United States, the utility requirement has basically disappeared from view as a substantive requirement.
https://nycfoodguy.com/2024/01/31/6rvg3fxuh54 A recently published comparative analysis by Jay Erstling, Amy M. Salmela, and Justin N. Woo (Usefulness Varies By Country: The Utility Requirement of Patent Law in the United States, Europe and Canada) is very helpful to understand the context. Published in 3:1 Cybaris Intell. Prop. L. Rev. 1 (2012).
https://overflowdata.com/uncategorized/vss37nr In the meantime, WIPO made it official. Chinese applicants filed more patent applications worldwide in 2011 than those of any other country. China had 24.6% of the world total to the US’s 23.5%. Q: when will China be the one designating the US as a priority foreign country under its version of section 301?
https://www.larochellevb.com/2024/01/31/clqwt28jay
TRIPS 4th Edition, and new book on Criminal Enforcement
https://menteshexagonadas.com/2024/01/31/nahe36yp The 4th edition of the TRIPS book is now available.
go A South Asian Edition was also released a few months ago if you are in the region.
go to site Christophe Geiger just published a book (not many like this one) on criminal enforcement of intellectual property, offering various perspectives on counterfeiting and an analysis of international and domestic rules on criminal enforcement, in the wake of TRIPS 61 , ACTA and the TPP discussions. See here
Patent disclosure at the Supreme Court of Canada
https://www.broommanufacturers.com/2024/01/31/g44vwkrk The Supreme Court of Canada issued an important opinion on November 8th, 2012. The case is Teva Canada Ltd. v. Pfizer Canada Inc., 2012 SCC 60.
Buying Generic Ambien Online Lets see what the Court had to say:
https://feriadelavivienda.co/nkjg1iq 5. At the time of Pfizer’s patent application, Pfizer had conducted tests that demonstrated that sildenafil was effective in treating ED. […] here Nowhere in the patent application is it disclosed that the compound that works is found in Claim 7 or that the remaining compounds in the patent had not been found to be effective in treating ED.
see url […]
https://bakingbrew.com/recipe/4s59kkm1kem 31. The issues in this appeal are best understood by reference to the fundamental principles underlying the patent system. https://menteshexagonadas.com/2024/01/31/ldzh2t7 As the courts below noted, sufficiency of disclosure lies at the very heart of this system. If the issues are viewed through this lens, the case becomes more straightforward, and the conclusion flows easily from this principle.
Buying Zolpidem In Mexico 32. The patent system is based on a “bargain”, or quid pro quo: the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge. This is the source basic policy rationale underlying the Act. The patent bargain encourages innovation and advances science and technology. Binnie J. explained the quid pro quo as follows in AZT, at para. 37:
- A patent, as has been said many times, is not intended as an accolade or civic award for ingenuity. It is a method by which inventive solutions to practical problems are coaxed into the public domain by the promise of a limited monopoly for a limited time. https://www.larochellevb.com/2024/01/31/n422lx0txj Disclosure is the quid pro quo for valuable proprietary rights to exclusivity which are entirely the statutory creature of the Patent Act.
[…]
56. Pfizer submits that s. 58 of the Act allows courts to consider valid claims separately from those that are not valid. Implicitly, Pfizer is suggesting that under s. 58, where a valid claim exists, the consideration of the disclosure requirements can be limited to that claim. However, this is a misinterpretation of s. 58. Section 58 simply states that valid claims survive in the face of one or more invalid claims. This section is engaged once it has been determined, on the basis of the patent as a whole, whether the requirements, including the disclosure requirements, have been complied with. Section 58 does not allow a court to consider the validity of a single claim — Claim 7 in this case — independently of the rest of the specification, even if the claim in question is the only one that may be valid. This section is engaged only after the validity analysis is carried out.
[…]
69. In light of s. 27(3), it is the specification and not just the claims that the court must consider to determine whether the patent in question meets the disclosure requirements (see also Perry and Currier, at §15.26).Section 27(4) provides that the claim or claims must define the subject-matter of the invention distinctly and explicitly.
70. […] [T]he specification, which includes the claims and the disclosure, must define the “precise and exact extent” of the privilege being claimed so as to ensure that the public can, having only the specification, make the same use of the invention as the inventor.
[…]
79. Whether or not a specification is sufficient depends on what a skilled person would consider to be sufficient….Expert evidence in this case reveals that there was no basis for a skilled person to determine which of Claim 6 and Claim 7 contained the useful compound. Pfizer’s own expert witness admitted that a person skilled in the art who read the patent would not know which compound was shown by the study to be useful in treating ED.
———-
The remedy, a unanimous Court found, is to invalidate the patent not just a few claims (see para 56 above).
