Microsoft - the latest in Europe

Fall out continues from the EC Commission's decision regarding abuse of a dominant position, Microsoft's source code and control of information. Microsoft have offered to share its communications protocols source code - however, it is not yet clear whether this will resolve all the Commission's concerns regarding non compliance with the remedies part of its ruling. Similiar initiatives in the US seem to have run into difficulty. As ever, the Register is a useful source of information on this topic - also interesting is the Microsoft website http://www.microsoft.com/mscorp/legal/eudecision/

Apart from concerns about the ability of the Commission to make orders of the type it made, and the willingness of Microsoft to co-operate, this long running saga is indicative of the problems which will continue to be faced even if competition law can successfully be relied upon to challenge, or fetter, an IP right. A finding of abuse, imposition of a compulsory license at royalty to be agreed, or requirement of sharing are not the end of the road. While it can of course be said that such difficulties exist in any legal field, in situations where practical outcomes, such as access to information underpin the entire case, difficulties with implementation cannot be ignored. Seems like we've said this before. Anyone any ideas?

Google overview

Many thanks to Jonathan Band for this excellent overview of the debates in the Google library legal challenge.

UK Implementation of the Directive on Enforcement of IP Rights

The UK Patent Office has released its response to the consultation process on UK implementation of the Directive - we participated in this, see http://www.law.ed.ac.uk/ahrb/research/publications.asp?ref=3 .

Revised regulations are to be implemented by 29 April 2006. Generally, these strike an appropriate balance between rights of IP owners and and possible infringers. Perhaps more interesting are the ongoing questions of criminal enforcement of IP - which has, at least in the trade mark context, long been a problem in the UK jurisdictions.

WHO Commission on Intellectual Property Rights, Innovation and Public Health

Another practical initiative assessing the possible negative implications of IP, the WHO Commission hopes to report in April 2006.

The Dec 2005 report of the Secretariat notes the view of the Commission that innovation in public health should cover not only R and D per se, but also delivery of and access to the results of such work; it also notes the difficulties, well rehearsed in activist literature, of health needs in developing countries, which often cannot be sustained by a local innovation cycle. Finally, it is interesting to note the reference in the report to both public awareness of the inequities of this, and the role of the WTO and TRIPS in addressing it.

The final report is again awaited with interest, with its proposals on how to foster innovation, and produce sustainable frameworks for encouraging this on an ongoing basis - more practical roles for human rights and competition law and policy?

District Court Decision: Is software copyright unconstitutional?

The US District Court for the Northern District of California dismissed a claim for declaration that copyright cannot be applied to source code. The plaintiff Aharonian argued that source codes consists of algorithms, which are "ideas", "processes" and "concepts", which were outside the scope of existing US copyright law, being part of patent law; that in any event these terms are too vague and as such unconstitional under the Due Process provision of the US Constitution; and that Congress had not properly added source code to the works protected by copyright.

The decision first includes an interesting analysis for all activists - the extent to which Aharonian did in fact suffer a relevant injury as a result of the legislation, such that he had standing to bring the action. After analysis of Eldred v Ashcroft and other cases, it was held that here, because Aharonian wished to include source code the subject of copyright in what can be termed an IP clearance business, there was standing. However, this would not always be so - and would not be so if there was "a mere desire to copy".

The second question was whether this claim was an invitation to review copyright legislation per se - "legislate from the bench". However, as a declaration was sought, rather than development of new standards to take the place of existing ones, the court considered that such judicial legislation would not be necessary. An interesting avenue for future cases?

The court was concerned in this regard, however, at the invitation to assess the relationship between copyright and patent, particularly given the general nature of the claim; and at what it considered a misunderstanding of copyright, source code and patent. It considered the manner of writing source code involved a choice between, and expression of, ideas which could lead to an infringement of copyright- and that this was so, even if the underlying ideas were patentable. Further, independent derivation of identical source code would not infringe copyright, although it may infringe a patent. In any event, given the general nature of the challenge the court would not consider this question.

