For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Friday, 25 April 2014

Spanish Napster defeats music majors


What an effervescent start to 2014 for intellectual property in Spain! Among law reforms, seminal rulings on ISP liability and catastrophic surveys on online piracy, Katfriend Carlos Garcia Berned (right) just brought to the IPKat's attention another challenging decision from the District Court of Madrid, this time on a new-generation P2P technology that music majors don't appreciate that much -- while users appears to do. Says Carlos:
 "Spain is an exciting country, and not only for the political debate regarding a possible territorial reorganisation or for the eternal football battle between Madrid and Barcelona. In the last few weeks, for instance, the Spanish intellectual property environment has also been rather animated. Between the inflaming discussion about Spanish copyright law reform [on which see the IPKat’s note here] and the right-holder sponsored study pointing out that 84% of online content used in Spain is pirated [here; Merpel doesn’t want to believe that copyright is so ignored in that lovely country and prefers to be 86% sure that those figures could have been overestimated], a recent decision from the District Court of Madrid pops up to deal with music industries and P2P programs [District Court of Madrid decision of April 9 2014, available here in Spanish].  Here’s how it went. 
The plaintiffs were some of the most important music majors -- including Universal, Sony, EMI, Warner and the Spanish Promusicae. The defendant was Mr Pablo Soto, a software developer known as the “Spanish Napster” [an elegant metonymy, notes Merpel] who invented created P2P platforms Blubster, Piolet and Manolito. In a nutshell, these platforms used new P2P technologies which let users who downloaded the application share files without further accessing the platforms' websites [see Mr Soto’s home page, here]Apparently, Mr Soto was successful enough to bring the music industry to seek not just the immediate shut-down of all the defendant’s activities but also more than EURO 13 million in compensation for damages. They brought proceedings claiming copyright infringement and unfair competition, alleging that Mr Soto’s software let users share pirated music. Mr Soto responded that his technology was neutral and consequently not responsible for the final use that people made of his applications. 
In November 2011, the first instance ruling accepted Mr Soto’s defence and dismissed the majors’ claims. The music companies appealed to the Madrid District Court, which also rejected their claims some days ago, declaring the defendant’s technology not liable for the activities carried out via his P2P software.
As a matter of principle, the District Court of Madrid held that sharing works covered by intellectual property rights is only permitted where it enjoys the right holder’s authorisation, which may also occur when the right holder shares content under a General Public License (GPL) such as the Creative Commons. However, the defendant was not carrying out any infringing activities, either directly or indirectly. The Court acknowledged that Blubster, Piolet and Manolito did not require intervention by the software developer after the user downloads the P2P application. This being so, use of the software did not imply a direct copyright infringement, as neither the reproduction right not the making available right could be infringed by the defendant when all the file-sharing activities were carried out exclusively by users, and between their computers. In a clear and emphatic manner, the Court pointed out that 
“the introduction into the market of a technology with different features, and in particular the possibility for users to directly perform audio file sharing, which may also be used in a lawful manner … for the transmission of files with no infringement of intellectual property provisions, implies, from a legal point of view, a neutral behaviour, which is in line with the right to conduct a business [the Court is referring to Article 38 of Spanish Constitution, here]. The mere possibility that users may cause harm does not entail a direct liability of the software developer, who has no control of the uses done with the P2P platforms he develops”.
In this perspective, the Court held that the defendant could not be submitted to the same liability regime of internet service providers (ISPs). Nor could the defendant’s activity be assimilated to those typically performed by ISP under the E-Commerce Directive and the Spanish law that transposed it, as the P2P technology neither provides access to the internet nor conducts caching, hosting or linking services.
This decision may ring a bell in some readers’ head, recalling analogue situations of US cases such as KaZaA, where the US Supreme Court dealt with the concept of liability for “actively inducing” copyright infringement. In this regard, the Madrid Court held that the US courts' approaches to “contributory liability” and “vicarious liability” could find  no application in Spain, as indirect liability lacks a normative basis under Spanish law and the courts are thus not in a position to establish secondary liability "by analogy", in the way the US courts do.
Mr Soto is that young
As per the unfair competition claim, the court rejected it: the parties were not competitors sharing the same market, and developing software was not an act of looting, unfair competition or unfair benefit from another’s effort per se.
While reading the decision, this author wondered whether the District Court’s purpose was sending an indirect message to the Spanish legislator. Where the Court stressed the necessity to have a normative basis to indirect copyright infringement, it added that it is for the Spanish Parliament to issue specific provisions to determine the scope and requirement of indirect copyright infringement. Will the Spanish legislator take note of this? This author remains sceptical. Meanwhile, the “Spanish Napster” is celebrating his victory, launching another version of the software and, ironically tweeting: 
“I beat the big record companies, once again. Thank goodness because, right now, I have not even a euro, and paying 13 million to them was really bad for me".