Patents are often presented on contractual terms as the Court does here. because use (or working) of a patent is not part of the bargain, it seems to make sense (a) to insist on full/candid disclosure; and (b) to grant a patent only if the invention “works”, which one might define as having both know utility (a notion which has been greatly diluted, however) and disclosing a way to use the invention to make it work as claimed (which in this case seemed to require knowing which compound worked).
A Shakeup in Canadian Copyright Policy?
Just after the adoption of Bill C11, the Supreme Court of Canada handed down five decisions that mark a significant shift in copyright policy, a second wave after the trilogy of Théberge, CCH and SOCAN v CAIP. Read my take at the time here.
The five cases dealt in one form or another with collective management of copyright.
Of these five cases, three will likely be seen as less controversial. In SOCAN v Bell, a unanimous court dismissed an appeal from a decision by the Copyright Board of Canada, that had found that listening to previews of a song in deciding whether to make a purchase was fair dealing (research). The decision is interesting in that it proceeds formulaically, in a way that may seem familiar to US readers, along the lines drawn in CCH, in determining whether a use argued to be fair falls under one of the purposes of fair dealing and then, as a factual matter, whether this use is fair based on the CCH factors. The Court did, however, note that US cases on fair use were not particularly helpful in a Canadian context.
In a second case, Re:Sound v. Motion Picture Theatre Association of Canada, that involved the 1961 Rome Convention a unanimous Court agreed with the Board that sound recordings embedded in movie soundtracks were not to be treated as sound recordings. Though the international discussion in the opinion is not entirely satisfactory, given the language of section 2 of the Canadian Copyright Act, it is difficult to disagree with the outcome.
In the third case, Rogers v. SOCAN, the court decided unanimously (on the copyright aspects of the case though not on the administrative law–the standard of review–aspects) that a series of point-to-point on-demand transmissions of works is a communication to the public (i.e. covered by an exclusive right) even if each individual transmission is not, at least colloquially, public. The Court referred to the WIPO Copyright Treaty and the making available right in that context.
The two other cases are 5-4 splits. They are controversial. They were praised as great steps in the destruction of copyright collectives. Collectives, which are depicted as abusive monopolies, including by the majority in the 4th case, ESA v SOCAN, are also very often the main source of revenue for several categories of authors.
In ESA v SOCAN, the majority held here that music downloads did not implicate the right of communication to the public by telecommunication. Abella J. wrote:
- “Although a download and a stream are both “transmissions” in technical terms (they both use “data packet technology”), they are not both “communications” for purposes of the Copyright Act. This is clear from the Board’s definition of a stream as “a transmission of data that allows the user to listen or view the content at the time of transmission and that is not meant to be reproduced” (para. 15). Unlike a download, the experience of a stream is much more akin to a broadcast or performance.”
According to the opinion, simultaneity in the auditory or audiovisual experience (or at least contemporaneousness) are thus required for a transmission to be a communication. The Court links the communication by telecommunication right to the right of public performance, as was done by US courts but on a very different statutory basis.
A good argument can be made that Article 8 WCT covers both streaming and downloads and–even post C11 (see below)–WCT compliance will thus be questioned. Again.
Now that the Supreme Court said that only mechanical rights need be paid on downloads, there is no doubt that users will try to eliminate the portion of their payments to songwriters and publishers that was paid to SOCAN for the right of communication to the public. Another approach, however, which users will fight to the end of course, would be to pay the same total amount as before, but all as mechanicals, that is, all to one society. La suite will demonstrate that, for ESA, the case was about $$, not principles. More on this below.
The 5-member majority of the Court seemed moved by the argument that paying two collectives was inefficient and led to too high a payment. In fact, the Board had unified tariffs and hearings so that it determined the value of music to the user and split the payment among collectives. The evil that the Court was trying to remedy here strikes me as mostly theoretical.
Many other questions will emerge about ESA v SOCAN. Let me try to identify a few. First, either the opinion applies to the past only, because it was overridden by the new section 2.4(1.1) introduced by C-11, or it is interpreted as negating the making available component in 2.4(1.1). C11 was supposed to make Canada WCT compliant. It reads as follows:
- “[C]ommunication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”
And the list goes on.
Then there is the (last) case, one that some commentators see as the end of reprographic licensing. In Alberta (Education) v. Canadian Copyright Licensing, a 5-4 court held that copying by teachers in a K-12 setting for education was fair dealing for private study or research. Some of the key parts of the majority opinion read as follows:
- “Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological. [Emphasis added]
- “[P]hotocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students. The fact that some copies were provided on request and others were not, did not change the significance of those copies for students engaged in research and private study.
- “With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude.”
