Comments for Global IP Issues As Seen By Industry: The 2012 ICC Report

Pirate party (concerns of the civil society) vs global ip issues (point of view of the industry) (1text/2posts)

I’ll briefly summarize the Pirate party’s point of view concerning copyright, found in Christian Engström and Rick Falkvinge manifesto : the Case for Copyright Reform (available at : http://www.copyrightreform.eu/sites/copyrightreform.eu/files/The_Case_for_Copyright_Reform.pdf) Then I’ll try to explain how the pirates connect the issue of copyright with fundamental freedoms. This, in my opinion, explains the relative success of the Pirate party because they somehow relay at national and european level the concerns of the so called « civil society » about copyright vs fundamental right. Finally some conclusions about their action will be drafted : the impact on regulations ? Raising awareness in the civil society ? Did it work ?

The Pirate party proposes a 6 part reform of the copyright legislation. This is a very central issue of their program, they consider this reform as urgent and copyright law today as outdated and threatening fundamental freedoms (ex : postal secret, client-attorney privilege). The reform would « set all non-commercial copying and use free, and (…) shorten the commercial protection time. But (…) keep the commercial exclusivity in a way that allows most business models that are viable today to continue to work. »

1. First step is to leave the moral rights unchanged : « give credit where credit is due ».
2. Secondly : free non-commercial sharing. They wand regulation to target copying for commercial purposes and put an end to the criminalization of peer-to-peer file sharing (using/spreading copyrighted work for non-profit motive).
3. Thirdly, the Pirate party wants to shorten the duration of copyright, they propose 20years from the date of publication.
4. Fourtly, they want to keep the automaticity of the copyright (no formalities, it starts at the publication). But they would require a registration after 5years to solve the orphan works problem.
5. Fifth proposal is to authorize sampling, remixes and parodies and to set clear exceptions and limitations instead of putting a ban on creativity.
6. Sixth proposal is to put a ban on Digital Restrictions Management (a way to restrict by technological means the use of a copyrighted work even if the consumer has legal rights to do so).

Engström (co-founder of the Pirate party) in the Case for Copyright Reform explains it very well : for a long time laymen did not feel concerned about intellectual property : IP concerned only some industries. As we can see in the IP roadmap : industrial concerns about IP remain unchanged, they just follow the evolution of the technologies ex (IP Roadmaps) :
• 2010 « There is also increasing overlap between IP and Information Technology (IT) policies. Issues such as data privacy, open source software, technical measures to discourage on-line infringement, and domain name policy have implications in both the IT and IP fields. »
• 2012 : « The accelerating pace of developments in information technology is also having a major impact on how IP is used, licensed and protected. The emergence of social media, the increasing prevalence of mobile devices and applications, ever-increasing bandwidth, and changing consumer behaviour are making IP owners reconsider their strategies and models for distributing, commercializing and controlling their IP in the electronic environment ».

The big change is how laymen do now feel concerned about IP. Ordinary people were before the age of the internet not able to do anything that would infringe copyright. But now that internet exists, file sharing is boosted : « Until twenty years ago, copyright hardly concerned ordinary people. The rules about exclusivity of the production of copies were aimed at commercial actors, who had the means to, for example, print books or press records. Private citizens who wanted to copy a poem and send to their loved one, or copy a record to cassette and give it to a friend, did not have to worry about being in breach of copyright. In practice, anything you had the technical means to do as a normal person, you could do without risk of any punishment. But today, copyright has evolved to a position where it imposes serious restrictions on what ordinary citizens can do in their every-day lives. As technological progress has made it easier for ordinary people to enjoy and share culture, copyright legislation has moved in the opposite direction. We want to restore copyright to its origins, and make absolutely clear that it only regulates copying for commercial purposes. To share copies, or otherwise spread or make use of use somebody else’s copyrighted work, should never be prohibited if it is done by private individuals without a profit motive. Peer-to-peer file sharing is an example of such an activity that should be legal. »

I think 3 steps of increasing connectivity could be isolated in the movement towards increasing ability to share files, increasing volume of files shared, increasing availibility of people to share file (people are more connected).

1st step is the blogger/mailer/messenger stage : the content is targeted to one correspondant and private or to a big public and public (private= private, public = public), there’s a volume limit and people are occasionally connected.