Thursday, 24 April 2014

Fordham Report 2014: Multilateral developments

The final session of the first day of this year's Fordham IP Conference attended by this Kat was dedicated to multilateral developments -- a bland and boring title for an important and difficult subject. This session, moderated by Steven J. Metalitz (Mitchell Silberberg & Knupp, LLP, Washington D.C.), was opened by regular Fordham participant Weerawit Weeraworawit (Deputy Secretary General, National Human Rights Commission, Thailand) on "Challenges to Multilateral Treaties". Weerawit reviewed a number of difficulties and issues endemic in multilateral agreements, including lack of enforcement provisions, textual ambiguity, and an absence of interest and political will in seeing them implemented. These challenges have to be tackled in an integrated manner, taking into account the interest of individuals as well as those with vested interests. Further, norm-setting activities are naturally important -- but they are not everything.

Asked about the need for organisations to become more greatly involved in disseminating information concerning multilateral agreements, Weerawit felt that public awareness had to be raised even before a text has been finalised: the public are entitled to know what will affect them, and more dialogue with the public would be a great help. In Thailand, for instance, there was little knowledge concerning the TRIPS Agreement and much information that was imparted is soon forgotten.

Irene Calboli (Visiting Professor, National University of Singapore, Singapore; Marquette University Law School, Milwaukee) spoke next, on "The Trans-Pacific Partnership Agreement and the IP Impact in South East Asia". The TPP now has 12 countries involved in its negotiations, covering a vast geographical spread. No party other than the United States shows the text to anyone, and the United States shows it very selectively to companies; added Irene, she can only see TPP material if it's on WikiLeaks. However, we need to listen more, to become less polarised and to pay attention to what we're doing and why we're doing it -- everyone has to say before accepting or rejecting TPP.

Veteran copyright expert Mihály Ficsor (President, Hungarian Copyright Council; International Legal Consultant, Budapest) then tackled "The WIPO Copyright Agenda After Beijing and Marrakesh – Still a Broadcasters'  Treaty and Then a New “Guided Development Period”?"  This long and complex title could be rebranded "Continuation - Disruption - Consolidation", it seemed. Mihály observed the out-of-date provisions of the Rome Convention of 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, which fail to address cable retransmissions, for example. Article 14(3) of TRIPS is notable here:
"Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. [BUT ...] 
Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971)".
This provision is a "pigeon under the sieve" [this relates to a folk tale of a young lady who had to give something to the king and simultaneously not give it: she offered a pigeon under a sieve and, when she handed it to the king and removed the sieve, the pigeon flew away].

"**** ** * *** *****!"
Last to speak was another Fordham regular, Stanford McCoy (Senior Vice President and Regional Policy Director, Motion Picture Association, Brussels), on "Wearing the Target: Reflections of a Former Trade Negotiator". The title of this presentation reflects the fact that Stan recently ended his tenure as the lead IP negotiator at USTR -- and this was billed as his chance to reflect on lessons learned and to assess future opportunities for multilateral, regional, and bilateral IP negotiations. Speaking in praise of transparency, Stan observed that it was much easier to discuss ACTA once its hush-hush text was published.  "Organised publication is better than chaotic leaks". Regarding discussion of multilateral agreements, "We've crossed the line from hyperbole to a real lack of civility that we need to address". This includes death threats and the singing of obscene Christmas carols, it seems.

