The online library - really the shape of things to come?

Thanks to the ABC for an excellent overview of the new court action raised in the US by major publishers (to join that previously raised by the Author's Guild) in respect of the proposed Google Online Library.

Google propose indexing, and ultimately scanning (with copyright owners' permission - although possibly on the basis of an opt out only), the contents of major libraries, to provide a searchable resource. As the battlelines form, there is certainly scope for clarification of the application of exceptions to copyright infringement such as the public interest, fair use and research, and also the relevance of rights to information and education, and to share in cultural and scientific advancement. I'll be very interested to see how this develops.

The best of times and the worst of times

The full gamut of human and corporate behaviour is on show with the TAMIFLU/bird flu issue.

Faced with concern that Roche would not be able to manufacture sufficient TAMIFLU product, US senators have held discussions to persuade Roche to enter discussions with generic manufacturers to avoid a critical shortfall in supplies - and have even indicated they would be prepared to introduce legislation to compel compulsory licensing. Interesting how a problem coming closer to home seems to focus the mind. Despite much media attention, however, so far as I'm aware no agreement has yet been reached with generic or other manufacturers.

Possibly not entirely coincidentally the WTO email update service last week provided a link to a Q and A on TRIPS, compulsory licensing and public health. A clear and helpful summary - it can all seem quite simple when the realities of life are excluded.... See http://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm

And finally, disappointing but perhaps not surprising to see that offers to sell TAMIFLU are appearing on the web, and that there are many warnings appearing that TAMIFLU should not be bought online or without a prescription. Potential crises do seem to bring out the vultures.

TAMIFLU and bird flu

As levels of concern increase over bird flu as it touches ever more countries, Jamie Love of CPTech provides another excellent summary of the challenges of compulsory licensing of patented medicines for essential treatment - particularly where, as is the case in many countries because of political pressure and/or free trade agreements, countries have committed to not taking advantage of the opportunities available. The possibility for this to rebound to the disadvantage of such countries, largely in the developed world this time, is set out in his letter of 14 October to the US Trade Representative.

An interesting test case (with the potential, of course, sadly to become so much more). Will a different approach to patents be adopted when the questions are raised closer to home?

Adelphi Charter

Well it's here. Interesting balance of legal and social questions, clarity and strategy.

I agree with pretty much everything in the Charter. Two main questions, however, after initial mulling, are:

(1) how the points included relate to other ones - for example human rights to IP and property ( but this is very much a question of balance, which is clearly addressed in point 3) and the role of the WTO in IP; and

(2) that the essence of each point (save 7) can in fact be found in the much maligned TRIPS (whether they are used properly at present is of course another matter).

I'm also interested in the main call for a presumption against no new or extended IP rights - mainly, from our project's perspective, because of the question begged in respect of how to deal with existing ones.

All in all, it's a useful document: a concise reminder of the need for questioning and balance when considering IP, rather than assuming it to be an absolute good which must be increased at all times. I'll be intrigued, given the fate of TRIPS, to see how the suggested "next steps"fare (see p7 FAQ on the resources part of site).

(another) useful blog

has just been brought to my attention - conference listings. See you at Fordham?

Another dose of reality - this time on fundamental rights

Thanks to the Register for details of controversy on Peru over government plans to use newly available funds on computer and internet related facilities, rather than education and irrigation. A reminder that while San Francisco might see cutting edge communications as a fundamental right (see 10 Oct) it isn't (can't?) be the same everywhere.

RSA IP Charter D-Day

The results of the RSA IP Charter project, the Adelphi Charter, are to be launched tonight at the RSA in London. The launch features among others Professor Sir John Sulston and Professor James Boyle. The aim of the project was to place, or return, the public interest to the heart of IP and to strike a fair balance between the private and the public. I'm looking forward to this, having done some research for the project in the early stages.

Ranbaxy v Warner-Lambert

An interesting decision of Mr Justice Pumfrey which as well as stirring old memories of organic chemistry provides useful guidance on patent construction (including what the court will consider relevant material) and obviousness tests (particularly selection patents).

