Digital rights in France

Thanks yet again to the Register for a series of helpful updates on ongoing battles in France about the proper form of protection of digital works, and the appropriate limits on this. Whereas the "access seekers" (if such a generalisiation can be made) seemed to have the upper hand last year and earlier this year, with a bill being prepared introducing a blanket licence for sharing digital media, this was rejected by the French lower house in last week's vote. Good news for supporters and developers of DRM then.

Large music companies are still not happy, however, with mandated interoperability still in the bill. If passed by the upper house, this is likely to lead to further howls from Apple, and the like, with rumours of withdrawal from France already circulating.

Plus ca change?

No limits for DRM?

Thanks once again to the Register for reports of debate in the US Copyright Office as to the introduction of exemptions to the DMCA in respect of DRM systems, particularly to deal with extreme (including lifetheatening) situations. I haven't seem full details of the right holders (or supporters) arguments, but the possibility that IP ( in the broadest sense - as clearly a question is that DRM/access control systems can also limit access to non copyright work) could be used to prevent effective dealings with emergency cries out for a practical, effective means of introducing human rights values into this debate.

IP, competition and human rights expert meeting - Edinburgh

We are delighted to report that on 23 and 24 March we held a most stimulating, challenging (and enjoyable) meeting of experts from our network. Those present came from international institutions and academia, from Europe, India, Brazil and Nigeria. and with significant expertise in (at least) one of our key areas.

Building on our previous conference and publications, which had focussed on the more theoretical possibilties for interface and conflict, this meeting considered 4 case studies. After our worries that there might not be enough to talk about in 4 scenarios averaging under a page of A4, we could have gone on all week! An edited note from the meeting will be prepared and published in due course. We also look forward to taking the project forward to the next stage.

Many many thanks to all those involved and as ever to our administrator Nadine Eriksson-Smith.

Prince of Wales v Associated Newspapers decision

The decision in the summary judgment application in this case, as well as providing lots of headlines, includes interesting legal analysis. The full decision is definitely worth a read, and if confidentiality and the balance between articles 8 and 10 ECHR is your thing, see in particular paras 95 et seq, 117 and 134. There is also an interesting discussion (although likely of limited future application...) as to the Crown Copyright provisions, and the extent to which the Prince of Wales had copyright in his diaries. Of most interest to us is the discussion of the defences to copyright infringement in the light of the Human Rights Act.

There is a fairly detailed analysis of Ashdown and fair dealing (see paras 162, 170, 172, 174) and discussion of the role for a wider public interest defence. Paras 179 and 180 are key. The Judge agreed with the argument that, in the absence of a public interest over and above fair dealing, it was wholly disproportionate to extinguish the property rights in copyright work. On the facts here, the court then found that there was nothing to indicate that this was a "rare case" (the possiblity of which had been identified by Ashdown) where there was such a public interest to warrant extinguishing.


I was also intrigued by the analysis of the argument from academic work that it could be abuse of copyright to use copyright to prevent publication of a work which could not be prevented by other means - termed a "surrogacy" argument. This was firmly rejected by the court (para 183 et seq) . It was held that copyright is a property right, subject to limits and defences; subject to these limits, the owner does not have to jusitfy its assertion.

So all in all, not a bad day for copyright. Limits exist and will be strictly investigated - but attempts to defeat copyright by building less tangible arguments such as those based in the public interest and principles of abuse of IP will face an uphill battle - although at least in the first case, not an impossible one.

The quiet before the storm

IP litigation has as ever been active recently (thanks in particular for regular IPKat updates - very helpful in teaching), as have competition developments (personally I like Tesco being able to deliver my shopping at 11pm into my kitchen as I can never get out to the shops) and I've already commented on the Human Rights Council.

Other than discussions re the CBD, however, there has not been a great deal combining the three areas - which is of course of particular interest to us. This is about to change, at least here, with our expert meeting next week. This will be a 2 day invitation only roundtable meeting, reviewing 4 case studies from each of the three perspectives, and then trying to further develop legal and practical solutions which could work in each case, and more broadly. A key challenge will then be to develop future action points, both specific and general. Should be an exciting time.

There WILL be a Human Rights Council

Thanks to the Independent for details of the UN General Assembly resolution (US voting against) to establish a Human Rights Council.

What impact will it have in our field? Will it give greater teeth or consolidation to initiatives such as the Sub-Commission resolutions on IP and Human Rights and the General Comment? Watch this space. Am inclined to think such matters might come far down the list- part of an inherent conflict between state responsibilities, public interest and private rights and power?