BREAKING NEWS: AGCOM issues the first fastissimo administrative blocking injunction

Less than one month has lapsed since the Italian Communication Authority (‘AGCOM’)’s Regulation on Online Copyright Enforcement [on which see the IPKat’s notes here, here and here, along with this Kat’s keynote at the #HappyKat event here] came into force, and just yesterday AGCOM issued the first administrative blocking injunction against a foreign website [the decision is available here].


As our readers and/or attendees to the Happykat event may recall, the Regulation provides for two different tracks: one “regular”, which may last until 35 working days, and one “urgent” [aka “fastissimo”] in case of massive infringements, lasting a 12 working-day maximum. Further, the Regulation provides two sets of sanctions, the issuance of which depends on the location of the server hosting the allegedly infringing contents. If it is located in Italy, the procedure may end either with an order of selective takedown to the Italian hosting provider or with a blocking order of the whole website issued towards Italian access providers in case of massive infringement. For websites hosted outside Italy, the only measure available is to block the whole website.

The case decided yesterday concerned the website www.cineblog-01.net. According to AGCOM’s investigations, the hosting provider was an American company that used a server located in Holland, while the registrar of the domain name was Panamanian. Notwithstanding this international melting pot, AGCOM alleged that more than 90% of accesses to the website came from Italy, and the language of the website appeared to be Italian.

On 7 and 14 April, FAPAV [the Italian Federation for the Protection of Audio-visual and Multimedia Contents, representing BIM Distribuzione S.r.l., Eagle Pictures S.p.a., Filmauro S.r.l., Lucky Red S.r.l., Notorious Pictures S.p.a.] and the Italian company Inthelfilm s.r.l., filed two different complaints with AGCOM, claiming copyright infringement in eleven movies unlawfully hosted on that website. AGCOM considered the making available of eleven works enough to amount to a massive infringement and gave the green light for the fastissimo procedure to be applied.

After joining the two claims in a single procedure, AGCOM verified the ownership of the claimed copyright, the actual availability of the eleven protected works on www.cineblog-01.net and assessed that no copyright limitation could apply. Thus, on 15 April, AGCOM sent the “website manager” a notice stating the claimants’ requests and the URLs where the infringing works were located, inviting it to take them down or to appear in the proceedings within three days. A public notice was also published on AGCOM’s website to warn the Italian access provider of the pending procedure and allow them to file observations.

One of FAPAV's movies:
not a long way to take down
As the three working days passed without reaction from the website manager or from the access providers, on 23 April [ie, 7 working days after the filing of FAPAV’s claim that convinced AGCOM to apply the fastissimo procedure] AGCOM ordered “the mere conduit providers operating into the Italian territory … to disable access to the website www.cineblog-01.net”. The communication also pointed out that, in case of non-compliance within three days from its service, AGCOM could fine the mere conduits amounts between EURO 10,000 and 258,000, and forward the procedure to the Italian Judiciary Police. The order may be appealed to the Italian Administrative Court within 60 days from its service.

Three things are of interest here.

The first point concerns the threshold for a violation to be considered “massive infringement”, which is of seminal importance as it allows AGCOM to adopt the fastissimo track [lasting 12 working days maximum instead of 35] alongside with blocking orders [instead of orders of selective removal] against websites hosted in Italy. In the case at stake, AGCOM considered “massive infringement” the unlawful hosting of eleven movies. With such a medium/low threshold, the fastissimo track and the disablements of whole websites might not be the exceptional measure that one could expect.