2nd step is the community game/social network (could be split in 2phases) people are much more connected but still limited by the technology (computers) they share very various contents that are now able to go viral in a much easier way since the public is larger in number and much more spread at global scale (http://www.checkfacebook.com/) Shared contents are various. We come to a point were stopping information or file sharing is very hard.

3d step is using the same communication channels but wich a much higher connectivity : people are at every single moment able to share contents. This is what we experiment with smartphones. Possible volume to share is still perfectible and new channels are on their way.

What can this very schematic (and of course simplistic) approach of our file sharing ability teach us ? That we came to a point were stopping file sharing is utopic. Additionally, try to stop it could strike with some fundamental rights. In fact, any digital communications channel used for a private correspondance can be used to transfer digitizations of copyrighted works. And the only way to check that is to allow to break the seal of private correspondence. Right to privacy, secret of the correspondance… those fundamental rights have to be weight with the industry’s interests.

This is the reason why the civil society nowadays feels concerned about the copyright legislation (ex : ACTA, HADOPI, SOPA, PIPA). People feel threatened in their fundamental rights. It is also a good explanation of the success of the pirate party. ACTA has received a very important mediatic coverage (traditional media but also viral spreat of concerns regarding this agreement.
An uplifting example of how the « civil society » resents the enforcement of IPR in the field of internet (IP Policy Committee blog (http://tacd-ip.org/archives/10)

« DEAR FRIENDS:
Please help us to send a clear message to our European Parliamentarians in defence of fundamental rights, privacy, transparency and judicial due processs. The Anti-Counterfeiting Trade Agreement is now being negotiated in secret by the EU, the US and 10 other countries. This international trade accord that will soon be concluded could threaten consumer rights and innovation by means of heavy-handed criminal enforcement measures and the private policing of Internet .
Once an agreement is reached by negotiating parties the European Parliament must give its assent to the ACTA treaty.
Four members of the European Parliament from different political groups have put forth Written Declaration 12 below that needs the majority of the members to become the official opinion of the elected representatives of the European Union. If this declartion is approved it will send a strong message to EU leaders and to EU member states. From the 6th to the 9th of September are the last days to reach a majority of signatures of MEPs. Please contact (by e-mail or telephone) MEPs from your country who haven´t yet signed on the list attached and ask them to demand the respect of citizen and consumer rights by signing Written Declaration 12.
If you have any questions, feel free to contact me.
David Hammerstein, Transatlantic Consumer Dialogue
32 474472763
david@davidhammerstein.org”

The civil society and the industry play now on a level playing field, with representation of the industrial lobbys as well as a political force transmitting the civil societ’ys concerns.

As a way of conclusion : Pirate Party claims that copyright is out of date and infringing fundamental human rights. It is maintained by a constant lobbying at eu and national level.Flourishing culture production is not in contradiction with file sharing. They plead for an end of the ciminalization of the file sharing generation. They claim the penalties imposed by some landmark judgements about infringement of copyright (ex : Jamie thomas case) are totally disproportionate and violating due process and this would never stop file sharing anyway.
I think that their is a dialectical process between those parties and the civil society : at some point, that kind of party comes to life by a process of crystalisation of existing concerns among the society. On one hand, Pirate party started strong in countries like Sweden and Germany. Their was a lack of clear program but they proposed more protection for private data’s, cthe end of criminalization of file-sharing, a different functionning (more like a network ex :Internet relay chat) that was very seducing for countries keen to direct democracy and acculturated to the social network culture (highly connected). This is the bottom-up effect of crystalisation of people’s concerns.

On the other hand, the Pirate party acts as a kind of « counter lobby » to the industries (movies, music, industries concerned by copyright cf. IP roadmap). This is why I think their arrival in the European Parliament was a big step forward : they entered the policy making field (top down outcomes). They bring the citizens concerns in the public debate and at the same time raise awareness of the whole civil society at european level. This was I think a key step for the spread throughout Europe. The Case for Copyright Reform brings more flesh to their program concerning copyright. I think this party have had some strong mediatic impact with its participation to the miscarriage of ACTA, but still the legislative outcomes of their actions are uncertain. Party under construction.

