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IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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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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    Mixed Reactions Among Participants In WIPO Talks On Treaty For The Blind

    Published on 22 April 2013 @ 11:31 am

    By , Intellectual Property Watch

    At the close of this week’s negotiating session for an international treaty on copyright exceptions for blind and visually impaired persons, some governments, including upcoming host Morocco, expressed disappointment in the outcome of a three-day drafting session, as it left so much for the diplomatic conference. But most said they are optimistic that solutions can be found.

    An informal session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) was held from 18-20 April. The diplomatic conference (top-level political negotiation) will be held in Marrakesh, Morocco from 17-28 June. The session concluded a draft treaty text with numerous areas lacking agreement (IPW, WIPO, 22 April 2013).

    A delegate from Morocco said at the meeting closing that he had “mixed feelings” about the outcome of the three days and was “somewhat disappointed” by the inability to remove brackets in text, signifying areas of disagreement.

    “Marrakesh will be the last chance” to agree on this treaty, he warned. “There will be no room for mistakes. In Marrakesh, we will be in front of the entire international community.” Even with pressure from creators and artists, the membership must persist with this “humanitarian gesture,” he said, adding, “We must conclude, in Marrakesh, a treaty.”

    A delegate from Honduras, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), cited concern about a “backward trend” occurring in the talks, increasing the risk of failure in Morocco.

    The Egyptian delegate said the results “make us worried” for Marrakesh, as new proposals are still coming up at this late stage. “We are going with many difficulties,” he said, stressing the importance of the humanitarian side “rather than the cost and gain criterion.”

    But Algeria, on behalf of the African Group, praised the treaty as “an excellent basis for Marrakesh.” Nigeria, which was active on the part of the African Group, also restated the commitment to accomplish a treaty that will be “meaningful to those who need it,” as well as to creators. “The interests are competing but not irreconcilable,” the delegate said.

    The United States said the aim is to have a treaty that will lead to a solution for the blind while protecting the “world’s authors.” But there are “simply too many brackets and too many options for us to be comfortable,” he said, so everyone should be prepared to show flexibility.

    Rights Holders’ Concern for Protection

    Rights holders such as publishers whose works will be exported have sought to explain their concern about a treaty whose purpose would be to allow copyrighted content to circulate freely. Among their concerns is that the accessible formats may be usable by sighted readers and may make it back upstream to developed country markets. They also are viewing the approximately 280 million blind and visually impaired persons worldwide as a potential market.

    The International Publishers Association said they are fully committed to a treaty that will address the problem and work on the ground, and that the only accusations of bad faith have come from NGOs, not member states. The international publishers’ community wants access for visually impaired persons, “not only on paper but in reality,” he said.

    A representative of the Association of American Publishers told Intellectual Property Watch that negotiators were close to a consensus document two years ago but that industry concerns had gradually increased its complexity. He said publishers “have never opposed this treaty,” and that nothing is stopping nations from adopting limitations and exceptions at the national level. More than 50 countries already have some form of limitations and exceptions, he said, while others consider that it would “politically useful” to have a treaty saying that adoption of such limitations and exceptions is an international norm.

    Publishers also understand the need for flexibility for countries to adopt such provisions in suitable ways to their national systems. But in order to agree, publishers wanted it clear that such provisions adhere to international laws, including the 3-step test, which places strict conditions on the use of the limitations and exceptions. Also, this instrument must include a mechanism for accountability, a process for dealing with an authorised entity that is not complying.

    “The objectives of this treaty can be attained within the established international framework,” he said.

    In creating the first-ever treaty on exceptions to copyright, representatives of a range of rights holders sought to ensure that it will not harm to their existing system. In the hallways of WIPO, they expressed concern that this treaty not set a precedent of exceptions that would erode copyright. Concern over precedent led lobbyists to come not only from the publishing industry but also the film industry.

    A representative of the International Video Federation implied that even if a deal is struck on a treaty, governments won’t ratify it if they do not like what it says. The treaty “needs incentives for as many ratifications as possible,” he said, and addressing commercial availability is one way to offer an incentive.

    Any instrument needs to provide as much certainty as possible, he added. Fair use and fair practices are not a familiar notion in international copyright law and should not be mentioned in this treaty, he said, adding that members are “absolutely free” to do what they want on fair use.

    A Motion Picture Association representative said at closing that the industry has “unambiguous support” for the treaty, but that it rejects what it sees as “attempts to roll back” other treaties. “Attempts to hijack” the treaty talks “cannot be tolerated,” he said.

    A Knowledge Ecology International (KEI) representative responded that this was “hypocritical” of the MPA as it has “hijacked the political process to turn this into some kind of ACTA exercise,” referring to the controversial Anti-Counterfeiting Trade Agreement negotiated a couple of years ago.

