With general instructions from the December ministerial to change tactics in negotiations, the new chair of World Trade Organization special sessions on creating a geographical indications register for wines and spirits is calling on members for ideas.

According to a WTO official, Nigerian Ambassador Yonov Frederick Agah was elected chair at today’s brief meeting of the special sessions. Chairs typically are elected until the next ministerial conference, which is expected in 2013.

The chair said he would hold consultations with members and report back when completed. But no dates were set.

He told the gathering, “I [...] intend to initiate, in the coming weeks, a process of informal consultations with the delegations, both individually and in groups, in order to determine how best we may operationalize those elements of the outcome of [the Ministerial Conference] that relate to our work,” the WTO official said.

The mandated to establish the multilateral GI register for wines and spirits was agreed at the 2001 Doha ministerial. The December 2011 ministerial acknowledged that the overall 2001 Doha Development Agenda negotiations are at an impasse and called for new thinking.

Intellectual Property Watch reporting on the GI register talks is here.

By Steven Seidenberg for Intellectual Property Watch

On 20 March, the US Supreme Court cut back on the types of inventions that can be patented in America. The court held in Mayo Collaborative Services v. Prometheus Labs., Inc. that one cannot patent an invention which merely applies known technology to natural phenomena.

The decision is here [pdf].

The unanimous decision overturns a medical treatment patent, which claimed a process for determining how much thiopurine medication a patient should receive in order to treat certain autoimmune diseases.

Writing for the court, Justice Stephen Breyer stated that this process was unpatentable because it claimed a monopoly on a law of nature – the relationship between the amount of thiopurine metabolites in a person and the likelihood that the thiopurine drug dosage is ineffective or harmful. Although some technological measures were needed to ascertain the amount of metabolites in a patient’s blood, these measures “were well known” by scientists and did not suffice to make the invention patentable.

The ruling is likely to a major impact on the medical and biotech industry. Many methods of medical diagnoses and medical treatment are now unpatentable. And the ruling may kill patents on human genes – including Myriad Genetics Inc.’s controversial patent on two breast cancer genes. The Federal Circuit (America’s so-called “patent court”) recently upheld Myriad’s patent [pdf], but that ruling is now in trouble, according to many experts.

The World Trade Organization group discussing the mandated establishment of a multilateral register for wines and spirits geographical indications will meet this week to elect a new chair.

The special session of the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) will be held on 23 March. The main agenda item is the election of a chairperson, expected to be Yonov Frederick Agah, the Nigerian ambassador to the WTO.

Under the 1994 TRIPS Agreement, wines and spirits GIs receive a higher level of protection than other GI products. GIs are products with particular characteristics whose names typically derive from a specific region, like Champagne.

WTO members at the 2001 ministerial in Doha, Qatar, which started the Doha Round of trade negotiations, agreed to create the register. But differences have slowed agreement, with concerns from non-GI-holding nations about legal obligations the register will create, among other issues. The topic is handled under a special session of the TRIPS Council, under direct responsibility of the WTO director general. It is linked to the larger Doha Round negotiations, which are stalled.

Intellectual Property Watch stories on the GI register are here.

WTO background on the issue is here.

By Monika Ermert for Intellectual Property Watch

In passing a comprehensive Internet Governance Strategy, the Council of Europe (CoE) today laid claim to a front runner position in the human rights dialogue for the internet.

According to a press release by the Strasbourg-based, 47-member organisation, the strategy integrates 40 lines of action, including the development of a variety of soft law instruments from a high-level “framework of understanding and/or commitments” protecting the “Internet’s universality, integrity and openness as a means of safeguarding freedom of expression regardless of frontiers and Internet freedom,” to protection standards for granting the unimpeded cross-border flow of legal internet content or human rights standards on network neutrality.

The CoE strategy is here.