Illustration : http://ds2.ds.static.rtbf.be/article/big_info/2/d/1/624_341_fb0388af54b7030c18228532faeb77b9-1341407908.jpg

IP Law encounters today a handful of issues, almost always related to the question of Harmonisation, Clarification and Awareness. There are question rising about specific categories of IP Law: in the domain of patents there is a need for cooperation, and clarification about who deserves protection (first to invent vs. first to file), about what deserves protection… In the domain of trademarks there is a need of clarification about what does go in the scope of trademark protection, and Design lacks a good and clear definition in International Law.
Internet does put a whole lot of problems on the table, because of the quick expansion of media and information. IP Law needs harmonisation, and efficiency in order to make it easy to protect copyrights. New themes since 2010 arose, as such as Confidential Business Information. , that needs equal protection everywhere, at the risk of undergoing a “nivellement par le bas”
Enforcement in IP Law needs harmonisation as well, since we either need an International Supreme IP Court, or means of mediation and arbitration. In order to fight piracy and counterfeit, it will be needed to solve tension between users’ expectations and the respect of various IP rights. We also need to determine how IP rights can be valued, traded… Harmonising IP privileges in investigations will allow to help IP rights to be protected everywhere.
Towards other policies, it is capital to raise awareness about positive impacts of IP law in domains as such as Communication, Climate Change, Environment…
There are no drastic changes from 2010 to 2012.
About civil society, most IP debates were recently made about ACTA, and the tension between “civilized” and “free” Internet. Civil society often perceives IP protection as an infringement of their freedom of expression and fundamental rights.

Intellectual Property raises today a certain number of political issues for business and government. Some of these issues are related to “specific intellectual property rights” but are also common to “various intellectual property rights. The aim of this exercise is to explore the issues regarding Intellectual Property, described in the IC Roadmap of 2012 and to answer a few questions. As a student discovering this new field of law, our main focus will concern the issues common to various intellectual property rights and more specifically enforcement priorities and resolution of Intellectual Property disputes

With respect to enforcement priorities, litigating IP rights and enforcement on the Internet are 2 matters that need our attention. In practice, business may be confronted to inconsistency and uncertainty regarding the litigation of an intellectual property rights. It is true that most of intellectual property rights are “country based rights”: the state protects their enforcement and validity within its national territory. However, uniformity within a national territory is not always achieved by the state and subsequently, intellectual property rights may differ among the places where it is litigated. On a more international view, Infringements to IP are considered as torts and the general principle in case of disputes is lex loci delecti: The law applicable is determined by the place of the wrongdoing and/or damage. That’s why we have also many agreements (TRIPS agreements) which plays a key role in harmonizing national legislation in order to obtain a simplified application. As we mentioned, this may result in inconsistency. As illustration, we can give a few examples: differences in the interrelationship between protection of exclusive IPRs and competition laws; differences in rules and case law to claim and be awarded damages for IPR infringement; differences in the available procedures and so on. In order to solve this type of issue, businesses should support international activities while governments implement and ratify conventions.

Enforcement on the Internet is another problem related to the more global question of enforcement priorities. Today, according to us, the Internet has set 3 main issues for businesses and governments. First of all, due to the ease and speed of transmission, rightsholders may not control the illegal distribution of their works and suffer as a consequence tremendous losses and costs. International Agreement established by governments and different measures taken by rightsholders (such as public awareness campaigns, technological measures) may solve the problem but according to us, it is impossible to eradicate such illegal distribution and reproduction out of the internet due to its speediness and the means it requires to make such witch hunt. Second of all, a more pragmatic question is to know where to litigate and introduce a lawsuit. In fact, the tort may occur in any country in the world. Internet is everywhere and it is complex to establish the localization of the “components of the infringing acts”. This is mainly due to the lack of information on the identity of persons operating websites. Eventually, evidences are difficult to collect and many questions of admissibility of digital evidences arouse controversies.

With the recent of evolution of international trade, we can observe an expansion of disputes involving IP. Arbitration and mediation constitute 2 good ways of resolving such conflict of intellectual property law. Arbitration is private mechanism, which is an alternative to national courts and by which the parties may find a solution through an impartial tribunal. In practice, the parties choose to go to arbitration instead of going in front of a national court. This mechanism is well recognized in many countries. Although, we need to underline different impediments that block parties from using such mechanism. Whereas agreements of arbitration exist, some IP disputes may not be arbitrated because the dispute is not legally of being resolved by arbitration because one of its matter concerns directly the competence of a national court. Furthermore, in some countries, certain types of IP can’t be referred to arbitration due to state’s restrictions. Finally, the use of “injunctive interim or conservatory relief” is a generally recognized problem according the author: National court retain to right to intervene in such despites whereas arbitration agreement was established.