Here again, many questions are likely to emerge. If, as was shown in a recent US case (admittedly higher education) authors and publishers make a lot of revenue by licensing these types of uses, then what will be the impact on textbook publishing? Will this lead to higher DRM use (and then who wins?) Will governments end up having to subsidize educational publishing (more)?
On a more technical level, how will this interface with C11? The amended Act contains a new section 30.02, which provides a specific exception for educational institutions which seems to require a license. Not clear how that will work. Perhaps s. 30.02 should now be read out of the Act because it is all fair dealing?
Finally, there is the matter of precedents. A classic, Bishop v Stevens, seems to have been buried for good, and so does Boudreau v Lin (but without so saying, even though the Copyright Board relied on the case). Then the quite recent SOCAN v CAIP now looks lame at best, a significant change of direction within a relatively short timeframe.
Even the venerable University of London Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch. 601 (“ULP”) gets thrown under the bus, with a modest explanation: it is not “particularly helpful.” The case was relevant. In ULP ,”a publisher issued a publication reproducing old exams and sold it to students who were preparing for their own exams. The publisher argued that the publication amounted to fair dealing “for the purposes of private study” by university students preparing for exams. The ULP court held that the company could not bring itself within the fair dealing exception, rejecting the argument that the purpose of the publication was “private study.”
Whatever view one holds about underlying copyright principles, they matter mush less than rhetoric might lead one to believe. These cases were fundamentally about financial flows. They were not about what copyright material one is allowed to use because, in a collective management context, permission is granted.
I strongly believe that as much material as possible, from in-print and out-of-print books to TV shows from the 60s, 70s and 80s (and up to today’s show I just missed) to music from every corner of the globe, should be available online, for then we all benefit. However, I do not see the huge normative appeal of suggesting that authors should necessarily work for free, or for less, because material is online. This is key point that is rarely heard, but it is nonetheless true: collectives rarely if ever refuse a license to any user willing to pay the applicable tariff. Indeed, why would they?
Put differently, the cases were about whether users, many of them professional, should pay for certain uses of copyrighted material. In one of the cases cases (previews) there may have been good arguments to say no, though the split imposed by the court between communication and reproduction may force a reconsideration of this. In the case of embedded sound recordings, the statutory text supports the court’s conclusion. But in other cases, people may disagree. I tend to think the Board got it mostly right.
One could argue that there are issues like reporting requirements etc that separate collective management from fair dealing, but ostensibly those were not the key issue in any of the cases.
Those who cheer the cases as collective-destroying might not get what they want in the end. Then the interface with C11 (and the WCT) looks messy at best. At bottom, whether not paying professional authors (or paying them less) is necessary and desirable is a matter on which people disagree. I, for one, am concerned that we are fast approaching a world in which even our most successful songwriters and authors will need to get a “real job.”
ADDED TO ORIGINAL POST:
As I read the emails I’ve received about my original post, I realize I may need to explain more why I think the Court’s two controversial cases are not all that helpful.
Authors want their books to be read. Users want to read them. In the grand copyright policy equation, only authors and users are, in fact, necessary. All commercial intermediaries, whether they be publishers, record companies or online service providers of various kinds, are contingent. [If the past is prologue, then librarians do have a separate and stronger claim to permanency than commercial intermediaries.] No individual intermediary or business model is essential.
Yet, commercial intermediaries of all stripes dominate the policy discourse. My hunch is that it is precisely because they are replaceable and thus use judicial and regulatory processes to protect or increase their position and market shares.
I also believe that there is, and should be, room for both authors who “just want to be read” (e.g., authors of op-ed letter and academic writers who are otherwise remunerated) and professional writers. This is where I part ways with the dominant commentary on the cases. I believe–though I can see that most colleagues disagree–that general welfare is maximized when our best songwriters, novelists and filmmakers can make a living from their craft, which presupposes reasonably healthy financial flows.
From an author’s perspective, a viable solution typically does not require limiting or controlling the quality or quantity of uses. I see this model of open and unlimited access, with appropriate author compensation as the best guidepost in mapping a way forward. I also have a name for it: well-regulated collective management.
LOCOG: Have your cake and…shove it in creators’ face too
Probably the highest level of protection of any trademark/logo/symbol in the world is the Olympic symbol. We are well past the 1981 Nairobi Treaty, which obliges its member States to “refuse or to invalidate the registration as a mark and to prohibit by appropriate measures the use, as a mark or other sign, for commercial purposes, of any sign consisting of or containing the Olympic symbol.” The IOC imposes on countries that want to host Games an incredibly high level of obligation to prevent ant use of Olympic names and symbols and even any marketing within a perimeter of the Games. This had led to a number of (sometimes exaggerated) stories during the Vancouver Games (example here). An analysis of the abuse of the notion of ambush marketing in that context can be found here. Clearly, no other trademark–not even the most famous one–enjoys that level of protection.
