UK PASSES INTERNET ACCESS-LIMITING BILL FOR ALLEGED IP INFRINGERS
The United Kingdom Parliament late last night approved a controversial digital economy bill that allows the court to impose obligations on internet service providers to limit internet access of its users deemed to have infringed online copyrights.
The United Kingdom Parliament late last night approved a controversial digital economy bill that allows the court to impose obligations on internet service providers to limit internet access of its users deemed to have infringed online copyrights.
In a vote of 189 to 47 – not big numbers for the 650 member body – the House of Commons voted to approve a bill that opponents fear could limit the internet access of British citizens accused of copyright infringement and cause the blocking of undesirable websites.
In particular it is feared it could be used to block access to whistleblower websites such as Wikileaks, which publishes confidential (and possibly copyrighted) government material.
”WikiLeaks is a good example to consider, as are the websites that report on freedom of information requests, because the bill would give the US Government the opportunity to ban people from looking at WikiLeaks,” said Member of Parliament John Hemming during last night’s debate.
A proposed Article 18, “preventing access to specified online locations for the prevention of online copyright infringement,” would have granted the court the power to block websites it deems to be hosting copyrighted content (with the service provider ordered to pay copyright costs of the application).
This article was replaced with an amendment to the bill that would allow blocking a “location on the internet 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,” according to Parliament documentation.
In a satirical message to the UK public from their government on its front page in the lead-up to the vote, European internet freedom advocates the Open Rights Group said “in the future, anyone accused of infringing the rights of [copyright] industries [...] – even if not personally responsible for such an action – will face automatic disconnection from the internet.” It added the government intends to “limit hitherto unfettered access to the internet by banning websites accused of copyright infringement by copyright holders.”
FOREST GROUP DECISION HAS LED TO GREAT RISE IN PATENT MARKING LAWSUITS
In Forest Group, Inc. v. Bon Tool Company et al., ___ F.3d ___ (decided December 28, 2009), the Court of Appeals for the Federal Circuit (CAFC) has made it more viable for entities to sue patent owners for products that they have improperly marked with “patent” or any word or number connoting that the products are patented (e.g., patent number), in order for those entities to obtain one-half of a statutory penalty for making such a false patent marking. However, given recent IP legislation before Congress and other patent markings cases to be heard by the CAFC, only time will tell if the large rise in such lawsuits will continue in the foreseeable future. At the very least, Forest Group provides a useful counterclaim that an alleged infringer may be able to make against a patent owner who has asserted his/her patent(s) against them and in which the patent owner has sold or has offered for sale “patent marked” products.
False Marking Statute
35 U.S.C. § 292 imposes a civil penalty for falsely marking a product as patented. Under § 292(a), false marking occurs when one intentionally marks or affixes or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing the same. This section also considers false marking to be when one uses “patent pending” or “patent applied for,” for the purpose of deceiving the public, when in fact no patent application has been filed or if a patent application has been filed but no longer is pending (e.g., it is abandoned).
Section 292(a) imposes a $500 penalty “for every such offense.” Furthermore, § 292(b) states that “[a]ny person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.”
Given that an entity would have to incur the typically high costs of a patent litigation to sue under Section 292, a broader interpretation of the phrase “every such offense” would provide more financial incentive to sue.
District Court Decision in Forest Group
Forest Group is the assignee of US Patent No. 5,645,515 (the ’515 patent), which is directed to spring-loaded stilts having a resiliently lined yoke. These stilts are used in construction, where workers wear them as an alternative to using ladders to reach high places. A licensee of the ’515 patent, Southland Supply Company (“Southland”), initially sold stilts to Bon Tool, whereby Bon Tool later stopped purchasing stilts from Southland and started purchasing stilts from a foreign supplier, Shanghai Honest Tool Co.
Forest Group sued Bon Tool and Shanghai Honest Tool Co. in the US District Court for the Southern District of Texas, for infringing the ’515 patent. Bon Tool counterclaimed, alleging, among other things, false marking under 35 U.S.C. § 292.
The district court construed pertinent claim terms, and then found that Bon Tool did not infringe any claims of the ’515 patent. Furthermore, the district court found that Forest Group falsely marked its S2 stilts with its ’515 patent number, and assessed a $500 fine for a single offence of false marking. In coming to this decision, the district court found that Forest Group knew that its S2 stilt was not covered by the ’515 patent after a district court in a related case granted summary judgment of non-infringement. The $500 fine was due to Forest Group placing one order to its manufacturer for S2 model stilts marked with the ’515 patent number after the date of summary judgment in the related case.
Federal Circuit Decision in Forest Group
Bon Tool appealed the district court’s decision to the CAFC. One of Bon Tool’s arguments on appeal was that the district court erred in its interpretation of the false marking statute when it determined that the statute provided for a penalty based on each decision to mark rather than on a per article basis.
The CAFC agreed with Bon Tool that § 292 imposes a $500 penalty for each falsely marked article. The CAFC first analysed the statute’s plain language. The Court found that it did not support the district court’s penalty of $500 for a decision to mark multiple articles; rather, the statute’s plain language requires the penalty to be imposed on a ‘per article’ basis. In doing so, the CAFC focused on the statutory language that prohibits false marking “of any unpatented article,” and that it imposes a fine for “every such offense.” From this, the CAFC came to the conclusion that the statute clearly requires that each article that is falsely marked with intent to deceive constitutes an offence under 35 U.S.C. § 292.
The CAFC distinguished older cases that had adopted a “time-based” approach to § 292. These cases imposed a penalty for each week or each day that false marking occurred. The CAFC considered those cases to be creative attempts to reconcile the statute’s language with the 1910 decision in London v. Everett H. Dunbar Corp. 179 F.506 (1st Cir. 1910). Because the time-based approach was not supported by the plain language of § 292, the CAFC could not countenance these efforts.
The CAFC then considered policy considerations for assigning a $500 penalty for each article that is falsely marked, whereby “Congress intended the public to rely on marking as a ready means of discerning the status of intellectual property embodied in an article of manufacture or design,” and that acts of false marking deter innovation and stifle competition in the marketplace. The CAFC states that such injuries to the public occur each time an article is falsely marked, thereby justifying the court’s “per article” interpretation of § 292 as being consonant with the purpose behind marking and false marking.
The CAFC further supported its conclusion by reasoning that a single $500 fine for each decision to falsely mark would render the statute completely ineffective. Thus, a “time-based” approach would be inconsistent with Congress’ evident desire to prevent false marking. As the Court noted, Congress so desired to prevent these offences that it allowed private parties to sue for violations. As discussed above, § 292(b) allows any person to sue for false marking and to keep half of the civil penalty imposed on the violator.
Will this Lead to a Rise in Patent Marking Lawsuits?
An initial reaction to the Forest Group decision is to speculate that it might create a cottage industry for entities to sue patent owners for their products that are falsely marked. In fact, Forest Group argued before the CAFC that interpreting § 292 to assign a $500 penalty on a “per article” basis would have this effect. The CAFC addressed this argument and noted that an amicus brief was filed in this case by an individual who created a holding company to bring such actions. The CAFC first found that the false marking statute explicitly permits these actions. The CAFC explained that these fears were overblown because a court need not find that those guilty of false marking would be fined $500 per article marked. It noted that the statute provides for a fine of “not more than” $500 for every such offence, and that this provides a district court discretion to strike a balance between encouraging enforcement of an important public policy and imposing disproportionately large penalties for small, inexpensive items produced in large quantities (whereby a district court has the discretion to assign a penalty of a fraction of a penny per article in such a case).
Pending Legislation May Affect Patent Marking Lawsuits
Possibly in response to the Forest Group decision, it has been reported by Justin Gray in an article entitled “False Marking: Senate Proposes to End False Marking Onslaught,” published inwww.grayonclaims.com, that Senate Patent Reform bill S.515 currently before Congress includes a provision that would put a stop to plaintiffs from suing under § 292 who have not been competitively injured by acts of false marking. This provision would not stop lawsuits such as the Forest Group case, but it would curtail other lawsuits, such as the Solo Cup case (discussed below). The bill in its current form would apply retroactively to all pending litigation.
Forest Group appears to have made it more economically viable for entities to file lawsuits against patent owners who may have improperly marked their products as “patented” or with a patent number. Indeed, there has been a large rise in “patent marking” lawsuits in the short time since the Forest Group decision came out. For example, the Chicago Tribune recently reported that Thomas Simonian of Geneva, Illinois, filed 28 such patent marking lawsuits in late February, through three law firms. Several law firms, such as Howrey & Simon and Womble, Carlyle, Sandridge and Rice, have recently formed patent marking teams to deal with the rise in such lawsuits.
Also, the CAFC will hear oral arguments in April in Pequignot v. Solo Cup, Fed. Cir. 2009-1547, which is another case involving a plaintiff suing under § 292. In the Solo Cup case, the false marking action was made against a manufacturer who sold billions of cup lids that had an expired patent number marking provided on those cup lids, in which some of the patents had expired more than 10 years from the date of manufacture of the cup lids having those patent numbers on them. In the Solo Cup case, the main issue on appeal is what is needed to show false marking “for the purpose of deceiving the public,” which is required in order to have a viable claim for damages under § 292. The potential award to the plaintiff (who is a patent attorney based in the Washington, DC area) is astronomical to say the least! If the CAFC places a high burden on what is required by a plaintiff to show that a false marking was made for the purpose of deciding the public, this may lead to a dismissal of many of the recently filed patent marking lawsuits on summary judgment motions.
Based on the Forest Group decision, § 292 will not only lead to a rise in patent marking lawsuits, but it will also likely be the case that patent marking suits will be included more frequently as a counterclaim in patent infringement lawsuits brought by patent owners against accused infringers. Of course, if the S.515 bill [US patent reform] in its current state eventually becomes law, this will certainly affect the number of such lawsuits. Also, based on how the Solo Cup case is decided by the CAFC, the playing field for plaintiffs suing under § 292 may change one way or the other.
Ensuring public access to knowledge while supporting intellectual property rights cuts across broad areas such as internet availability, public health, education and culture, climate change, and basic technical standards. And while the non-profit movement that has worked to encourage access is facing serious challenges this year, they are set to fight it out in the various fora related to essential drugs, books and academic journals, and software again in 2010.
There have been general acknowledgements that classical intellectual property rights protection has created problems with access to medicines. In addition, IP rights and technology transfer was debated at a high level at the climate conference in Copenhagen, and the difficult relationship between patents and standards in technology has been discussed at the World Intellectual Property Organization.
While the various nongovernmental organisations that work for better access to IP-protected material have somewhat given up on their common platform of access to knowledge created at the United Nations-led Internet Government Forum, they are still in the fight.
Access to Medicine
For Knowledge Ecology International (KEI), one of the leading NGOs on these issues, the biggest concern in 2010 is creating an alternative incentive for research and development in drug development, being discussed at the World Health Organization. “We propose to the WHO to put aside quite a bit of the Global Fund to Fight AIDS, Tuberculosis and Malaria money to reward innovation and develop new drugs,” said KEI Director James Love. Another proposal is a reward system for diagnostics, he said.
It is not a new proposal, as KEI has lobbied for the idea for years. A 10 percent share of the Global Fund money should be channelled into the R&D for new AIDS drugs which will then be brought into the UNITAID patent pool to allow easy access for producers and drug developers. But Love is optimistic that after the start of the patent pool under drug-purchasing mechanism UNITAID following its December board decision, the award idea will get traction. In fact, he thinks it is the only way to keep up the treatment of HIV/AIDS patients in poor countries, given that the patent-protected second generation drugs are far too expensive for donor money. With the economic crisis this is even truer.