Regarding a declaration as to the unconsitutional vagueness of key copyright terms, the court noted the argument to be that these terms should have a special meaning in terms of copyright, and that Congress did not provide such meaning, leaving unconstitutional powers to courts in this regard. The court rejected this, finding that some judicial interpretation of terms is "a bedrock assumption of our common law system". Secondly, not surprisingly in the context of a constitutional challenge, the court noted the finding in Eldred v Ashcroft that copyright works in tandem with the First Amendment right to free expression. Thirdly, the court was "unwilling and unable" to ignore settled law that copyright law properly applies to software - setting up the ground for a future court?

All in all an interesting analysis, not entirely surprising, and a reminder of the number of legal hurdles which must be cleared before there could be any likelihood of, say, the Supreme Court considering this question or a similar one. Will it go further?

WSIS - the next stage

Despite many criticisms, most particularly in respect of internet governance, the Tunis Meeting of the WSIS did produce laudable declarations, and at least a road map for implementation. Key parts of this are the Golden Book and the Stockpiling exercise. Also, just announced is a meeting of the main relevant UN agencies in February 2006 to assess progress.

Although, unlike at Geneva, there is not much reference to IP specifically, the entire focus relates to delivery of access to information - one of the points of intersection of IP, competition and human rights. This is borne out by references in Tunis documents to freedom of expression, rights to education, and facilitation of technology transfer outwith the market process. Such practical initiatives at least can be a key complement to academic debate about the three doctrines - we watch with interest.

WTO Appellate Body 2005 Report

Good morning from a VERY cold Edinburgh - seem to have gone from 44 to -4.... Among the snippets awaiting attention was the 2005 report of the WTO Appellate Body.

As previously blogged, and recognised by (many) others, the existence of the WTO Dispute Settlement System could play a major role in the future development of IP at national and international level. The statistics in the report reveal an interesting perspective on this.

Firstly, the Appellate Body since 1996 has only heard 3 cases on TRIPS (the panels have heard more); and secondly that, perhaps surprisingly given growing consensus that the DSS isn't quite turning out the way the US thought it might, the US and the EC are by far the biggest "customers" of the Appellate Body. However, there is a respectable, if much smaller, involvement from Japan, and then from Canada, Brazil, India, Mexico and then New Zealand. Further, many developing countries, while not main parties to complaints, are being involveed in the process as third participants.

These outcomes indicate that (bizarrely) IP is not at the centre of the WTO, and also that there is scope for optimism in terms of the DSS in the future being able to adjudicate over disputes involving a broad range of countries and interests.

Belated Happy New Year

Apologies for resumption of service rather late in the New Year. As well as some genuine escape from work, I've spent much of the last couple of weeks looking at the IP, competition and human rights interface from the Australian perspective with visits at CGKD at Australian National University in Canberra and IPRIA at the University of Melbourne. Both were welcoming, informative and stimulating environments, and special thanks to Peter Drahos and Kim Weatherall.

Indeed, the IP/competition interface, the IP/human rights interface, the IP/World Trade interface and questions of the appropriate relationship between IP, social policy, legislation and the courts are highly current in Australia (albeit with more of a focus on each relationship, rather than further combining fields).

The High Court decision in Sony, (see previous posts) with creative approaches in both statutory interpretation and human rights, the long running question of whether to have Bill(s) of Rights and how to interprete the Commonweath Constitution, the future fate of the IP exemptions in the Trade Practices Act and the pros and cons of activist judges are all receiving intense debate. Corporations, advisers, policymakers and activists struggle with the aftermath of the US/Australia FTA - and it was interesting to see much independent thinking as to how IP and its exceptions might fare in Australia, notwithstanding criticism of the FTA from the IP perspective. For example, there is at least a view that a broad "fair use" copyright provision might be better for users than the present more specific limited exceptions. Time will tell....

Back in the UK, (and back in time) thanks to Hector MacQueen for details of the first instance decision of an English court of 21 December, in an action by AttheRaces. It was held that there was an abuse of a dominant position by the British Horseracing Board in breach of the UK Competition Act in respect of prices of supply of pre-race data, and threats of refusal to supply. See http://goderichhtml.butterworths.co.uk/competition_lawdirect/dataitem.asp?ID=225946&tid=3 and also BAILII. Look forward to exploring the database angle in detail.

Back on the plane tomorrow, back to the snow.....but with our project meetings in March and further meetings and research planned for the year, lots to look forward to - including those eternal Blackberry and Google battles, and the question of the Community Patent.