ipedinburgh

December "action"

2010-12-16T12:08:00.003Z

So much promised, so little achieved...On this I speak of both the expert meeting of the British Academy project and the Cancun UNFCC discussions.

The December meeting had to be cancelled because of the weather - which as I write this has just returned...However, the expert team have submitted a really interesting range of written contributions, which we will be discussing off line, as we prepare our chapters for "Environmental Technologies, Intellectual Property and Climate Change: Accessing, Obtaining and Protecting" , to be published by Edward Elgar. After this virtual work, we hope to meet again in April 2011.

At Cancun, little firm advance was made, see outputs here and comment here. From the technology side, the EGTT came to an end, and the Technology Mechanism was established. There is much discussion about different forms of funding and collaboration, which is of interest to the British Academy project team. But there is little which is clear, and IP continues to be the elephant in the room - see comment here cf some references to it in previous drafts, on which I have tweeted.

British Academy update

2010-11-12T16:55:00.003Z

Time for an update on the project...

We've completed the joint working paper, now available on ssrn.

Our next expert meeting takes place in Edinburgh on 10 December 2010, and I'm delighted that in addition to the new names posted on the website we will also be welcoming James McLean of Burness and Kevin Houston of the University of Edinburgh. Also many thanks to Edward Elgar for issuing a contract in respect of the edited collection which will result next year, building on the December meeting.

Progress also on the public engagement side, with Patrick Harvie MSP and Adam Bruce, and hopefully a student activist from the University of Edinburgh to speak at "Who Controls Climate Change?" at the Edinburgh International Science Festival on (provisionally) 13 April 2011. Hopefully, the event will be accompanied by artwork from two Aberdeen primary schools - many thanks to them so far for your interest.

And from the substantive side, I've been honoured to have just spent a week as an Econoving Global Fellow at the Universud-Paris; discussing essential technologies with an ecological economist, a scientist and a legal theorist proved highly stimulating and challenging.

Latest instalment

2010-09-23T13:17:00.002Z

So since last post, have moved house, have 2 different schools for kids, given conference papers and settled in well to Aberdeen. Apologies for silence other than a few tweets

Project team for the Climate Change British Academy project have all been working very hard - hope to have the final version of the working paper out in early October. Planning second expert meeting on 10 December 2010 in Edinburgh, including inviting new colleagues on board and trying to sort out art exhibition to go alongside it or public engagement event in 2011.

It's been fascinating exploring different perspectives on climate change and technology and having the chance/need to look in more detail at existing work in the field. I'll be intrigued to see the IPCC Special Report on Renewable Energy Sources and Climate Change Mitigation - it seems to pull together a lot of the strands included in the project; but what might it say about IP?

And at my paper at SLS in Southampton we had a really interesting discussion on the relationship between the public interest and human rights - what comes first? Is one a tool for the other? Are both too important to be seen as tools? And how can they form part of the IP, control technology debate - in general and in relation to climate change.

So many developments....

2010-07-09T19:15:00.001Z

Kids moving out of school, trying to move house, write a working paper, plan teaching for next year and suddenly interesting developments all over the place.

So, briefly:

1. ISPs are challenging to UK Digital Economy Act 2010 - see intial Out-Law commentary. The powerful challenging the powerful? What legal tools will they use to augment their points regarding scrutiny?

2., ECJ decision in Monsanto case regarding patentability of biotech inventions takes a narrow approach to interpretation of the Biotechnology Directive and finds that TRIPS has no impact on the interperation of the Directive . With this and the US Supreme Court decision in Bilksi (see recent tweet), is it becoming harder for patents to be obtained? What impact might this have on control of innovation and knowledge governance?

3. On which note, see (and do respond) to the survey, running until 30 July 2010 of the Oxford Taskforce on Global Knowledge Governance.

4. EU General Court upled the landmark ruling of the European Commission finding that AstraZeneca had abused a dominant position by the manner in which it had pursued patent applications and used the regulatory system - although it did reduce the fine. This decision suggests that what is now article 102 TFEU may indeed have an impact beyond the IMS/Microsoft- esque sagas regarding refusals to licence. How far might it go regarding raising enforcement actions? And standards?

And perhaps my favourite...

5. Thanks to IPWatch for noting that ACTA negotiators said that “ACTA will not interfere with a signatory's ability to respect fundamental rights and liberties”.....

Essential environmental technologies: first workshop

2010-06-14T12:45:00.004Z

The first meeting of experts on this project was held in Edinburgh on 9 and 10 June 2010. Many thanks to all experts, and also to Lorna Gallacher and Katie Fitzgerald.

The slides and some written presentations are all on the "Publications and outputs" section of the website and I am preparing a first draft of our working paper, with excellent support from Katie.

Initial themes are two fold: if there is a technology which has a significant effect on climate change - either in relation to response or monitoring - then IP can have a strong impact, and the use of human rights and competition to address this may be of value; in most cases, however, new technologies are of much less value than changes in practices, use of insulation etc - so it is unlikely that many/any technologies will be essential. [NB we had fascinating discussions about the meaning of both "essential" and "technology".] Much might still be gained, however, by encouraging new forms of partnership and business models, to enable wider access to technologies which although not groundbreaking can play an important role. But does it all come down to the finance?

“Obtaining, protecting and using essential environmental technologies: a holistic analysis”

2010-06-07T13:42:00.002Z

Marked lack of posts recently - other academic duties, work new project (of which more shortly), and a move to Aberdeen (although not my work self!) are my only excuses. And I have found twitter (@igftowardaccess) a bit of a temptation.

But the new project "Obtaining, protecting and using essential environmental technologies: a holistic analysis" (see website link above)is now well underway. My own working paper is complete, and our first meeting of experts takes place this week. I'll be using this blog (and the twitter account) to share my views on ongoing developments.

For now, I'm really looking forward to the meetings, and also to see what comes out of the UNFCC discussions in Bonn about IP will it get more attention that at Copenhagen? Also interesting see the Financial Times had a special report on "Environment and Intellectual Property"

World Intellectual Property Day 2010

2010-04-27T07:59:00.006Z

As I did last year, I celebrated World IP Day by visiting Tynewater Primary School in Midlothian, just outside Edinburgh. Before Easter I met with Primary 2 (see University of Edinburgh news report) and yesterday I met with Primary 7. This group of talented 11 year olds embraced with ease the concepts of innovation and creativity and the concerns that can arise over IP's power to control technology.

From the inevitable starting point of awareness of "internet and movie piracy", I asked groups of students to develop their own new way of "Linking the World" - this year's WIPO theme. After an introduction from me which included the post through to books about aliens loving under pants (if you are a parent you will understand), 10 minutes of work produced:

-a flip watch on which you could talk to astronauts
-headphones through which (if you turned them on and accepted the "call"), a caller could read your mind
-a holographic phone
-massive speakers to be located in each country from which all other countries could hear discussion in that country - unless they were excluded, for example if there was concern about spies.