Secondly, the order makes some clarity as to what the Regulation means with “website manager”. Alongside the “webpage manager” and the “uploader”, the “website manager” is one of the subjects who receive the first AGCOM notice and who can either remove the contested contents or appear in the procedure to seek for the dismissal of the claimant’s requests. However, none of these can be targeted by AGCOM’s orders and fines [they only concerns hosting providers and mere conduits]. As the IPKat reported, the EU Commission raised concerns as to the introduction of “website” and “webpage manager” categories, which lack in the E-Commerce Directive, and asked AGCOM to provide for clarifications in this regard. 

From yesterday’s decision, we now know that the “website manager” may be either the person who actually manages the website, to be identified as the person who receives the emails provided in the “contacts” session of the page, or, if there is no “contacts” session, the person indicated in the website’s Whois profile as “admin”. In the proceedings at stake, the www.cineblog-01.net did not provide any email to contact the admin of the website directly . Thus AGCOM considered as “webpage manager” the same Panamanian company that appears both as “registrar” and “admin” of the domain name <cineblog-01.net> in the latter’s Whois. If it is true that the Regulation binds AGCOM to serve the notice upon the uploader, the website and webpage managers only if they are “reachable”, Merpel wonders how generous a Panamanian registrar should be to stand for contents hosted on one of its clients’ websites.

Finally, while writing this note, this Kat tried to access the infringing movies through the links listed in the AGCOM’s order, surprisingly discovering that they have all been removed:


Given that, do Italian mere conduits still have to comply with AGCOM's order? If yes, after a possible block the real webpage manager of cineblog-01.net could ask AGCOM to withdraw the blocking order by providing evidence of the takedown [although it could take a while: the movies in subject of the complaint do not appear to be the only contestable ones on that website]. In any case, quoting George W., AGCOM’s mission is accomplished.

Fordham Report 2014: Trade Mark Law and the CJEU

Katfriend James Nurton (editor, Managing Intellectual Property) chaired the keenly-awaited session on trade marks and the Court of Justice of the European Union (CJEU), which was opened by Allan Rosas -- a judge of the CJEU. Allan started with a confession that he was not an intellectual property expert [isn't that usually the case for CJEU judges, wonders Merpel] and a gentle introduction to the court itself.  Last year the General Court of the European Union heard some 300 Community trade mark (CTM) cases, of which around 10% go on appeal to the CJEU, while only five references for a preliminary ruling were made during that period.  Important cases are heard by the Grand Chamber of that court, particularly those that involve applications of the new technologies.

What does the future hold for the CJEU, Allan wondered. There has been talk of establishing a specialised trade mark court or IP court. Article 19 of the Union Treaty mentions the possibility of specialist courts, but only one exists at present and that's for dealing with staff matters.  There are around 1,400 pending cases before the General Court at the moment, as against some 700 for the CJEU, and the flow of new cases continues to rise.  After careful consideration it was decided to add to the number of General Court judges and use the option of specialised chambers within that court, since there may not always be the same high level of demand and a specialised court, once created, is difficult to get rid off before the judges "are falling from the table".

Allan also spoke of the CJEU's role in hearing appeals on CTM matters from the General Court (these are now processed in about half the time it took when he was appointed in 2002). The possibility of requiring leave to appeal is open, allowing an appeal only where there is a serious issue to be considered.

Four layers: good for cakes,
bad for CTM appeals
Paul Maier (Director, The European Observatory on Infringement of Intellectual Property Rights (OHIM), and a former Board of Appeal chair) was then brought into the fray. Said Paul, four levels of decisions is far too many (that's examiner or cancellation board, Board of Appeal, General Court, CJEU). When proposals for moderating the CTM system were made, this topic was omitted.  Said Paul, the General Court should only deal with appeals on substantive legal issues and not review all the factual elements of the decision too. This should cut down the volume of appeals quite substantially.  The system is also faulty in that the General Court's rulings on procedural issues result in cases being thrown back to the Boards of Appeal with little indication as to their substantive value.  Robin Jacob (Faculty of Laws, University College London, London) added to this by observing that the General Court has been far too lax with regard to submission of late evidence, while the CJEU has failed to control its own dockets, ending up less like a Supreme Court and more (per David Edward) like a very overworked Court of Appeal.