Mediation is another way to solve any problem involving IP. The author defines it as “a voluntary and confidential process whereby a mediator assists the parties in finding an interest-based settlement to their dispute, without imposing a solution”. The main problem is that the decision to commence mediation need to be taken consensually by the parties. It may be written down in a resolution clause in the parties’ contract but in some case, whereas the dispute has already arisen, parties may attempt to solve the dispute through mediation. However, when cooperation and negotiation are not possible, some situations are inappropriate for mediation: For instance, cases of deliberate counterfeiting or piracy.

The second question on this text asked us to observe and compare the list of issues prepared in 2012 with the prior roadmap of 2010 in order to see any evolution or novelty. From what we have read, we can affirm that the list hasn’t changed between 2010 and 2012. The same problems and same issue are still at stake.

Finally, we had to compare these issues with the concern expressed by groups of the civil society. Intellectual property is directly related to development and innovation as it protects and rewards their author. In fact, the intellectual property system may play a role as “a tool to stimulate economic development”. The same reasoning may be applied to climate change: new technology and developments will play a tremendous role in order to protect our climate and intellectual property is a way to give incentive to businesses to invest in such researches. Protection of biodiversity, competition policy (avoid situation where a single company has a dominant position due to its IP rights for instance) information society and data privacy are some other issues where intellectual property is essential. At the end of the day, intellectual property is a key factor for economic development, businesses investment and civil society protection.

1.a

There is a TREND : the politicization of I.P. (it was considered as a technical issue). Why? It is due to the increasing economic importance of I.P.

1°) Policy makers need to maintain the delicate balance necessary to satisfy the rights of the creator and the interests of users, so that the system benefits society as a whole.

2°) I.P. became an important issue in trade relation between states, e.g. the mechanism of cross-retaliation: if a WTO member doesn’t comply with a WTO dispute settlement decision, you can suspend concessions or obligations against that WTO member.

3°) I.P. are part of the WTO Doha Development Agenda.

4°) The question to strengthen or not the protection of I.P. led to national debates in some developing countries.

5°) The emergence of new actors (consumer organizations, civil society organizations, etc.) resulted in a more complex game (it is no more only between experts).

6°) The introduction of I.P. concepts in traditional communities has led to emotional debates over the concept of ownership.

7°) There is a balancing to be done between I.P. and sensitive areas such as healthcare, ethics, development, etc. It is hardly debated. There are many doubts and objections, e.g. business should explain that I.P. protection not only provides incentives for investments in research and development, but also enhances transparency and the dissemination of knowledge.

1.b

There are some ISSUES:

– The harmonization of patents
– There must be a compulsory licensing of the patents
– The protection of famous marks
– To make searches easier to verify if a mark is already registered
– The use of trademarks on the Internet
– A substantive and procedural international harmonization of design
– An easy-friendly access to central international registration of designs
– The legal protection of technological measures
– To respect moral rights
– The protection of audiovisual performers and broadcasters

2.

Nothing changed between 2010 and 2012 in the list of issues.

3.

The civil society is a new actor taking part in the debate on I.P. related policy issues. There is a tension between the commercial interests of the proprietor of I.P., e.g. healthcare, ethics, protection of environment, etc. And many people feel that the I.P. system, as currently implemented, and particularly the patent system, does not strike the right balance between the interests of developing countries and those of developed countries, and that this needs to be rectified.

Name: STENIER Thomas
Field: FUSL, 3rd year Law
Course: Intellectual Property Law
Professor: A. Strowels

1.
In 2012, business still faces a number of issues in the intellectual property domain. The 2012 ICC Roadmap enumerates the main ones and the actions that are (or should be) taken to achieve an efficient global IP regime that would respond to each party’s sensibilities and give incentive to innovate and create. Such an undertaking is necessary to economic growth and future well-being.

A certain deal of political, economical and technological factors has had an effect on the IPRs considered as a whole.

