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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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    IP Experts Focus On 3-Step Test In Copyright, Discuss Way Forward

    Published on 21 December 2011 @ 6:08 pm

    By for Intellectual Property Watch

    Although intellectual property issues did not play a big role in the Eighth World Trade Organization Ministerial Conference, some international stakeholders took advantage of the global gathering to meet, discuss and debate the 3-step test in copyright, a key topic in IP today. The discussion included a call for a WTO declaration on the 3-step test.

    A small group of high-level industry, trade, IP experts and policymakers left the ministerial meeting held at a nearby conference centre to attend a side event on “The TRIPS Agreement and Copyright” at the WTO. The 16 December event was organised by Knowledge Ecology International (KEI) and provided the opportunity to take a closer look at how the 3-step test in copyright is being used today and if there is a need to redefine it.

    Definition and Use

    Originating in the Berne Convention for the Protection of Literary and Artistic Works [pdf], the 3-step test is a clause that establishes three cumulative conditions to the limitations and exceptions of a copyright holder’s rights, basically establishing the legal parameters for reproducing a work. Under Berne Article 9.2, the 3-step test is defined as the following: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

    The 3-step test has been included in several subsequent international IP conventions, most notably in Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The language of the 3-step test has evolved since its Berne beginnings. While Berne Article 9.2 only applies to reproduction rights, Article 13 in TRIPS does not specify a particular category of rights to which it may apply, leaving it open to cover copyright more broadly.

    WTO Intellectual Property Counselor Hannu Wager spoke at the event and told Intellectual Property Watch, “The central DNA of the 3-step test has not changed so much since the Berne Convention.” He turned the focus of the conversation more toward the jurisprudence of how the 3-step test has been applied in copyright, patents and trademarks. From the European Communities’ case against Canada for a lack of pharmaceutical patent protection to its case against the US for homestyle and business exemptions allowing small business owners to play music without paying royalties, Wager explained the application of the test demonstrates that it can take into account many different kinds of competing interests. “The general aspect that emerges from these cases emphasises the balance which is built into these tests.”

    Call for a WTO Declaration

    As librarians seek to preserve books electronically and the visually impaired fight for increased access to works in formats for their use, the interpretation and application of the 3-step test has garnered increasing attention. These issues have topped the agenda of the World Intellectual Property Organization as of late. In the last session of the Standing Committee on Copyright and Related Rights (SCCR), which concluded on 2 December, substantial work was conducted on defining copyright limitations and exceptions for various user groups (IPW, WIPO, 5 December 2011). From an audiovisual treaty to exceptions for libraries, a number of targeted treaties are in the works.

    Some argue that all of these emerging cases for special exceptions to copyright demonstrate a need for greater clarification at the international level. KEI Director James Love said during his presentation at the side event that there is some confusion surrounding how the 3-step test is read and how it is interpreted. For example, he said that the definition of each qualifying word in the test, like “normal” and “reasonable,” are largely disputed.

    Love suggested that a WTO declaration, similar to the Doha Declaration on the TRIPS Agreement and Public Health, on a balanced interpretation of the 3-step test in copyright law is needed to protect access to knowledge. “The WTO should consider adopting a declaration on the balanced interpretation of the 3-step test to ensure that WTO rules do not undermine national policies to promote access to knowledge and development, protect human rights, remedy abuses by right holders, and otherwise promote the public interest.”

    3-Step Exemptions

    Beyond the debate over how the 3-step test is read and interpreted today, there is also debate over how effective test exemptions are at providing needed knowledge access in some areas. For example, the reproduction and translation of works in developing countries are exempt from the test under the Berne Appendix on Special Provisions for Developing Countries through a system of compulsory licences. Viviana Munoz Tellez, manager of the Innovation and Access to Knowledge Programme at the South Centre, spoke at the WTO event on whether the appendix is enough to address access needs in developing countries today.

    During her intervention, Tellez characterised the appendix as “detailed, long and complex” with “numerous requirements for granting a compulsory licence” that can create high transaction fees. She also said the appendix was “designed for publishers in the print age” and leaves many unanswered questions regarding digital use of works.

    During an interview with Intellectual Property Watch, she suggested that as the internet has opened up access to knowledge, lawmakers have put greater focus on protecting the rights of copyright holders and have not been as clear on defining the limitations and exceptions available to the public.

    “We are still experimenting with copyright rules in the digital era and we need to make sure that we give as much attention to limitations and exceptions as we give to upgrading copyright protection,” she said.

    Tellez also expressed concerns over an increasing number of bilateral agreements that undermine developing countries’ scope of rights. As her research has shown limited use of the Berne Appendix, she suggested that it might be useful to revisit it and to conduct further study on if it is the right tool to address access to knowledge needs in the digital era.

    Rachel Marusak Hermann may be reached at info@ip-watch.org.

     

    Comments

    1. john e miller says:

      Very few books ever sell 1 million copies. The current WIPO SCCR 23/7 working document for the visually-impaired and otherwise reading-disabled would create a class of hundreds of millions of persons as exempt from an author’s exclusive rights of reproduction and distribution. The IFLA-sponsored Library Treaty proposal would allow any person anywhere claiming that a library-supplied reproduction would be used for private study, etc. would be similarly exempt from such author’s exclusive right.

      I don’t know what is ‘normal’ or ‘reasonable’ but I can hardly see a ‘balanced’ interpretation when the number of copies eligible for or in circulation of a copyrighted work FOR FREE greatly exceeds those that have been obtained through the ‘normal’ meaning paid-for or licensed channels.

      I am a US Library of Congress Certified Braille Transcriber and Founder of a US 501c3 ‘Authorized Entity’; MY concern is that digital Braille renditions of copyrighted works be more freely available world-wide. I consider the extreme overreach of the current WIPO SCCR proposals to be detrimental to that end as can be seen in the current impasse with these two WIPO documents… especially the TVI 23/7 proposal which your Mr. New elsewhere on IP-watch.org described as having been “unravelled”.

      If the definitions of ‘reasonable’ and ‘normal’ are of contention imagine those of ‘fundamental freedoms’,’human rights’, and what constitutes ‘abuses’.

      The International Publishers Association says right on their website:

      “IPA is an industry association with a human rights mandate.”

      No party on any side of this debate can make an exclusive claim on that.

    2. IP Experts Focus On 3-Step Test In Copyright, Discuss Way Forward | teachipr.com says:

      [...] http://www.ip-watch.org/weblog/2011/12/21/ip-experts-focus-on-3-step-test-in-copyright-debate-way-fo… [...]

    3. Francis says:

      The UK government has published a consultation on copyright law. Many of the proposed exceptions are normal exploitation of works, being uses that are currently being licensed by right holders. Examples include licensing cloud services, schools and retailers. The Three-Step Test is being totally ignored. The UK government’s proposals simply remove property rights. The Three-Step Test is a principle of international law that prevents governments playing God with their citizens’ property rights. The question is: will anyone stand up for the rights of these citizens? And if they do, will the government listen?

    4. The Berne ‘three-step test’: A Need for Clarification? « jake carberry says:

      [...] (5) http://www.ip-watch.org/2011/12/21/ip-experts-focus-on-3-step-test-in-copyright-debate-way-forward/ Share this:TwitterFacebookLike this:LikeBe the first to like this post. Published: March 7, 2012 [...]


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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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