Peter Ruess (International School of Management, Frankfurt) chipped in at this point, observing that CTM appeals involve a colossal degree a delay in respect of matters that are essentially trivial, citing the words of this Kat in Case C‑383/12 P Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market, Société Elmar Wolf:
" Let's not lose sight of reality. This case isn't about liability of billions of euros of bad debt following sub-prime lending. It's not about the contested right to thousands of square kilometers of commercially exploitable land or seabed. It's not about the life or death of human beings. It's about the right to stick a picture of a canine mammal on machines for processing waste. In a more sensible world we should be able to dispose of these matters in a couple of hours and then get on with the important things in life. This is not one of them."
Katfriend Dev Gangjee (Faculty of Law, University of Oxford) added a consumer-oriented point: different areas of law call for different types of consumer. How far should the concept of the consumer be legally defined for the purposes of trade mark law, and how far should he be based in reality and evidence rather than in legal expression? Said Robin, the average consumer is "the top part of the bell curve".

At this point Allan Rosas returned to the discussion, broadly endorsing the comments of Paul and Robin. Right now there was a general reluctance to opt for Treaty changes, though he and some of his colleagues are thinking about the possibility that they might be needed.

James Nurton then raised the role of the Advocate General.  Why were they created in the first place? Explained Paul, it was thought handy to have an independent view to guide the then new court -- and some of their Opinions are of good quality, while others sadly are of less value.  Robin was not keen on the gap between hearing the Advocate General's arguments and getting the Opinion:
"When I've heard a case I want to write the judgment straight away.  Three months later you forget what the bloody case is all about".
Finally, Robin contrasted what appeared to be the very high quality of the legal content and the clarity of the CJEU's decisions on Value-Added Tax, which have never required any degree of clarification or course-correction, with those in the field of trade mark law -- which are of far poorer quality.

Fordham Report 2014: Enforcement issues

Following a hearty lunch, this year's Fordham IP Conference split into streams. Eleonora raced off to the copyright session, while Annsley the AmeriKat committed herself to patents, leaving this Kat to pick up the pieces. The first such piece was a session on IP enforcement chaired bu Michael Schlesinger (Mitchell, Silberberg & Knupp, Washington D.C.). This session was opened by Christian Liedtke, a German-born IP consultant based in Newport Beach, whose talk was entitled "Stop in the Name of Law - How New EU Customs Laws Create Stumbling Blocks For Intellectual Property Owners". Christian offered a list of stumbling-blocks that festoon Customs Regulation 608/2013, the EU's upgraded legal system for tackling counterfeit and other dodgy goods when they enter the portals of the single European market. First, said Christian, the new regulation excludes parallel-traded goods -- even though 16 EU Member States are happy enough to allow for their seizure already. Secondly, he added, there is serious lack of provision for penalties. Thirdly, it doesn't provide for the seizure of product overruns. Fourthly, it may undo the good effects of the Court of Justice of the European Union's recent ruling in Case C-583/12 Sintax [noted here by the IPKat]. Finally, it doesn't take into effect the ruling of the same court in Davidoff.

Harold Knopf (Macera & Jarzyna LLP, Ottawa) spoke next, on the effect of Canadian Bill C-8. This Bill was passed in order to ratify ACTA -- which only Japan has ratified and which looks effectively dead in the water.  Harold ran through the various provisions of the Bill and the Toblerone case and speculated as to what its effect might be on the benefit conferred on the Canadian economy by parallel imports. Harold also raised the question whether the US Supreme Court ruling in Kirtsaeng [noted on the 1709 Blog here] might provide the best solution -- a suggestion that met with little enthusiasm from the session's panellists.