The main action lines of the strategy that will govern the CoE’s internet-related work between 2012 and 2015 are:

• maximising rights and freedoms for internet users;
• advancing data protection and privacy;
• enhancing the rule of law and effective co-operation against cybercrime;
• maximising the internet’s potential to promote democracy and cultural diversity;
• protecting and empowering children and young people.

The document also links the various relevant legal instruments (and in some cases review efforts). These include: the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108); the Cybercrime Convention (CETS No.189); the Convention on the Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on Financing of Terrorism (CETS No. 198); the Convention on the Prevention of Terrorism (CETS No. 196); and the Convention on the counterfeiting of medical products and similar crimes involving threats to public health (‘MEDICRIME’ Convention CETS No. 211).

The Free University of Brussels has set out to map predominant normative and causal beliefs regarding IP laws and policies. To give your input and participate in the survey, click here.

The survey takes about 6 minutes to fill in, individual answers will be kept anonymous and aggregate results will be sent to all respondents.

“Ideas are powerful tools at the disposal of stakeholders in IP politics,” the survey organisers said. “It remains unclear, however, which ideas are winning current ‘rhetorical wars’. On the one hand, it is stated that the adoption of the WTO decision on access to medicines and the introduction of the Development Agenda at WIPO are the result of a paradigm shift. On the other hand, it is believed that the conclusion of ACTA and the upgraded standards of protection in some countries testify that old ideas are simply being updated to current technologies.”

“In fact, many studies on the influence of ideas in IP politics are caught in a simplistic, linear and static understanding of ideas’ circulation,” they said. “Too often, IP debates are located on a unidimensional continuum opposing the advocates of stronger IP protection (assumed to be businesses and OECD countries) with the supporters of weaker protection (understood to be NGOs and developing countries).”

“The reality is obviously more complex,” they added. “A clear, multidimensional and dynamical mapping of IP ideas and their flows is still lacking.”

Take the survey here.

The World Intellectual Property Organization has waded into the global debates over access to safe drinking water, with an upcoming workshop on patents and water purification technologies.

The workshop on 22 March will be called, “The Role of Patent Information in Supporting Sustainable Access to Safe Drinking Water – Presentation of Patent Landscape Reports on ‘Water Desalination Technologies and the Use of Alternative Energies for Desalination’ and on ‘Water Treatment/Purification Technologies’.”

In will be held in conjunction with World Water Day 2012, in cooperation with the International Renewable Energy Agency (IRENA) and the Global Institute for Water Environment and Health (GIWEH).

“The Workshop will offer an opportunity to learn about the role of patent information as a tool to support two pressing water challenges, namely, water desalination using alternative energies and water treatment/purification, for which two patent landscape reports (PLRs) have been prepared for WIPO by Cambridge Intellectual Property Ltd. in cooperation with IRENA and GIWEH,” WIPO said. “The Presentation on the PLRs will be followed by a Panel of experts in the field of water challenges and technologies and patent information, and time for dialogue between panelists and participants.”

The program is available here. Information about WIPO’s work on patent landscapes is here.

By Maricel Estavillo for Intellectual Property Watch

Operators and internet service providers in Europe resort mostly to blocking voice-over-internet protocol (VoIP) and peer-to-peer traffics to guard the security of and prevent congestion on their networks, according to a preliminary report from the European Union telecommunications regulator, the Body of European Regulators for Electronic Communications (BEREC).

The two measures are the most common internet traffic management practices deployed by providers of internet on both fixed and mobile networks. The report, the first of its kind from BEREC, was undertaken to identify emerging trends in traffic management practices and to find evidence of negative experiences from users and content and application providers resulting from the practices. The report was based on the responses from 400 operators surveyed.

The link to the report is here [pdf].

“When blocking/throttling is implemented in the network, it is typically done through deep packet inspection,” BEREC said in a press release. From its survey, BEREC said it found operators resorting to a “wide-range of practices” and also using a “wide-range of implementation methods” to include active buffering and application-specific techniques.

Policy justifications given by respondents include security issues such as controlling spam and for them to prevent network congestion to allow them to offer specialised services such as internet telephony or TV.