    NGO Concerns about Lost Focus

    As described by the World Blind Union (WBU), which contributed to the initial treaty concept, the new treaty is expected to: “Allow specialist organisations to make accessible copies of books in all signatory countries; Make it legal to send accessible books across national borders; Still respect copyright law: it is not an attack on publishers!; Make more books available for blind people.”

    But the WBU raised alarm at the close of this week’s session. Fred Schroeder, first vice president of the WBU, said in the statement, “The purpose of this treaty is to ensure access to books for blind people and help end the ‘book famine’ we face. WBU is alarmed that some of the negotiators have focused their efforts almost exclusively on crafting language around copyright protections that have nothing to do with the ability of authorized entities to produce books for the blind and visually impaired.”

    “The shift away from a treaty for the blind to a treaty focussed on rights holder protections has taken up precious negotiating time which should be directed at ensuring a treaty that makes it possible for materials to be shared internationally,” he said. “For example, the negotiators have spent considerable time talking about the concept of commercial availability when, in practice, there is no reason why an authorized entity would spend its limited resources to duplicate works in formats that already exist.” A WBU representative noted in the plenary meeting earlier that the treaty is about exceptions and does not require restating details of existing treaties and rights but rather just could make reference.

    An Indian delegate asked, “Is this a WIPO treaty on access to published works for [visually impaired persons], or a WIPO treaty on the protection of the 3-step test?” He said the treaty is critical for India, which has 40 percent of the world’s blind and visually impaired people. The treaty would give the important cross-border access to accessible format books and work as a stimulus for Indian publishers to publish in those formats as well.

    Jonathan Band, a Washington, DC attorney speaking on behalf of the Library Copyright Alliance, told negotiators that there are now possibly 10 references to the 3-step test in the draft text, and only one indirect reference to the principle of fair use and fair dealing. But those latter principles are found in some 45 national laws, making it a widely adopted norm, he said. Overall, the treaty has become far too complicated for countries to use, and has strayed from the original idea of having a simple template and structure.

    A representative of the Center for Internet and Society (CIS) in India, said: “There is nothing in these provisions that would convert infringement by sighted people under the pretence of this treaty magically into lawful acts. And, indeed, there are multifarious ways of infringing copyright without such resort to this treaty. Yet, these very same onerous requirements (such as the “commercial availability” requirement) and bureaucratic processes will unrealistically increase transaction costs for the visually impaired and render infructuous the very purpose of this treaty.

    The CIS representative cast particular blame on the European Union for going against the demands of the European Parliament to address the ‘book famine’ of the blind and visually impaired, and to live up to international obligations on disabilities. “The EU, and a few countries of Group B, including the United States, have been slowly bleeding this treaty to death through over-legislation and bureaucracy.”

    “Here is what it boils down to,” he continued. “[W]hen it comes to the economic rights of copyright owners, current international law insists that there be no formalities, yet when it comes to the human rights of visually impaired person to access information – a right specifically guaranteed to them under the UN Convention on the Rights of Persons with Disabilities – some delegates in this room wish to ensure as many formalities as possible.”

    The representative of KEI told negotiators that for the “non-Berne” clause, they would be better off to use the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) than Berne. He said TRIPS is more balanced, recognises the first-sale doctrine (which says copyright expires after sale of the item), and has other flexibilities. KEI also said in its closing remarks that the purpose of the treaty is to help visually impaired people, and anyone outside the treaty is subject to copyright law already.

    A WBU representative told negotiators that the treaty must have a practical application for solving the lack of materials for blind people, especially in developing countries. “We are here to solve a human rights problem,” he said. “Our goal is not a treaty, but rather a treaty that will solve access” to published works.

    As one delegate put, members will feel pressure to do whatever it takes to conclude a treaty because whoever stands in the way of this effort for blind people “will be branded as a villain.”

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

     

    Comments

    1. WIPO Talks on the Treaty for the Blind Disappoint Countries and Advocates Alike » infojustice says:

      [...] final deliberations on the treaty on copyright exceptions for Visually Impaired People.  IP Watch reports that many of the countries seemed worried that there were too many areas left undecided, or even [...]

    2. Hooray for Hollywood? Choosing maximum copyright over justice says:

      [...] MPAA still supports a treaty for the print disabled, but it must not weaken copyright protection. Additional provisions to the treaty must be added to make the treaty as weak and as difficult to implement as [...]

    3. Test Of Political Flexibility In Final Lap For WIPO Treaty For The Blind | Intellectual Property Watch says:

      [...] some concerns on key issues that could not be solved during the meetings leading to the conference (IPW, WIPO, 22 April 2013). The treaty is expected to provide a regime of exceptions and limitations to international [...]


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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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