Roxanne Elings (Davis Wright Tremaine LLP, New York) then spoke on "Rogue Website Litigation: Tackling The Onslaught of Internet Counterfeiting through US Courts" then addressed the concerns raised against the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) which caused their opponents to rise up and crush them. Curiously, actions against rogue websites appear to have increased since SOPA and PIPA were dropped, which indicates that IP owners appear to have to navigated around them.  Service by email is now accepted as the most appropriate means of initiating an action, and publication to websites has been accepted too. Third party liability can be added to injunctive relief, where hosts are actively acting in concert, with notice, and where they are participating in the rogue website's actions.

Annette Kur (Max Planck Institute) then offered an account of the decisions of the Court of Justice of the European Union (CJEU) on IP enforcement and jurisdiction. Annette distinguished between cases of territorially unlimited and limited jurisdiction, dealing with the UK Supreme Court decision in Lucasfilm (the Star Wars helmet case), the CJEU ruling in Wintersteiger and Pinckney, leaving us with the question why the jurisdictional rules in the European Union need to be so generous.

Richard Vary (Nokia) was the final speaker in this session. He reviewed the nature and the quality of counterfeit mobile phones, which enjoy a larger market share than some of the smaller legitimate manufacturers.  Speaking on the celebrated Nokia case, here, he observed how long it took the European Union to get to the right solution when it came to dealing with counterfeit goods in transit. Closing, Richard observed how strange it was that injunctive relief now appears easier to obtain in China than in the United States.

Fordham Report 2014: IP Leaders

"IP offices cannot solve
every problem ..."
The second session at Fordham's annual IP conference focused on "Intellectual Property Leaders", indeed starring quite a few of them. Katfriend António Campinos (President of the Office for Harmonisation in the Internal Market, OHIM, Alicante) opened with a review of OHIM's activities and sources of inspiration. António spoke of the value of IP-driven industries to the EU's internal and external trade, and of the discovery that such a large segment of IP-intensive employment related to the design sector. António then mentioned the importance of IP databases, especially when they are compatible with one another, and the need for cooperation between offices in Europe and those in important markets beyond Europe's borders -- and particular in jurisdictions like China and Japan. "We must help search engines do their work", he emphasised. The European Trade Mark and Design Network was singled out for its work in encouraging convergence where there was no standardisation or harmonisation. While IP offices cannot solve every problem, there's plenty they can do -- and free-of-charge searchable design databases fall into this category.

OHIM's credo
Hugh Hansen asked whether the same degree of design creativity and commercial activity would not continue even if there were not a greater level of design protection, since most SME design carries on in situations where the designers don't know of, use or have such protection.  With disarming honesty, António answered that he didn't know, but then gave quite a cogent answer based on the advantages to all sectors of the design community to knowing what prior art already exists. He added that the biggest obstacle to the success of his office is a lack of belief.  Believing is so important, particularly believing that it's better to have 20-odd countries having the same system for their trade mark and design protection than to quibble over the precise minutiae of how the system works.

"Government officials
ARE the IP system ..."
Another katfriend, David J. Kappos (currently of Cravath, Swaine & Moore LLP, New York, but still remembered for his stint at the helm of the US Patent and Trademark Office), managed to avoid telling Hugh Hansen why he left that august post. David's presentation featured a letter to Abraham Lincoln -- the only US President to hold a patent -- which sought to update him on the developments that had taken place since his death, together with the challenges facing the utility of the patent system. Today's Patent Wars are nothing new, he observed, since they have occurred at regular intervals when new and innovative products have been launched. In reality, the rate of patent litigation in the US has remained relatively constant, if statistics are anything to go by.  Right now the Great Patent Debate has been based more on rhetoric and allegation than on the objective assessment of facts.  IP was in truth "a giant investment savings plan, when we all pay a little now in order to get the benefit later".

