WTO progress on TRIPS and least developed countries

In advance of the Hong Kong meeting (see blog 28 November) the TRIPS Council have now reached at least some agreement. The deadline for least developed WTO member countries to meet their TRIPS obligations has been extended from 2006 to 2013 (with the deadine for patents for pharmaceuticals previously having been extended to 2016). There was also further commitment to technical support from developed member countries to assist in those obligations.

So far as it goes, this extension is a welcome flexibility for least developed countries. However, if they are party to regional trade agreements which require some provision of IP, and they do so, they will be subject to full TRIPS obligations. The decision also provides little detail as to the nature of assistance to be provided, and what form of IP laws need to be introduced to comply with TRIPS. These questions are of course outwith the immediate scope of the decision - but a reminder that the issue of IP protection is not just when, but also how and what.

Australia, patents and experimental use

The Australian Advisory Council on Intellectual Property delivered its final report on Patents and Experimental Use earlier this month. The result of lengthy consultation and consideration, I'm looking forward to reviewing it in detail - maybe when I'm at IPRIA in Melbourne in January? The proper scope of defences and exceptions to IP is a key part of the balancing of interests inside and outside IP - so reports such as this are most welcome.

The Standards War

Always an active field, the setting and impact of standards in software and telecommunications has generated lots of comment, and more, recently. I'm particularly interested in claims of patent ambushing by Qualcomm, with claims from competitors that requests for high royalty payments (once technology is incorporated in standards) should be investigated by the European Technical Standards Institute.

Elsewhere, the relationship between open standards and Microsoft continues to develop, as some governments, notably Massachussetts, require public documents to be in stored in a non proprietary way. Microsoft is working with Ecma International, and there is also comment about a new standards to be put before ISO.

Can standards be an effective means of circumventing or resolving debates over the proper scope of IP and corporate power? Or does the risk of ambushing mean that this could just be another example of "forum shifting". For further information, once again one can do no better than consult the Register in the first instance.

Draft text for WTO Hong Kong

The first step in setting out possible achievments of the looming Hong Kong summit came with the release by the Director General of the draft Ministerial Text. The document is clearly stated to be draft, with a view to consensus and convergence being developed "from the bottom up" between now and the close of the meetings.

The key focus is on cotton and agriculture, with specific reference also made to areas of interest for us such as development of the Dispute Settlement Understanding, GIs in respect of wine and spirits and ongoing work (sadly with very little detail) in respect of technology transfer.

In the light of this, it remains to be seen if it is simply timing, or more fundamental differences, which leave the section on TRIPS and Public Health blank, pending a meeting of the TRIPS Council tomorrow. Watch this space...

(Some form of) ECOSOC General Comment on IP /HR at last

Thanks to Hector MacQueen and IP Watch for drawing this to my attention.I knew it was being discussed at the UN yesterday, but its been on the agenda for so many years its hard to believe its here. Beyond that, I can't really comment as the text is not yet publicly available.

The comment focusses on the relationship between the rights of authors to benefit morally and materially from their work, and intellectual property rights. Previous discussion, here and in previous IP Watch comments on the develpment of the General Comment, suggests the debate proceeded on a human rights as opposed to economic IP rights basis, rather than engaging in the question of the extent to which, if at all, IP can be a human right.

The IP Watch comment also includes interesting details, including possible opportunities for enforcement, compensation and monitoring if States do not ensure appropriate respect for the human rights of authors. Enforcement of human rights obligations has always proved problematic at international level. However, the introduction of a new instrument of potential use in national and international IP litigation, and further consolidation of the interface between IP and human rights, must assist the debate at theoretical and practical levels as to the appropriate scope and impact of IP, and its relative importance.

Bellagio - IP and sustainable development goes on

A slightly belated post on the October 2005 session of the Bellagio dialogues. The agenda and participants look most interesting, and I'm looking forward to all the papers being live on the site, and the further proposals for a development approach to IP, particular in respect of the promised competition law suggestions.

Lego - how far can you go?