I then asked students if they would be willing to share their innovation. The students themselves raised (often using exactly these terms) questions of fairness, reward of investors, payment, terms for paying suppliers, manufacturing costs, raising a court action, network effects, alternative business models, the need for reward and the need to encourage future innovation and responsibility.

There was also deeper discussion about varying royalty regimes for schools and supermarkets, different attitudes to sharing technology for entertainment, education or medical emergency, sharing profits with charities and whether or not companies should be responsible for meeting demands for access to essential technologies - or should it be for governments.

An inspiring morning - many thanks to all involved. I suspect that this group of students contains future innovators, managers, engineers, lawyers and accountants. I also suspect that discussion as to the proper place of IP in society and innovation, in Scotland and elsewhere, will run and run.

British Academy Award

2010-04-15T07:34:00.002Z

I'm delighted to have been awarded a Small Research Grant by the British Academy to explore access with essential environmental technologies. There will be two expert meetings, a working paper and edited collection and hopefully lots of public engagement (I've also been inspired by a recent visit to the Edinburgh Science Festival). The interface between IP, competition and human rights law will be key, but I'm also looking to explore CSR, regulation and activist perspectives.

ISPs, human rights and power

2010-03-31T16:54:00.002Z

Some really interesting discussions at BILETA from several speakers (Emily Laidlaw, Chris Marsden, Lilian Edwards, Dinusha Mendis, Nicolas Jondet) about the human rights of individuals (freedom of expression, ability to vote, be educated, access important health information etc etc etc) which could be affected by a disconnection under the "hopefully it can still be avoided" Digital Economy Bill. Into the wash (sorry, unfortunate term given the prospects of the DEB being part of the wash up procedure) must also go the ECHR rights to enjoy property of the individual, rights not to be discontinued without a hearing before a court....To this must be added concerns about the more popular ISPs, who might be argued to be in a dominant position (although this would of course depend on the market...). Might it be abuse of a dominant position to disconnect individuals when this might have human rights consequences - even if the ISP does so by following legislation? Something else to mull over....

BILETA and standards

2010-03-31T16:42:00.002Z

The BILETA conference was lots of fun in lovely Vienna. More substantively, I found it very helpful preparing my paper on "The place of IP in a world of environmental change". A piece which started out looking at the problems of IP in relation to new climate change technologies and what could be learned from human rights and in particular competition in the fields of health and software turned into a bit of a call for more standards agreement - not where I thought I would end up.

But the uncertainties in relation to when the EU (and more so the US) might require the sharing of technologies for use for their existing purpose - so no new technical development of product (even with the EU Enforcement Guidelines and the Commission Microsoft decision); and the Dutch decision in SK Kassettan (need to request a licence for there to be a competition defence, and a strong suggestion that patent and competition actions should be separate); suggests that competition law will be of little assistance. And although there is a strong interaction between human rights and climate change (as recognised by 2008 and 2009 resolutions), the experience from IP and human rights (resolutions 2000 and 2001, General Comment 2005) suggests that seeing a clash between two fields will not lead to any (at least immediate) action.

SO, if there is a private standard which lots of people join (but not an open standard, in the manner receiving lots of attention just now in the EU Digital Policy Agenda) then, depending on the terms of the licensing structure(s), joining a standard this might be a much more effective way of access to technology being assured. Well, at least until the Rambus, Qualcomm, and Nokia battles regarding disclosure and FRAND arise again... Something to ponder in the weeks ahead.

Oh it seems to be March

2010-03-10T16:08:00.003Z

So, where does the time go. Since I last posted, I spoke to the University of Edinburgh's prestigious Chevening Programme of visiting students on "Controlling the change? The place of intellectual property" in the context of their exploration of Finance and Investment in a Low Carbon Economy. As I'm spending more and more time wondering about climate change technologies as possible essential technologies, and the possible impact of IP, competition and human rights in these respects, it was very stimulating to share ideas and hear a different perspective.

Back in the legal field, I'm continuing work on climate change, particularly for BILETA in Vienna. I also attended the most excellent "Contextualising intellectual property in innovation systems perspective" at the European University Institute. Building on the "Un-Ip" workshop we held in Edinburgh at the end of 2008, this looked at the central power of IP within the innovation framework and ways in which we are and can move away from this model. Can human rights and competition assist businesses and funders in choosing to take a different approach - wait for the collection, but discussing it was a good way for us all to wake up first thing last Thursday.

We were also delighted to welcome Arthur Levin, now Chief of the International Telecommunications Union TSB. He explored "Engineering Legal Solutions to Climate Change" - a reminder of the links between IP, standards, and power battles which are inherent in determing the impact of all new and old technologies. I hope to get more involved in the Focus Groups and consultations of the ITU - I think its a really important part of the ICT and also climate change debate.

And finally Gikii V, The Voyage Home, 28-9 June 2010 http://www.law.ed.ac.uk/ahrc/gikii/2010.asp. Hope to see you there!

A2K4

2010-02-13T09:46:00.003Z

Teaching and family commitments mean I have to miss out (again!) on the A2K meeting (particularly as Lea Shaver was such a great conributor to our IGF workshop - see post below). Details are available at the above link and there is lots of twittering ongoing (#A2K4) and live streaming - although I hear noises of problems in using this for open source users

IGF Report and ongoing work

2010-02-11T09:56:00.003Z

Very pleased to see this finally posted on the IGF website. All comments welcome - this is the report of the workshop we held at the Internet Governance Forum at Sharm El Sheikh in November.

It was an excellent event, with two strong themes emerging: 1) the interface between IP, competition and human rights can have a key role in securing access to essential technologies and 2) that a global solution is likely not the most effective route forward, given the social and cultural differences, and attitudes to and existence of human rights and competition.

Since then, I've been speaking with colleagues and former colleagues about possible new courses and national surveys; preparing draft abstracts for work combining the three fields at WTO dispute settlement (if they should be combined at national level)and considering the impact of human rights on courts considering non parties in actions in the UK jurisdictions; and doing a lot of work on climate change technologies, including a paper on lessons for access to climate change technologies (eg wave power, carbon storage) from the IP and health debate (building on a paper given in Edinburgh before Christmas - http://www.law.ed.ac.uk/staff/navrajsinghghaleigh/theeuclimatechangeandglobalenvironmentalgovernance.aspx) and paper for BILETA in Vienna bringing competition into that work.

Interesting times...

P.S.

2009-12-21T13:53:00.002Z

Merry Christmas and Happy New Year Everyone!

Catching up

2009-12-21T13:38:00.003Z

Where does the time go... A lull in postings to enable me to finish my PhD has gone on for too long! So, as an early New Yaer's resolution, it's time to start up the blog again. Since I last posted, I have indeed finished the PhD, with a successful viva in December 2008. My thesis focussed on the interface between IP, competition and human rights in IP infringement actions in the UK (with some consideration in the conclusion of the ECtHR and WTO dispute settlement). In 2009, I explored how the arguments might work in Canada, in relation to innovation with iconic species, and also considered how the three fields could be combined more at policy level. All these involved conference papers and publications and I also ran a workshop at the Internet Governance Forum in Egypt, podcast is here: http://www.un.org/webcast/igf/ondemand.asp?mediaID=ws091118-nilevalley-am1 (twittered under igftowardaccess with #accessipcomphr). A stimulating and inspiring event. Finally, I've developed a growing interest in the scope of IP/competition/human rights arguments in relation to access to climate change technologies (possibly particularly important after Copenhagen...). Lots of liaision with Edinburgh and other colleagues and funding application ongoing - so it's an exciting time.

