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The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Librarians Take The Copyright Battleground In Developing Countries

    Published on 26 November 2008 @ 3:00 pm

    Intellectual Property Watch

    By William New
    CHISINAU, MOLDOVA – Creativity may not be the first thing that comes to mind when travelling through the kilometres of mostly grey, Soviet-era cement-block buildings outlying the capital of Moldova, often referred to as Europe’s poorest state.

    But at its centre, this small, transition economy is going through an exercise being repeated around the world that could spark the needed creative fires to bring its economy alive: passing a new copyright law.

    Most experts agree that giving exclusive rights to creators encourages creativity. And almost as many agree that cultures must provide access to existing ideas in order for more ideas to sprout. A primary way to do that, the standard practice in the leading copyright-producing nations, is through exceptions to copyright for special uses such as libraries and archives.

    For economies such as that of Moldova – independent and sandwiched between the lingering tug of Russia and the increasing lure of the European Union – it is critical to obtain good information about existing laws in areas such as copyright in order to make decisions most suited to their national goals. This could be difficult in a world where a past of controlled information is not far behind and unguided movement toward a possible western European membership could bring a narrow interpretation of copyright law that overemphasises protection and enforcement of other works rather than creation of new ones.

    Enter a yeoman’s team of international librarians and believers in the power of access to knowledge, aiming to help ensure balance in global copyright laws. In Chisinau, an event was held by the International Federation of Library Associations and Institutions (IFLA), the European Bureau of Library, Information and Documentation Associations (EBLIDA), and Electronic Information for Libraries (eIFL) on 13-14 November.

    The event, entitled, “Copyright: Enabling Access or Creating Roadblocks for Libraries?” brought a strong local and regional turnout of some 60 participants, mostly national and university librarians, academicians, culture ministry and copyright officials from Moldova, but also from Russia, Romania, Serbia and Montenegro, Armenia, Bulgaria and Croatia.

    “A fair and balanced copyright framework for libraries is essential for the success of our profession and for our users, and we believe that now, more than ever, librarians must be aware of the key challenges facing us in the world of copyright,” Stuart Hamilton of IFLA, which has over 1,500 members in over 150 countries representing more than 650,000 library and information workers worldwide, told the opening session.

    “In Moldova, and in other countries in the region, copyright legislation is being amended or redrafted, and librarians need to be at the table with decision-makers to ensure our positions are heard,” Hamilton said, adding that speakers would offer “an insight into the lessons that have been learned, sometimes painfully, by librarians and advocates for increased access to information in other countries.”

    The Moldova event was preceded by the eIFL General Assembly in Sofia, Bulgaria. That event was the annual knowledge-sharing gathering for eIFL members from more than 40 developing and transition countries.

    The group in Moldova was encouraged by several speakers to ensure they present their needs to policymakers, especially as Moldova is in the process of passing a copyright law.

    A key focus of the event was on exceptions and limitations to copyright for libraries and archives, which typically are a facet of copyright laws. “It’s the basis, not the ceiling,” said Teresa Hackett, manager of the eIFL programme on “Advocacy for Access to Knowledge: copyright and libraries.” The group works along with others to ensure balance is contained in copyright laws and in technical assistance to developing countries by providers like the World Intellectual Property Organization (WIPO).

    “If you are trying to incentivise creativity and create a barrier to access [such as copyright], you have a conflict, because creativity depends on access,” said one advocate at the event, who showed almost exact copies made by famous artists such as painter Vincent van Gogh, who borrowed directly from earlier works by the Japanese artist Hiroshige. “That would today probably be infringement under copyright law,” he said.

    Overprotection of intellectual property affects culture, education and economy, he said. And people will find ways to copy. “Exceptions and limitations are the best way for people to comply with the law,” he added.

    Exceptions and limitation have been shown to provide as much if not more contribution to economies, the meeting was told by several speakers. Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation said an “enormous amount” of economic activity relies on exceptions to copyright, such as technology providers and online businesses like auction site eBay and search engine Google.

    “There would be no libraries without exceptions and limitations,” von Lohmann said. He also said that libraries should be able to get information for users outside their countries if necessary, but that a trend is developing to block access to material outside the borders.

    Legal Policy and Libraries

    Harald von Hielmcrone, head of research at the State and University Library in Aarhus, Denmark, spoke on legal policy issues. He described the expectations of users in the digital age, where research is at fingertips anywhere, and stressed the importance of research in local languages (and not just English). “If the national language does not play an active part in our intellectual development,” he said, “our cultural development will come to a halt, and our national culture will be reduced to folklore.”

    Von Hielmcrone said that when a library “goes digital” the first thing to change is the acquisitions policy, and libraries move from offering “collections” to offering “connections.” From a legal standpoint, access to content is a “communication to the public,” and the shift to connections removes access control from the libraries and puts library patrons “at the mercy” of suppliers and authors, he said.