Almost in passing, the judge confirmed that previous representations made to the Patent Office as to the meaning of patents were not relevant to present construction of those patents. The key test was, following the House of Lords in Kirin Amgen, what a person skilled in the art would have understood the claims to mean, proceeding from the basis that the language actually used is of "critical importance." However, an over-meticulous approach should not be adopted to grammar and language, if this would infer a meaning which the skilled person would not take from them. It's interesting to consider the possible anagolous relevance of this approach to statutory interpretation (a current obsession).

In terms of obviousness, the judge reviewed the differing approaches of Windsurfing and EPO problem/solution guidelines, and, in respect of selection patents, contrasted the English IG Farben, EI Du Pont de Nemours, Hallen v Brabantia and the EPO Hoechst/Thio chloroformates. Despite some interesting comments on finer points, and some criticism of the EPO's approach in this case, he considered that there was no real difference in the substantive laws on these issues. The key was whether the selected item (here, calcium salt) had been individually disclosed previously (as opposed to only as a class), part of this being whether its special individual features had been so disclosed. If not, then there was novelty.

BUDWEISER: European Court of Human Rights confirms that trade marks are property within ECHR

A relief for IP owners who've been at least trying to argue for some time that they have a human right to enjoy their IP rights within article 1, Protocol 1 European Convention on Human Rights - and interesting to see this confirmed, without question, by a human rights forum, the European Court of Human Rights (ECtHR).

On the point in issue, however, Anheuser-Busch Inc lost. The case concerned long running battles between US (Anheuser-Busch) and Czech (Budejovicky Budvar) companies in respect of the name "Budweiser". Here, the US company had filed a trade mark application in Portugal, before a treaty was entered into by Portugal and Czechoslovakia protecting designations of origin - including the Czech "Budweiser Bier". Under the treaty, the Czech company (and not the US company) would have rights to the name in Portugal.

After many decisions in different courts, helpfully set out in the linked press release of the Chamber judgment (judgment itself only in French so I look forward to refreshing skills on that), the US company's application for "Budweiser" was ultimately ordered to be rejected.

When the matter went before the ECtHr, it held that until a trade mark application was registered, and post grant opposition possiblities excluded, the US company could not be sure that it would in fact have a trade mark. As such, it had no possession, or legitimate expectation of such, which could be protected under Article 1, Protocol 1 ECHR in respect of the operation of the 1986 treaty.

All in all, I don't think very surprising - but a useful base for further challenges involving IP and human rights in the ECtHR - Article 2 v Article 1, Protocol 1 anyone?

How far can you stretch fundamental rights?

I was interested to read in the Register of proposals (viewed as controversal) for a municipal affordable WIFI network in San Francisco. Bases for controversy range, however, from whether WIFI and communications access can really be seen, as claimed, as a fundamental right; to whether it is sensible to swim against the tide and have essentially a small state monopoly providing the access; to whether the worst bit of all is that the monopoly would actually not be delivered by the state, but a single provider - and there are discussions with Google.... Another revealing snapshot of what can happen if creative attempts are made to do things differently.

I was also interested to see consideration of WIFI access as a fundamental right - I've been looking at access to telecommunications as potentially analogous to access to medicines in the context of doctors, nurses and midwives needing to call for assistance, or for individuals to be able to obtain key data quickly. So far as I can see, at present San Francisco is seeing the fundamental right as arising in less drastic circumstances - I'll be watching with interest.

Sony round 3 in Australia

And thanks to Andres at Technollama for the VERY speedy reporting of the decision of the Australian High Court in Stevens v Sony of 6 October regarding the copying, and subsequent playing, of CD Rom computer games. As I have former colleagues on both sides of this case, I'd also been keeping a watching eye.

The High Court (ultimate appeal court in Australia) upheld the first instance decision, and rejected that of the Full Federal Court. It held that the combination of an access code and boot ROM in the CD Rom/Playstation console, was not a "technical protection measure" (TPM) under the Australian copyright legislation; and as such, it was not a contravention of the legislation to supply a device - a modchip installed in the console - to circumvent this.