The preliminary report was submitted by BEREC to the European Commission on 6 March. The regulatory body will publish the full report in the second quarter of the year.

Paris-based advocacy group La Quadrature du Net said in a press release that the findings in the report confirm the complaints against net restrictions that were submitted by some European customers on the RespectMyNet.eu platform. The group is now calling for an EU-wide internet neutrality law.

“Such widespread practices clearly show that EU Commissioner Neelie Kroes’ ‘laisser-faire’ approach on net neutrality allows operators to violate their users’ freedom of communication and privacy. She can no longer deny the evidence and must urgently propose a EU-wide law on Net Neutrality, so as to ensure that freedoms online but also innovation and competition in the digital economy are protected,” said La Quadrature spokesperson Jérémie Zimmermann.

Maricel Estavillo, an intern at Intellectual Property Watch, is an LL.M. in Intellectual Property and Competition Law Candidate at the Munich Intellectual Property Law Center (MIPLC). A former business journalist in Manila, Philippines, she is currently working on research on copyright in digital media for her Master’s thesis.

The World Health Organization is under siege by private sector forces using their financial leverage to gain undue influence in the financially beleaguered United Nations agency, a developing country-oriented group has said.

A recent piece for the non-governmental Third World Network made the assertion based on developments such as the presence of Microsoft Chairman Bill Gates sharing the stage with WHO Director General Margaret Chan at the WHO members annual meeting last year, and the presence of industry interests at a civil society meeting before last year’s UN summit on non-communicable diseases.

In general, WHO’s move toward a stronger “partnership” approach with the private sector has raised concern, it said. It also noted the private-sector influence in the increasingly powerful global public health foundations, such as the Global Fund to Fight AIDS, Tuberculosis and Malaria, and the Bill and Melinda Gates Foundation.

Chan has sought repeatedly to assure member states that the WHO understands the necessary line between any stakeholders. But some see industry links in the reform proposals emerging from the WHO, the group said.

The Third World Network is a recognised NGO at the UN in Geneva. The full article is here.

By Monika Ermert for Intellectual Property Watch

Costa Rican President Laura Chinchilla opened the 43rd meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in San Jose with concern about “attempts to regulate the network among which we have the Stop Online Piracy Act seeking protection of intellectual property by restrictions on the addressing and the Protect intellectual Property Act seeking to extend some national jurisdiction towards the entire cyberspace.”

Alternative online protection and enforcement of digital trade acts should not restrict and control cyberspace, but rather track and limit payment to illegal sites “without limiting the social transformation potential offered by the Internet 2.0,” Chinchilla said. She told the 1,700 participants that the internet should be conceived not as a threat but as a hope, which Costa Rica is encouraging by adding a National Social Digital Convenant to existing convenants on nature and peace (Costa Rica is the only country without an army).

With regard to internet governance, Chinchilla called for building on a real multi-stakeholder model and avoid building more international governance institutions “that are vertical, closed and bureaucratic.” ICANN CEO Rod Beckstrom, in his welcome speech, named current challenges for the multi-stakeholder ICANN, including: the new generic top level domain programme (with 254 applicants or up to 50 TLDs have registered so far), growing concerns about cybersecurity, the increasingly complex global geopolitical landscape, and the decision on the renewal of the IANA contract.

But Beckstrom and ICANN Chair Steve Crocker at a press conference both declined to comment in any way on the recent decision by the US government to declare the request for proposals to manage a core element of the internet as failed (IPW, Information and Communications Technology/Broadcasting, 11 March 2012). Beckstrom said the organisation has asked for a debriefing on the decisions and then might share more information.

By Maricel Estavillo for Intellectual Property Watch

A new paper from a Yale Law lecturer has outlined some general principles that governments must consider when imposing liability for internet intermediaries amid the lack of an international law covering online third-party liability.