    Because the rights to the content are not exhausted as they were with physical content, the library faces continuing expenses. Libraries often seek to ensure the availability of less commercially viable content through supplier guarantees of “eternal access,” but this is “worthless,” von Hielmcrone said. Suppliers may not be able to fulfil the obligations, such as if they go out of business or authors withdraw the work, which they could not do in the case of print form.

    The communication to the public right should be balanced with regulations for legal deposit and public access on the library premises to deposited works, he said, adding the importance of the legal means to make the online material available for personal study and research. Among other issues von Hielmcrone addressed was access to past works, including ensuring the right to make reproductions by libraries, museums, educational institutions or archives. He also discussed data protection, and the “serious technical and legal problems” that technical protection measures used to control content may have on the right to copy.

    Moldovan Law Emerging

    Ion Tiganas, deputy director of the Moldovan copyright office, described the nation’s new copyright law protecting all literary, artistic and scientific works in line with the European law. Moldova’s law contains exceptions for libraries and others to make reproductions for non-commercial purposes, but librarians were concerned they are not sufficiently strong. But he suggested that Moldova sometimes might be too eager to sign international conventions and should think about its impact. He also said copyright represents a small contributor to the national gross domestic product.

    Kenneth Crews, founding director of the Copyright Advisory Office at Columbia University in New York, discussed his new study conducted for WIPO on copyright exceptions for libraries and archives around the world. Crews collected research on 149 of the 184 WIPO members and found that 128 have at least one statutory library exception. The most common subjects of the library exceptions are copies for private study and copies for preservation, he found.

    EFF’s von Lohmann raised concerns for librarians about Google’s new settlement with publishers allowing the search engine to continue borrowing millions of books from libraries and scanning them to make a digital library (IPW, Access to Knowledge, 26 November 2008; 30 October 2008).

    A senior official at the Russian National Library told the group there is “an army” of hundreds of thousands of librarians, with lawyers, out to protect access to information.

    Oleksiy Stolyarenko, an associate with Baker and McKenzie law firm in Kiev, also spoke at the event. The eIFL also worked earlier in the year in Moldova helping to build use of digital library resources.

    To a first-time visitor, Moldova, landlocked and situated between Ukraine and Romania, appears to retain a memory of its traditional ways, mixed with the powerful Russian influences. People seem politically trapped, but with a strong national pride. A few days in the central university library for business and economics revealed a sense of determination among its industrious students to push the economy past the drab architecture and the glitzy casinos found on many street corners in the city. Students crowded into the online research areas of the library, and most were not carrying loads of printed books.

    It remains to be seen how these issues play out in Moldova and elsewhere, but increasingly developing countries are learning that there is more than one side to the copyright question, and help out there if they need it.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. Neil Turkewitz says:

      As an executive with RIAA, I am well aware that my views will be viewed as biased (indeed, evil by many), but come on. Are we really supposed to believe that the greatest problem affecting the creative community and societies is lack of access to copyright materials due to overly extensive copyright protection? Only in a world where we suspend a belief in what we can see, feel and taste in favor of a world of pure theory. I find it profoundly depressing that there appear to be so many who would effectively silence putative creators in developing countries/countries in transition by promoting ideas that bear no relationship to the conditions in such societies. Does access to information and content matter? Of course. Are exceptions and limitations to protection important to maintaining a fair balance in copyright legislation? Absolutely. Are potential creators in developing countries losing opportunities to create new works due to excessive copyright protection? Not even remotely, and people who think that this is a major issue need to get out more.

      So what’s a policy maker who wants to promote economic development and cultural production to do? That’s easy (and non-theoretical): enact strong and effective copyright legislation and ensure that it is enforced so that people can earn a living from creating new works. And yes that copyright legislation should contain appropriate limitations and exceptions and should seek to achieve the right balance, but above all, it should reflect the fact that the public’s interest in access is served by policies that promote the creation of materials TO BE ACCESSED. Access and copyright protection are not diametrically opposed competing goals, and theories that posit that they are do a disservice to societies.

    2. L. Mann says:

      “Are potential creators in developing countries losing opportunities to create new works due to excessive copyright protection?”

      Actually, this is a good question, one to which “get out more” is not a substitute for actual empirical data.

      The other side is “would copyright protection actually help artists in developing countries, and help industries grow?”

      since copyright protection depends on the existence of legal & technical infrastructure, on local creative practices being congruent with copyright law (tell me how you know who an author is or what is original in different developing countries), and on the existence of recordings and writings (and the infrastructure and capital to make those things, as well as a cultural practice of recording and writing), and ALSO because power imbalances affect people’s ability to negotiate for ownership in the first place (hello work-for-hire laws and mainstream music industry contracts), how can you assume copyright “protection” will help artists themselves, or the industry more broadly?

    3. T. Hackett says:

      The reality is that many developing and transition countries do not have the exceptions and limitations that are considered normal in the industrialised world. This is indeed a serious impediment for the flow of information, and for libraries seeking to provide services to people living in circumstances that may be hard to imagine from Washington.


    Leave a Reply

    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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