Monday miscellany

Beyond the Commission's powers:
cats in Europe will not be standardised

New policy brief on standard essential patents (SEPs). To this Kat the words "Competition Policy Brief" seem vaguely oxymoronic, since "competition policy" within the European Union is anything but brief. However, the June 2014 issue of the EU Commission's Competition Policy Brief relates the exciting news that the Commission is focusing its not inconsiderable attention on SEPs, explains how competition concerns can arise as a result of SEPs' market power -- and how these concerns can be mitigated by the [voluntary, unpressured and generally beneficial outcome which we all desire, being that of] SEP holders giving commitments to licence their SEPs on fair, reasonable and non-discriminatory (FRAND) terms [if you want to know more about FRAND licensing as a business proposition, and about quite how beneficial it can be if it's done properly, go to the IP Finance weblog and key 'FRAND' into the in-blog search box at the top left-hand corner of the screen page].  This particular policy brief discusses the recent Samsung and Motorola cases, in which the Commission identified the concern that injunctions could be used anti-competitively to exclude competing products from the market or to impose onerous licensing terms, even if licensees are willing to take a licence on FRAND terms.  It also reminds readers of one of the grimmest truths of life in the 21st century: there are no standards for devices to recharge the various objects that shape our lives: smartphones, laptops, tablets, e-book readers and the like.

Seven for all mankind, patent-style.  This Kat has received a welcome communication from his friend Takuya Tanabu, writing to him on behalf of the Japan Patent Office. Takuya tells him that seven leading patent offices in the world (yes, you've guessed, it's the Tegernsee Group) have been discussing patent law harmonization of late and they've recently released their consolidated report on user consultations. In order to share the results of their cogitations with the user community, the Japan Patent office, in cooperation with AIPPI and FICPI, will hold a symposium in Tokyo on 10 July, 2014. Registration is free, so all you have to do is to get there. Click here for further details and registration.

Daunting topic, dynamic duo.  Together with Stefano Zambon (Professor of Accounting at the University of Ferrara), Katfriend Roya Ghafele (Oxfirst) is running a free webinar this coming Tuesday on accounting and IP: "IP and Intangible Capital: Corporate Reporting & Valuation Issues From Theory to Action".  The webinar takes place on 18 June 2014, 13.00 GMT (U.K. Time). To join, send an email with your name, affiliation and email address to info@oxfirst.com to receive an invitation containing log in contacts for this event.

Chronic IP Confusion? You’re not alone. We’ll relieve your distress (or try to). This is the proud boast of the Kat's friends at Hogarth Chambers, whose Summer Seminar this year is being held on 14 July. Details of this popular event can be found by clicking here.  It's not clear whether strawberries and Champagne are being provided, but the word "Drinks" definitely appears on the list of attractions ...


Around the weblogs 1. Gillian Spraggs' Action on Authors' Rights has recently been drawn to this Kat's attention (though he should have known of it long ago) by Australian Katfriend, artist and rights enthusiast John R. Walker. Comments John: "Gillian Spraggs is a very knowledgeable author, especially re copyright and the ongoing attempts to replace exclusive individual rights with quasi compulsory collective rights. the following is worth a read, in particular her teasing out of possible ramifications of the ECL (extended collective licensing -- a UK initiative to make it easier for authors to be regarded as having licensed a use of their work by virtue of their falling within a class of persons represented by a collecting society in respect of the right in question, if they haven't explicitly opted out):

"... ECL is a can of worms. For one thing, it will involve the intrusion of collective licensing into areas such as book publishing and licensing illustrations where direct licensing has been the standard procedure. Worse, it is going to disrupt the long-established industry practice under which authors license their books to publishers on an exclusive basis. What happens when the government permits private companies (for that is what the licensing societies are) to override the provisions in commercial agreements legally contracted between third parties? Who knows? but it appears we are about to find out. There are other problems. It is highly questionable whether ECL for book digitisation is compatible with the UK’s international obligations under the Berne Convention and other copyright and IP treaties. It is also questionable whether it is compatible with the ALCS mandate, which states: 

‘the Society is … appointed to administer the rights in situations where collective administration is the most appropriate option i.e., where the fees cannot practically be obtained through any other means’. 

There is no doubt that the British Library and other libraries and archives would rather license rights from the collecting societies at a bulk rate than negotiate them individually with the copyright owners. But there is some money that is better left on the table. The right to make a copyright work available to the public is a primary right, and valuable. Until now, the rights typically licensed through the licensing societies have been secondary rights, rights of lesser value for which it would be difficult to collect individual payments; one well-known example is the right to license a limited amount of photocopying or scanning. 

Titus tastes a sample chapter ...

I have focused on ECL for book digitisation here since there are certainly pressures to introduce such schemes, and little doubt that there are plans in hand to bring them in. But I shall conclude by noting that there is nothing in the legislation or the proposed regulations that would prevent ECL from being applied to digital materials, including text and images published on the web. This could include works whose authors or publishers only intended to make them available for a limited time: taster chapters from books, for instance. ECL could also be used to license personal materials made available on social media. We are all published authors now" [This last line is one for the 'Never Was a Truer Word Spoken Department', says Merpel approvingly].

First mover advantage? But
nowadays the players seem to
move simultaneously ...

Around the weblogs 2. "Is first mover advantage still a relevant trade secret strategy?", asks fellow Kat Neil on the IP Finance weblog -- a question on which he offers some perceptive thoughts.  More questions are posed on the SOLO IP blog, this time by Barbara Cookson on the subject of Community trade marks and (no, not again!) proof of use within the European Union.  Class 46 notes the next steps being taken to tackle IP right renewal scams and other noxious but sometimes surprisingly legal activities, as well as carrying two fresh pieces on plain packaging and tobacco products, here and here.  Finally the jiplp weblog seeks to take the IPKat's discussion of Abstracts for IP articles to a discussion on LinkedIn.

Two-Day Party -- and now it's time to be forgotten! Following a plenary meeting of 3 and 4 June 2014, the Article 29 Working Party [haven't you heard of it? No! This Kat hadn't heard of it either ...], composed of representatives from EU national data protection authorities, published a media release on its initial discussions on the recent Court of Justice of the European Union ruling in Case C-131/12 Google Spain [on which see earlier Katposts here and here] on the right to be forgotten and the removal of embarrassing and unwanted search engine results. It appears that the Working Party wants to analyse the consequences of the ruling and identify guidelines to enable EU data protection authorities to take a common approach on implementing it, creating a coordinated response to complaints concerning removal requests which search engines have refused. Meanwhile, search engines should provide "user-friendly and pedagogical tools" (whatever that means in practice) to let users ask for search results to be removed. This is just work in progress, so expect more information in due course.