Titled “Positive Proposals for Treatment of Online Intermediaries,” the paper was written by Margot Kaminski, the executive director of the Information Society Project at Yale Law School.

In her paper, Kaminski said governments should be guided by the following 10 general principles:

1. Be clear that provision of the safe harbors does not, in itself, establish intermediary liability;
2. Be clear about not establishing a duty to monitor user activity;
3. Be careful in the expansiveness of definition of infringement;
4. Be extremely cautious in implementing statutory damages;
5. Avoid establishing criminal liability for third parties;
6. Do not require intermediaries to terminate user internet accounts in response to copyright infringement claims, in the absence of court oversight;
7. Be sure to establish due process for users;
8. Give users the procedural ability to protest/sanction bad behaviour;
9. Leave flexibility for countries to experiment with broader user protections; and
10. Include limitations and exceptions to the liability rules, such as fair use.

“Although they are interrelated, most can be adopted independently of one another,” Kaminski wrote.

At present, governments have several options in treating online intermediaries amid the lack of a general rule in handling internet intermediary liability. While most countries do not have yet clear-cut policy concerning internet intermediaries, some governments such as the United States and the European Union member states have begun to address online third-party liability.

Some of the options that governments can adopt include making internet intermediaries criminally liable for user behaviour; make them civilly liable to other private parties for monetary damages; require them to monitor user behaviour; implement a notice-and-take down regime; and require them to cut off a user’s internet access.

Both the US and the EU have established a system of notice-and-takedown for internet intermediary liability. In the United States, the liability falls under civil law while the EU lacks a union-wide criminal intermediary liability as there is no criminalization of copyright infringement in the region.

In her paper, Kaminski has also expressed concern about the establishment a single regime for internet intermediaries, saying that doing so will “freeze experimentation” on the internet.

“We should be cautious in rushing to establish international intermediary liability, given that diversity in the short-run may result in a better system down the line. However, if the question of standardizing intermediary liability laws it brought to the negotiating table, the above considerations should be taken into account,” Kaminski said.

By Catherine Saez for Intellectual Property Watch

A collegium of scientists, philosophers and former heads of state launched an appeal yesterday in Geneva for world governance they called “Global Solidarity, Global Responsibility.”

During a press conference, collegium representatives presenting the appeal [pdf] described weakened international organisations unable to reach agreements or “imposing essential global regulations.” They presented the concept of shared sovereignty, and called for redefined territorial jurisdictions to introduce a “justice system with global reach,” and to strengthen the principle of international security, including “a duty toward future generations and the biosphere.”

Among the members of the collegium who endorsed the appeal are former French Prime Minister Michel Rocard, former Swiss President Ruth Dreifuss, former Brazilian President Fernando Henrique Cardoso, former French Ambassador to the UN Stéphane Heissel (whose book was said to have inspired civil protests in several countries such as Spain and Greece), former Mauritanian Minister of Foreign Affairs Ould Abdallah Ahmedou, former US Ambassdor William Vanden Heuvel, and former Slovenian President Milan Kučan.

The France-based International Collegium, also called the International Ethical, Scientific and Political Collegium, was founded in 2002.

By Monika Ermert for Intellectual Property Watch

The District Court of Berlin, Germany, yesterday ruled that user rights were violated by several parts of social media site Facebook’s general terms and conditions and by its “friendfinder” feature. With regard to copyright law, the automatic worldwide exploitation right granted by users clicking off the terms and conditions was invalid, the court ruled.

The complaint was filed by the German Federation of German Consumer Organizations (VZBV), a non-governmental umbrella organization for 42 German consumer associations.

While users may grant such exploitation rights, the project manager of the VZBV programme “surfers have rights,” Carola Elbrecht, said there was a heavy lack of transparency. German civil law bans significantly uncommon and unexpected clauses in general terms and conditions, and German copyright law dictates a reasonable compensation for authors.

