The latest briefs from the IP community
By Joséphine De Ruyck for Intellectual Property Watch
Thanks to the latest ruling of the Court of Justice of the European Union (CJEU) on a long-standing copyright case, millions of internet users across the EU can keep calm and carry on browsing websites.
Yesterday, the CJEU in PRCA v NLA (C-360/13) confirmed the provisional decision of the UK Supreme Court in April 2013 that people who browse the internet – without downloading, printing or storing – do not need permission from the copyright holder because browsing falls under the temporary copying exemption of Article 5.1 of the Information Society Directive (2001/29/EC).
As the CJEU concluded that “the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website” met the conditions laid down in Article 5.1 as well as Article 5.5 of the directive and “they may therefore be made without the authorisation of the copyright holders.”
In supporting this decision, Jakob Kucharczyk, director of Computer & Communications Industry Association (CCIA) in Brussels, highlighted that “any other ruling would essentially mess up the Internet for European citizens and undermine the efforts to enable European technology companies to expand in the Internet economy,” according to a press release.
By Monika Ermert for Intellectual Property Watch
Libraries can digitise individual books in their collections without the consent of rights holders, the Advocate General of the European Court of Justice, Niilo Jääskinen, has written in his application in a case (C-117/13) pending at the Luxembourg Court.
The digitisation and national legislation in the the European Union member states to allow for it would not contradict the EU copyright directive (2001/29/EC Art.5 3.n), the Advocate General wrote in the opinion in a case referred to the EU Court by the Federal Court of Justice of Germany.
German publisher Eugen Ulmer KG had filed the complaint against the Technical University of Darmstadt seeking to prevent the university’s library from providing works via electronic terminals. As long as the Library has no licensing contract with the publisher on e-versions of works, the library can make the content available via its e-reading points, the Advocate General wrote. And the publisher cannot oblige the library to sign an e-book contract.
The disputed exception provided for in German Copyright law (§52b) does not include a right for the readers to copy the content on a USB stick, though, Jääskinen said, while paper print-outs are possible. There is no difference between photocopies of pages of works physically present in the library to private paper copies from electronic works, in his view.
Considering that the Advocate General found that the library exception could not be used by libraries to digitise entire collections, libraries still have to make individual decisions. The Advocate General’s opinion is not binding on the Court, which will decide later this year.
The Court’s press release is here [pdf].
In German here.
A new network has been launched with the aim of promoting open policies worldwide. The network brings together dozens of nongovernmental organisations, universities, international organisations, foundatioins and individuals under guiding principles and a work plan.
According to its website, Open Policy Network (OPN) “supports the creation, adoption and implementation of open policies around the world. It does this by:
- mapping the open policy space across open sectors;
- identifying open policy gaps and opportunities within and across sectors;
- communicating the social and economic value of open policy;
- networking together those trying to develop open policies with organizations, communities and individuals who have open policy expertise; and
- curating case studies and open policy exemplars for others to use or adapt.”
In a post on infojustice.org, Timothy Vollmer of Open Policy Network said, “When open licenses are required for publicly funded resources, there is the potential to massively increase access to and re-use of a wide range of materials, from educational content like digital textbooks–to the results of scholarly research–to troves of valuable public sector data.”
At the network’s launch in late May, a first project was announced called the Institute for Open Leadership.
The June edition of the World Health Organization monthly Bulletin is dedicated to public health and the BRICS countries (Brazil, Russia, India, China, and South Africa). That was a key issue of the recent World Health Assembly, as the emerging economies gain strength and coordinate their efforts to improve health access for their citizens, particularly as they graduate from global aid projects.
The groundbreaking Copyright Alert System set up a year ago by internet service providers and copyright holders to stop unauthorised music and film downloads, saw 1.3 million alerts sent out in it its first 10 months, according to a new report. And it expects to double in size this year.
The Center for Copyright Information (CCI), the coalition of rights holders and internet service providers operating the alert system, released a report on 28 May. It showed that of the 1.3 million alerts, most were in the “initial educational phases,” and only 265 challenges were filed, with “no findings of false positives.”
The press release and report are available here.
CCI said system is “expected to double in size in the second year of operation and CCI will begin an online awareness campaign to increase public awareness of the system.”