Capacity-building is important
once an IP right is granted
The third katfriend in this session was Francis Gurry (recently nominated for reappointment as Director General, World Intellectual Property Organization, Geneva). Francis thanked Hugh for inviting him to participate in what he described as "the Davos of intellectual property conferences", then summarised the continued rise in filings and IP-related activities that demonstrates the confidence placed in the system by its users. WIPO's international filing activities provided a firm basis for facilitating international protection within a rule-based system. Encouragingly the rate of increase of use of the Madrid, Hague and PCT systems has outstripped the rate of increase of GDP. WIPO has held its fees constant for the past six years and looks forward to holding them steady.

Global IP rules are necessary in order to establish a shared vision, Francis said [Merpel's a little surprised by this. She thought the best way to get global IP rules was to establish a shared vision ...]. Perhaps this is what is needed for the keenly-awaited Design Convention, which is only a little way short of conclusion, despite the differences that have prevented this happy outcome so far. Francis concluded by (i) identifying trade secrets as "the elephant that is not in the room": high mobility of skilled labour, the increased need for chains through which confidentiality passes and the capacity of modern technology to intercept and obtain secret information make the subject important and topical -- and it's certainly not a subject that should be discussed in secrecy, (ii) mentioning the importance of addressing the needs of developing countries and (iii) the need for capacity-building once an IP right has been granted.

Hugh Hansen wanted to know if WIPO -- ie multilateral reform -- was our best chance for achieving the next level of IP law. Said Francis, "yes" (well, he said a bit more than that), adding that the question was an academic one since it was already happening on an ongoing basis.  We do however need a solution to the issue of technical knowledge if we are to retain the support of developing TK-rich countries in leading normal IP to the next level. "There's something in TK which we're not capturing in the IP system", he added [David Kappos added at this stage that "the economics of TK remain to be worked out"].

It was then the turn of the Designated Audience Members to have their say. Mihály Ficsor (President, Hungarian Copyright Council; International Legal Consultant, Budapest) and Shira Perlmutter joined the discussion. Said Shira: we have to be pragmatic and flexible when we approach our current problems, and not be dogmatic as to ends to achieve or means of achieving them. António Campinos agreed, adding that we have all taken the virtues of IP for granted. Now we have facts and figures to enable us to assess the performance of IP rights,. we can look at the cost of not enforcing it in terms of unemployment, loss of tax revenue and other downsides. Maria Martin-Prat (Head of Unit – Copyright, DG Internal Market & Services, European Commission, Brussels) then spoke about getting to the next level of IP protection: there's nothing wrong with intervening policywise, she said, but it's difficult to do so in a rational manner.

Fordham Report 2014: Multilateral and FTA Law & Policy

On a bright but chilly Thursday morning the Fordham Intellectual Property Law Institute and the Emily C. & John E. Hansen Intellectual Property Institute opened their doors to the 22nd Annual Intellectual Property Law & Policy Conference (click here for everything you ever dreamed of knowing about this magical event). In the university's hallowed portals some 550 intellectual property enthusiasts were assembled, to "learn, debate and have fun", to quote the conference's famous slogan.

After the usual welcome formalities and a few words from IP guru and conference genie Hugh Hansen, the first session addressed "Multilateral / FTA Law & Policy". First to speak was Probir J. Mehta (Acting Assistant, U.S. Trade Representative for Intellectual Property and Innovation, Office of the United States Trade Representative, Washington D.C.)  Said Probir, international trade was an important part of the US's economic recovery, and IP/innovation was a key element in fostering investment in this regard. Probir spoke warmly about the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP), both of which -- when you have a job like Probir's only have a few minutes to speak about them -- are not difficult to characterise as panaceas for the ailments of all stakeholders and interested parties. The need for transparency and due process were also recognised.