Other details about activities are on my webpage http://www.law.ed.ac.uk/staff/abbebrown_114.aspx

Forthcoming Edinburgh Lecture: Microsoft

2008-02-06T09:26:00.000Z

I am delighted to invite you all to the following hosted by the Europa Institute and the AHRC Research Centre in Intellectual Property & Technology Law at the University of Edinburgh on 28 February 2008.

"Lessons of the Microsoft Case" by Ian Forrester QC, White & Case LLP, Brussels.
6pm Playfair Library, Old College, South Bridge, Edinburgh

There IS a WIPO Development Agenda

2007-10-03T09:07:00.000Z

Thanks to IP-Watch for this comprehensive commentary and series of links. I think this is a real achievement for all involved, and the adoption of the Development Agenda will impact on attitudes to IP in the future. Whether it goes further into substantive action, remains to be seen. Hope so.

And so it begins...

2007-10-03T09:00:00.000Z

The EC Commission has announced an investigation into Qualcomm. It is concerned that Qualcomm's licensing practices in respect of patents which are part of the European 3G mobile phone standards are not fair, reasonable and non discriminatory, and that this is abuse of a dominant postition.

An example of the EC Commission flexing its muscles after the CFI decision in Microsoft (see previous posts)? It will be a long road ahead - but full analysis of article 82, IP and standards will be welcome.

And after all that

2007-09-20T12:33:00.000Z

The decision of the Court of First Instance upholding the Commission's decision against Microsoft save regarding the appointment of the trustee is likely to be the subject of LOTS of commment elsewhere. Personally, I'm a bit disappointed that there isn't more guidance on whether for refusal to licence to be abusive, we are back to the Volvo esque flexibility or whether the IMS/Magill restrictions still apply. Nice little duck by the court finding that these restrictions were satisfied anyway.

I expect to be reading this decision again and again over the next while so might post further. Discussions of my recent papers at SLS ("Patents, competition and human rights") and Gikii (which was FAB - thanks everyone) ("Playing to win or the game's the thing; competition and human rights in Virtual Worlds") suggest that competition will be a key part of IP and IT (even virtual worlds) for some time.

And just when it looked like the debate had moved on...

2007-09-06T10:48:00.000Z

Thanks to IPWatch for this report of a letter by Peter Mandelson, EC Commission complaining to Bangkok about Thai compulsory licensing consistent with TRIPS. If this wasn't problematic enough, there is that new proposed EC legilsation on compulsory licensing and access to medicines........I foresee a few sparks

India and TRIPS - the question remains

2007-08-09T15:56:00.000Z

Thanks again to IP-Watch for this report on the Indian decision in a challenge to Indian patent legislation by Novartis.

The aspect of the case of most interest to us was the argument by Novartis that the legislation, which limited patenting in the case of evergreening was inconsistent with India's obligations under TRIPS. But the court made it very clear that it did not have jurisdiction to consider whether national law was consistent with the international treaty, and that this question would need to be considered by the WTO dispute settlement body.

A mouth watering prospect - but it seems that Switzerland, home of Novartis is unlikely to make a complaint. Perhaps another pharmaceutial company, and another country will take a different view?

WHO and IP: and slowly it goes on

2007-08-09T15:47:00.000Z

Thanks to IP Watch for this excellent and comprehensive summary of the latest proposal building on the WHO CIPIH report - seems that the proposal might be rather too comprehensive to be workable. I am interested in the comments on monitoring FTAs which do not include TRIPS PLUS provisions and a patent pool in respect of essential medicines. As long as it is clear what those are....

New survey on use of open content licences by cultural heritage organisations

2007-08-07T07:30:00.000Z

The Eduserv Foundation is funding a study into the use of Creative Archive, Creative Commons and similar open content licences by cultural heritage organisations in the United Kingdom. The study is being led by legal consultant Jordan Hatcher of opencontentlawyer.com and friend of ipedinburgh. The survey is available here: https://www.surveymonkey.com/s.aspx?sm=L3x_2b1lQJxqu7KdfK587AeA_3d_3d

This survey is open to UK-based cultural heritage organisations such as museums, libraries, galleries, archives, film and video organisations, broadcasters, and other organisations that conduct cultural heritage activities. The goal of this study is to provide information on the actual use of Creative Archive, Creative Commons, and similar licences. This information will be useful to decision makers and interested professionals in the cultural heritage sector, and for local and national government and the HE and FE sector. The study will be conducted from now through to the middle of September and a report will be made available in October. If you are a member of a cultural heritage organisation, whether or not you currently use Creative Commons or Creative Archive licences (or even know what they are!), your participation is needed to make this study a success.

AND

iPod Shuffle giveaway!!

As a bonus for completing the survey, respondents will get the chance to enter a drawer to win one of three iPod Shuffles that come pre-loaded with music! See the survey for full details.

Rwanda, TRIPS and Health

2007-07-24T12:07:00.000Z

Thanks in particular to IP Watch for details of Rwanda's notice that it will take advantage of the flexibilities in TRIPS. http://www.ip-watch.org/weblog/index.php?p=696&res=1024&print=0 . Rwanda is utilising Paragraph 6 of the Doha Declaration 2001 regarding import/export which was considered in the General Council Decision of 2003; however, Rwanda has also stated that pursuant to Paragraph 7 of the Doha Declaration, it will not enforce relevant patents granted in Rwanda.

This is the first instance of a smaller, least developed country taking advantage of these opportunities. It will be interesting to compare future developments with the criticism from patent owners faced by, say Brazil, when it sought to issue compulsory licenses in respect of HIV/AIDS treatments. The impact of the non enforcement declaration on patent owners and courts might also be one to watch.

The new EU "??"

2007-06-25T13:03:00.000Z

Well, it's slightly unclear what really did result from recent discussions in Brussels, so I can do no better than refer you to the summary by my colleague Mathias Siems.

In terms of detail, the following parts of the Presidency Conclusions are of interest here: para 37 regarding IP and knowledge transfer from the public sector; para 39 regarding access to patented medicines, with particular reference to HIV/AIDS; and para 48 regarding IP, developing countries and the Heiligendhamm Process.

In the draft IGC mandate, para 3 sets out the proposed new EU objectives, with no reference to competition (this having been the subject of much press comment). However, footnote 16 refers to a Protocol on the Internal Market and Competition, and the need to ensure that competition is undistorted. It remains to be seen what this will mean, and what impact this might have an abuse of a dominant position and enforcement of IP - I suspect little....