So the IOC had been given the trademark cake it wanted. You would think that they might have some sympathy for other intellectual property. Mistake. The same week that a new treaty to protect audiovisual performers was signed in Beijing (see here), I learned (though it was first reported in April–see here), that the London Organizing Committee had decided that performers should do what they do (play music) for free at the upcoming summer Games. I guess this is understandable given that the Games have such a low budget…
Seriously, the argument used here crosses the red line that broadcasters have tried to use unsuccessfully (fortunately) for decades that they should not pay for music because they give it “exposure.” The LOCOG argument is, as was reported, that the performers can capitalize of the fame generated by the event. It could be the other way around.
I hope the LOCOG people will smell the coffee and wake up.
Copyright Hijacked? Who Should Make Copyright Policy
Could it be said that copyright policy has been hijacked?
What does copyright need as a system? Two elements are essential: authors and users. We need people to create works, and for the system to function, we need people to read/listen to or watch them or otherwise use them (educators, etc.). No one is essential.
My point is this: Typically one or more intermediaries will link authors and users: a library, book publisher, record company, and nowadays one of many of the online player: (Google, iTunes, etc.) and rights managers (agents, collective management organizations (CMOs), etc. However, none of these intermediaries have a right to exist. They use policy debates to try to guarantee thier role. That is understandable but must be seen for what it is. Intermediaries must make a case for what they do and why we need them. One possible exception: Librarians have been around for so long that they may have a natural role in the system.
To put is simply, commercial intermediaries come and go. Yet, for the past thirty years or so, they have often been the only voices heard in copyright debates. The Digital Millennium Copyright Act of 1998 and the two international treaties that preceded it (the 1996 WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty) and their insistence on anti-circumvention rules for technological protection measures (TPMs) are the poster child for this, because TPMs are not used by authors, but rather by intermediaries.
In recent debates, including on the Anti-Counterfeiting Trade Agreement (ACTA), and in the United States the Stop Online Piracy Act (SOPA), it is again mainly intermediaries that directed the debate. Professional production intermediaries (film and record companies) instrumentalized authors to justify their rights while major technology companies (Google etc.) instrumentalized users.
This is like debating highway construction with only toll booth operators and GPS device maker at the table, that is without drivers or road builders (or indeed transport planners). This makes little sense.
Not surprisingly, a number of authors and other creators feel that left out, as expressed succinctly and very clearly by the international Music Creators Alliance, for example.
We need authors and users (back) at the table. This means recognizing intermediaries are representing an essential function but not entities that have a natural right to exist. Their voice must be heard but not as the loudest one.
Authors are less likely to insist on harsh enforcement against their fans. They are more likely to ask for realistic business models that the recording industry, for example, has opposed since the Naspter forced shutdown (1999-2000).
While a number of authors have defended the harsh enforcement measures against individual end-users advocated by some intermediaries, many oppose them (see the music creators site above). I suggest that a properly constructed authorial position would more resemble Victor Hugo’s, the great French author, who presided the early work on the most important international copyright treaty, the Berne Convention. He wrote:
« Le livre, comme livre, appartient à l’auteur, mais comme pensée, il appartient – le mot n’est pas trop vaste – au genre humain. Toutes les intelligences y ont droit. Si l’un des deux droits, le droit de l’écrivain et le droit de l’esprit humain, devait être sacrifié, ce serait, certes, le droit de l’écrivain, car l’intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous…Constatons la propriété littéraire, mais, en même temps, fondons le domaine public. » (Victor Hugo, Discours d’ouverture du Congrès littéraire international de 1878).
The three main thoughts in this quote are as follows:
• A book belongs to its author but the ideas belong to humankind.
• If either then right of the writer or the right of the human spirit must be forfeited (“sacrificed”), it is the right of the writer that must be because ‘public interest’ is the sole preoccupation and must come before everything else.
• One must recognize literary property but at the same time establish (“found”) the public domain.
One must update this view, of course, to reflect the incredible power of the Internet to allow new forms of creation and global dissemination of works, but also the societal costs and undesirable outcomes observed when enforcing copyright online (do we WANT governments to mandate deep packet inspection of all that is sent online, for example). Authors, I suggest, want to be recognized as authors of their works and to be compensated fairly. Is this revolutionary, or is it what copyright is all about? While authors may support shutting down the Megauploads of the world (so do I!), do they favor suing teens, or educators in Africa? The point is simple: there is much more room for agreement among people of goodwill…