The globalization of the economy is one of those factors. The international character of business trades conflicts with the national grounding of laws: it sometimes become hard to determine what laws to apply in a given situation. Moreover, the need to register a trademark in every country is a cumbersome undertaking.

The development of new technologies has several implications. The swift development in the technological field often leaves legislators behind when it comes to regulating new practices. Some believe that a global IP system would yield better resultants than a state “patronage”. Laws have been taken to deter copyright infringement: there is a possibility of blocking an infringing website and sending notices to infringing users to warn them of possible sanctions.

The growth in economic importance of non-technological business innovations and resources not protected by existing intellectual property regimes is another factor. It is a practice to create new rights, called sui generis rights, to apply to assets that do not fall squarely into one category of IPRs such as databases and computer-related inventions.

Intellectual property issues also have had political repercussion: the phenomenon of cross-retaliation consists of suspending concessions or the execution obligations towards a country that does not comply with a WTO dispute settlement. Such harsh measures are usually only taken in the IP sector the rules of which the country has violated.

Business practices change. IP is a sector of business that has constantly been growing. They deplore the legal requirements which burden the IPRs and may diminish their values. (e.g. patent duration). Firms need to find ways to exchange R&D findings with their offshore affiliates.

Patents

It is observed that many governments have not ratified Substantial Patent Law Treaty which has beneficial effects on business. The second-use of already known compounds can bring substantial novelty to scientific research; that is why business encourages the creation of second-use patents in countries where second-use of compounds is not yet considered eligible to patent registration. In the EU, member states are currently debating on the creation of a Unitary Patent and an Unitary Patent Court. Language is another issue in the patent system: the difference in language bears an economical cost and may reveal cultural sensitivity. In limited circumstances, patent application is made compulsory by the State; it is not a good incentive to develop and therefore is not good for economic growth. Business would rather not have patent conditions loosened. Finally, there is call for the limitation of patent right to enhance implementation of standards: it has been observed that some patent owners abuse their right (“holdup” situation).

Trademark

Many countries have yet to join Madrid Protocol 1989 “which allows protection of a mark in a large number of countries by obtaining an international registration which has effect in each of the countries that have been designated.” There would only be one filing instead of multiple national filings, and only one language would be used. Famous trademarks are particularly vulnerable to infringement; this is why they are allowed a special protection regime. However, this regime requires the use of new concepts… Business also calls for an online search engine that would allow new companies to instantly check what trademark they are not allowed to use. Finally, there have been complaints about cybersquatting i.e. people registering a website name that consists of a trademark or of a confusingly similar formulation without legitimate interest.

2. Through the overview of both the table of contents of the 2010 ICC Road and that of the 2012 vintage, one sees that issues have not substantially changed in two years.

3. Civil society does not agree with the industry’s view. The former are in favor of global sharing of knowledge while the latter seem to favor the use of IPRs protecting this knowledge. For instance, society believes secrecy in medical research can only hinder the steps that are made towards better health around the world. It also stood up against ACTA which only the bigger industries would have benefited from.

Note: I would rather not have my name published, if it is possible.

02.10.2012

When we look at the main trends for business, we see that different areas are affected. “Economic, social, political and technological developments have a fundamental impact on how intellectual property (IP) is created, exploited and used”: we can first of all notice that there’s a constant development going on. This is obviously a result of the globalization of the economy due to the development of electronic commerce, which allows more companies to operate internationally, and on the other hand to the new technologies coming on the market. Internet of course plays a big part in that development; it helps businesses spread faster and broader (or as they put it in the ICC Roadmap, ‘the broadband penetration’). Because of this evolving technology, the barriers to create and distribute creations have lowered. We can see this daily with artists sharing their creativity worldwide through Internet and even this online platform on which I’m writing this essay right now is a way of spreading my thoughts and ideas with others. These trends that tend to make the businesses more international show us how important it is to harmonize the IP norms internationally, which can only be done through international cooperation.
But there’s not only trends in the technological developments, the non-technological business innovations as well are very important, and so are the genetic resources (such as plants, animals, etc.) and traditional knowledge. Creating new types of sui generis rights is one way to protect these innovations. A different way to protect them is through a broader interpretation of the ‘traditional’ IP rights.
Another important trend is the politicization of the intellectual property: “Policy makers have to constantly strive to maintain the delicate balance necessary to satisfy the rights of the creator and the interests of users, so that the system benefits society as a whole”.
A last remarkable trend is the way businesses have changed their way of operating over the past years. We notice that, since the economic crisis of 2008, the number of actors playing on the IP field has remarkably increased. Besides the number of actors, there has also be an increased interaction between these different economic actors. This of course has an effect on the way businesses operate when it comes to IP. Not only has there been a change in the number of actors, but also the ‘lifetime’ of a product nowadays has become much shorter in many industries. This also has an impact on the IP sector and the way of doing business.