Of more potential relevance are paras 4 and 5 of the draft mandate which deal with the EU Charter and its fate. However, given the embracing of human rights by national IP courts in individual disputes, and existing EC fundamental rights, I think it unlikely that the presence or absence of the EU Charter will have a significant impact in this field.

But it's a long road ahead.

Are we there yet? The WIPO Development Agenda

2007-06-18T13:36:00.000Z

Thanks as ever to IP-Watch for the timely report of what looks like significant progress at WIPO. A development agenda has essentially been agreed, with only apparent formalities remaining. The backlash emphasising the place of IP might already have started - but as IP-Watch note, even 2 years ago this would not have happened. What will happen NOW is, of course, the big question. How much practical impact will/can the new agenda have?

It might be supported by the declaration of the G8 this month on health and flexilibites in TRIPS http://www.ip-watch.org/weblog/index.php?p=647&res=1024; and also by the World Health Assembly agreement on public health, innovation and intellectual property http://www.who.int/mediacentre/news/releases/2007/wha02/en/index.html. Such activity. Is the IP and human rights landscape really beginning to change?

ICN Guidance proposed on unilateral conduct

2007-06-18T13:26:00.000Z

The Annual Conference of the International Competition Network which finished earlier this month in Moscow seems to have been a success.

Interestingly for us, further work is proposed on unilateral conduct. Significant analysis by commentators (Philip Marsden in particular) has considered the challenges in creating one standard for unilateral anticompetitive conduct. However, the topic has long been a focus of the ICN. Another organisation to watch with interest: will they echo the FTC/DoJ report? Will IP receive a full analysis? Will enforcement be considered as well as refusal to license?

Where does the time go....

2007-06-18T12:57:00.000Z

Apologies for radio silence - slim excuses of marking, writing and indeed trying to keep up with lots of recent developments.

Thanks to the IPkat for prompt report and excellent summary of the Miss World/Channel 4 battle. http://ipkitten.blogspot.com/2007/05/free-speech-v-tms-high-court-approach.html Nice to see trade mark and human rights considered again, would have been even nicer to see some really detailed analysis.

Thanks again to the IPkat for report on the ECHR consideration of an incredibly complex battle regarding the right to use "Stolichnaya" and other alcoholic trade marks (well you know what I mean). The most important point for us is the confirmation (post Budweiser, I'm beginning to see a trend) that trade marks will be considered within the scope of the ECHR right to enjoyment of property. http://cmiskp.echr.coe.int/tkp197/view.asp?item=82&portal=hbkm&action=html&highlight=&sessionid=921606&skin=hudoc-en

Brazil/Merck: compulsory license

2007-05-08T09:09:00.000Z

Thanks to expert group member Edson Beas Rodrigues Jr of IDCID Brazil for prompt details of this.

Merck is not surprisingly none too happy at Brazil's decision to move to issue a compulsory licence in respect of AIDS treatment Stocrin (efavirenz). http://www.pharmabiz.com/article/detnews.asp?articleid=38702&sectionid= There had been discussions but so far these have not reached a mutually acceptable conclusion.

As is well established, TRIPS and the Doha declaration permit compulsory licensing - sometimes. As ever it seems to come down to money, with Merck considering Brazil able to pay more than it is offering: to what extent should a country's (relative?) economic status come into whether compulsory licensing is acceptable. A balanced report from Aidsmap here: http://www.aidsmap.com/en/news/0550CE62-3F90-4603-932C-EF69E1B4485D.asp

The EPO, national courts, and the real question

2007-04-26T10:15:00.000Z

Thanks to the IPkat for details of the decision of the Court of Appeal in Unilin Beheer v Berry.

Essentially this case involves the impact of a subsequent order for revocation of a patent by the EPO upon existing rulings and remedies in national infringement actions. Within the patent framework, the judgment of Jacob LJ is clear and sensible: the focus should not be on which court is "top", which seems to have comprised much of the argument, but rather on the questions before the decision maker (validity, infringement, post grant opposition, revocation), with each decision maker operating in context.

From a wider perspective, competition and human rights questions can impact upon this analysis, and I can do no better than refer you to the IPkat on this: http://ipkitten.blogspot.com/2007/04/patents-damages-revocation-and-estoppel.html
It is also noteworthy in this context that although the Court of Appeal does refer to a similar decision in Scotland, Coflexip v Stena Offshore, it does not note that that case also considered (and rejected) human rights questions.

US Agencies report - IP and Antitrust

2007-04-26T10:01:00.000Z

Building on my post on this, I can now proudly confirm that I have read the report. Very interesting, and draws heavily on the hearings evidence (which I have ALSO read. Even longer). I note the strong recommendation, although it is not, particularly in the body of the text, entirely unqualified, that antitrust should not concern itself with unconditional refusals to licence patents. So far as it goes, this is fairly uncontroversial. Yet why the focus on patents? What about antitrust defences to patent actions if a party just goes ahead and uses the technology (Noerr Pennington cf Intel v Via)? And, of course, what about human rights implications.....

Happy World IP Day

2007-04-26T09:54:00.000Z

See the link for WIPO views. As a strong, although not uncritical, supporter of IP rights, I think this is a great excuse for a party. So I very much look forward to the Maclay Murray & Spens event tonight at the National Galleries of Scotland, with speakers including designer Katherine Hamnett and the Head of Legal from Manchester United. http://www.mms.co.uk/html/article.asp?articleID=621

Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition

2007-04-19T13:02:00.000Z

Now available is the long awaited (at least by me) report of the US D0J and FTC. It builds on substantial hearings held in 2002. I will refrain from further comment until I have read it - from its size it might be a while.....

GIKII TWO 2007

2007-04-18T11:50:00.000Z

I cannot possibly improve upon the linked advert.....See you in London, in September.

BILETA 2007

2007-04-18T11:46:00.000Z

A most excellent event...giving rise to many tales to tell which will (probably) remain secret. From the project perspective (clearly the most important), there was a most interesting paper by Jonathan Fitchen from the University of Wales, Aberystwyth about competition, Microsoft, and concepts of market, dominance and abuse; lots of interesting discussion about soft law; and differing perspectives on ICT and development, particularly the appropriate place of mobile phones in bridging the digital divide. Food for thought.

British Academy Event - Edinburgh

2007-03-30T17:34:00.000Z

I've just been to this conference in Edinburgh today. I found it fascinating: as an exploration of challenges for producers and users of material protected by copyright in the research environment; and also because of the omnipresent (to me at least) undercurrents of the linkages between copyright, competition and human rights, particularly in the reports proposals in respect of fair dealing, and in the question of the rationales for copyright, both private and public.

I think it fair to say that most speakers were broadly supportive of some aspects of copyright, and that it was a "two way street" for users and producers (who were noted often to be the same people at different times). There were some stirring calls, however, notably by Rufus Pollock, for a new approach to be adopted to publishing, peer review and deposit and database collections because of the restrictions that copyright is placing on research; and criticism by Simon Frith of the impact of copyright owners' decisions on the direction of academic research in popular music. Open Access and Open Source licensing also received lots of attention, and Public Sector Information, and the challenges of museums, galleries and archives were considered.

