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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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    How The Main Issues Of The Marrakesh Treaty For The Blind Were Solved In The Nick Of Time

    Published on 1 July 2013 @ 4:45 pm

    By , Intellectual Property Watch

    Martin MoscocoIt is no secret that the negotiations were arduous leading up to the new Marrakesh treaty on exceptions and limitations to copyright for the blind, to the point where there were doubts halfway through the 17-28 June diplomatic conference that consensus could be reached. Unanimous credit was given to the facilitator of informal discussions between parties, Martin Moscoso, director of the Copyright Office of Peru (INDECOPI).

    During the week, tensions were high, as some contentious issues were still unresolved. Intellectual Property Watch asked Moscoso what tipped the balance between a text with a large number of open issues to a clean text with no brackets.

    Martin Moscoso (MM): Let me start by saying that the move to a unified text from a text in which the different positions expressed were different enough as not to have met agreement, was possible when we went from a moment of distrust to a moment of trust.

    That path was possible because we started to hear concerns and we tried to understand them as legitimate concerns. When we started to agree that when a particular country position was expressed as a concern it needed to be understood and then considered as legitimate, it was possible to pass to a stage where a solution would not come from a proposal put forward by one delegation but rather a search for a common goal to find the right way to tackle that concern.

    That has been the way we achieved this result which we applied to the different topics we addressed.

    Intellectual Property Watch (IPW): How did you close the gaps in the obstinate issue of commercial availability?

    MM: Of course, commercial availability at the beginning was considered as an important condition to ensure that cross distribution of accessible format copies was going to happen in a guaranteed manner for right holders of exporting countries, and we had to find some ways to ensure and give some sort of statements in the treaty which would allow, through the three step test for example, that that concern could be tackled.

    We knew that if we could find such a solution on the 3 step test concerning international obligations related to it, we could remove the condition of commercial availability which was so contentious for so many countries of the world in Article 5 (Cross-Border Exchange of Accessible Format Copies). That condition of commercial availability was kept in Article 4 so that the treaty does not affect the legitimate market which already serves beneficiary persons at national level.

    IPW: How about technological protection measures (TPMs)?

    Martin MoscocoMM: In the case of TPMs, there is a strong message with an important international impact, stating what the Beijing treaty [2012 agreement on audiovisual performances] had started to say in an agreed statement regarding the use of TPMs. The message was that the use of TPMs should not impair the exercise of exceptions and limitations generally established by law with regards to copyrights and related rights.

    In the Beijing treaty there was an agreed statement in a treaty establishing new rights, and the provision of the treaty was regarding the use of TPMs and the obligation to establish a legal system to protect them. However, here we needed a different approach since we were within a treaty on exceptions.

    We were establishing exceptions and limitations for visually impaired people and we had to be sure that this message initially stated in Beijing was going to be consistent with the formulation of this treaty language. We found a way to say that TPMs would not impair the benefits of limitations and exceptions for beneficiaries. In order to do that, a provision was drafted stating that use of TPM will not impair the exercise of the exceptions.

    However, with a clarification purpose, an agreed statement was added stating that TPMs might be used for authorised entities to ease their work and make possible the distribution of the accessible format copies of works. That mention is addressed in Article 7 (Obligations Concerning Technological Measures), Footnote 11 as follows: “It is understood that authorized entities in various circumstances choose to apply technological measures in the making, distribution and making available of accessible format copies and nothing herein disturbs such practices when in accordance with national law.”

    IPW: The three-step test gap was the first breakthrough in the conference. How did you resolve that?

    MM: Regarding the three step test gap, that was very, very important from the beginning because those discussions had not started here but in Geneva. We started solving the problem in Geneva in February and tried to find a way to give some insurance that all existing international obligations of contracting parties were going to be respected regarding the 3 step test. We could also bear in mind existing flexibilities of the use of the 3 step test, for example those provided for LDCs in the TRIPS agreement.

    We understood we could find an alternative which tries to accommodate different international obligations related to the three step test. We tackled the Berne gap, we tackled the different standards of contracting parties who just ratified the Berne Convention, then we tackled the issue of countries who just ratified the TRIPS, and took into account countries which have ratified the WCT. We found a solution for each one of those cases. That solution shows flexibility and it gives consistency with other international agreements. That is how we found a solution to the 3 step test.

    IPW: Another difficult issue was the demand by beneficiaries that direct distribution to individuals be allowed.

    MM: Concerning direct distribution, at the beginning it was considered to be a good way to give immediate benefit for those countries which have not established yet authorised entities, but of course this could not be done without some sort of guarantees. Concerns regarding the misuse of this direct distribution option were to be addressed.

    Then we found additional assurances. One of them is in Article 9 regarding Cooperation to Facilitate Cross-border Exchange. It was considered that contracting parties could assist those authorised entities in complying with the requirements indicated in the definition of authorised entities, which establishes some obligations that they have to comply with if they want to be considered as an authorised entity.

    In Article 5, an agreed statement was also added on the specific issue of direct distribution. It was the way to reach the right balance tackling those concerns, reducing and finally eliminating resistance for that option. This agreed statement stands under footnote number 7, which states: “it is understood that to distribute or make available accessible format copies directly to a beneficiary person in another Contracting Party, It may be appropriate for an authorized entity to apply further measures to confirm that the person it is serving is a beneficiary person and to follow its own practices as described in Article 2” (definitions).

    IPW: The right of translation, which was a more recent issue, was also fiercely debated.

    MM: The right of translation opened a big discussion. It was considered to be out of the scope of this treaty. We started to hear concerns on the potential impact on moral rights and some countries shared their concerns that without this right of translation into the treaty, it could be a barrier for some communities, not only of national languages but indigenous and native languages in minorities in different countries, which could be beneficiaries of treaty.

    When we started to understand each other about legitimate concerns, we found a nice solution in the exceptions provided by the Berne Convention adding a specific mention to right of translation there. Having such a reference in this treaty gives comfort to countries wishing to apply this right.

    The right of translation has been inserted in an agreed statement to paragraph 3 of Article 4 (National Law Limitations and Exceptions Regarding Accessible Format Copies). Footnote 4 says, “it is understood that this paragraph neither reduces nor extends the scope of applicability of limitations and exceptions permitted under the Berne Convention, as regards the right of translation, with respect to persons with visual impairments or with other print disabilities.” Paragraph 3 also refers to Articles 10 (General Principles on Implementation) and Article 11 (General Obligations on Limitations and Exceptions).

    As we see, this common effort was a collective work, gathering creativity and flexibility coming from different delegations sharing a common goal: to send a message to the world that copyright is balanced and that it might be effective in both preserving legitimate rights of authors and ensuring access to culture.

    Catherine Saez may be reached at info@ip-watch.ch.

     

    Comments

    1. After Beijing And Marrakesh, WIPO Copyright Committee Feels The Pressure | Intellectual Property Watch says:

      […] Martin Moscoso, director of the Copyright Office of Peru, was elected chair of the SCCR for the next four sessions of the SCCR. Moscoso was a successful facilitator during the discussions leading to the adoption of the Marrakesh Treaty, in Morocco in June (IPW, WIPO, 01 July 2013). […]

    2. Hopes Dampened For Copyright Exceptions For Libraries/Archives At WIPO | Intellectual Property Watch says:

      […] Moscoso, now chair of the SCCR, was given unanimous credit for the conclusion of the Marrakesh Treaty as the facilitator of informal discussions between parties (IPW, WIPO, 1 July 2013). […]


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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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