Members of the European Parliament have taken up the issue and established a new Working Group on Innovation, Access to Medicines and Poverty-Related Diseases. During a recent hearing, Scottish Member of Parliament David Martin questioned Commissioner-designate for Trade Karel de Gucht about the discrepancy “that we spend millions tackling HIV/AIDS and cancer in the developing world, yet at the same time our trade policy sometimes denies access to medicines to the same people through bilateral trade agreements and other trade agreements we enter into.”
According to KEI, with money available for HIV/AIDS treatment in poor countries, the number of patent applications in these countries has grown considerably, too.
De Gucht, while defending the necessity of “TRIPS-plus” provisions (those exceeding the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights) for some aspects, confirmed that he intends to revisit EU Council regulation 1383/2003 “concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights.”
De Gucht acknowledged that “there certainly are some adjustments that should be made to avoid what had happened in the past year, for example in the Netherlands,” referring to European delays of generic drug shipments from India to Brazil. The decision for the free trade agreement between India and the EU is on the Parliament’s agenda in February.
The seizures of drugs off-patent in the countries of manufacture and of destination by the Dutch authorities during the last year have meanwhile led to a discussion among WTO experts, said Holger Hestermeyer of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. Hestermeyer said that “both Brazil and India had indicated they would request consultations with the EU concerning the seizures, the first step towards a possible WTO case.”
Bringing the Global Patent System Back on Track
Problems with the patent system have become obvious over recent years, acknowledged Rainer Osterwalder, spokesperson for the European Patent Office (EPO) in Munich. “The EPO is on the front line to bring the global system back on track and allow it to provide what it was originally created for,” he said.
The EPO itself will start to work with a reshuffled procedure for patent applications on 1 April. The changes made to the application process were merely technical in nature, for example setting strict timelines for answers from the applicants during the process or limiting the filing of secondary claims to an original application. There is no intention to change the requirements for the “inventive step” because the standards already had been high, he said.
The EPO also has partnered with the US Patent and Trademark Office (USPTO), the Korean Intellectual Property Office (KIPO), the Japan Patent Office (JPO), and the State Intellectual Property Office of China (SIPO) to allow for better cooperation. In their “IP5” project, the five offices have set up 10 projects to prepare for jointly used tools and procedures to minimise double work, said Osterwalder.
Working groups on the 10 projects have been started, with each patent office focused on two. The EPO working groups are seeking to solve questions of a “common documentation database” with resource material for patent examination and a “common approach for a hybrid classification” of patents. The USPTO is working, according to the project list, on a “common approach to sharing and documenting search strategies” and a “common search and examination support tools in a shared system,” and SIPO is working on a “common approach to sharing and documenting search strategies” and “common search and examination support tools.”
Implementation of the IP5 group - which was started in addition to the long-standing trilateral cooperation of USPTO, EPO and JPO - would, according to Osterwalder, bring a “rearrangement of the global patent system.” While the cooperation focuses on the shared tools and databases, in the long run it might also lead to similar results on patent examination, said Osterwalder. Reform of the WIPO Patent Cooperation Treaty (PCT) is a step the IP5 partners see as necessary, and the IP5 in a way might become a model about how cooperation could work better. Departing EPO President Alison Brimelow will discuss EPO plans at a speech in Melbourne in March, Osterwalder said.
Patents, open Source and the Big Cases
For the Free Software Foundation Europe and the Foundation for a Free Information Infrastructure (FFII), 2010 looks like a decisive year given that several interesting decisions will be taken on the patentabilty of software, business processes and conventional seeds. Four questions about computer implemented inventions and their patenting have been referred by Brimelow to the EPO Enlarged Board of Appeal and a decision can be expected soon, even if the referral itself is rejected.
Meanwhile, a decision is expected on the so-called broccoli case involving an effort to patent non-genetically modified plants. The public hearing is set together with a similar case on tomatoes for 20-21 July. FFII has filed amicus curiae briefs on the referral issue, and another one on the court case Bilski v. Kappos which is pending before the US Supreme Court.
The Bilski case is considered by FFII and many organisations of the open source software movement as “the single most important decision worldwide on the issue of patents on business methods, software and algorithms since the  rejection of the Software Patents Directive by the European Parliament.”
Bernard Bilski’s patent application covers a process “of initialising a series of sales transactions between brokers and sellers based on a (fixed) historical price rate, identifying sellers and initialising a series of sales between brokers and sellers in order to balance out the risks of sellers and buyers,” FFII summarised in its documentation. Already now, according to critics of software patents, there are far too many of these patents granted by the EPO and the USPTO.
Bilski’s patent application had been rejected by the USPTO and the USPTO decision has been supported by the courts so far. Now the two sides - the open source software organisations on one side and pro-patent lawyers on the other - are hoping that their arguments will be victorious. The decision is expected in spring.
Open Standards - Model for A2K and Technology Transfer
There seems to be nobody in the world who can avoid climate change on his political agenda, so patent people and A2K people, too, talk climate change. Heavily discussed during the Climate Change Conference in Copenhagen, IP for climate change technology and finding the best way to allow quick technology transfers for this urgently needed technology has also reached the EPO.
According to spokesman Osterwalder, the EPO currently is preparing the release of a joint study with the United Nations Environment Program (UNEP) and the International Centre for Trade and Sustainable Development (ICTSD) on the “role of patents in the development and transfer of environmentally sound technologies”, in particular in the field of energy generation.
The raw data have been collected by the EPO from its databases, said Osterwalder, now the analysis is underway to understand what is out there and whether concentration has taken place or whether there have been “Microsoft- or Apple-effects,” leading to a monopoly situation. “We did not see the latter,” said Osterwalder, but North-South relations have been negatively impacted, he added. In addition to a look at patenting numbers, the EPO also undertook a survey on licensing practices and received responses from 150 companies and institutes (out of 600 addressed worldwide). The study is expected to be finalised in May or June.
The free and open source software model might be a better alternative to patenting and then “repairing” possible barriers to technology transfers, said Karsten Gerloff, president of the Free Software Foundation Europe. It might be possible to transfer this model to other technology areas like climate technology, he said. In any case, information technology related climate technology would gain through free and open source software.
The FSFE, according to Gerloff, will follow closely the work by the EU Commission on the European Interoperability Framework (EIF), which consists of a set of interoperability guideline documents for European Public Services. While the first draft resulting from consultations in 2008 contained solid references to open standards and open source software, according to the FSFE, these had vanished from a second draft leaked last September. Six member states filed objections against this second EIF draft, according to the FSFE.
Ignoring open standards and open source software has a series of disadvantages, according to the free and open source software organisations, from anti-competitive effects against smaller software companies to proprietary formats for public content.
A second focus of the FSFE’s work in 2010 is the relationship between standards and patents. “In our view, patents that are part of standards have to be licensed royalty free,” said Gerloff. While standardisation bodies like the World Wide Web Consortium or the Internet Engineering Task Force this worked well, in other organisations like the International Standards Organisation, reform is necessary, he said. “There is a lot of work to do.”
Financial Crisis in A2K Movement
The various A2K players all think there is a lot of work to do, yet funding has thinned out considerably over the last two years. In the US, several big foundations stopped their programs on A2K-related work, reported Love.
The dynamic coalition on A2K at the IGF was possibly one victim, with A2K players redirecting their attention to the fora they thought they would gain the most for their cause. Love, when asked his greatest concern for 2010, did not point as many others did to the much-debated Anti-Counterfeiting Trade Agreement, but said he was most afraid about the effects of the Supreme Court’s decision that corporate funding of independent political broadcasts in US government elections should be unlimited. “It is a big threat for democracy,” he said.
GOOGLE BOOK DEAL STILL NEEDS WORK, US JUSTICE DEPARTMENT SAYS
The United States Department of Justice yesterday told the US District Court for the Southern District of New York that progress had been made on its concerns in the settlement allowing internet search giant Google to scan millions of books into a searchable database. But the government lawyers continue to have doubts on copyright, class certification and antitrust issues, they said.
Justice made its views known in a 31-page filing [pdf] filed with the court on 4 February. While it praised efforts so far, the department said, “the amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation.”
In The Authors Guild Inc. et al. v. Google Inc. case, the district court is scheduled to hold a hearing on the proposed amended settlement agreement on 18 February.
In its new filing, Justice said the parties made progress as they eliminated “open-ended provisions that would have allowed Google to engage in certain unspecified future uses, appointed a fiduciary to protect rightsholders of unclaimed works, reduced the number of foreign works in the settlement class, and eliminates the most-favored nation provision that would have guaranteed Google optimal license terms into the future.”
These actions addressed concerns in the previous Justice Department filing from 18 September (IPW, Copyright, 18 September 2009).
But the agreement still would confer “significant and possibly anticompetitive advantages on Google as a single entity, thereby enabling the company to be the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats,” Justice said.
Justice reiterated its support for the objective of the Google Book Project. “Breathing life into millions of works that are now effectively dormant, allowing users to search the text of millions of books at no cost, creating a rights registry, and enhancing the accessibility of such works for the disabled and others are all worthy objectives,” it said in the filing.
But it said that as proposed, “Google would remain the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats. Google also would have the exclusive ability to exploit unclaimed works (including so-called ‘orphan works’) without risk of liability.” The settlement agreement’s pricing mechanisms, it added, “though in some respects much improved, also continue to raise antitrust concerns.”
Orphan works are those for which the copyright holder cannot be found.
A response from Google could not be found at press time.
The settlement agreement arose after The Authors Guild and five major publishers brought allegations of copyrights infringement against Google in 2005 for its project of digitally scanning books in several large libraries and make them searchable on the internet.
India’s IPR policy: Being egalitarian or foolhardy?
Kanchi Kohli and Shalini Bhutani
The world is full of contradictions and so its governance also reflects that.
If one takes this reality as a given, especially in the Indian context, then the dilemmas of govern-‘mentality’ might not come as a surprise anymore. Here is a closer look at the much controversial Intellectual Property Rights (IPRs), and some recent official articulations on it.
IPRs like patents, trademarks or copyrights, supposedly protect new and innovative products giving the inventor private rights over their sale, import, export and distribution. Any commercial use of the product cannot be without due permissions and royalties to the ‘original’ inventor.
This is what large seed corporations and agriculture research giants are trying to cash in on. IPRs today are a mainstay of profit generation of many corporate and research bodies, be it agriculture, software, art, or medicine. Envisioning a world as it indeed was before — without IPRs, is considered to be a foolhardy dream. Ironically, many of the real innovators in traditional systems of medicine and small farm agriculture continue to situate themselves within a non-IPR world.
So, is Government of India indecisive or confused about which world it wants to belong to and protect? On the side of private profit or on encouraging common heritage and growth of shared knowledge and collective systems?
In August 2009, after a long hiatus the ministry of environment and forests (MoEF) released its latest state of environment report (SOE) 2009 for India. It has reference and makes use of text from page 25 of a 2002 briefing put out by two NGOs, Grain and Kalpavriksh titled ‘Traditional Knowledge of Biodiversity in Asia-Pacific — Problems of Piracy & Protection.’ The SOE deeply questions the role of IPRs and states that IPRs as prescribed through international treaties are being used by commercial interests to gain ownership and control over traditional knowledge. The increased support of the government in facilitating this exercise is also acknowledged and also the fact that communities are struggling to sustain traditional practices in adverse conditions.