Another common theme (familiar to me from former lives in practice) was the cost - financial and transactional - of litigation, reluctance to engage in it, and the power that this can give copyright owners to influence actions based on copyright - even if balances within copyright mean that the conduct proposed should in fact be permitted. I was fascinated by suggestions for smaller copyright tribunals, akin to the employment tribunals, to enable smaller claims to be more readily addressed.

The full text of the report and the suggested guidelines can be found at
http://www.britac.ac.uk/reports/copyright/index.html

Jurisidiction stumps competition challenge

2007-03-16T16:57:00.000Z

Pumfrey J's decision (albeit in my view correctly) on jurisdiction grounds meant that a new opportunity for court consideration of article 82 actions in respect of conduct of patent owners cannot be pursued, at least not in the English courts. Ah well.....

US TR TRIPS Approach

2007-03-16T16:51:00.000Z

Thanks to IP Watch for details of new (and lengthy) US TR report. Confirms that US concern at levels of IP protection in other countries remains unabated, while mirrored at least for the time being by free trade agreements. Although these challenges move slowly, they are a significant threat to all countries, particularly those exploring the (possible?) exceptions in TRIPS. An area we are exploring in another project http://freetrade.opencontentlaw.org/

WIPO Development Agenda Progress

2007-02-26T15:38:00.000Z

The next stage of discussions on what is actually meant, and hoped to be achieved, by the WIPO Development Agenda has been fruitful. Thanks to IP Watch for the report.

Most interesting for our project are comments on enforcement, suggesting that WIPO is to approach the matter in a wider context, with reference being made to article 7 TRIPS. It remains to be seen how much impact WIPO can have in this regard once rights are in the hands of IP owners, or if it is hoped that a change in the approach and perspective of WIPO will send a valuable signal to developing IP systems.

The need for competition action in terms of technology transfer has also been recognised, most recently in a presentation by John Barton (see report - thanks again IP Watch - http://www.ip-watch.org/weblog/index.php?p=548&res=1024&print=0) So far, however, there is no agreement on competition or technology transfer.

International developments

2007-02-19T16:31:00.000Z

After a slow period, many developments of interest on the international stage. Many thanks to IP Watch.

The WIPO Development Agenda is gathering pace, and might find helpful an EC Commission report on the importance of open source in generating work in the ICT field http://www.ip-watch.org/weblog/index.php?p=532&res=1024&print=0 . Also interesting is the growing momentum of the IGF which proposes to consider some IP questions - see http://www.ip-watch.org/weblog/index.php?p=533&res=1024&print=0

Court of Appeal - abuse of a dominant position

2007-02-05T21:47:00.000Z

With Attheraces v British Horseracing Board, the Court of Appeal has considered for the first time an action for abuse of a dominant position under section 18 Competition Act 1998 and article 82 EC Treaty. The lengthy and considered decision agrees with the first instance judge (blogged in January 2006) in terms of legal principles - however disagrees in respect of how pricing principles were to be applied on the facts. There is some consideration of refusal to supply and whether this was reasonable and justified on the facts - yet although para 222 notes some issues of interest to this project, the focus of the case was pricing.

The Court of Appeal found that there was no abuse of a dominant position by excessive unfair or discriminatory pricing, or by unreasonable threats to terminate existing supply arrangements.

Two strong messages of interest to our project come out: first the recognition that the conduct in question might have negative consequences, but that this did not mean it was necessarily an abuse of a dominant position - article 82 and section 18 were not about price regulation (para 217). Secondly, the decision starts with expression of concern at the ability of courts and private adversarial actions to properly deliver solutions to problems such as this - arbitration, or new fora will more flexible remedies are suggested (para 7) It will be interesting to note if this approach is further pursued in compulsory licensing questions: better to focus on Euro-Defences perhaps?

Court of Appeal - abuse of a dominant position

2007-02-05T21:33:00.000Z

Wiki - The Personality Rights Database

2007-02-05T13:11:00.000Z

Another new project - what a busy lot we are. Do feel free to visit, browse, post...

New Project - Free Trade Agreements and ICT

2007-01-25T09:09:00.000Z

A quick plug for a new project of the AHRC Centre. Abbe Brown, Andres Guadamuz and Jordan Hatcher are involved. We've just launched but have many plans... Do check out our site. If you are interested we'd love to hear from you - thanks for those of you who have already got in touch.

COMPLIMENTS OF THE SEASON

2006-12-21T11:47:00.000Z

AND ALL THE VERY BEST FOR 2007 TO YOU ALL

Ad break: Gowers Review - Challenges for Scotland - 7 Feb 2007

2006-12-14T09:08:00.000Z

7th February 2007
Open Forum: Gowers Review
Gowers Review of Intellectual Property: Challenges for Scotland

Presentations from a distinguished panel of experts followed by open discussion.
6-8pm, Lecture Theatre 175, The University of Edinburgh, Old College, Edinburgh.

No booking required but places limited to capacity of lecture theatre. Doors open from 5.30pm. All welcome.

Scottish Competition Law Forum

2006-12-14T09:04:00.000Z

Writing and Christmas preparations distracted me from reporting the highly successful first anniversary event of the SCLF. Can do no better than refer you to the excellent linked report.

I did indeed say a few words, focussing on the value of the forum in combining lawyers, academics, business people, economists and regulators - and of course gave our project a plug. Both key note speakers were excellent. I look forward to future years of the forum.

Gowers in all its glory

2006-12-07T11:22:00.000Z

Here it is. I like the focus on balance, the keeping of the 50 year sound recording term, and proposals for private copying exceptions without a levy. Also welcome (in respect of large scale piracy and counterfeiting) more resources for criminal prosecutions - hopefully new exceptions should avoid these being focussed on more legitimate users of IP protected works - the report does seem to recognise the need for this. Also like broader research exemption for patents - although will wait and see what it actually says.

WHO: IP and Health

2006-12-06T14:08:00.000Z

Thanks to IP Watch for details of this important meeting. Although it sounds as if little of substance is being achieved as yet, the fact the meeting is taking place is a major step forward. We look forward to the contribution of the Working Group in the years to come.

Pre - Budget, Pre - Gowers

2006-12-06T14:04:00.000Z

Here's the most detail I can find so far on what Gowers recommends (see p 64!) Looks fairly sensible, but that's only on the basis of the boxed summary. Look forward to getting into the detail.

Compulsory Licensing

2006-12-05T10:03:00.001Z

Thanks to the IPKat and Reuters for report of compulsory licenses ordered in Thailand in respect of a Merck patented HIV/AIDS drug. So far the debate seems to be proceeding along the usual lines: MSF and Thailand arguing they need the drugs more cheaply, Merck saying this was done without consultation, that it makes no profit on this drug in Thailand, and that compulsory licensing should be imposed as a last resort. Merck does have an established CSR programme in respect of HIV/AIDS http://www.merck.com/cr/enabling_access/developing_world/hiv/home.html

TRIPS, of course, permits countries to impose compulsory licences in such situations: but it has never been quite as simple as that. What comes next - back to the WTO DSS? Bilaterals? Or recognition that this is an acceptable balance.