The alert system is the “first voluntary, successful collaboration” between entertainment and technology companies in the US aimed at reducing copyright infringement over peer-to-peer (P2P) networks, CCI said. It is “a tiered notice and response system that works in a fair and consumer-friendly manner while encouraging consumers to embrace the growing number of affordable authorized sources of films, music, and television programming content available online and from a variety of different services and formats.”
CCI members include “artists and content creators like the members of the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) as well as independent filmmakers and record producers represented by the Independent Film and Television Alliance (IFTA) and the American Association of Independent Music (A2IM), and 5 major Internet service providers – AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon,” the organisation said.
At its launch last year, the alert system was hailed as a softer, more consumer-friendly approach to changing behaviours related to unauthorised content (IPW, Copyright Policy, 14 March 2013).
The European Council today agreed on an approach for establishing a new legal framework for protecting trade secrets.
According to a release, the new framework “aims at making it easier for national courts to deal with the misappropriation of confidential business information, remove the trade secret infringing products from the market and make it easier for victims to receive compensation for illegal actions.”
The official Council document, 9870/14, is available here.
The EU release is available here [pdf].
According to the release, under the agreement, the new framework would include the following main features:
Under the agreement, the new framework would include the following main features:
“– a minimum harmonisation of the different civil law regimes, whilst allowing member states to apply stricter rules;
– the establishment of common principles, definitions and safeguards, in line with international agreements, as well as the measures, procedures and remedies that should be made available for the purpose of civil law redress;
– a limitation period of six years for claims or bringing actions before courts;
– the preservation of confidentiality in the course of legal proceedings, while ensuring that the rights of the parties involved in a trade secret ligation case are not undermined;
– the establishment of a favourable regime to employees in what concerns their liability for damages in case of violation of a trade secret if acting without intent.”
The document now goes to the European Parliament, according to sources.
By Julia Fraser for Intellectual Property Watch
At the World Health Organization 135th Executive Board meeting this week, member states discussed improvements to cut down on lengthy World Health Assemblies, and adopted two reports for further discussion on surgical care and anaesthesia, and the health impact of air pollution.
The EB took place on 26 May, ending one day early.
Member states discussed last week’s 67th World Health Assembly and made suggestions to improve efficiency as the Assembly struggled to finish in time this year and delegations were juggling parallel committees and working groups, a difficult task particularly for the smaller delegations.
Many member states suggested methods to limit the number of agenda items. Japan, China and Liberia and others complained of the length of time spent by member states recounting individual country situations that were not conducive to debates, and suggested that country reports instead be posted electronically.
However, others such as Brazil said national realities can be very important sometimes, and the right balance needs to be found. Cuba also suggested documents could be made briefer and highlight key aspects for discussion.
The Board also adopted two reports on “strengthen emergency and essential surgical care and anaesthesia as a component of universal health coverage” available here [pdf] and “health and the environment – addressing the health impact of air pollution” available here [pdf].
These will be put on the provisional agenda for the next Executive Board meeting in January 2015 to discuss appropriate WHO and member state action.
A new document on efforts to find innovative financing for neglected diseases has been made available today at the World Health Assembly.
The document, A67/28 Add.1 [pdf], is a report on 7-10 May meetings of the “demonstration project” stakeholders. It does not provide significant detail on the meetings.
Under the work of the Consultative Expert Working Group (CEWG) on Research and Development: Financing and Coordination, four demonstration project were selected (IPW, WHO, 16 May 2014).
The new document states that there is a $50 million budget line for the demonstration projects and the agreed Global Health R&D Observatory over four years. It is not clear where the observatory will be situated.
“Participants in these stakeholder meetings included existing and potential partners and donors as identified by the proponents of the selected demonstration projects. The same representatives of Member States who had been invited to observe the 10 March 2014 meeting to identify the demonstration projects were invited to attend the stakeholders’ meetings. The proponents described their projects in detail, focusing both on the technical aspects and on the innovative aspects that seek to demonstrate the principles highlighted in the report on follow-up of the report of the CEWG.
An analysis (sponsored by one of the proponents) of the feasibility of pooling financial resources to support all the four projects was presented. Discussion centred on project plans in terms of next steps, resource needs and responsibilities. Participants also discussed ideas for improving implementation and mobilizing political and financial support.
5. Following a joint request from the proponents of the four health research and development demonstration projects, the Special Programme for Research and Training in Tropical Diseases is opening a dedicated budget line within its Trust Fund, which will allow potential donors to provide resources for the four projects and for further development of the global health R&D Observatory.
