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2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

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4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

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    Panellists Outline Strategies On Exceptions And Limitations To Copyright

    Published on 20 March 2008 @ 11:11 am

    Intellectual Property Watch

    By Kaitlin Mara
    An event at the World Intellectual Property Organisation (WIPO) last week brought some key actors in copyright and related rights to discuss the value of limitations and exceptions and to present a recently released study describing an international instrument on limitations and exceptions.

    At the outset, Carolina Sepulveda from Chile’s Ministry of Foreign Affairs suggested that exceptions and limitations should be seen as “part of the intellectual property system and not a parallel system to circumvent IP rights.” A balanced legal framework, she said, must account for “the conciliation of different interests that exist in a society.”

    Chile, along with Brazil, Nicaragua and Uruguay, submitted a proposal for the WIPO Standing Committee on Copyright and Related Rights (SCCR) to undertake work in finding and analysing national practices in exceptions and limitations and in establishing an agreement on minimum standards for access (IPW, WIPO, 14 March 2008).

    The 11 March side event to the weeklong SCCR meeting was organised by the Electronic Information for Libraries, the International Federation of Library Associations and Institutions, Knowledge Ecology International, and the Library Copyright Alliance.

    Benjamin White of the British Library, the United Kingdom’s national library, spoke of a quantitative evaluation method undertaken by the library to discover its direct economic benefit to UK society. They found that the library gave 4.4 times the monetary value back to society as was originally invested. Access to the information held in libraries is vital for education, for creativity, for culture, and for industry, said White, adding that limitations and exceptions to copyright laws are key to ensuring this access.

    Copyright law as developed to keep pace with the digital age also contains provisions that do not make sense in a library environment, White said. Specifically, preventing the copying of licensed material is problematic for libraries that need to archive their material. It is impractical to imagine a library waiting five years to archive a book, he said, let alone life plus 70 years, the typical length for copyright. White said that “over 90 percent” of contracts offered to the British Library undermine copyright law.

    Digital rights management, which also limits the number of copies one can make of a proprietary work, might present a problem for libraries that will need to be able to store data far into the future when current software may no longer be supported and technical barriers to copying or altering the format of a work might lead to its being inaccessible for future generations.

    White ended by arguing that copyright must strike a balance between private and public interests and that laws must be aligned with realities in a way that makes sense to and will thus foster respect for copyright.

    Hugenholtz-Okediji Report

    A new report by Bernt Hugenholtz of the University of Amsterdam’s Institute for Information Law and Ruth Okediji of the University of Minnesota’s Law School, and presented by Sisule Musungu of IQ Sensato and Yale Law School, called the task of creating an international protocol for limitations and exceptions “one of the major challenges facing the international copyright system today.”

    Citing the continued need of many individuals worldwide for access to education and to books and the increasingly vital role of information access in a knowledge-based economy, the report [pdf] called for a global instrument that can both protect the rights of authors and creators and simultaneously ensure that information is accessible for the public good.

    Musungu quoted the report in describing the key features of such an instrument, that it: eliminate barriers to trade, especially on information service providers; facilitate and promote tangible information products; provide a framework for the promotion of freedoms and provide for consistency and stability within the international copyright system (rather than having fragmented rules based on bilateral agreements).

    The authors suggest a system in which limitations and exceptions are clustered into their groups based on their particular function in society, for example, if the exception would promote innovation or protect vulnerable groups. Within each such cluster, limitations and exceptions would be subdivided into “mandatory” and “permissive” based on importance. Those falling into mandatory category would be considered global public goods and their protection backed by international law, whereas states might choose individually on permissive limitations. A mandatory exception might cover reverse engineering or incidental copying under “innovation promotion,” says the report, where a permissive exception might cover “format shifting of works.”

    The report says that initially a global instrument should be “cast… in soft law” as it would be easier and speedier to negotiate and also to alter. Its authors state that a “joint initiative between WIPO and the WTO could be an ideal and appropriate expression” of this instrument.

    James Love of Knowledge Ecology International, in a presentation entitled, “The Overlooked TRIPS Flexibility,” argued that there is a “little known provision” for exceptions and limitations under international law, specifically in Article 44 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

    Article 44 deals with injunctions for intellectual property rights infringement. Love said that its first paragraph, 44.1, makes it “clear that injunctions for infringement can be optional” and that Article 44.2 allows for “injunctions [to be] be eliminated entirely, in cases where right owners receive remuneration or compensation.” The specific statement to which Love referred reads: “where these remedies [i.e., injunctions] are inconsistent with a member’s law, declaratory judgments and adequate compensation shall be available.”

    Love cited a 2006 legal case involving eBay [pdf] in which the US federal court of appeals found that the online auction site was infringing on a legitimate patent held by company MercExchange, but invalidated MercExchange’s request for a permanent injunction in part because the district courts had failed to prove “the public interest would not be disserved by a permanent injunction.” Love said the court used the flexibility in Article 44.1, to “effectively issue compulsory licences,” instead of enforcing an exclusive right.

    Love argued that more flexibility exists in TRIPS Article 44.2, where “use by governments, or by third parties authorised by a government,” are involved, or even more generally, where injunctions “are inconsistent with a member’s law.” In those cases, laws can provide that governments or courts provide only for “adequate” remuneration or compensation for use.

    Kaitlin Mara may be reached at kmara@ip-watch.ch.

     


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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