WTO GM Biotech: panel decision

2006-12-05T09:54:00.000Z

One deadline out of the way, am catching up with the WTO world.

Having seen the Shrimp/Turtle decision as a possible basis for a human rights based interpretation of TRIPS, consistent with both article 7 and 8 TRIPS and our project aims, I was disappointed with the panel decision in Biotech. The length of the decision has defeated my printer, so the pleasure of a full read awaits me. Thanks, therefore, to "trade-environment" for their excellent collection of resources. I found particularly helpful Currie's analysis for Greenpeace and Genewatch's letter to Peter Mandelson regarding an appeal.

The panel has adopted a very narrow approach to interpreting and applying WTO agreements, and chosen to take little account of other international agreements. Further international fragmentation, and a trade focussed approach of the WTO DSS seems to beckon.

The OFT "embraces" IP?

2006-11-29T10:41:00.000Z

Thanks to the IPkat for details of this decision of the UK OFT. In considering a proposed merger involving cheese making technologies (will refrain from obvious remarks), the OFT accepted exclusive irrevocable licensing of IP as a means of addressing concerns. Although this is some way from the OFT requiring licensing in an article 82/section 18 abuse of dominance situation, the OFT is rather proudly announcing that this is the first time there had been such an approach in a merger case.

This does suggest that if an IMS or Magill scenario were to arise in the UK, the OFT (as well as the EC Commission) might be interested in investigating any complaint. What about allegedly spurious patent infringment actions? Promedia and Noerr Pennington a la UK anyone?

More TRIPS PLUS

2006-11-29T10:31:00.000Z

Thanks to IP-Watch for details of the US-Russia bilateral trade agreement, which seems to require measures introduced in excess of those required by TRIPS. Early data disclosure, to facilitate manufacture of generics, is under particular attack - which may well have public health and human rights implications. Another reminder that reviews of Doha, and workshops to help explore its opportunities (see http://www.wto.org/english/news_e/news06_e/trips_wp_27nov06_e.htm) are, in themselves, potentially rather pointless.

Private copying? Sign up here

2006-11-23T11:05:00.000Z

From Open Rights Group, petition to Downing Street. Thanks Lilian/Pangloss for link!

Image and Trust; publishing - and IP?

2006-11-17T21:38:00.000Z

I was delighted to participate in the VARIE (Visual Arts Research Institute of Edinburgh) seminar series "Image and Trust". This is a most amazing interdisciplinary venture - speakers last time were a mathematician on forms of teaching logic, and an artist. My topic was "Creativity and reputation - law's inadequacies?" - on the basis that this was as close as law got to Image and Trust. It was a fascinating opportunity to explore the usual suspects - individual and economic focus, problems of getting clearance, the extent of any right to privacy - and (to me) more unusual questions such as the impact of law on cultural studies projects, and the links between what is a substantial reproduction, likelihood of confusion, and evolving perceptions. Human rights, legal and theoretical, were a common theme, and the impact of competition law as a fetter to abuses of power also touched upon.

Similar themes came out at my (becoming annual) seminar at the Centre of Publishing Studies at Stirling University, to MSc and MLitt students, ably organised by Andrew Wheatcroft. A focus on the basics of copyright, and how publishers should, from their perspective, secure everything they can, moved quickly to the impact of this on creativity and the societal messages it sent, and the need, both ethical and financial, for fair business deals.

Both events a healthy reminder that IP is only part of a broader framework - and for most exists around the edges .

Whither Doha, IP and health

2006-11-17T21:23:00.000Z

Thanks to the IP Watch for comprehensive commentary on developments and review in respect of Doha, IP and accessing medicines. Not entirely surprisingly, there seems to be a range of views....although most interesting is the reference to a critical Oxfam report.

Against this same backdrop was discussion in the EC about research (and its funding) into neglected diseases. Focus on this (http://www.ip-watch.org/weblog/index.php?p=451&res=800&print=0) has noted the absence of IP from the debate and has seen this as largely positive, as it was taking place outside the market framework. I am rather sceptical about this - whatever one thinks about IP, it exists. It is not sensible to ignore it - other regimes and principles, such as competition and human rights, must either work within or around IP or prevail over it.

VITA standards

2006-11-06T12:30:00.000Z

Thanks to Bill Heinze for details of ex ante approval given by the US Department of Justice to a new standard setting process. The details provided sound reasonably normal - search and disclosure in respect of essential patents (although as we know from the US Nokia litigation, there is scope for debate about what that might mean...). The DoJ has noted that the standard setting process is an attempt to promote competition and increase the prospects of the standard operating successfully without it being held to ransom in the future.

All very sensible - IP and competition working well together towards a broad objective. Just hope the standard setting process works as planned and disclosures are forthcoming.

The IGF

2006-11-06T12:16:00.000Z

Well, it's over but it does look like the start of something. I found Kieran McCarthy's regular Register posts entertaining and informative as ever (see also blog http://igf2006.intgovforum.org/); and even the possiblity of openness and dynamic coalitions suggest a new contributor to the future of debate over the internet, power, and control - again, all important to our project. Roll on Brazil.

TRIPS and enforcement

2006-10-30T21:05:00.000Z

The suspension of the Doha round has not meant an end to controversies over TRIPS. A meeting of the TRIPS council 25-6 October degenerated somewhat over attempts by the EU to give a powerpoint presentation about what it was doing in terms of enforcement of IP. This was against the backdrop of an attempt by the EU, US, Japan and Switzerland to have the question of enforcement included in the ambit of the TRIPs Council (see http://www.ip-watch.org/weblog/index.php?p=432&res=800&print=0 - thanks as ever to IP-Watch for most excellent reports).

The basis for some developed countries pursuing this seems to be objections to piracy, as against fears that more stringent enforcement mechanisms may not be in the interests of developing countries' economies. The debate can never advance for long, however, without more general questions of TRIPS and public health etc being raised. Is the question of enforcement in fact to be viewed more broadly, in terms of outcome, rather than process? The drafting of TRIPS would not seem to permit this, with the substantive minimum standards and requirements for injunctions etc being quite distinct. Is the pressure on both sides an echo of more fundamental concerns?

Business Method and Software Patents - Court of Appeal

2006-10-27T16:58:00.000Z

Thanks to Society of Computers and Law for the prompt notification of this decision (thanks also to them for their part in organising the inspiring and stimulating policy think tank Decentring Internet Regulation over the last couple of days).

Lord Justice Jacob has delivered a full analysis of the present UK provisions regarding patenting of software and business methods - which, of course, has involved consideration of the EPC and decisions of the EPO Boards of Appeal. Writing this about to board a plane back from said conference, I will refrain at least for now for detailed comment on the decision - although it does include interesting points on statutory and treaty interpretation, and the links between the UK courts and the EPO, all key interests of our project. I also like the suggestion that the EPO Enlarged Board should look at the matter, and the ECJ style reference questions framed. Remains to be seen what happens.