This budget line, which will facilitate implementation of the demonstration projects, will be time-limited (four years), restricted to pooled resources dedicated to the four projects and the R&D Observatory, and will host a maximum of US$ 50 million. Governance of the use of funds will be placed under the oversight of the Joint Coordinating Board of the Special Programme for Research and Training in Tropical Diseases.”
According to sources, members of the Independent Advisory Oversight Committee, an external member state body at the World Intellectual Property Organization, are meeting this week to discuss a possible investigation into allegations made involving the WIPO director general.
The committee will “consider how to consider” the possible investigation, one source said. The committee is external to WIPO activities, according to sources.
The suggestion of an investigation was raised at the recent extraordinary WIPO General Assembly. Korea and the United States have signalled a call for the investigation. It is unclear which other countries would be interested.
The allegations about DNA sampling and a business deal involving WIPO Director General Francis Gurry were raised by WIPO Deputy Director James Pooley.
Intellectual Property Watch reporting on the issue is available here.
By Maëli Astruc for Intellectual Property Watch
“Governments have few sources of leverage over increasingly globalised food systems – but public procurement is one of them,” the UN Special Rapporteur on the Right to adequate food states in a new report. The right to food should be included in public food purchasing according to five principles in order to make food systems fairer and more sustainable, he said.
Released on 15 May, the report is entitled, “The Power of Procurement, Public Purchasing in the Service of Realizing the Right to Food,” by Special Rapporteur Olivier de Schutter. It suggests five principles states should follow.
Those principles are: Source preferentially from small-scale food producers; guarantee living wages as well as fair and remunerative prices along the food supply chain; set specific requirements for adequate food diets; source locally whenever possible and expect from suppliers that they produce food according to sustainable methods; and increase participation and accountability in the food system.
De Schutter gives examples of several national and international programmes that already apply those principles, and analyses economic and legal obstacles to the implementation of those principles. In particular, the report considers compliance of those principles with the World Trade Organization Government Procurement Agreement.
The World Intellectual Property Organization recently published a paper entitled, “Documenting Traditional Medical Knowledge.” With the growing use of traditional and alternative medicines in developed countries, their importance in developing countries’ health systems and the multi-billion dollar potential of benefits for companies, “documenting and protecting these medicines is becoming a greater priority,” the document states.
The paper was authored by Prof. Ryan Abbott, associate professor of law at Southwestern Law School (US) and visiting assistant professor of medicine at the David Geffen School of Medicine at the University of California Los Angeles (UCLA).
It provides an introduction to traditional medical knowledge (TMK) and how it is used. It then gives an overview of international and some national regulations related to traditional medicine, and address the relationship between traditional medicine and intellectual property rights.
The rest of the paper is focused on the issue of the documentation of traditional medicine. “TMK holders should ensure they understand both the risks and benefits of documentation prior to taking action,” Abbott writes.
Abbott lists several ways of, and challenges in, documenting TMK, and suggests step-by-step guidelines and some checklists to be applied before, during and after documenting TMK.
By Maëli Astruc for Intellectual Property Watch
A recent book, “The Moral Dimensions of Intellectual Property Rights,” by Seven Ang of the Nanyang Technological University of Singapore, explores the philosophical implications of moral terms included in IP rights statutes.
“The central rules of IPRs – which define the conditions of their existence or acquisition, their extent and their exercise – employ moral terms and ideas,” the author states in the first chapter. The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), for example, contains in articles 7 and 8 terms such as ‘balance of rights and obligations’, ‘appropriate measures’, and ‘abuse of intellectual property rights’, which have moral dimensions.
Through meta-ethical theories, in particular of R.M. Hare, Ang analyses the moral dimension of various aspects of IPRs, such as their justification, their design, interpretation, exercise and reform. Equal right to freedom and well-being is “the ultimate basis for moral evaluation of our institutions,” he says.
“An implication of this right is that the IPR system must be balanced with participation rights (moral and legal) of the public to a public domain which allows individual to have access to, and use, objects of intellectual property.” Ang adds.
The book is published by Editions Edward Elgar Publishing Limited.
A new analysis shows that while the United States government suggests intellectual property enforcement efforts at the border are largely aimed at protecting Americans from health and safety risks of counterfeit goods, the real story is different.