On the same page of the SOE is a set of recommendations on traditional knowledge protection. Therein is a very refreshing mention, that one of the ways forward is actually examining and highlighting alternatives to IPRs to be able to protect traditional knowledge. It also states that there is a need to strengthen a unified demand to amend and review the World Trade Organisation’s TRIPs agreement, of which India is a signatory. Since the report is signed and endorsed by Jairam Ramesh, Union minister of state (environment and forests) and Vijay Sharma, the current secretary, MoEF, one has good reason to believe that the MoEF truly agrees to this non-IPR position.
But actions and other statements from the same ministry stand in contrast. The MoEF, its biodiversity regulations, the National Biodiversity Authority under it, all convey that documentation of traditional knowledge (TK) into digital libraries and databases is the first step in the protection of TK. The next step is to grant access of these databases to international patent offices so that they can check any existence of ‘prior art’ before granting of patent rights to the applicant!
This can certainly not be classified as a ‘non-IPR approach.’ A memorandum of understanding (MoU) has already been signed with the European Patent Office in February 2009 granting the EPO access to our Traditional Knowledge Digital Library (TKDL) and another like MoU is due to be signed with the US Patent Office anytime now. This has been reported by the minister, MoEF in the press coverage of what he said during the inauguration of the new office of the National Biodiversity Authority (NBA) in Chennai.
But are the European (EPO) and US (USPTO) patent offices interested in the TKDL for verification of any infrignments? Or would the access to this centralised database be to delve deeper to create new ‘innovations’ based on the knowledge contained therein? The TKDL currently contains transcriptions of over 2 lakh medicinal formulations from 148 books and 230 volumes of Unani, Ayurveda, Siddha besides 500 postures of Yoga.
Quite interestingly, the ministry of human resource development (MHRD) as early as 2006 had written to the prime minister that access to International Patent Offices should not be granted before a national access policy is finalised, and if access is granted then it will be a violation of India’s commitment to the Convention on Biological Diversity (CBD). The CBD mandates the principles of prior informed consent and disclosure of origin of the access before an IPR can be sought. The CSIR and the ministry of commerce’s department of industrial policy believed that since the knowledge in the TKDL is all public domain knowledge, the CBD policies don’t apply to it.
These arguments were ‘duly’ considered before access was granted to the EPO. It may be noted that India’s sui generis system for protection of traditional knowledge to be elaborated under the Biological Diversity Act, 2002 (as a follow up to CBD) is still to be worked out.
Yet, we continue to be keen to create new databases and grant access to international IPR offices as GoI ironically sees it as a means of protection of traditional knowledge. How about seeking real alternatives to the IPR system as stated in the new SOE report by the MoEF?
Digital Library Europeana Said To Be Europe’s Answer to Google Books Settlement
Google’s settlement in the United States of copyright infringement claims by authors and book publishers faces strong opposition from European publishers. The deal does not apply to books outside the US and one Google official has suggested the need for a similar service in Europe. Could digital library Europeana be the solution? A 28 August European Commission policy statement addressed that concern and others.
The 29 October 2008 settlement ended class-action litigation brought by book authors and publishers over claims Google Book Search violated copyright laws by digitising millions of protected books (IPW, Copyright Policy, 30 October 2008). The deal is expected to make millions of in-copyright, out-of-print books available online, give their authors control over, and payment for, access to them, and fund an independent Book Rights Registry to distribute payments, locate rights holders and allow IP owners to opt in and out of the project, the parties said.
It is subject to approval by a US federal court, which set 4 September 2009 as the deadline for comments, objections or opting out of the agreement.
The settlement sparked strong criticism from groups such as the Booksellers Association of the UK and Ireland, which said last November that it fears Google’s “gateway position,” if abused, could “create a de facto monopoly.” The UK Society of Authors rejects any system that allows material to be uploaded onto databases without prior permission from its author, it said in July.
Publishers are committed to making their works widely available but Google’s solution is not deemed desirable or necessary in Europe, UK Publishers Association Policy and Communications Head Benjamin King told Intellectual Property Watch.
Book Search Coming to Europe?
The settlement has stirred up a “variety of controversy, commentary and review” ahead of the US court’s October approval hearing, William Echikson, Google senior communications manager in Brussels, noted in a 21 July Wall Street Journal article. At the heart of the debate, he wrote, “is a challenge European governments are themselves working to resolve: how to open up access to the world of knowledge contained in books.”
Books that are in copyright but out of print are the trickiest category and make up the majority of the world’s books, Echikson wrote. Google’s deal will dramatically expand access to out-of-print books in the US but will “mean little for Europe,” he said. “The development of a similar innovative service in Europe requires cooperation from technology companies and a myriad of rights holders,” but would benefit European authors and publishers and give Europeans greater access to the world’s books, he wrote.
Over 50 percent of Google’s traffic now comes from outside the US and the company’s goal is to make all its products and services global, a spokesman said. The search engine plans to “extend the benefits of this agreement to international countries” and is actively working with rights holders to do so, he said. However, it is premature to discuss either the details of the US services resulting from settlement or how the regime might work abroad, he said.
What Google is trying to do in the US and wants to do in Europe is to obtain a licence to commercialise out-of-print books without getting permission from rights holders, said University of California at Berkeley Law Professor Pamela Samuelson. It is doing that in the US by means of the class-action settlement process but needs a different tactic in Europe, she said. Governments could decide to say yes to Google by passing legislation, collecting societies might cooperate, but it is not easy to get obtain a blanket licence from all rights holders, she said.
Many European authors, particularly in Germany, object to Google’s actions because scanning books first and getting permission later “flips the usual default rule of copyright on its head,” Samuelson said. “Google is using the seeming fait accompli of the US settlement to extract from Europe a permission to do the same thing so that Europeans can benefit” from the deal, she said: “The devil is in the details here.”
EU Digitisation Lagging
Digital library Europeana, not Google, is the answer to making European culture accessible online, Federation of European Publishers Director Anne Bergman-Tahon said in an interview.
Europeana, launched by the European Commission and national culture ministers on 20 November 2008, offers direct access to digitised books, audio and film material, photographs, paintings, maps, manuscripts, newspapers and archival documents. It now has 4.6 million digitised works but fragmented European copyright laws and slow digitisation by many countries is holding it back, the Commission said in a 28 August policy statement on Europeana’s next steps.
Friday’s policy statement supports an approach that seeks to be open to private-sector initiatives and technological innovation, and looks with interest on what Google’s doing about orphan works, while at the same time it presses governments to get their cultural material digitised for Europeana.
The Commission wants Europeans to have 10 million objects accessible by 2010. One key challenge is to include in-copyright material in order to avoid a “20th century black hole” in which a great deal of cultural material from before 1900, but not much from the recent past, is accessible online, it said. But different licensing arrangements across Europe risk turning the content into “national silos on the internet,” she said.
Orphan works are another priority, the Commission said. It asked member states in 2006 to deal with the situation but there has been little progress, it said. The Google settlement has raised the issue’s visibility because the book rights registry it funds will be used to help locate rights owners. The EU finances the Accessible Registries of Rights Information and Orphan Works (ARROW) project, but the Commission said it “looks with interest” to new solutions being tested by Google and US rights holders for making orphan works more widely available.
With only five percent of digitised books in the EU available on Europeana, governments must stop “envying progress made in other continents and finally do their own homework,” Information Society and Media Commissioner Viviane Reding said.
The ‘Future is Europeana’
Publishers are doing just that, Bergman-Tahon said. They are building a Web repository for recent books and digitising some out-of-print works valuable to the publishing sector, she said. They want a public-private partnership to give libraries and citizens access to those works through Europeana or some other pan-European initiative and national libraries, not via a link with one commercial company, she said. Some publishers may choose to work with Google, but that will be done through individual contracts, she said.
Germany’s answer to Google, for example, is Libreka.de, she said. The website currently provides access only to in-copyright books in German, but publishers will next digitise their backlists after securing permission from each author, a process that takes time, she said. Libreka has an agreement with the national library on how to deal with orphan and out-of-print. materials, she said.
“For me, the future is Europeana” for works that are out-of-copyright and, in some cases, out-of print, Bergman-Tahon said. For in-print content that will eventually be digitised, national services such as Libreka, where users can search for, purchase or rent works, are the way to go, she said.
This is a very European road that will not look like the US solution, she said. It involves a combination of public and private partners who are not competitors, she said. The European publishers group will meet with Reding in September to prove they’re digitising cultural content in a much more inventive way than Google, she said.
Europeana has the potential to be the “Google-like service Europe needs” but as part of a broader vision, said Europeana Marketing and Communications Manager Jonathan Purday. The EC has enabled Europeana to become operational and laid the foundations for an integrated platform providing access from museums, archives, libraries and audiovisual collections. But the digital library’s future “depends on countries scaling up their digitisation efforts” and unifying their fragmented legal framework, he said.
There is no competition between Europeana and Google’s book projects, Google European Copyright Policy manager Antoine Aubert wrote 28 August on the company’s public policy blog. The services are complementary, he said, and Google is working hard to broaden its cooperation with European libraries which form Europeana’s backbone. Italy’s Ministry for Culture recently announced its intent to work with Google to accelerate scanning of Italian-language books, he said. France is reportedly considering a similar move.
The EC will hold a public hearing on 7 September to discuss the US settlement. In connection with its policy statement it is seeking input on Europeana’s future; the consultation document is here [pdf].
Dugie Standeford may be reached at email@example.com.
SOURCE Link to the article: http://www.ip-watch.org/
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Research Study: Patents and Copyrights are indispensable for US Economic Recovery.
Recent Study indicates that Patents and Copyrights are the key to US Economic Recovery.
Online PR News – 17-August-2009 – According to a recent study performed by The Manufacturing Institute, of the National Association of Manufacturers, Patents and Copyrights are key to small business economic recovery in the United States. According to the study, 85% pf US per capita growth is directly attributable to technological progress. According to Jerry Jasinowski, President of The Manufacturing Institute, "Technological innovation would be crippled without the intellectual property protections that assure inventors and investors that their work will not be stolen." For these reasons, it is imperative that small business owners consult with a Patent and Copyright Attorney
to evaluate their options.
In spite of the importance that I Patents and Copyrights play, most small business people are completely unaware of the basics of Patent Law and Copyright Law. Most business people think of Patents, Trademarks, and Copyrights as being absolute rights. In other words, most business people think that Intellectual Property rights (i.e. Patents, Trademarks, and Copyrights), so long as they are registered properly will yield ironclad monopoly rights on their Intellectual Property. Unfortunately, public perception does not always agree with reality. This article will delineate the relative strengths and weaknesses of each Intellectual Property.
In some aspects, Patent Law is the strongest form of Intellectual Property. Patent law is based upon a strict liability standard. In other words, it is not relevant to a judge whether or not you knew of the existence of a particular patent. The only relevant issue is whether or not you actually infringed that patent.
Along the same lines, Patent Law is strong with respect to reverse engineering. Unlike Copyright law, a competitor cannot make an end run on the claims of a patent by simply tweaking a product here and there. The public perception is that getting around a patent is fairly easy. However, a properly drafted patent with broad claims should force others to make their competing products with inferior components, parts, and materials. So, at the end of the day, your patent should keep you at the top of the heap because your competitors will be forced to market inferior products and services.