Thanks also to the IPKat for details of this decision of the Supreme Court of Canada. This considered an attempt by Lego to prevent major competitor Mega Blok from making bricks (if you have/have been a kid you'll know what we're talking about) which look just like the Lego ones. As the patents had expired, the argument was based on passing off. The court came down strongly against Lego, holding that the monopoly had expired, there could be no trade mark (reigstered or unregistered) for the purely functional shape of the brick and the battle should now take place in the market.

The decision considers and observes the Philips v Remington line of cases, in respect of which similar decisions were reached in Canada and the ECJ. Interesting also to note that items which must be the shape they are to be mechanically connected to perform their function are also excluded from protection under European Registered Design - but there is an exception for multiple assembly and modular design - cover flat packs and toy bricks then....

Legal action by Prince Charles

From the information available (Reuters pretty reliable) looks like Prince Charles has sued the Mail on Sunday in respect of publishing extracts from his journal which he had circulated to a few limited sources. Bases of claim are said to be breach of confidence and copyright. Will be interesting to see if/how human rights arguments are considered - Ashdown Revisited?

WSIS review

I've been following Kieren McCarthy's excellent, if occasionally disconcerting, blog reporting on the WSIS through The Register. If you want to know more, can do no better than refer you there. Looks as if the event sadly was not a resounding success. In the official site, the "final" documents (drafted in advance of the event) look interesting, but the note of the meetings itself remains in draft - so and again wait and see.

WSIS Tunis

When most of the world's press (I was particularly struck by the front page of yesterday's Independent) seems to be interested in in your work you think you must be on to something. Perhaps inevitably, media coverage of the World Summit on the Information Society has so far focussed primarily on Internet Governance or indeed "who should own the internet".
With some sort of deal having been done on future multilateral cooperation - remains to be seen how it will work in practice - WSIS Tunis is now underway.

There is encouraging rhetoric about bridging the digital divide and having human rights at the heart of initiatives, as well as specific action plans. The present forms of the Tunis Agenda and Tunis Commitment are laudable documents (most particularly the Action Line with its suggestions for institutional collaborations). Again, the next two days will be interesting.

From our perspective, other than some focus on IP in parallel events, and to open source projects in key documents, there is a marked lack of reference to IP - particularly in comparison with its presence in the WSIS Geneva Declaration of Principles and Plan of Action. While this could be seen as a focus on what is to be achieved, rather than legal nicety, ignoring the legal obstacles which could be posed by IP might simply shore up problems.

However, fingers crossed.

The world of publishing

I was honoured to have the chance to speak to students on the MLitt in Publishing Studies at the University of Stirling last week. I was mainly providing an overview of the real importance of IP from a practical perspective in publishing - not much good if its a great read if you get an injunction banning publication at the launch party... It was interesting, however, to witness discussion on questions of free speech, monopoly over words and ideas (particularly in respect of online publishing), and also the possible negative implications of too much power in the hands of a few powerful entities. A reminder of the real world implications of our work.

The world of telecoms

has been a hive of activity (as ever) in our fields recently.

Many thanks to the Register for its regular updates which this week included challenges to Qualcomm by other telcos in the European Commission (to add to its recent problems in the US) regarding its licensing of technology which is part of the WCDMA third generation mobile phone standard. The Register also provided a further reminder that more and even better techhnology in communications fields does not mean a better world, comes with the report from the WiMAX World conference in Boston that the shiny utopian technologies are now largely adopted by incumbent corporations, and enforced by their lawyers. As the Register says, "Plus ca change....." And if that isn't to your liking, the picture of gloom could be completed by the report that the US FCC is not objecting to proposed mergers between SBC and AT&T, and Verizon and MCI - the FCC considers that the mergers would have public interest benefits for consumers in terms of efficiency and reliability.

A final twist comes when you combine (a) the Register's WiMAX conference report of 1 November of a "rare consensus" that the real market for WiMAX is in parts of the world where existing "telephony coverage both fixed and mobile, is patchy", and (b) the 3 November report that Vodafone is set to increase its stake in South African Vodacom to 50%, and had recently acquired 10% of Indian mobile phone operator Bharti.