Article: Human rights: in the real world

2006-10-23T07:53:00.000Z

Here's a link to "Human rights: in the real world" published by Abbe Brown in the August 2006 issue of OUP's Journal of Intellectual Property Law and Practice.

WTO, China and Patent

2006-10-13T21:08:00.000Z

Thanks to the Register f0r details of mullings by Peter Mandelson of a possible complaint to the WTO DSS by the EU in respect of China's enforcement of its patent laws. The patent laws are acknowledged to be adequate in themselves.

This is potentially interesting on many fronts: of relevance here is the impact of a finding that the Chinese courts, enforcement authorities and judicial systems did not enable laws compliant with TRIPS to be properly used. As one aspect of our project is development of a new national approach to IP interpretation, which we argue is consistent with TRIPS but anticipate others not accepting, we will be monitoring any developments closely.

And the Independent continues

2006-10-12T08:07:00.000Z

Following on yesterday's post, another interesting article in the Independent about new forms of business models and IP owners (clearly not always the same as creators and inventors) seeking alternative means of obtaining reward.

Under the suggestions, competition questions will remain - and I'm not too sure about the two distinct categories of access which seem to be emerging. They may raise their own human rights questions. However, when such issues are regularly debated in the broadsheet press, it's a sign that not just academics and focussed activists are interested in our type of work and its possible contribution. Excellent for morale!

Google and beyond

2006-10-11T20:01:00.000Z

An article in today's Independent sets the basis for many themes that interest us: how Google, once the opener of doors, could now be seen as a monolith which could control access to information; without respect for copyright and rights to information, expression and education; and potentially raising competition questions. The article also, however, makes interesting points about the reality of business, corporate growth, consumer and corporate behaviour in an evolving industry and the need for changing business models.

A reminder of the place of constant awareness of the fine balance between IP, competition and human rights. Each of these, with their precarious interrelationship, will continue, after each wave of innovation, corporate power, and activist and consumer reaction has gone. And when one "problem" disappears, another will appear to fill market need or take the market in a new direction - this can lead to a power base, is likely to involve at least copyright and database rights, and can in turn have a negative implication on some human rights. The focus should be on the proper balance and delivering it, not merely on addressing specific issues - such as Google.

WIPO and the Development Agenda

2006-10-05T09:19:00.000Z

At the recent WIPO Assemblies it was agreed that work on the Development Agenda would continue for another year. The Provisional Committee will prepare a report in 2007 for the General Assembly. This is a welcome development, although clearly the question is what will be achieved in securing a balanced and openminded approach to the role of IP in stimluating development in both the long and short term.

The need for WIPO to continue its focus in this area was highlighted by the parallel announcement of WHO consultations into IP and reports of a WTO meeting (thanks to IP Watch: http://www.ip-watch.org/weblog/index.php?p=413&res=1024&print=0 http://www.ip-watch.org/weblog/index_test.php?p=412). IP, and its implementation and exploitation has its faults; but it has also advantages. The key challenge is to ensure that decisions as to the future of IP are made after broad and multi-faceted debate. This does seem to be taking place.

ICANN catch up news

2006-09-27T20:37:00.000Z

Been lots of developments on this front recently. First thanks to the Register for this report that an "independent" ICANN, or at least one not linked with the US government, might really happen. The present MoU will be extended but the assumption appears to be that it will then expire and new arrangements, subject to much discussion in the run up to WSIS Tunis, would come into effect.

Would this solve problems or create new ones? What would be the actual status of any new body - a topical question given the revival of US competition concerns, particularly in the Senate, in respect of the relationship between ICANN and Verisign (thanks to Zdnet for this report: http://news.zdnet.com/2100-9588_22-6117771.html)

Corporate power, international relations, competition and basic questions like control of important aspects of the internet and opportunities for access to it: pretty fundamental questions really - and all these fields should properly be considered as part of the mix.

JIEL article

2006-09-25T19:51:00.000Z

We are delighted to provide publicity for the recent article in the well respected Journal of International Economic Law by Rob Anderson and Hannu Wager, both members of our international expert network.

The title is: "Human Rights, Development and the WTO: The Cases of Intellectual Property and Competition Policy." Rob and Hannu hope to stimulate further debate in these fields: we would be most interested in any comments.

Note of Expert Meeting: Intellectual Property, Competition and Human Rights

2006-09-25T16:09:00.000Z

On 23/4 March 2006 members of the Expert Network of the IP, Competition and Human Rights project held a very successful meeting. The group considered case studies, with a view to developing outcomes which were legally robust, but also practically achievable and desirable, from different perspectives.

A draft note of the discussions of the meeting can be found here, together with the texts of the case studies. We would welcome any comments you may have.

The plot thickens

2006-09-15T20:00:00.000Z

Reactions to what could be termed the "iTunes" law continue. This piece provides details of apparent EC and US regulatory concern at the French legislation and envisaged activity. From the more legal perspective, Pinsent Masons, of Out-Law fame are conducting a survey on whether IP laws should be revised to include a general concept of interoperability through compulsory licensing on commercial terms.

We're very interested in this research. It takes a different approach to our own project but addresses similar questions of rights of IP owners and those seeking access to works, and the appropriate balance. Our focus is on (mainly) abuse of a dominant position by IP owners, the impact of human rights arguments, taken from a range of international, domestic, academic and policy sources, in interpreting IP legislation (includes its existing many internal restrictions) and key competition law principles. Pinsent Masons are exploring the more direct approach - a new limit on IP rights themselves in appropriate circumstances. A most interesting project - have your say here: http://www.out-law.com/page-7292

The world of music

2006-09-15T19:55:00.000Z

The relationship between the market and law is often fraught - the competition element of our project being revealing in this regard. Particularly interesting at present is the question of interoperability, innovation, regulation and legislation - which is a long way of saying the Apple wars. There have been previous posts on the blog about the French legislation, and colleague Nicolas Jondet gave an excellent paper about this at the Edinburgh conference last week.

Most interesting, however, is that shortly after a law (not uncontroversial in itself, and there is also the small matter of EC competition law and free movement of goods) is finally passed, the market does indeed catch up; the linked article provides an excellent summary of the media story of the minute. EMusic enters Europe, there may be greater choice for consumers, even if the products are not interoperable: the iPod and iTunes might no longer be the main market player. Which may raise the question: is the goal protection of consumers or protection of competitors?

Computer Law World Conference and GikII

2006-09-08T20:24:00.000Z

A huge pat on the back to Andres Guadamuz, Erick Iriarte Ahon, Lilian Edwards and all other organisers for the stimulating, challenging and enjoyable Computer Law World Conference and GikII workshop. Edinburgh provided a memorable backdrop and even some sun; I missed the ceilidh but apparently the combination of Scottish country dancing and Salsa had to be seen to be believed.