However, unlike Trademarks and Copyrights, Patent law is weak in terms of the length of protection. Patents are only enforceable for 20 years in the case of utility patents and 14 years for design patents.
By contrast, Trademarks can be enforceable, theoretically, forever. As long as a trademark is continuously and properly used as a source identifier, that Trademark Right will continue to be in force. This holds true if a business is sold, or passed down to another generation. For instance, the German beer maker, Löwenbräu, claims a first use of its Trademark to 1383. This would make their mark roughly 626 years old.
However, Trademark rights are weak when it comes to various fair use exceptions, and the overall relative strength of its mark. For example, a Trademark such as John’s Wonderful Beer might not be able to prevent another competitor from using John’s Fantastic Beer. This analysis can change due to other strength factors beyond the scope of this article.
As with Trademark Law, Copyright Law also extends a fairly long term of protection as well. Copyright protection starts from when the work was created in addition to the life of the author, plus an additional 70 years after the death of that author. Regarding works for hire (works prepared by employees and independent contractors) the rights last for 120 years after their date of creation or 95 years from their first publication, whichever is longer. Copyright Protection is given regardless of whether the work is registered or not.
But, as with Trademark Law, Copyright Law suffers from similar weaknesses: ability for reverse engineering with regards to software, various fair use exceptions, among others.
As such, given the strengths and weaknesses of each type of Intellectual Property, one would be prudent to devise an Intellectual Property portfolio which consists of all three. Contrary to prevailing beliefs, patent law, trademark law, and copyright law can overlap. For these reasons, people are advised to seek legal guidance from an experienced Patent Attorney on what they can do to protect their Intellectual Property to generate the most extensive scope as possible. Los Angeles Patent Attorney
SOURCE LINK: http://www.onlineprnews.com/news/4572-1250550330-research-study-patents-and-copyrights-are-indispensable-for-us-economic-recovery.html
China opens up on intellectual property, New Web site gives access to legal resources
By Matthew Spieler
BEIJING—With intellectual property (IP) and patent protection a hot topic over the last decade, a new Web portal, China IP Law Search, has been launched. The free search tool, located at ipr2.org/ipsearch, is designed to help users find and access legal resources on the current legislative framework of IP protection and enforcement in China.
IP and patent protection has become increasingly enforced over the last decade with manufacturers suing one another over infringements on an almost daily basis. The flooring industry has not been immune to this, especially with regard to products utilizing a mechanical locking system for installation purposes, such as in the laminate and wood sectors.
One of the big areas of dispute over IP has been between Western manufacturers and those in Asia, particularly China, as U.S. and European manufacturers have claimed, rather successfully, that their Eastern competitors have stolen or infringed on their patented technologies.
China IP Law Search aims to bridge the gap in this area by providing widespread public access to IP-related information both in English and Chinese.
The portal is part of a joint initiative launched in 2007 by the European Union and China on the protection of intellectual property rights. Known as the EUChina IPR2 Project, its goal is to strengthen the enforcement of IP rights by targeting the reliability, efficiency and accessibility of the IP protection system in China.
Wang Yang from China’s Ministry of Commerce said this is done by closely co-operating with and providing technical support to the different levels of the Chinese legislative, judicial, administrative and enforcement authorities. She cited China IP Law Search as an example of “the close co-operation between China and Europe in IP protection.”
The European Commission’s Rudie Filon added the tool “provides, for the first time, a comprehensive, bilingual collection of legal references immediately relevant to IP in China. It will be a valuable support tool for anyone working, studying or simply interested in the Chinese IP environment.”
While the site was developed through funding by Europe and China, Tamryn Barker, a member of the IPR2 Project, told FCNews it is a public site open to any user group including those in the U.S.
Put simply, the site enables users to search legal texts in the key areas of IP, including patent, trademark and copyright laws; customs protection; dissemination of information on the Internet; new plant varieties and unfair competition.
Barker said at its launch, China IP Law Search includes more than 140 legal texts, including laws, ministry rules and judicial interpretations covering the major fields of IP such as administrative and administrative procedure law; copyrights; civil and criminal procedures and laws; geographical indications; integrated circuit layout designs; technology transfer; trademarks, and unfair competition and anti-monopoly.
She noted the full English text of each reference can be downloaded. Where a full translation is not freely available, a commercial source is offered.
Organizers said the site will be updated on an ongoing basis as new laws are adopted and take effect and as previous legislations are revised, and their respective translations are made available.
While this portal is a tool for only finding information about IP in China, officials do foresee a similar bilingual platform for European IP-related laws being developed down the road.
As for the U.S. Barker said there is not another tool like this set-up between the U.S. and China. “I am aware that the U.S. is supporting China with IP legal information— specifically, the China International Electronic Commerce Center, under the Ministry of Commerce, which is building up China’s IP information platform at ipr.gov.cn to better address the needs of foreign stakeholders.”
For more, visit ipr2.org/ipsearch.
In China And India, Stronger Intellectual Property Is Unnecessary
Access Is More Important Than "Incentive"
China and India are countries of enormous internal economic differences, primarily stemming from productivity gaps. The technologies that enable world-class economic efficiency in some parts of China and India need to be diffused throughout the country, but the monopoly pricing associated with IPR limits the ability of the poor to access empowering technology.
Despite the presence of high-tech hubs like Bangalore and Hyderabad, India ranks 63rd out of 72 surveyed countries for the Technology Achievement Index (Dahlman 2005). In China, Beijing and Shanghai have knowledge-intensities 6.1 and 5.3 times the national average, respectively (Dahlman 2001). These disparities indicate an inability to effectively diffuse innovations, likely resulting from the higher prices and protectionism associated with increased intellectual property. The low productivity in most Indian enterprises indicates an enormous opportunity to make better use of existing knowledge; one analysis “implies that the output of the Indian economy could be as much as 4.8 times higher if enterprises were to absorb and use the knowledge that already exists in the economy” (Dutz 2007). Intellectual property is certainly an important factor, but not the only factor preventing this diffusion: after all, India's remarkable agricultural productivity growth known as the Green Revolution took place prior to global intellectual property harmonization.
Because R&D requires much more than financial incentives (educated workforce, infrastructure, etc.), close to 80% of global R&D is carried out in the developed world. Therefore, innovation in the developing world is more appropriately adoption and adaptation of existing technology. Instead of hoping that increased intellectual property will attract it (likely a fool's errand), there are other ways to access global knowledge such as reverse engineering, imitation, utilizing diaspora linkages and networks, and simply purchasing knowledge-embodying goods. Even with broadly condemned intellectual property policy, China and India remain highly desirable locations for the R&D labs of major international corporations. Several surveys indicate that India is the preferred location for innovation centers, likely stemming from the critical mass of low-cost, highly-skilled knowledge workers – the average annual salary of a scientist or engineer in India is $22,600, compared to $90,000 in the United States. Additionally, given the ability to digitize and internationally transfer much of their work, India is attractive regardless of concerns about intellectual property infringement (Dutz 2007). And the benefit to India is impressive:
“Between 1998 and 2003, MNCs made $1.3 billion in R&D investments in India. More than 300 MNCs are setting up R&D and technical centers in India. They employ 80,000 scientists and engineers and spend about $4 billion a year. Planned investment totals $4.7 billion… The growth of MNC R&D centers generates positive spillovers to the Indian economy, with the demonstration effect to indigenous corporations being the most critical” (Dutz 2007).
Although MNCs state their preference for higher intellectual property, a recent study noted that “it is unlikely that product patents will make a dramatic difference to their choices;” instead a change in IP will likely most affect domestic firms who are increasing amount and type of R&D without the incentive of intellectual property (Lanjouw 1997). India, and China where a similar trend is present and increasing, can further their attractiveness to FDI through tax breaks, increased liberalization and actively utilizing their diaspora.
Unnecessary for Innovation Period: Stronger intellectual property may also be unnecessary in another way. Although they are promoted as a tool for enhancing economic competitiveness, readers of Techdirt will know that their effectiveness is, at most, questionable. In the 1980s, there was a boom in American patenting activity, seemingly corresponding with changes to intellectual property laws that were made in response to worries about diminishing national competitiveness (Dahlman 2001). A measure of useful innovation, Total Factor Productivity, should have increased accordingly with the rise in useful, novel and non-obvious inventions, but this has not been the case (Boldrin 2008), providing compelling evidence that, contrary to common usage, patent activity is not equitable with economic benefits.
But even if we take patent activity as a reliable indicator of useful innovation, the case for stronger IP is doubtful. Strengthened intellectual property is unlikely to have caused the increase in American patenting in the 1980s: a study of patent reforms over 150 years in 60 countries confirms “that reforms have few positive effects on patent applications by entities based in the country undertaking the policy change” (Lerner 2002).
If traditional patents are not indicative of innovation and productivity-enhancement, is it possible that newer, related exclusive rights could do so? One such right, known as Plant Breeder’s Rights, provides patent-like protection to agricultural innovations. Here again, the evidence fails to provide compelling support for monopoly rights. The premier international treaties on the subject, the PVPA/UPOV, have not led to an increase in experimental or commercial wheat yields; instead, agricultural rights take away from the public domain seeds by allowing commercial entities to patent hardly novel strains. When enforced, these exclusive rights price previously affordable agricultural inputs beyond the means of the millions of subsistence farmers in China and India (Boldrin 2008).
Instead of focusing on intellectual property as the sole source of incentive for innovation, China and India should actively explore and promote ways in which to promote investment in public goods without bringing the distortions of monopoly rights. As legal scholar Larry Lessig writes in The Future of Ideas, “There is no necessity to marry the incentive to innovate to conferral of monopoly power in innovations” (Lessig 2002). Digital, networked technology expands the ability for people to collaborate across time and space, significantly decreasing the up-front costs of innovation that intellectual property seeks to recuperate through exclusive rights. Models of open source innovation have proven spectacularly successful in software development where innovation is a cumulative and competitive process (Jaffe 2004). Open licensing models also hold promise in biotechnology where much of the research costs are provided by academic researchers who have an interest in promoting knowledge widely (Kapczynkski 2005). In fact, IT and biotechnology were successful in large part due to the freely available research made possible by university knowledge (So 2008). Funding can also be provided by non-profit entities such as government-awarded prizes for socially desirable innovations (Love 2007). Finally, even in a market without intellectual property, large up-front costs associated with innovation can be recouped through trade secrecy and the first-mover advantage (Jaffe 2004).
SOURCE LINK: http://news2.officigra.ru/?p=
Innovation Policy Needs National Focus, Use Of TRIPS Obligations, Panellists Say By Catherine Saez
Innovation is a main driver for economic growth and development for developing countries, said speakers at an event focusing on innovation in Brazil, India and South Africa. But although innovation is increasing and is a priority in developing economies, one expert said invention capabilities remain in the hands of historical players and governments need to seek innovative policy responses.
The event, organised by the International Centre for Trade and Sustainable Development, the Brazilian Centre for International Relations, Prospectiva Consulting, and the Brazil Institute of the Woodrow Wilson International Center for Scholars, aimed to provide a platform to discuss innovation policies and strategies in a changing global landscape.
The role of innovation is growing and considered a component of success in Brazil, India and South Africa, three major emerging economies, speakers said, with national policy responses to encourage innovation and to build an adequate framework to promote and sustain it.