Lack of transparency was also the grounds on which VZBV attacked the data protection standards of Facebook. Friendfinder invitations to non-Facebook members unaware of the fact that their names and email addresses had been shared with the company are unlawful, the Berlin court ruled. Facebook users also had to be clearly made aware that in using the friendfinder feature they allowed the import of complete address books into the system. Facebook recently made changes to its terms and conditions, but the problem persisted, the VZBV said.

Facebook told German media it was still considering next steps, the company still can appeal the decision.

The full text of the decision will soon be published on http://www.surfer-haben-rechte.de/cps/rde/xchg/digitalrechte/.

A conservative United States congressional representative has posted the text of the controversial Anti-Counterfeiting Trade Agreement (ACTA) to the internet and is calling for public comments out of the fear that the agreement will harm the open internet.

The website, keepthewebopen.com, created by California Republican Rep. Darrell Issa, is already collecting a numerous comments, but with the agreement already signed by the US and others, it remains to be seen if it is too late for change.

Issa warns that ACTA is more problematic than the SOPA/PIPA bills recently dashed in Congress by public outcry (IPW, Access to Knowledge, 20 January 2012). Members of Congress and the public were given restricted roles in the negotiation of ACTA, which took place in secrecy over the past couple of years.

Separately, outside the ACTA realm, Issa is a political player in Washington who had a recent high-profile run-in related to restricting free speech on a different issue.

Neelie Kroes, vice-president of the European Commission responsible for the Digital Agenda, today called for public data to be opened up for all to use, somewhat akin to providing the free oil of the digital age.

“Let me underline one initiative that I am supporting to make digital technology work for governance and transparency: by opening up public data. In the digital age, data takes on a whole new value, and with new technology we can do great things with it. Opening it up is not just good for transparency, it also stimulates great web content, and provides the fuel for a future economy,” she said in prepared remarks entitled, “From Crisis of Trust to Open Governing“, given today in Bratislava, Slovakia.

“That’s why I say that data is the new oil for the digital age. How many other ways could stimulate a market worth 70 billion euros a year, without spending big budgets? Not many, I’d say,” she said. “So we are planning to shake up how public authorities share data. We have recently proposed amendments to the Public Sector Information Directive: these would make it cheaper, simpler and more automatic for you to use and re-use public data.”

“Under our proposals,” Kroes added, “instead of needing complicated authorisations, people would be automatically allowed to re-use public data. And we propose to extend the existing rules to valuable cultural material from libraries, archives and museums: while recognising their special commercial vulnerability.”

Kroes concluded with a nod to the delicate balance western diplomats are straddling to encourage openness online while encouraging strong intellectual property rights. “[F]reedom of speech, in particular on the internet, is something that needs to be protected too. This is something I am particularly vigilant about,” she said. “Transparency does not mean that privacy disappears nor that everything is made available without respecting the rights of individuals, including their property rights and their private data. Collectively, we need to become more sophisticated about these issues, so that rights and responsibilities are fully preserve and enhanced, and so that we can be safe and experience open democracy.”

A training programme on intellectual property organised by the United States with several partners to be held in Africa in April has been postponed under pressure to make the programme more transparent and representative of all stakeholders.

The organising office, the Commercial Law Development Program of the Office of the General Counsel at the US Department of Commerce, has posted this statement to its website:

“The African Intellectual Property Forum, originally slated for April 3-5, 2012 in Cape Town, will be rescheduled. Organizers are committed to ensuring that all stakeholders – in government, private business, the arts and the development community – are represented and engaged in the conference organization and agenda.”

The preliminary agenda for the event had looked lopsided toward developed country interests and led to criticism from around the world (IPW, US Policy, 12 February 2012).

Cosponsors included the World Intellectual Property Organization, France and Japan.

The European Union’s progress of adopting the Anti-Counterfeiting Trade Agreement (ACTA) negotiated last year has been suspended pending a ruling by Europe’s highest court, the European Trade Commissioner announced yesterday.

European Trade Commissioner Karl De Gucht yesterday announced that the European Court of Justice will be asked “to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.”