The key question was whether the modchip, which did not prevent copying of computer games, just whether the copy could actually be played, fell within the definition of TPM - "a device.... designed in the ordinary course of its operation, to prevent or inhibit the infringement of copyright." The High Court held that "inhibit" could not be interpreted properly to cover a device which merely made it more difficult to access and use a copy already made; which might deter infringement but did not stop it or make it more difficult.

The lengthy decision goes into detail on principles of statutory interpretation and constitutional obligations in Australia. As would be the case in the courts of the UK, the courts look to the words used in the statute, in the light of context and purpose as can be derived from extrinsic material, including parliamentary debate. The case makes clear, however, that (not surprisingly) the TPM was the result of a compromise, and no specific purpose could be easily discerned.

Accordingly, the High Court considered the ordinary and grammatrical meaning of wording; the fact that it was acceptable to supply circumvention devices for permitted purposes (which provision would be "stultified" if Sony's approach were adopted); other possible circumstances (for example, a device might prevent one type of infringement, but not all, and as such only "inhibit" it - so Sony did not need to succeed for "inhibit" to have meaning); and the careful balance considered to have been struck by Parliament between the rights and interests of IP owners and others (including the consitutional property rights of those who had bought a CD).

The High Court felt that a narrow interpretation was appropriate. It was not prepared, absent clear indication from Parliament, to upset these careful balances by applying the legislation beyond the confines of infringement of copyright. The case is an example of the scope of litigation and courts: within certain limits, there are opportunities for creative interpretative arguments; but courts do not make policy and should not, and here did not, stray beyond those limits.

Perhaps concerningly, however, there is reference to the likelihood of further revision of the Australian copyright legislation in the light of the Free Trade Agreement with the United States. Will the careful balance referred to, and pursued by, the High Court be upset there?

IP and Competition - a dose of reality

Thanks to the IPKat for the prompt notice of the decision in Sportswear v Ghattura.

On 3 October, Warren J struck out parts of a defence in what seems to be another in the line of cases of parallel importing and removal of bar codes. The twist here was the argument that an agreement existed between the Claimants which was in breach of article 81 EC Treaty; and as such, there could be no legitimate reason (notwithstanding the bar codes) for the Claimants to object to the parallel importing - hence there was no infringement. Phew.

The case is a helpful overview of the relevant English cases on this point - and refers to a new one, from June 2005, Hewlett-Packard v Expansus. All the cases stress the need for there to be a nexus between the alleged anti-competitive conduct (article 81, or article 82 abuse of a domininant position) and the alleged infringement in question, for the former to be a defence to the latter. Without such a nexus there are simply two separate questions - one of IP infringement, one of anti-competitive conduct - which must be pursued separately.

With concerns being expressed in so many fields at anticompetitive implications of IP enforcement, and anticompetitive conduct of IP owners, together with exploration of how competition law could be used to stop this, this decision is a dose of reality. If there is a nexus, then there may be a defence to infringement. But possible anticompetitive conduct in other areas (and query how narrowly "nexus" might be interpreted when it comes to the crunch) will simply not be considered by English courts. Something to bear in mind when developing abstract theories, or creative defences.

WSIS: thus far - and needs to be so much further

Prepcom3 of the World Summit on the Information Society has now closed in Geneva. See the link above to official documents produced, together with the excellent updates and commentary from The Register (see eg http://www.theregister.co.uk/2005/09/30/eu_net_governance/).

These reveal that, as might have been anticipated, much has been achieved at a political level - but when the detail of what is to be done and who is to pay is considered, it all gets that bit harder. Sections of documents which are agreed seem wildly promising, with recognition of the need for involvement from governments, civil society and the private sector, and for there to be equitable access to and sharing in the benefits of the information society.

However, the number of sections which have not been agreed, square brackets, the exclusion/inclusion on a random basis of civil society and the private sector, and the fact that it is highly unlikely that there will be a further Prepcom before Tunis in November mean that conflict between solutions and basic approaches is likely to continue.

The principles arising from Geneva 2003 were highly encouraging - but the reality of Prepcoms a reminder that while the very existence of the WSIS is a step in the right direction, the road ahead is long.