However, innovation is not only about technical innovation but also the diffusion of new products and services, said Ambassador Roberto Azevedo of the Brazilian mission in Geneva. Innovation policy schemes have to be tailored to the specific characteristics of each country and take into account several factors, such as the state of technology and the phenomenon of “brain drain.”
In Brazil, promoting innovation is a public policy priority, said Rafael Oliva, advisor to the presidency at the Brazilian Development Bank, a federal public company. The participation of the Brazilian government in research and development (R&D) is considerable, and the goal is to both increase innovative activities in Brazil on a systematic basis, and consolidate the country’s culture of innovation.
IP Rights After Public Interest
“The most controversial issue from the global perspective appears to be the intellectual property rights,” Azevedo said. “The core issue is to know to what extent IP rights promote or hinder access to technology and how the current patent system can be exploited to accommodate the needs and interests of developing countries,” he added.
Reconciling the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) implementation in developing countries with their national innovation policies is a challenge, Azevedo said, and developing countries “should not refrain from adopting measures to protect and promote public interest” by using flexibilities allowed by TRIPS, such as Article 7 on technology transfer and dissemination, or Article 29 on disclosure in patent applications.
“TRIPS is about rights on the one hand and obligations on the other hand,” he said. Disclosure, technology transfer and dissemination are obligations that are inscribed in TRIPS, he said. The obligation side of TRIPS is not receiving the attention it deserves, and developing countries, which need innovation, should focus on ensuring obligations are fulfilled, according to Avezedo.
Article 7 states: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”
Article 29 states: “Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application. Members may require an applicant for a patent to provide information concerning the applicant’s corresponding foreign applications and grants.”
India, meanwhile, has established a very clear strategy on innovation, said N.N. Prasad, a former senior Indian official on IP policy, now chief of staff to the director general at the World Intellectual Property Organization. The Indian intellectual property regime encourages innovative creativity, provides a legal and administrative framework for the protection of IP rights, and at the same time offers balanced and effective use of IP, he said, speaking of his time with the Indian government.
“India wants to meet all its international obligations” but also means to safeguard national interests. The country is modernising its IP regime and tries to create awareness and sensitise the public about intellectual property, which suffers, according to Prasad, from misconception. The first phase of the modernisation process led to a substantial increase of patents and trademark registration and to a decrease in the average registration time, he said.
The India Patent Act seeks to balance IP protection with public health, national security, and public interests concerns. Among the safeguards is Article 3(d), which provides exemption from patentability to provide patent evergreening, the effective extension of an existing patent by obtaining a new patent on an incremental change. “India wants genuine inventions and genuine R&D,” he said.
Another safeguard lies in the provisions in the Indian law to deal with national emergency, extreme urgency and public non-commercial use under special circumstances, which allow the country to issue a compulsory licence. “We have no intention to use compulsory licences to circumvent IP obligations but only to deal with national emergencies … when it comes to lives, IP should not get in the way,” he said.
Knowledge is the basic form of capital for innovation, said Yonah Seleti, director general of the Department of Science and Technology in Pretoria, South Africa. The country has launched a 10-year national innovation plan (2008-2018) which focuses on the knowledge economy. Seleti described the knowledge economy as having four pillars: An economic and institutional regime, education, innovation, and information infrastructure, all of which should be interconnected and interdependent.
Seleti called for more nationally focused innovation. “There is an innovation chasm, with an insufficient number of research products directly influencing the real economy,” he said, adding that “Sciences must relate to the social imperatives of society.”
Dominique Foray, chair in economics and management of innovation at the Ecole Polytechnique of Lausanne said that developing countries need “smart specialisation.” They need to correlate the specialisation of their economy with R&D specialisations. There is a need to support locally oriented innovation, and it should be widely distributed over the whole spectrum of economic activities, across sectors and different types of innovation. Countries should try to characterise the best areas of research to serve local interests and needs first, he said.
An example of smart specialisation is biofuels in Brazil, he said.
Brazil is the second world producer of ethanol said Sérgio Queiroz, sperial advisor for technological innovation at the State of São Paulo Research Foundation. The country has been “planting fuel” since 1975 and in 2003, more that 90 percent of new card were using gasoline and biofuel.
He said ethanol from sugar cane provides a high yield per hectare, a good energy balance (the energy output compared to fossil energy imput), and is sustainable since only 1 percent of the total arable land in Brazil is devoted to the culture of ethanol sugar cane.
Innovation has allowed a dropping of ethanol prices. Brazil now plans on working with other potential producers to transfer technology and use cooperative R&D. The most probable producers are Latin America and Africa, Queiroz said.
Invention Capabilities Still Geographically Polarised
If innovation capabilities are improving in developing countries, the trend is still slow and localised, Foray said adding that there is a “remarkable persistence of the distribution of invention capabilities.” A shift can be expected, he said, but “in many years.”
For example, in software research, the inventive activity continues to be concentrated in the United States. This country has two major assets: an important pool of highly skilled programmers and software designers, and the proximity to lead users, he said.
The “development” part of R&D, such as clinical trials or software development is globally shifting but it mainly happens on segments that use large amount of relatively low-skilled labour and does not need to be tightly integrated with other R&D, according to Foray, and developing countries should focus on building up their development capacity rather than giving too much importance to frontier technology research fields.
Countries should develop their own “critical mass” of academic science and complementary infrastructure to achieve significant relocation of core R&D efforts. They should also focus their attention to areas with growth opportunities, high potential for innovation and spillover to other areas, he said.
Concerning IP, “there is no constant best form of IP institutions,” he said. Mixed solutions should be found, supporting both radical innovations by global players and adaptation by local entrepreneurs. For example, “reverse engineering still needs to be promoted as an efficient way to learn the state of the art,” adding that “TRIPS is not enough and not a priority for most countries.”
Catherine Saez may be reached at firstname.lastname@example.org.
Copyright Theft -- Internet Highway Robbery
Karri Hill learned the hard way not to trust a competitive web developer when it comes to copyright. She designed a proposal for a potential client and a few months later, saw her design online. Trouble was, she didn't receive any payment for it.
"I designed and programmed a front page into html and sent it to my potential client as a link. It was understood that they would get other proposals. I normally post the design online for my clients to view. I contacted them a few times and about 45 days later I contacted them again but they were still indecisive so I backed off, thinking that I might have been too expensive.
Just out of curiosity (and I do this on a regular basis) I checked their domain to make sure they hadn't taken my design and shopped it around for a better price. Lo and behold, they had a new website with my graphic elements and photographs -- they had stolen them from me!
Not only did they steal from me, but there were two photos on their website that I had sold to another client, who happened to be a direct competitor of theirs, both in the real estate market.
I personally took these photos -- they obviously were not stock images. As well, along the bottom of their website were a series of images of trade affiliations such as realtor logos. They have the right to the images if they are affiliated with those organizations but in the design sample that I sent to them, those images -- which comprised eight logos -- were in the same order and position. They were taken directly from my design sample. Not only were they the exact size and order, each logo still had the numbers attached that I had originally designated.
I soon discovered which website company did this and I actually know these people. I made sure all the evidence was in place, including all my pages and source code and web logs. I can prove, without a doubt, that this other website company went to my design sample page and used it because only this potential client, now their client, had access. Turns out that someone in the realty company gave the web designers the link to my design and the real estate company apparently went onto my website, looked at my portfolio and liked my photos. When the other web company signed a contract, the client forwarded my photos to them.
The other web development company is far cheaper than me and no doubt this is the reason they got the commission. This is how they can be so cheap: they farm out all of their programming to India. There, a programmer is hired for one month at $1,500. The downside is that the client gets a lesser product and the client has to supply all graphics, images, photos etc.
I spend a lot of time on copyrighting -- there's a big difference between writing in text and putting in type. I spend a lot of time editing and choosing words; it is a lengthy process to do it well. Then someone comes along and takes away all my hard work.
All the design samples I sent to this real estate company state that copyright belongs to my company and it stays that way until, or unless, it is paid for. Then I change copyright to the client. There should have been no confusion.
I phoned the real estate company first, the people who gave away my design, and spoke with the owner. "Oh s**t," he said; he knew he was in copyright violation. I then contacted the web design company and asked them to take my photos down. He said he would contact his client for direction. The next day the images were still there. I wouldn't take no for an answer and said I would go after them legally and that would mean taking their entire site down.
I'm sure my design template is now sitting on someone's computer in India. These companies are known to modify templates and for all I know, they can just change my html and a few colors and may have used it a few dozen times by now. Now I can't use my design because I can't tell future clients that it is original.
Unless I get an attorney to take my case on a contingency basis there's not much I can do. I am a sole proprietor and don't have deep pockets so the best I can hope for that the offending material is removed and somebody pays me for the time I spent on this design that by now has been shopped all over the world.
A few weeks ago I sent the real estate guy, the person who gave my design away, a bill for my time working on the design -- not including the time I spent in his office. I'm hoping he has some integrity. I am a single Mom putting two kids through college. I don't expect to get every job I quote on but I don't expect to be stolen from. One of the things I told this guy was that you get what you pay for. I don't profess to know copyright law, but I do know that this has infringed upon my rights. A cheap website is going to cost them a lot more than I was going to charge, especially when they are confronted with a class action lawsuit."
For more information about Karri Hill's services, please visit her [website].
SOURCE LINK: http://www.
What Everyone Should Know About Intellectual Property
Intellectual property (IP) is a catch-all term that covers creations of the mind, or intellect, that are both commercial and artistic in nature. There are two categories of such property, the first of which includes creative works such as books, movies, music, paintings, photographs and software. These are covered by copyright laws, which offer copyright holders the exclusive right to control the adaptation or replication of the works for a certain statutory period of time.The second category, known as “industrial properties,” includes those things created for industrial or commercial uses. Patents give the inventor and/or patent holder the right to stop others from using the invention unless they pay a license fee (again, for a certain period of time). Trademarks, also a kind of industrial property, are distinctive signs that reduce the confusion among similar kinds of products.“Intellectual property rights” includes, as a subset, industrial design rights, and these protect the particular appearance, design, form, style or design of industrial object from various kinds of infringement, such as being cloned, copied or counterfeited. Another type of intellectual property is a trade secret, meaning proprietary, normally confidential information about the commercial products or practices of a business. Disclosing trade secrets to the public without permission is illegal in most jurisdictions.A short history lessonIf creators of intellectual property were not protected, they would have little incentive to continue researching and developing products for public use, and would tend to keep things secret. Therefore, economic growth in the industrialized nations is, to a large extent, dependent on the protections afforded inventors, writers and artists by IP laws.According to some economists, some 60-70% of the value of large U.S. corporations is attributable to intangible assets. Even more important is the recent finding by a UN study group that found “a positive correlation” between stronger IP legislation and subsequent growth of the economy. Of course, correlation is not causation, but the observation is an important one. Clearly, the establishment of a legal framework to protect intellectual property is an important step in the maturation of the younger, Pacific Rim economies, as well as the countries of the former Soviet Union.In point of fact, intellectual property rights are really a simple form of temporary monopoly that is enforced by the government, and subject to the legal proceedings of that government’s judicial system. The more mature and ingrained this outlook is in a nation and economy, the better.Types of goodsRights in intellectual property are normally limited to what are called “non-rival” goods, meaning goods that are used by a number of people at the same time, where use by one person neither prevents nor excludes use by someone else. On the other hand, “rival” goods, such as clothing, are used by just one person at a time. By way of analogy, any number of people can use a math formula or a cake recipe simultaneously. This explains some of the objections to the term “intellectual property,” as some legal experts assert that the term “property” can only be applied to rival goods, or that it is not possible to “own” property of any other kind.Because “non-rival” goods can be copied, for instance, by many people at the same time – in economic terms, “produced at zero marginal cost” – creators have no incentive at all to develop such works. Of course, monopolies also have their own inefficiencies, as some producers will raise prices and reduce production in ways that are not “maximized” for social benefit.The intellectual property rights system, then, is best thought of as a trade-off, one meant to balance societal interests with monopoly power in the creation of non-rival good. In other words, the developing IP structures encourage research, development and creation of new things, new products, new ideas, and new processes.Making these trade-offs and strategizing IP issues, as an industry or even a nation, is a daunting task. The best hope we have is that a string of judicial decisions and business actions will chart a course through the confusion. In the meantime, it is important to remember that the existing framework is not set in stone, and is subject to changes both subtle and dramatic. The best advice for those working in this milieu is to have a good lawyer, stay on top of the IP court decisions and document everything – research, rulings, recommendations and, finally, a comprehensive listing of IP rights as they continue to take shape in the U.S. and around the world.