“The Administration’s 2013 Joint Strategic Plan on Intellectual Property Enforcement identifies ‘protection of public health and safety’ as one of its ‘primary concerns’,” says a new analysis posted to the infojustice.org website [corrected] by attorney Jonathan Band of policybandwidth in Washington, DC. “A press release issued by the Department of Homeland Security (DHS) on March 24, 2014, concerning its intellectual property seizures in fiscal year 2013 suggests that its IP enforcement efforts are largely targeted at preventing the importation of counterfeit products that threaten health and safety.”
“The actual statistics, however, reveal a somewhat different story: that DHS is either exaggerating the danger posed by counterfeit goods to health and safety, or it is not taking that danger seriously enough,” Band writes.
“[F]or the past three years, counterfeit goods threatening safety and security represent significantly less than 20% of the goods seized, measured either by the value of the goods or the number of seizures. Moreover, the percentage of dangerous counterfeit goods is decreasing,” the analysis found. By contrast, the majority of seized goods were luxury goods, like handbags, watches and jewelry.
Read the analysis here.
Today at the World Intellectual Property Organization, Ecuador signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which is administered by WIPO.
Andrès Ycaza, executive director of Ecuador’s intellectual property office, signed the Marrakesh Treaty on the side of an extraordinary session of the WIPO General Assembly, which reappointed Francis Gurry as the head of WIPO.
The signing takes the number of countries that have signed the Marrakesh Treaty to 65 of WIPO’s 187 members. The treaty will enter into force three months after 20 parties have deposited their instruments of ratification or accession, which none has done so far.
The Free Software Foundation Europe (FSFE) today wrote to several European Union commissioners in an appeal for them to weigh in against the standardisation of the Encrypted Media Extension (EME) for the new HTML version, HTML5.
EME, under consideration at the web standardisation body World Wide Web Consortium (W3C), would provide an option to build in digital rights management – or as FSFE calls it, digital restrictions management – (DRM) into HTML.
The work of the responsible W3C working group has drawn considerable criticism in the tech and tech policy community. FSFE’s main argument against EME and the related Content Decryption Module (CDM) is that it would give content providers a handle “to take control of users’ computers, letting them impose restrictions far in excess of what consumers’ rights and copyright allow.”
The organisation also warned that security problems for CDM, used by what FSFE calls a small list of large content and platform providers, could not be audited because of existing anti-circumvention laws.
Integrating DRM facilities into HTML5 is “the antithesis of everything that has made the Internet and the World Wide Web successful,” FSFE President Karsten Gerloff said in a release.
On the other side, there have been comments that not allowing DRM as an optional feature for the standard could drive content providers away from the HTML standard.
The call of FSFE to the EU Commission to engage with W3C on the issue also revives the question of the role and responsibility of the technical standardisation bodies with regard to internet policy.
World Trade Organization Director General Roberto Azevêdo yesterday appointed three panellists to examine the dispute against an Australian public health measure requiring tobacco products to be sold in plain packaging in the country. A decision in the case will be forthcoming in six months.
Five countries have brought varying but similar cases against Australia for the measure. The director general appointed the panellists because there was no agreement by the six parties in the dispute (five complainants and one respondent) on the composition of the panel, the WTO said. This case has the largest number of members in WTO history, a WTO source said.
The panellists will be:
Chairperson: Mr. Alexander Erwin (South Africa)
Members: Mr. François Dessemontet (Switzerland) and Ms. Billie Miller (Barbados)
The panel report will have to be issued in maximum six months after the date of the composition.
The six parties involved in this dispute (Australia, Ukraine, Honduras, Dominican Republic, Cuba and Indonesia) agreed in April to accept the same panellists for all of the disputes (IPW, WTO/TRIPS, 26 April 2014). They also agreed to harmonise the timetable for the panel proceedings, cooperate in all matters related to the agreement, and not to raise any procedural objections to any of the steps set out in it, according to sources.
The case initiated by Ukraine (WT/DS434) asserts a violation of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) trademark protection. The cases initiated by Honduras (WT/DS435), the Dominican Republic (WT/DS441), Cuba (WT/DS458) and Indonesia (WT/DS467), include an issue related to geographical indications, products named for particular places and characteristics.
The International Union for the Protection of New Varieties of Plants (UPOV), an enigma organisation to some, has published a list of answers to frequently asked questions on its website.
According to a UPOV official, the FAQs are a new initiative as part of UPOV’s communication strategy and “are being posted on the UPOV website for the first time.”
