1 "It'll never stand up in court ..."

... but fake VIAGRA, and other medicinal products, are no laughing matter. Today's Telegraph features a description of the factory conditions in which counterfeit VIAGRA, the anti-inflammatory PONSTAN and the antibiotic terramycin were assembled. On Colombian PONSTAN,
"the tablets were being produced in extremely unhygienic conditions, and were made of boric acid, a pesticide that can cause gastric problems, or death if ingested in sufficient quantities. Brick dust was used as a binding agent. The Ponstan was dyed yellow, its authentic colour, with paint used to mark the highway. Floor wax was also used to give the pills a sheen".
A cement-mixer (right) was used for mixing the blue dye into fake VIAGRA tablets.

The IPKat can only urge those who rail at oppressive intellectual property laws that make fat pharma-cats rich to remember that the policing of their products is a cost that has to be borne out of their profits - and that keeping dangerous counterfeits off the market is seen as a private rights enforcement issue. Perhaps when the cost of hunting and destroying the fake drug-peddlers is a cost we all bear, when we all shoulder the responsibility for eradicating them and when we realise that it is in the interests of all of us to drive these products and their despicable producers out of business, that we will be able to occupy more of the moral high ground when reproaching drug companies for their profits.

2 A duty of Carey

Still perusing his Telegraph, the IPKat found a good IP Law Examination question for students in future years (this year's papers having already been set). It involves a spat between loveable cuddly rapper Eminem and sweet songstress Mariah (Hairy) Carey. Apparently Eminem's current stage act involves playing some voicemail messages left by Carey during their period of collaboration four ago. According to the report:
"With the sneering misogyny that is his stock-in-trade, Eminem played the messages on stage before pretending to vomit and launching into his song Puke".
Putting on his law teacher's hat, the IPKat instantly asks:
(i) Is there copyright in Mariah Carey's voicemail messages?

(ii) Does the deposit of a message on a voicemail system confer upon the person who operates the voicemail system a licence to use messages deposited on it?

(iii) Is there also a copyright in the sound recording of the message, as distinct from the words as spoken?

(iv) If so, who is the owner of the copyright in the sound recording?

(v) Does the answer to any of the above questions depend on whether the voicemail message is recorded on domestic answerphone equipment owned by the addressee of the message or by a third party such a telecoms service provider?

(vi) Does Ms Carey have a moral right to object to the prejudicial exploitation of her message by Eminem?

(vii) What economic rights, if any, does Eminem infringe through the performance in public of Ms Carey's message?

(viii) On the assumption that infringement of any right has taken place, on what basis would damages be calculated and what would their likely quantum be?
Please do not even attempt to post your answers on this weblog or, worse, send them to the IPKat for marking. Just muse upon them and think yourself fortunate not to be representing either of the disputants in this intriguing little matter. Merpel says, come on, why won't you give me the answers ...?

3 All in a good cause

Browsing on the Technollama blog the IPKat came across this appeal for funding from the Wikimedia Foundation, which provides some of the most reliable free information available online. Swallowing for one moment that intense feeling of jealousy that comes from having to concede that there really are websites that get more hits than your own, the IPKat (who has used Wikipedia from time to time and greatly admires it) endorses this appeal and hopes his readers will consider this a worthy cause. Donations here.
SUNDAY SELECTION SUNDAY SELECTION Reviewed by Jeremy on Sunday, August 21, 2005 Rating: 5


Guy said...

Erectional dysfunction and other curative drugs. In the United Kingdom the compond sold under the registered trade mark, Viagra, is generically sildenifil. Its prescription under the NHS is severely limited; see In consequence people desiring to try the substance need either a private doctor's prescription, expensive, or use. or an on-line pharmacy. The Pfizer European patent on the compound remains in force but the patent granted on its use has been revoked. The decision was upheld on appeal. Care must be taken between drugs sold involving a misuse of trade mark rights, drugs sold which infringe patents and plain non-active products before using the word "fake".

Jeremy said...

Thanks for the clarification, Guy. I hope it's clear from the context that I meant "fake" in the sense of "containing non-active products". Some trade mark infringement - including that described in this news article - falls into this category. However, sale of a genuine product that has fallen foul of "exhaustion of rights" rules is different. Genuine VIAGRA first sold in the US and then imported into the EU without the owner's consent is presumably not likely to cause damage to the end user.

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