How To Avoid Copyright Infringement
Copyright infringement is not an easy thing to explain. While it may seem as simple as not using someone else’s work, it’s not that easy. Thanks to the Electronic Frontier Foundation, and many other organizations, we have the ability to use others’ works — as long as we use it under Fair Use laws. So what does Fair Use have to do with copyright infringement, and how can you utilize it?
Fair Use laws allow us to use a copyrighted work without having to pay someone royalties. This includes using a copyrighted work for educational or instructional uses, criticism of the work, commentaries on the work, news reporting about the work, teaching on the work (including multiple copies for classroom use), scholarship uses, and research. This is talked about fully in Section 107 of the Copyright Code (commonly called Fair Use) and is available for you to read at your local library.
Copyright Infringement in day-to-day life
Sometimes, if you’re writing a paper for work or school, or if you are creating a Power Point presentation, you need to use someone’s work that is already in copyright. So how do you use it without committing copyright infringement? All you have to do is ask — the worst they can say is no, right? But, if they do say no, there are several items in the public domain which may help you to finish your project without having to commit copyright infringement.
What is the public domain, and how does it relate to copyright infringement?
Material that is not copyrighted is considered in the public domain. You cannot commit copyright infringement on works in the public domain. These works include things that the copyright has expired on, or is not copyrightable — such as government publications, jokes, titles, and ideas. Some creators (writers, musicians, artists, and more) deliberately put their work in the public domain, without ever obtaining copyright, by providing an affiliation with Creative Commons. Creative Commons allows people who create materials to forfeit some, or all, of their copyright rights and place their work either partially or fully in the public domain.
So, how do I ensure I’m not committing copyright infringement?
First of all, if you’re going to use someone else’s material, you may want to check the public domain to see if something is suitable for use, instead of trying to use someone else’s copyright. However, if you can’t find something suitable (and you can’t create something yourself), the next best thing (and your only legal course of action) is to find a piece that is in copyright, and contacting the copyright holder.
When you contact the copyright holder, make sure you tell them what you want to use their piece for — whether it’s for your blog, podcast, or report — and ask if you can use it. You may have to pay royalties, or an attribution in your piece, or a combination of both. The creator may also place many limitations on when and how you can use their material. Follow all these instructions they give you, and you’ll be free and clear to use their work as you want.
Once you have permission to use a copyrighted work, you need to make sure you stay within the agreed-upon boundaries. If you veer outside their agreed terms, you may open yourself up for a copyright infringement lawsuit, which can be nasty, costly, and time consuming. If you’re in doubt, before contacting the copyright holder, contact a copyright lawyer to ensure you’re following the law — and protect yourself!
QUESTION: If you hear a great new band, and then download a song from MySpace, is that legal or not?
ANSWER: The events of copyright infringement are not only limited by Kazaa, Morpheus, or some other file sharing peer to peer (P2P) service. If you download a song — no matter if you’re on a website or a MySpace page — and it isn’t coming from the artist themselves, you may want to think about downloading it. Chances are, if it’s not coming from them, you can’t have it — unless it is under a Creative Commons License. Creative Commons gives the exact ways in which you can use the license — and many times those are completely free and legal to download, so make sure you check if it’s under a CC License.
QUESTION: If I’m writing a paper, or article, and I want to quote another website, can I?
ANSWER: First of all, did you know the minute you write or create something, you hold the copyright to it? ESPECIALLY if you’re writing it online — it’s very easy to track things on the Internet. So, if you’re writing a blog, all the things you’ve written (no matter good or bad) are recorded, thanks to Archive.org, which lets you review last versions of your web pages.
Sometimes, we can use someone else’s work in our own, and think we’re small and anonymous. That no one will notice by the time you get it down — you’re just “borrowing” it. Before you begin quoting anyone’s website — from CNN to your local neighborhood hardware store — you need to ask the person who holds the copyright if you can. Usually, they’ll let you if you attribute to them. Depending who you talk to, you’ll either have to pay royalties or license rights to republish. If you don’t ask before you quote, you’re beginning the events of copyright infringement and you are opening yourself up for a lawsuit.
Copyright Guide | What You Need To Know About Copyright Laws By CatMan
Intellectual property, although intangible, is still ownable and your intellectual property rights should be protected. Modern business, especially since the rise of the internet has seen a rise in the creation of intellectual property. However the internet makes it even easier for someone to steal your ideas and work. An intellectual property lawyer who is trained to help reclaim patent, trademark, copyright and trade secret rights can help protect your intellectual property. Types of intellectual property include patents, trademarks and trade dress, copyrights, and trade secrets.
Patents A patent is granted by the government allowing a (usually) 20 year monopoly on an invention previously ?not generally known.? Patents are intended to encourage investment in research and development. If you create a new useful process for doing something, a machine, manufacture, or even an improvement on something already in existence, you can patent your invention and prohibit others from ?making, using, offering for sale, or selling?or importing? the invention in the U.S. Your right to patent your invention is a constitutional right (Article I, section 8). Patents are subdivided into three groups: design, utility, and plant.
Design patents protect innovations in the appearance (although not the structure or function) of an item. Utility patents are for wholly new inventions including machines, industrial processes, compositions of matter, and articles of manufacture. Plant patents cover innovations in plant-life, such as new species of plant created from the reproduction of cuttings and grafts of existing plants. Patent lawyers will research previously granted patents for you to see if a similar product has already been patented or whether you should apply for a patent for your invention. A patent attorney will also tell you if your idea is not patentable because it is a law of nature, a physical phenomena, or abstract.
You should find a specialized patent or intellectual property attorney because in order to prosecute a client's patent application, he or she must be registered with the U.S. patent office. A patent lawyer will also have to have passed a science and engineering exam to better understand and serve clients. Trademarks Trademarks are granted for words, names, symbols, or devices which separate and distinguish businesses and services. These include arbitrary names such as Kodak, suggestive names such as Caterpillar (tractors), descriptive names which indicated the business' products or services, and generic names which are descriptive. Generic and some descriptive names cannot be protected, so a trademark or intellectual property lawyer should be consulted to see if your name qualifies for trademark rights. You can also file an intent-to-use application to reserve a name that will later be trademarked. (This is especially important with the expansion of business on the internet.)
Trademark lawyers can also be sought to make sure that your new business isn't using a registered mark. The consequences for using a registered mark, even though you may have put money and advertising into promoting your business, include being sued for infringement. Copyrights Copyrights protect the individual's expression of an idea, but do not protect the idea itself (see patent). Copyrights are intended to promote scientific progress. You can copyright your writing, performance (music, dance), art, sound, compilations. You cannot copyright ideas or uncompiled facts, words, or phrases (these could be registered as trademarks, though, so consult an intellectual property lawyer). If you come up with an idea or invention while working for a company, it is able to be patented or trademarked by the company you work for, but copyrightable work belongs to you, the employee, not the company employing you. However, there are loopholes, and an intellectual property lawyer will help you both with the process of getting your expression copyrighted but will also save you trouble and time in getting over road blocks.
If you are a company, you need an intellectual property lawyer who specializes in copyrights because especially with internet businesses, you will need to make sure that contractually your web site design can be copyrighted to your company and will not belong to the employee or independent contractor who created it. This also applies to software. Trade Secrets It is important to protect your business' trade secrets so they will not be misappropriated. Whereas patents have a limited time of coverage and after 20 years are released, trade secrets are always protected. To qualify as a trade secret, it must have independent economic value to the company. For example, the recipe for Coca-Cola is a trade secret, not a patent, and therefore will never be released because without maintaining the secrecy of the recipe, the business would not be able to compete by offering an individual product.
Do China And India Really Want Stronger Intellectual Property? from the stay-tuned-to-find-out dept
Over the past few months, I have been researching the role that intellectual property plays in China and India, with specific attention to the frequent calls for increased protection in those countries. I believe that a careful and critical review of national goals, potential solutions and likely outcomes will, in fact, make intellectual property harmonization a disagreeable mechanism for bringing China and India to continued global prestige. This series, adapted from a recent paper, will first outline the role that intellectual property can play in economic development. Because of their relative importance, patents will be the focus. Following brief overviews of the intellectual property systems in China and India, it will examine the case for stronger IP in China and India. The most time will be dedicated to explaining why strengthened intellectual property is likely to disproportionately advantage the developed world, decrease the ability of China and India to diffuse productivity-enhancing innovations, prove both insufficient and unnecessary for promoting innovation, and even be counterproductive to the countries' innovation systems. Finally, the series will end with recommendations for the way forward for China and India.
Every year, in conjunction with the content industry, the US Trade Representative produces the Special 301 report that identifies other nations as significant concerns in regards to intellectual property. It is among the most prominent reminders of the substantial pressure placed on countries to consistently strengthen their national intellectual property regimes. For two developing nations, China and India, the pressure is particularly noteworthy. Governments, donors, private industry and academia give these rising superpowers dozens of reasons to believe that stronger intellectual property is a highly desirable improvement to their respective business environments. They propose international intellectual property "harmonization" - a process through which the developing world upgrades protection and enforcement of intellectual property to levels seen in the developed world, if not further.
A Brief Background On The Challenges Facing China And India
China's spectacular rise over the past three decades has been thanks, in large part, to good infrastructure and low-cost labor. But to continue its meteoric climb, China must make a sustained commitment to developing as a knowledge economy - one that effectively harnesses and uses new and existing knowledge to improve productivity and increase overall welfare. Right now, the service sector is very underdeveloped in China for a country of its per capita income; and although China is now the third largest spender in absolute R&D, productivity is low and regional inequalities are stark. China's leaders must take a multipronged approach to development by: promoting competition; upgrading education and learning; exploiting global knowledge; diffusing new technologies; supporting small and medium enterprises; and establishing a viable social security system.
Although China receives much of the media attention, India, too, has enjoyed historic success over the past couple decades. India's unique characteristics - skilled, English-speaking knowledge workers with diaspora linkage, free market institutions, a well-developed financial sector, and macroeconomic stability - make the knowledge economy an attractive national goal. However, the success stories of Indian IT firms betray the significant challenges facing India. India needs to strengthen the institutions supporting an efficient innovation system. It remains a relatively closed economy that receives minimal foreign direct investment (between 2003 and 2004, India received only $4.26 billion, compared to $53.5 billion in China) (Dahlman 2005). Further, it currently devotes little GDP to R&D, and private sector involvement is crowded out by government intervention. Finally, India must continue to develop a broad base of educated and skilled workers.
