Best wishes

to you all for Christmas and 2006.

I will be on holiday in Australia for much of January but may manage intermittent posts.....Also look forward to reporting on my visit to former colleagues at Blake Dawson Waldron in Melbourne and to Peter Drahos in Canberra, and my research at the IPRIA at Melbourne.

SCRIPT-ed special feature

We're delighted to announce that a report on our IP, Competition and Human Rights project, together with papers from our expert conference in December 2004, are published in the December 2005 issue of SCRIPT-ed. All comments would be most welcome.

WTO "not set in stone"

On the brink of the WTO Hong Kong meeting, DG Lamy set out his view of the future progress of the meetings and their goals. The most interesting thing for me in the speech is the comment on the agreement to amend TRIPS (subject to ratification - see previous posts). This is noted to be the first amendment of a WTO Agreement and is seized upon as an example that "rules are not set in stone" - and that substantive progress can be made in WTO discussions. Good to see IP having such a prominent role - what else might be achieved in Hong Kong?

Regulatory review - of copyright?

Thanks to the IPkat and the Patent Office for details of the forthcoming EC Commission programme of regulatory simplification. This is part of the Lisbon Programme and ties in with work I did earlier this year on the role of regulation of innovation as an alternative to IP (see previous posts).

Detailed analysis is proposed, with the end goal of recasting legislation to reduce the burdens on business and competitive by overly complex and subtely different regulation in different countries and areas. Specific reference is made to copyright. While the amount of legislation in respect of copyright certainly warrants its inclusion, there is not inconsiderable amounts of EC legislation on other IP rights. Should these not also be included?

Personally I will be intrigued to see whether recasting can indeed remove ambiguity and inconsistency (the Protocol to the EPC being a prime example of how guidance does not produce consistency if different decision makers are involved.)

New WTO Decision on Patents and Public Health

Uncertainties as to the status and effect of, and need for, the declarations and waivers at Doha and Cancun came to an end yesterday, with a decision of the General Council amending the TRIPS agreement in respect of public health. The decision, which must still be ratified by two thirds of WTO members (by December 2007), is the first amendment of TRIPS, and is a refreshing development for those (such as myself) who thought that, sadly, it would never happen.

A new provision article 31 bis is to be added to TRIPS. This provides that there CAN be export of pharmaceutical products made under compulsory licence. Details are then included about "adequate remuneration" in the light of economic value to the importing country (suspect we might be debating this for some time); and "free movement" of products exported under compulsory within a free trade area mainly made up of LDCs.

An Annex deals with the need to avoid diversion of these pharmaceutical products to other markets, and the Chairman's statement (query its status) includes details of possible labelling and colour coding procedures which could be adopted to reduce the risk of this. The Annex also recognises the importance of competition law and policy and notes that members undertake to co-operate and pay special attention to the transfer of technology and capacity building in the pharmaceutical sector. Could be a long road, but competition is becoming ever present is such instruments.

The statement also stresses the shared understanding of members that this decision is to be used in good faith to deal with public health problems, not to further industrial or commercial policy objectives.

All in all, a highly positive step forward. It is likely that the two thirds approval will be obtained and TRIPS amended. The broader question is the use which may be made of these procedures, as the documents note that this regime will build on the existing ones, in respect of which some countries have committed themselves to not making use of the provisions, and some only in the case of national emergency. Will free trade agreements be used to insist upon further op-outs?

Gowers Review of Intellectual Property

The UK government announced a 12 month long independent review of IP on 2 December 2005. This builds on manifesto commitment to "modernise copyright and other forms of intellectual property so that they are appropriate for the digital age". It will be fascinating to see what is proposed - particularly given the (possible) limits of TRIPS on modernising fervour. But who knows what that could lead to.... That said, although there are encouraging references to "balance", the focus does seem to be rather narrowly on business needs.

I would endorse the IPkat's call for all those interested, whatever their perspective on IP, to participate.

Ius Commune 2005

The Ius Commune research group conference was held in Edinburgh last week. This was great success, with over 200 participants from all over the world, although with a strong Dutch presence. The conference explored synergies and commonalities, rather than differences and conflict, across a range of legal fields.

The IP workshop, with underlying dual themes of free trade agreements and human rights, included papers on GIs; competition and public health; the precautionary principle and genetic databases; copyright, rights to education and economic policy; and the impact of free trade agreements on IP. Participants ensured a stimulating and supportive environment for exchange and development of ideas. My paper focussed on the role of the WTO Dispute Settlement System in interpretative of IP legislation and I was pleased to receive many interesting suggestions. And its always nice to get out and talk to people!

Could there really be a solution to access to generic medicines?

If so, it might be imminent. A proposed on line chat today involving the WTO Director General Pascal Lamy has been postponed given his present involvement in discussions on this point. Fingers crossed. European developments in terms of new regulation on compulsory licensing for export of generics in limited circumstances also look promising - http://www.europarl.eu.int/news/expert/infopress_page/066-3029-335-12-48-911-20051128IPR02948-01-12-2005-2005--false/default_en.htm

Never the twain shall meet? ICANN not immune

Thanks as ever to the Register for regular updates on complaints to the EC Commission about the conduct of ICANN. A complaint has been made that the 2005 contract settling a long running dispute between ICANN and Verisign (particularly regarding ".com" and ".net") is in breach of articles 81 and 82 EC Treaty. Broadly, these prohibit anti-competitive agreements and abuse of a dominant position. Similar complaints have been made by different bodies (but at the same time..) to the Department of Justice in the US.

Given that, post WSIS, at least the official line was the the US/private sector model would continue, this is a timely reminder that even those who run the internet are not immune from challenge. I know that scholars, particularly at Strathclyde University, have been working for some time on competition law issues posed by ICANN. However, it will be interesting to see this in reality - and to note where the balance of power will be seen to lie.