Pedro Velasco Martins  (Deputy Head of Unit, Intellectual Property and Public Procurement, DG Trade, European Commission, Brussels) spoke next. Unlike Stanford McCoy (Senior Vice President and Regional Policy Director, Motion Picture Association), who has no nightmares, Pedro still wakes up sweating when ACTA invades his dreams.  Pedro, who is negotiating the TTIP from the European side, stressed the need for stakeholder involvement when seeking to reach international trade deals, especially on their IP content, if they are to succeed, citing ACTA as a precedent from which lessons may be drawn. Pedro also spoke of the need to have decent IP laws of your own before you try exporting your legislation to other countries: the EU, conscious of this, has been revising and upgrading much of its own IP law -- the EU had a smart new Customs Regulation and the new trade mark package was well in hand.

Turning to ACTA, Pedro noted: "there is a need to think before engaging in things like this".  This Kat, who does not dissent from this sentiment, wonders where the perceived need to think disappeared to when ACTA was in its earliest stages, recalling that there was a near-unanimous call for precisely such thought from the IP community, who wondered why this call was never apparently heeded. Questioned by Hugh Hansen, Pedro said he preferred bilateral to plurilateral and international negotiations as a means of achieving the desired end of raising IP trading standards.

Wolf Meier-Ewert (Counsellor, Intellectual Property Division, WTO, Geneva) brought us up to speed on the World Trade Organization's activities since the Bali Ministerial Conference in 2013. IP and TRIPS were not exactly top of the agenda then, so there hasn't been any progress in resolving well-known stand-offs and deadlocks, but all live topics remain on the table for future contemplation. Wolf reminded us that the TRIPS compliancy date for least-developed countries has been extended to 2021 and "non-rollback" has been relegated from a binding requirement to a political commitment. He then rapidly summarised all manner of other positions and developments, assuring us that the WTO and the TRIPS Council still provides "much-needed transparency in the absence of substantive progress". Multilateral, plurinational and bilateral negotiations are not mutually exclusive, he concluded.

Michele Woods (Director, Copyright Law Division, World Intellectual Property Organization, Geneva) was the final speaker in this session. Michele, a Fordham regular, opened by talking about the Marrakesh Treaty on facilitating access to copyright-protected works for the blind and the visually impaired -- a triumph for multilateral negotiations, though it took a while to get there. This involved much cooperation between different regional groups, as well as stakeholder input at all stages of the (unusually open and often informal) negotiations. Success on treaties such as this, and the Beijing Treaty on audiovisual performances is encouraging, though these were both narrow and highly-focused subjects; it's not so easy do to the same with broader, more controversial topics.  Topics such as education, libraries and archives and disabilities other than visual ones are also up for discussion.  Finally, Michele asked whether a new treaty is always the necessary aim of WIPO's pre-legislative work: discussion of norms, information-sharing and obtaining a greater understanding are also important gains that can be achieved even if no new law evolves.

The session now opened up for general discussion, opened by Shira Perlmutter (Chief Policy Officer and Director for International Affairs, United States Patent and Trademark Office, Alexandria).  Shira agreed with Michele's comments on progress on narrow, focused topics but added this: both the Marrakesh and Beijing Treaties were directed at benefiting a class of persons for whom there was general sympathy (visually impaired and performers respectively). Further, WIPO is about more than just normative activities -- its success does not depend solely on creating IP treaties.

Next contribution from the audience came from Howard Knopf, who raised a topic that we'd all been wondering about: secrecy of negotiation. According to Probir, there is no issue: "we are transparent on a daily basis", even on the TPP -- even going as far as having a "TPP stakeholder day".  This all sounds very encouraging  but leaves this Kat puzzled. He still hasn't seen anything that purports to be a current text of the Trans-Pacific Partnership and wonders whether perhaps the words "secrecy" and "transparency" have taken on a different meaning with which he is unfamiliar. A further secrecy issue was raised by Annette Kur: that of enforcement of trade agreements, which also tends to be via non-transparent mechanisms. This is apparently "a key part of the architecture of our trade protection agreements" (per Probit Mehta) and are a common feature of bilateral trade agreements (per Pedro Velasco Martins).  So that's all right, then ...

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