E-Books and 'Text-to-Speech' Technology
Amazon's recent foray into the electronic book business can be described in no other way than as a resounding success. In a short period of time, Amazon's Kindle has done for the electronic book what Apple's iPod did for electronic music: that is, make it easily accessible, downloadable and, most importantly, cool. However, Amazon's attempts to find new ways to exploit this medium and enhance the reading experience have met with their fair share of controversy.
The Kindle 2 recently hit the market, and it included a new feature that had the publishing industry up in arms and threatening suit. Ths feature is commonly referred to as "text to speech," but according to representatives for the publishing industry and the Authors Guild, it may represent the beginning of the end for the burgeoning audio book market, in addition to constituting a blatant violation of existing copyright law. From a copyright point of view, does text-to-speech technology require a license? And should publishers be legitimately concerned about the demise of the audio book?
What exactly is an e-book? Quite simply, it is nothing more than an electronic version of a traditional paper copy of a book. An e-book is usually in some type of computer readable format (such as DOC, PDF, etc.) and can be read on any type of electronic device capable of displaying that particular file type. E-books have been around for quite some time but have had a limited appeal because of the fact that many people prefer the portability and ease of use of traditional printed media, as opposed to being tethered to a computer screen. Keenly aware of these shortcomings, several manufacturers attempted to develop dedicated hardware devices that would emulate the traditional book-reading experience while at the same time providing many advantages only possible with e-book technology, such as storage of hundreds or thousands of books on a single device and instant access to titles via downloading.
Sony was an early entrant into the field with its LIBRIe device, which never really found an audience. Sony tried again more recently with its PRS-500, which experienced moderate success, but has been largely overshadowed by the popularity of Amazon's Kindle device. Unlike Sony's PRS-500 reader, the Kindle does not need to be coupled to a computer in order to download titles. It uses Amazon's wireless Whispernet (provided by Sprint) in order to download any available title from Amazon's e-book library, wirelessly, on demand. However, the most controversial feature of the Kindle was introduced to the public when Amazon released the second-generation device, known as the Kindle 2. This device incorporated text-to-speech technology, which, at the press of a button, allows the Kindle to read the e-book.
Much like the e-book, text-to-speech technology is not something entirely new. In fact, the first computer-based text-to-speech system was completed in 1968. Text-to-speech software enables a computer to convert text characters into audible, intelligible words by virtue of the computer's internal synthesizer. If one wants to get an idea of what typical text to speech carried out by a computer sounds like, it may be instructive to listen to any interview given by world-renowned physicist Stephen Hawking, who communicates with the aid of a computer because of severe paralysis brought on by the ravages of Lou Gehrig's Disease. The technology continues to improve, and many who have heard the Kindle 2 in action have remarked on the quality and clarity of the Kindle 2's electronic "voice." However, text-to-speech technology continues to be hampered by the software's inability to convey emotion and to handle heteronyms, which are words that are spelled the same, but pronounced differently (e.g., "bow" as the front of a ship versus "bow," which is used to fire arrows). Considering these significant shortcomings, should the publishing industry be legitimately concerned that text to speech may replace audio books created by professional voice actors? The answer to this question is important, as it relates directly to whether text-to-speech technology is a permitted use of computer-stored text under U.S. copyright law.
As a result of protests made by the publishing industry and the Authors Guild that Amazon had not negotiated for the text-to-speech rights, Amazon elected to disable the feature at any publisher's request, effectively forestalling any threatened litigation for the time being. In a press release announcing the compromise, Amazon steadfastly maintained its original stance that its text-to-speech feature was in fact a permitted use of computer text under their current license. In an opinion piece published in the Feb. 25 issue of The New York Times , Roy Blount Jr., president of the Author's Guild, stressed the importance and value of protecting audio rights and the continued success of the audio book market. His argument was primarily economic in nature, stressing that authors be adequately compensated for their creative works and any derivative rights that may flow from them. But the letter is noticeably devoid of any legal support for the contention that text-to-speech technology is violative of U.S. copyright law. Blount concludes by noting that while parents need not fear any legal repercussions for reading bedtime stories aloud to their children, performing the same act with the Kindle's text-to-speech function is another matter. He fails, however, to explain the distinction.
Under the 1976 Copyright Act, copyright protection may extend to any work of authorship. Among the works that are subject to protection are literary, musical, dramatic, choreographic, graphic, audiovisual and architectural works as well as sound recordings. In order to be eligible for copyright protection, the work must be "fixed in a tangible medium of expression." With respect to e-books, the underlying text itself is clearly subject to protection, in that the e-book text is fixed as an electronic file on the Kindle's internal memory. (This assumes, of course, that the underlying e-book is still subject to copyright protection, and that the work has not passed into the public domain.)
However, the situation is not so simple when one considers that when a Kindle user activates the text-to-speech feature, there is no fixation of anything into a tangible medium. In fact, after the software completes the process of converting text into audible sound waves, and those waves have reverberated throughout the listener's immediate vicinity, there is nothing tangible that remains. With respect to audio books, there is fixation, in that the sound waves of the author or professional reader's voice are affixed to a compact disc, or more recently in the form of an electronic MPEG file affixed to the hard drive of a user's iPod. But nothing similar exists with respect to text to speech.
The Authors Guild and publishers may find solace in a series of copyright cases decided in the 1980s involving video games. The video games at issue involved programs fixed upon a series of silicon chips inside the arcade game cabinet, and the plaintiffs had also registered the underlying source code. However, the games' authors sought to enforce copyright protection over the fleeting screen images that were created as the game was played, claiming that such images constituted separate audiovisual works, as noted in Williams Electronics Inc. v. Artic Int'l Inc. The defendant, which was a manufacturer of knock-off chipsets that displayed nearly identical games, alleged that there could be no copyright protection for these in-game displays because the images at issue were not fixed in any type of tangible medium. Simply pull the plug and the images ceased to exist.
In rejecting the defendant's argument, the court noted, "The fixation requirement is met whenever the work is 'sufficiently permanent or stable to permit it to be ... reproduced, or otherwise communicated' for more than a transitory period." According to the 3rd U.S. Circuit Court of Appeals' reasoning, so long as the work could be readily reproduced for more than a fleeting moment, the fixation requirement was to be relaxed to some degree.
Interestingly, in a similar case -- Midway Mfg. Co. v. Artic Int'l Inc. -- where the same defendant was again hauled into court for selling knockoff chipsets of another video game, it also sold an unrelated circuit board that could be added to the legitimate version of the game, but caused the game to play at a higher rate of speed. The 7th Circuit held that this too was a violation of the plaintiff's copyright, under the theory that it constituted an unlicensed derivative work. The court noted that although it would probably not violate an artist's copyright if a record were played at a higher speed than was intended, doing the same thing to a video game did violate the author's copyright. The distinction, according to the court, was that although there were many advantages to sped-up games (players were more challenged, arcade owners took in more revenue from shorter play times), there was no such advantage or demand related to playing a record at a higher rate of speed.
Applying the rationale of these two cases, the Authors Guild and publishers could make a compelling argument that although activating the text to speech does not result in fixation in a tangible medium, it can be readily reproduced and should therefore be subject to protection. Also, the 7th Circuit's holding that merely speeding up a game results in an unlicensed derivative work (based largely on the theory that there was consumer demand for such a feature) tilts in favor of the publishers' legal position. There is consumer demand for the Kindle's text-to-speech feature, and if something as seemingly innocuous as a sped-up video game can be classified as a derivative work, it is not difficult to imagine a court being persuaded that an e-book read by an electronic voice could also be derivative in nature.
With the fixation issue addressed, the next major hurdle to be cleared by the Authors Guild and the publishers would be the fair use doctrine. As the Supreme Court has noted in Campbell v. Acuff-Rose Music Inc., the fair use doctrine provides a "guarantee of breathing space at the heart of copyright." Fair use was a common law doctrine until it was formally codified as Section 107 of the 1976 Copyright Act. Pursuant to the statute, whether the use of a work constitutes fair use is to be determined by considering the following factors: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
Addressing the purpose and character factor, it is important to note that the preamble of §107 references the following uses that may be deemed to constitute fair use: criticism, comment, news reporting, teaching, scholarship and research. These factors are preceded in the preamble by the words "such as," which indicates that the drafters selected these as illustrative examples of fair use rather than as an exclusive list. This is important because the use of text to speech does not appear to fit neatly into any of the examples provided. But one need only to look to the Supreme Court's opinion in Sony Corp. of America v. Universal City Studios Inc. for an example of fair use that was neither productive nor transformative. (Universal had to pursue a contributory infringement theory against Sony, because the home viewers were the parties that were allegedly committing the direct acts of infringement. The Authors Guild would likely face the same impediment, because of the fact that the Kindle customers would be the parties utilizing the text-to-speech feature, and committing the allegedly direct act of infringement.) In Sony, the Supreme Court found that using a VCR (referred to as a VTR in the opinion) to record copyrighted broadcasts constituted fair use.
The recording of copyrighted broadcasts in their entirety without any type of transformative contribution to the underlying work would hardly seem to be protected under fair use. However, the Supreme Court decided that it was fair use, primarily because the use of the device enabled private, noncommercial "time shifting" in the home. Viewers could now watch programs at their convenience rather than when the broadcasters decided to air them. Remarkably, the court found that this may have constituted an advantage to many copyright owners, since it opened up a new market of viewers that had previously been unable to watch programs because of scheduling conflicts. Proponents of Kindle's text-to-speech feature could make the analogous argument that the computerized voice of the Kindle could open up new markets for copyrighted works, allowing groups such as the blind, illiterate and dyslexic to have access to previously inaccessible literary works.
The most intriguing part of the Sony opinion, and the issue that will likely have the most impact on Kindle's legal battle, is the court's analysis of the effect of the allegedly infringing use upon the potential market for or value of the copyrighted work. The court held that "respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works." The Supreme Court failed to predict that the copyright owners and companies such as Blockbuster would soon exploit that potential market and make a fortune selling and renting videotapes of copyrighted works to consumers. The degree to which home video recording ate into those profits is unknown. But considering the fact that the Sony decision was decided by a 5-4 margin, one wonders if the court would have arrived at the opposite conclusion if it had been able to correctly predict the eventual success of the home videotape market.
The Authors Guild and the publishers are in much the same position as the copyright owners in Sony. It's fairly obvious at this point that the Kindle's text-to-speech feature in its current state is not an acceptable substitute for an audio book recorded by a professional voice author. But the measure is not the impact that the use will have on the current market, but the potential market for the copyrighted work. What happens if, in the next 10 years or so, text to speech advances to the point where it is indistinguishable from a professional voice actor? Such a development could impair or totally destroy the audio book market. If the Authors Guild and publishers acquiesce with respect to the legality of text to speech, they may find themselves on the outside looking in when or if text-to-speech technology becomes an acceptable substitute for audio books.
In an ideal world, Amazon, the Authors Guild and the publishers would collaborate and find a mutually acceptable solution where text to speech was activated on all titles available on the Kindle, and the authors of the creative works were afforded some type of nominal compensation for permitting their works to be utilized in this manner.