UPOV’s action followed the decision of the 31st extraordinary session of its Council on 11 April. UPOV, housed within the building of the World Intellectual Property Organization in Geneva, is independent of WIPO.
The FAQs provide general information on UPOV’s activities (“What does UPOV do?”) and the rationale behind the organisation’s work (“Why do farmers and growers need new plant varieties?” and “Why is plant variety protection necessary”), as well as practical information for breeders (“Where do I apply for protection of a variety?” and “What is the relationship between patents and plant breeders’ rights?”).
Some questions also attempt to provide answers to issues that are regularly raised in connection with UPOV’s system of plant protection, such as: “Why does UPOV require varieties to be uniform and stable; doesn’t that lead to a loss of diversity?”, “Is it true that UPOV only promotes commercially bred plant varieties geared to industrialized farmers?” and “Can a farmer replant seed of a protected variety without the authorization of the breeder?”
The final outcome document of the two-day NetMundial internet governance meeting in Sao Paolo has been posted.
The meeting took place on 23-24 April. The document is available here.
The 11-page “statement” document contains different sections addressing key related and tangential issues to internet governance. It does not appear to include intellectual property directly, but sideswipes the issue in several ways.
For instance, it says:
“PROTECTION OF INTERMEDIARIES
Intermediary liability limitations should be implemented in a way that respects and promotes economic growth, innovation, creativity and free flow of information. In this regard, cooperation among all stakeholders should be encouraged to address and deter illegal activity, consistent with fair process.”
It also states:
“ENABLING ENVIRONMENT FOR SUSTAINABLE INNOVATION AND CREATIVITY
The ability to innovate and create has been at the heart of the remarkable growth of the Internet and it has brought great value to the global society. For the preservation of its dynamism, Internet governance must continue to allow permissionless innovation through an enabling Internet environment, consistent with other principles in this document. Enterprise and investment in infrastructure are essential components of an enabling environment.”
Japan and the United States today announced their renewed commitment to an ambitious Trans-Pacific Partnership (TPP) agreement. The statement from the bilateral leaders’ meeting followed reports that bilateral talks toward the TPP were stalling.
The White House statement reads:
“The United States and Japan also coordinate closely in multilateral financial and economic fora to advance trade liberalization and promote economic growth. Our joint efforts are grounded in support for an international economic system that is free, open, and transparent, and embraces innovation. In order to further enhance economic growth, expand regional trade and investment, and strengthen the rules-based trading system, the United States and Japan are committed to taking the bold steps necessary to complete a high-standard, ambitious, comprehensive Trans-Pacific Partnership (TPP) agreement. Today, we have identified a path forward on important bilateral TPP issues. This marks a key milestone in the TPP negotiations and will inject fresh momentum into the broader talks. We now call upon all TPP partners to move as soon as possible to take the necessary steps to conclude the agreement. Even with this step forward, there is still much work to be done to conclude TPP.”
Today at the annual Fordham IP Law Conference in New York, Stan McCoy, until recently a US negotiator in the TPP and at the Motion Picture Association in Brussels, said he thinks there is a “low probability” concluding the TPP before the US congressional elections in November this year.
By Julia Fraser for Intellectual Property Watch
The Geneva Health Forum (GHF), taking place on 15-17 April in Geneva, will discuss the theme “Global Health: Interconnected Challenges, Integrated Solutions.” This year’s forum aims to encourage an “integrative approach” to global health, “which better captures the underlying causes of ill-health and recognises the commonalities that underlie people’s health around the world,” says GHF.
The forum brings together a multi-sectorial representation of global health players, including practitioners, researchers, policymakers, the private sector and civil society, to promote “global dialogue on health policy and practice.”
Participants will present ongoing experiences in areas such as innovation, primary healthcare, maternal and child health, health system strengthening, antimicrobial resistance, access to medicines, global health governance and big data.
The full programme is available here.
“The Geneva Health Forum provides a unique opportunity to meet and shape tomorrow’s agenda on major health issues,” said Louis Loutan, president of GHF. “Pooling intelligence will bring value and challenge common ideas to explore new territories of freethinking and build on inter-sectorial approaches to solving the problems of our time.”
The forum this year comes in context of “current discussions on how to position health in the post-2015 development agenda,” the event website says about this year’s theme. “The complexity of today’s global health challenges requires harnessing the skills and energies of many sectors and disciplines in order to develop innovative and effective solutions.”