Twenty-two of the 27 EU countries already signed the agreement, along with the United States and others. But in recent weeks, strong protests have erupted across Europe as fears of excessive internet control have spread, casting doubt on the possibility of final passage in European Parliament.

Associated Press story here.

A group of public health experts gathered by the World Health Organization agreed today to continue a temporary moratorium on research done on the H5N1 bird flu virus modified in a laboratory to be more transmissible between mammals. But they said research should continue on the naturally occurring version of the virus.

The closed door meeting took place at WHO on 16-17 February.

Concern arose recently when it became known that research groups in the Netherlands and the United States have “created versions of the H5N1 influenza virus which are more transmissible in mammals than the H5N1 virus that occurs naturally,” as WHO put it, leading the health agency to convene the group.

The group consisted of various interested parties – including the researchers, the funders of the research, publications that want to profit from publishing the research, the countries that provided the viruses, bioethicists, and directors from several WHO “collaborating-center laboratories specializing in influenza,” WHO said. Publication of the manuscripts of the research will be delayed.

More meetings will be held in the future. It is expected that they will agree to publish the research later this year, according to sources.

Microsoft Corporation has issued a statement that it will not seek injunctions on its “standard essential patents” in keeping with its promises to international standards organisations. It further said it will make those essential patents available for licence without condition.

The statement is here.

“Industry standards are vitally important to the development of the Internet and to interoperability among mobile devices and other computers,” Microsoft said. “The international standards system works well because firms that contribute to standards promise to make their essential patents available to others on fair, reasonable and nondiscriminatory terms. Consumers and the entire industry will suffer if, in disregard of this promise, firms seek to block others from shipping products on the basis of such standard essential patents.”

Therefore, Microsoft will: make its standard essential patents available on fair, reasonable and nondiscriminatory terms; not seek an injunction or exclusion order against any firm on the basis of those essential patents; make essential patents available for licence to other firms without requiring that those firms license their patents back to Microsoft, except for any patents they have that are essential to the same industry standard; and only transfer such patents to other firms if they agree to those terms.

Microsoft has been scrutinised in the past for potentially influencing international standards bodies (IPW, Access to Knowledge, 29 February 2008).

The Internet Corporation for Assigned Names and Numbers (ICANN) has embarked on a programme of allowing new generic top-level domains on the internet (like .com), an initiative that has worried trademark holders and international organisations. Now the World Intellectual Property Organization Arbitration and Mediation Center is offering services for trademark holders who wish to challenge proposals for new gTLDs later this year.

WIPO “has been appointed by ICANN as the exclusive provider of dispute resolution services for trademark based ‘pre-delegation’ Legal Rights Objections under ICANN’s New gTLD Program,” it says in its webpage on the services.

This mechanism forms part of the Trademark Rights Protection Mechanisms for New gTLDs, accompanying the ICANN initiative.

Applications for new gTLDs are due at ICANN by 12 April, and will be made public soon after by ICANN, which will announce the objection filing period, expected to about seven months, according to WIPO.

A new paper from the International Centre for Trade and Sustainable Development (ICTSD) offers ideas on addressing misappropriation of genetic resources and traditional knowledge at the World Intellectual Property Organization.

The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) meets this week, from 14-22 February.

The paper, “Bridging the Gap on Intellectual Property and Genetic Resources in WIPO’s Intergovernmental Committee (IGC),” by David Vivas-Eugui (Issue Paper No. 34) is available here.

The paper looks at the different fora in which these issues have been addressed in recent years, with an acceleration in the past two years in the IGC.

“Against this background,” ICTSD said in a release, “this issue paper examines at length the range of measures and options discussed in the IGC especially biodiversity disclosure requirements and databases. It also considers the binding or non-binding nature of the instrument(s) that might emerge from the IGC and their different implications. In connection to all these aspects, the paper makes recommendations regarding processes, substance and existing research gaps that could contribute towards advancing the IGC’s deliberations.”