However, the parties involved seem content to leave the issue unresolved for the time being. This is not an acceptable solution, as there has been a great deal of positive feedback from Kindle users that have used the feature on works where it has not been disabled. The parties in this dispute need only look to the Recording Industry Association of America and its long, expensive and largely unsuccessful battle against digital music to understand the error of their current course. It took a company like Apple to prove that digital music could be distributed legally, inexpensively and, most importantly, profitably. Hopefully, those in the digital book industry will learn from the mistakes of their colleagues in the music industry.
Charles A. Gaglia is counsel to the intellectual property department of Gibbons P.C., resident in the firm's Philadelphia office. He previously served in senior patent and intellectual property counsel positions for numerous corporations, including International Paper Co., Union Camp Corp. and Warner-Lambert Co. Gaglia has been involved with pharmaceuticals, chemicals, consumer products, paper, resins, adhesives and biotechnology, and he has also prepared and prosecuted U.S. and foreign patent and trademark applications. Thomas R. DeSimone, an associate in the New York office of the firm, concentrates his practice in the area of litigation in relation to patent, copyright, trademark and trade secret disputes. He was employed as a biotechnician at Merck & Co. prior to enrolling in law school.
Data protection law vital for economic growth
India could become the epicentre of this cyber crisis as India is currently the largest host of outsourced data processing in the world, and our apparent lack of appropriate legislation could fuel the crisis.
There is an ongoing explosion of cyber crimes on a global scale. The theft and sale of stolen data is happening across vast continents where physical boundaries pose no restriction or seem non-existent in this technological era. India could become the epicentre of this cyber crisis as India is currently the largest host of outsourced data processing in the world, and our apparent lack of appropriate legislation could fuel the crisis.
Headlines clang with incidents of data theft and other forms of cyber crime. A former employee of a reputed bank used customer data information and stole Rs 48.66 lakh from the data subject’s account. A student from a reputed institution of technology has been arrested in online credit card fraud. A BBC sting operation revealed a call-centre employee selling credit card details of British customers in New Delhi.
The annoying sale calls from aggressive vendors is a peril in point as a result of data being illegally shared across various networks. There is a global demand for this illegal data as it represents a list of potential clients. Some crooks use this baseline information to gather more particulars on the data subject, steal his identity and purchase goods and services on his account without his knowledge.
Companies store confidential data and information in electronic form and this could be vulnerable in the hands of their employees. It is often misused by unscrupulous elements among them. There have been instances of security breaches and data leakages in high profile Indian companies. We need to focus our efforts on resolving the immediate problem or it could spin out of control damaging our credibility in the global IT industry. This is a crisis that needs to be confronted as a major corporate challenge.
Some companies supplement the lack of sufficient and focused legislation with ‘appropriate contracts’ that stipulate the duty of confidentiality and liability in case of breach. Indian companies often submit themselves to the exclusive jurisdiction of the customer’s national courts. Companies also subscribe to stringent security policies and procedures. But this is an interim measure and there is no substitute for adequate legislation that would boost customer confidence.
The Information Technology Act, 2000, has recently been amended to address the emerging challenges in cyber crime, but the provisions pertaining to data security and confidentiality are grossly inadequate. We have the Credit Information Companies Regulation Act, 2005, that provides for principles on the accuracy, security, secrecy and adequacy of credit information.
Not about just credit data
Unauthorised use or transfer of this credit data attracts prohibitive fines. Credit information can be used only to identify the credit worthiness of a potential customer and cannot be used or transferred to unauthorised persons for any other purpose. This Act again, protects credit data exclusively which is just one aspect of personal data.
Any piecemeal legislation is insufficient; we need comprehensive data protection legislation that will protect the rights of data subjects, that will vehemently prohibit the use of collected data for any purpose other than for which it has been collected.
This is not an issue that is unique to India, legal systems across the globe are labouring to keep pace with the developments in technology. The European Union has enforced a comprehensive Directive on Protection of personal Data to all its member countries
The US has also complied with the EU directive through the Safe Harbour Agreement to facilitate business from the EU countries. It would be wise for India to comply with the EU directive as well, as it has a lot at stake. The UK legislation on Data Protection could well be used as a benchmark to help us draft our corresponding laws.
Meanwhile, Indian companies await hopefully and anxiously in equal measure to see if the Personal Data Protection Bill, 2006, will secure the ‘adequacy status’ for India in the EU.
Source: Deccan Herald - 24-06-09
HADOPI Copyright Law To Get New Set Of Teeth With Additional Law By Catherine Saez
The Sarkozy government will implement a law aimed at promoting legal online downloading in the coming months despite being prevented from cutting off the internet access of alleged three-time offenders, according to official sources. Meanwhile, the government has already begun preparing a new law that would restore penalties this time decided by a judge rather than by the newly created HADOPI commission. This would conform to a constitutional ruling on the HADOPI law.
French Culture Minister Christine Albanel said in a 12 June press release that the high-level authority for the diffusion of works and the protection of rights on the internet (HADOPI) would now only be in charge of the prevention of piracy and promotion of legal downloading.
But a new law, completing the HADOPI law and entrusting a judge with the power to temporarily suspend the internet access of alleged infringers, will be presented to the council of ministers before the end of June, she said. The draft law would then be on the agenda of the extraordinary session of the Parliament in July.
Albanel also said that as a result, the full “graduated response” mechanism is expected to be set into place in September and that the first emails and registered letters to alleged infringers would be sent in the autumn. The graduated response, or three-strikes policy, would impose penalties on users after three alleged infringements.
The government’s persistence comes after the French Constitutional Council, which reviewed the constitutionality of the law upon request, on 10 June censored two paragraphs of the so-called HADOPI law which would have instituted a graduated response for alleged copyright infringers on the internet, with a possible service suspension from two months to one year (IPW, Copyright Policy, 11 June 2009).
The Constitutional Council found that paragraphs 5 and 11 of the law went against the French Declaration of the Rights of Man and of the Citizen from 1789, because it did not guarantee the freedom of communication and expression, and did not allow for the presumption of innocence, as provided for in the Declaration.
Article 5 empowered the HADOPI Commission to take direct action against users for alleged infringement, rather than putting their case before a judge. Article 11 is related to the responsibility for internet access in infringement cases.
On 13 June, the law numbered 2009-669 and legally dated 12 June, with the mention of the censored paragraphs, was published in the French Journal Officiel (in French), promulgating it.
Catherine Saez may be reached at email@example.com.
Protecting Intellectual Property - iTunes
What's up with iTunes?
Even today, some people aren't entirely clear on the legality of iTunes and other MP3 player programs.
It basically comes down to this: If you buy the MP3's in your iTunes library, it is one hundred percent legal.
If you go on a file sharing program like Bearshare or Limewire, or if you visit a website like The Pirate's Bay to find your music, then you are breaking the law (in most countries), unless everything you download is in the public domain, is free content, or is open content.
There really should be no confusion. If you are taking copyrighted protected music that is not explicitly declared to be free for download, without paying the appropriate distributor for that music, then that is technically a form of piracy, and you can pay fines or even do jail time if caught.
The recording industry, around the days of Napster and other file sharing programs, is often said to have overreacted. By creating so much bad press regarding the incident, more people wound up knowing about sites like Napster than they did before. By pressing charges to the fullest extent of the law against teenagers who didn't know that they were breaking the law, the record industry wound up vilifying themselves in the eyes of many, which actually wound up discouraging many from wanting to buy CDs legitimately, thus putting more money in the pockets of music companies.
The plan was to scare others away from pirating music, but the end result was that more and more people wound up pirating music, and they wound up finding cleverer, sneakier ways to do it. For example, today, some people will go on youtube, find the official website of a record label, and then download the music from the official music videos through a file conversion program.
Still, even though the actions of the record labels may seem excessive and might make it more tempting to not pay for any music and to just download it all for free, this doesn't change the fact that doing so is illegal, and if caught, you are likely to be charged with piracy to the fullest extent of the law.
iTunes has taken steps to actually try and discourage piracy by offering reasonable prices on songs per-download, and by offering iTunes exclusives, which cannot be found via file sharing programs.
It's kind of funny that MP3's actually had a sort of a negative label attached to them in the late nineties and early twenty first century. There is nothing wrong with the format itself, and there never has been. However, at a certain point in time, the record industry hadn't really caught on to the potential of the internet to distribute music instantaneously, and at a more reasonable price, since there is no actual overhead with the distribution process, as there is with physical CDs and their packaging.
Again, this doesn't really justify pirating music, but for a number of years, most of the music on the internet was pirated simply because you could not actually find very many places to download music legitimately.
Today, of course, we see that the exact opposite is true. Everyone and their brother is distributing music online, at lower prices than you'll find in bricks and mortar record stores. MP3 players have become status symbols in themselves, capable of holding hundreds or thousands of songs, and are often times sponsored and endorsed by record companies. MP3 player manufacturers are often supported through special deals, advertising, and so on. MP3's have pretty much shed their image as a pirate's trade, thanks to the fact that record labels have finally caught on, and are trying to capitalize on the capabilities of the format to be distributed in mere seconds, and at a lower cost, which increases demand.
Apple's iTunes, as well as WinAmp for Windows, are setting a good example, at least. It stands to reason that the record industry will never really stop software and music pirating, but by making the alternative more and more tempting, they can at least curb the desire to pirate. Wherever you stand on the issue morally, remember that the legality of pirating music stands at this; it is illegal, and you can get in serious, serious trouble if you get caught.
Elsevier admits error in promoting Merck drug
STM publisher Elsevier, Netherlands, has issued a public statement over its role in the marketing of the Vioxx anti-arthritis drug. The publisher acknowledged that it had failed to meet its disclosure standards in producing a publication sponsored by US pharmaceutical group Merck.
In a statement issued by the company, Michael Hansen, CEO Of Elsevier's Health Sciences Division, has said that the global publisher is conducting an internal review but believe this was an isolated practice from a past period in time. He further stated that the company will continue to partner with all scientists and clinical investigators, including those in the pharmaceutical industry, to help communicate the findings of high-quality, peer-reviewed medical research.
Elsevier produced several issues of a magazine called The Australasian Journal of Bone and Joint Medicine between 2003 and 2005. The magazine carried articles promoting Merck products Fosamax and Vioxx. The company, however, failed to state that the publication was sponsored by Merck. Elsevier is part of the Reed Elsevier group, which produces the Lancet, the medical journal that has accused Merck of selling Vioxx after it became aware of the drug's heart risks.
Merck has been a subject of much controversy as regards disclosure of cardiovascular events linked to Vioxx. In 2008, the Journal of the American Medical Association (JAMA) reported that Merck regularly prepared scientific studies by itself or farmed them out to medical publishing companies. According to the report, the company hired research scientists to claim authorship, even if their involvement was minimal. The reports frequently were penned by ghostwriters and some – on Vioxx studies – minimised the risk of death, the report claimed.
Financial ties between doctors, medical researchers and the drug industry is a known fact in the industry. Highly regarded doctors and researchers have also faced a great deal of criticism because of their financial arrangements with pharmaceutical companies. The latest Elsevier incident is seen to mark a fresh twist in a long debated controversy on how pharma companies influence academic journals by paying for large numbers of reprints of articles favourable to their drugs for distribution to doctors.
Merck described the publication as a 'complimentary journal' comprising articles on its drugs from peer-reviewed publications, which mentioned its funding for the studies and a 'hypothetical cardiovascular risk' associated with Vioxx.