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Friday, 28 August 2015

"Simple Past, Present Continuous ...Future Perfect?" GFIP Conference Report V

This Kat encountered some technical issues that prevented him from completing his final report on the GFIP 2015 programme earlier. He does so now. The GFIP programme broke out into two parallel sessions for each of the two afternoons; one track focused on legal issues and the other on IP strategy. This Kat would have loved to have been able to report on both tracks, but various natural laws made that impossible. What follows is a summary of the sessions on trade secrets and copyright respectively.

This Kat had the privilege of speaking first at the trade secrets programme. After having first made the empirical case for the practical importance of trade secrets in technology and innovation, he addressed the two principal characteristics of trade secret law: (i) the centrality of trust, morality and sharing in creating, using and protecting trade secrets; and (ii) the lack of legal uniformity governing trade secret protection (unlike patents, there is no talk about harmonizing trade secret protection) and the legal difficulties that flow from this. Anecdotally, a US academic cornered this Kat afterwards and we agreed that perhaps the major reason why trade secrets are not taught as a part of most (all?) law school curriculums is that it is simply too complex and uncertain.

What followed was perhaps the most spirited “point-counterpoint” of the entire GFIP programme. In the one corner, Hsu Wei-Fu, General Counsel and Vice-President of MediaTek, located in Taiwan, made a sustained, indeed passionate plea in favour of expanding trade secretion protection, especially by strengthening the relevant criminal procedures available. This has been the approach recently adopted in Taiwan and, in the speaker’s view, it came not a minute too soon, this being the only way to better combat employee theft of a company’s valuable trade secrets. In the other corner, Professor David Llewellyn, Deputy Dean at the Singapore Management School of Law and well known to many Kat readers as a joint author of both Kerly’s Law of Trade Marks and Trade Names and Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights (what we used to simply call “Cornish”, after the founding author of the treatise). Au contraire, in the view of Professor Llewelyn, who took issue with the very notion of trade secrets as property, since it did not satisfy the legal definition. Further, he argued against any attempt to codify trade secret protection as inherently doomed to uncertainties in construction and interpretation. As well, Llewelyn emphasized that cultural differences are part and parcel of trade secret protection.

The first speaker at the Copyright session was the influential Professor Andrew Christie, Professor of IP Law at the University of Melbourne. Professor Christie focused on that most challenging of copyright questions, how to find the balance in the law between public and private interests. In that light, he considered recent developments at the international, regional and even extra-territorial levels. Perhaps the most notable development at the international level is the continued progress of seeking to reach agreement on a Broadcasting Treaty, which will extend protection to internet transmissions. At the regional level, maybe the most interesting example surrounds the potential IP provisions of the (itself potential) Trans-Pacific Partnership (TTP). Relying on non-formal information (I think this Kat heard the word “leak”), one provision is reputed to extend the term of protection beyond the current international provisions (although at the session a person with knowledge said that this was not on the table). As for extra-territorial effect of a national copyright law, Professor Christie invited the audience to consider possible Australian legislation, which would enable site-blocking where even the infringement takes place outside the country. Professor Christie wondered if these developments were in the aggregate tilting too much in favor of the right holder.

The audience was then treated to a double Kat feast, as fellow Kat Eleonora considered what was happening to copyright in her own backyard, the EU. She recounted the historical antecedents of EU legislation in copyright, dating back to the 1980s against the backdrop of using harmonization as a means to remove impediments to competition and free movement of goods. A number of harmonizing directives followed. With a new EU Parliament and Commission, the interest in legislative reform to better align EU legislation with the demands of the digital era led to a request for public consultations in 2014, resulting in a record number of received responses. Where this will all lead remains uncertain, she emphasized, bringing the example of geo-blocking and the possible implementation of digital exhaustion.

Eleonora was followed by Tan Tee Jim, SC, head of the IP and Technology Department at the firm of Lee & Lee in Singapore. He considered two main issues: (i) the impact of new technology on copyright; and (ii) the potential use of copyright as a bullying tactic. Mr Tan compared the result of two well-known US Supreme Court cases — the 1984 Betamax case and the Aereo decision of 2014 — and the arguably inconsistent approach taken by the court in bringing technological developments to bear on the copyright law. As for so-called copyright bullying (also described as copyright trolling), he mentioned in particular the example of the Dallas Buyers Club, where the cease and desist letter has been used as the means to demand monetary compensation of thousands of dollars in settlement of a single download of a movie by the letter’s recipient [on which see Jani's recent Katpost here].

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