Concerning the business issues, we should beware of the different types of intellectual property rights. Each right, such as patent, trademark, design, copyright, etc., has a number of specific issues related to that right, but besides those specific-right-related issues there are also issues common to various intellectual property rights. These “common issues” can be put in different categories as well, we have issues concerning counterfeiting and piracy, but also the exhaustion of the IP rights, the valuing, trading and securitizing of the rights, the registration issues, etc.

There are different ways to resolve these issues, and amongst these solutions we can find arbitration and mediation. It’s important for society that these issues can be resolved, because most of these issues are related to concerns expressed by groups from the civil society. If we try to find solutions to these issues, it can help enriching public knowledge and culture, maintaining fair competition and encouraging the production, underpinning economic growth and employment, sustaining innovation and creation and promoting technological and cultural advances and expression.

Finally, if we compare the ICC Roadmap of 2012 with the one from 2010, the main difference we notice is the chapter on the developments having an impact on intellectual property protection. Otherwise the issues are quite similar on both tables of content.

Céline Somers

In the 2012 roadmap, three issues are pointed out and developed: the issues relating to specific intellectual property rights, the issues common to various property rights and the interaction between intellectual property and other policy areas. Only the copyright issue which is explained in the first part of the roadmap will be summarized and discussed.
It is in the business sectors’ interests to foster copyright internationally. The protection of copyright finds itself in complex legal, economic and social issues. New technologies have introduced new players with new innovations. Despite many ratifying countries to the Treaties on Copyright and on Performances and Phonograms, there are still States that have not implemented these agreements yet. Also, national leaders must be aware of the importance of the copyright protection. Concerning collective administration and licensing, new ways to spread a rightsholder’s work have appeared and so new systems such as digital rights management systems are created to deal with this situation and to protect the “owner of the innovation”. Moreover, legal protection of technological measures assisting in protecting and licensing works have a double advantage: protect against piracy and expand consumer choices. In order to stop (or at least slow down) illegal exploitation of someone’s work, effective and balanced actions must be taken by governments. Artists are furthermore eager to be reassured that their moral rights will be respected and protected. Business sectors should also be affected by the protection of audiovisual performers and of broadcasters.
The copyright issue is an interesting topic because it raises many questions such as when is an innovator due to be protected by these rights? Is it fair for others that cannot? Where do you draw the line between the works that can be protected and the ones that do not? … It is understandable that business wants to protect its work. However, too much protection risks to reduce innovation. The important thing is to find the happy medium: giving some protection but allowing others to create as well.

As we compare the 2010 and 2012 roadmaps, we notice that not much has changed between these two reports. On the field of issues relating to specific intellectual property rights, it can be observed that in the roadmap of 2012 the protection of undisclosed information (trade secrets) and data exclusivity is much more developed than in the previous roadmap. Indeed, the new version raises questions of exclusivity and its debate whereas the other does not go that further. For the issues common to various intellectual property rights, it can be said that the top topics are explained in both roadmaps. However, what concerns the interaction between intellectual property and other policy areas, the 2010 report talks about the use of open source software when the other does not. To sum up, no much difference can be pointed out between those two reports.

One of the comments found on the blog is particularly interesting concerning the sharing of information (05/09: access to EU funded published research results). It is argued that the EU should “promote the sharing and dissemination of scientific knowledge”. Ten reasons are given which have a common idea behind; that is the general interest of the society. The roadmap of 2012 talks about copyrights. What should it be done? There are here two different interests at stake: on the one hand, the researcher, scientist discovers something and it may be seen as logical to give a certain protection to his innovation; on the other hand, people should also be able to use the researcher’s “discovery” in order to promote innovation, creations. Both interests seem to be in confrontation but a balance between these two seems inevitable as well.