On the substantive front, the GikII workshop was an eye opener. I think we were all amazed at the scope for combining serious academic debate with popular and even geek culture - Power Rangers (guilty), Star Trek, Buffy, Harry Potter, Beckham's hair, Spiderman, pan universal IP rights (guilty), data protection, RIPA, security theory, real and virtual property, what should and should not be regulated, is it all a matter of contract and consumer protection. Also rumours of a possible book.

The "main" conference was truly international and hosted some parallel sessions in Spanish. There were excellent and frequently controversial (and challenged) key notes from Ray Plzak and Steve Ryan, Patricia Akester, Lilian Edwards, Mia Garlick, Michael Geist and Nic Garnett and genuine debate across industry, practice, academia and policy sectors. Further details and some papers are available on the link provided.

Personality Rights Survey: contributions welcome

2006-09-06T21:15:00.000Z

I'm delighted to provide space to the following project of colleague Gillian Black:

PERSONALITY RIGHTS

Celebrity endorsement is a popular marketing tool, which has considerable benefits (both financial and in kind, such as goodwill and publicity) for the companies promoting their goods or services and for the celebrities attaching their image or reputation to those goods or services. But the scope of the legal protection in the UK for companies, celebrities and the media is uncertain - what rights should celebrities have, if any? What is the position for a company wishing to use a celebrity image - does it need consent or not? What remedies are available?

Gillian Black, a lecturer in law at Edinburgh University, is researching this area and has designed a questionnaire to find out more about current opinion and experience of commercial exploitation of persona, to help determine what the best legal response should be. To have your say, click on this link http://www.surveymonkey.com/s.asp?u=940732535576 and complete the online questionnaire. It should take about 10 minutes, and it closes on 18 September 2006.

Barney Barney

2006-08-25T22:56:00.000Z

Thanks to BNA for putting me on the trail of the new US court action by a website operator (supported by the Electronic Frontier Foundation) against the owners of the trade marks and copyright related to Barney the dinosaur (big, pink, very popular for those of you who you don't have kids).

Concerned at complaints of infringement made in respect of websites parodying Barney, the EEF has supported this action, which relates to a non commercial website. The court papers also recite a number of other instances in which it is alleged the IP owners have behaved improperly and made threats. A declaration of non infringement is sought, on the basis of consitutional rights to freedom of expression and the fair use doctrine.

Will be interesting to see how this one progresses. As seen in Eldred, when the EEF are involved, the balance of power is at least restored. Where is the line with parody? What is the impact of free expression? What is the scope of fair use here - what do human rights arguments add? Other than the Wind Done Gone, most of the cases have been fairly pro IP owner - time for a change?

Ignorance of the law??

2006-08-21T16:15:00.000Z

Thanks to the Guardian for this comment on public access to a database of legislation. Essentially, this is being seen as a value added product, for which a charge will be made. The article says it all. This reliance upon Crown copyright does seem to shut down basic information, removing essential material from the public domain. Rights to information, education, property affected? A Magill type challenge??

Whither Apple?

2006-08-21T15:57:00.000Z

Greetings from the Festival City where the weird is presently commonplace - rather mundane, in context, was my colleague Andres' sighting of Sherlock Holmes in the quad.

Although IP, competition and human rights questions seem mainly to be continuing to have a well earned break - objections to "Rebus MacTaggart" and "to google" aside - the fate of Apple and iTunes remains uncertain (thanks to BNA for the link to this summary). A nice little mix of copyright, corporate envy and (apparent) fundamental rights.

I do have a hint of sympathy for Apple - spotting a market gap with the Napster sagas, it did develop a means of downloading music which did not enrage copyright owners - subject of course to payment of a small fee....After the sales came rolling in, they meet the fate of many successful businesses and enthusiastic consumers - the backlash. And with the legislative battles in France to some extent at an end, Scandanavia is making it clear that European consumers and their advocates will not now lie down.

World Computer Law Conference Edinburgh September 2006

2006-08-03T13:22:00.000Z

A quick reminder/advert for this most excellent conference being organised by Lilian Edwards and Andres Guadamuz. Particularly exciting should be the inaugural GikII event - the narrative on the site describes this so much better than I ever could, and the list of papers MUST be seen to be believed. I look forward to joining you all on the digital omnibus in September.

New appointment

2006-08-03T13:19:00.000Z

Apologies for lack of recent postings... combination of heat - in Edinburgh, almost unheard of - and a lack of developments at the juncture of at least two of our fields can be blamed.

Also, an announcement that co-blogger Abbe Brown has been appointed Lecturer in Information Technology Law at the University of Edinburgh with effect from 1 August 2006 (and very much looking forward to it).

The outcome in France

2006-07-12T16:35:00.000Z

Having previously posted on the battle over technology such as iTunes in France, and differing views within Parliamentary chambers, thanks to the BBC for this pithy report on the final outcome.

Sharing of technology can still be required - so the not mentioned by name iTunes offering can be made more widely available. BUT, authors and right owners can consent to their work being available only on limited systems. Not only does still create muddied waters (how many authors, companies and collecting societies could be involved) but end product means that consumers unlikely to benefit. So not such a revolution as it might have been - but a new authority to require interoperability promises future fun and games

New transparency for regional trade agreements

2006-07-12T16:32:00.000Z

One of the many difficulties for RTAs in the WTO is the minutiae of article 24 GATT, when one is permitted and how the official "clearance" procedure is to work - or even if. Helpful developments from the WTO in this regard - the question of TRIPS PLUS, international ratcheting, breach of MFN and other joys remain unchanged.

Microsoft increased fine

2006-07-12T16:30:00.000Z

So many sources to choose from (sadly Commission link doesn't work). But thanks for this detail of the $357 million fine and the unsurprising fact that Microsoft are not too happy and will appeal. Here we go again.

The Commission are clearly digging in with their view of the facts and business. I will be very interested to see the CFI decision on such basic questions as market definition, what is abuse, how innovation markets are to be treated etcetcetc

Nominet and ICANN - Happy Ever After

2006-07-10T15:48:00.000Z

Links between the .co.uk body Nominet and ICANN increased at Marrakech, with each recognising the status of the other in an exchange of letters. This likely does, as suggested by the Register, bolster the international status of ICANN - but the questions still remain. Is it really in charge of domain names? Should it be ? Who made it so? Can it be unmade? Competition, human rights and the odd trade mark question abound.

Microsoft yet again

2006-07-10T15:41:00.000Z

The long running disagreement between Microsoft and the EC Commission continues. Although Microsoft have appealed the finding of abuse of a dominant position (most recent hearing last month before the CFI), it failed in attempts to stay imposition of any ruling, pending the appeal. As Microsoft and the Commission have different views on what will constitute compliance with the Commission's order (particularly as complying with US regulator's requirements is considered not to be enough) the tom toms have long been augering additional daily fine. The threats, according to the Register, are getting louder - what will happen? Who will win the game of boundary pushing???

The WIPO Development Agenda - what next?

2006-07-10T12:59:00.000Z

Thanks to IP Watch for details of WIPO's discussion over future directions. Although the establishment of the talks and the recognition of the need for a development agenda is significant progress, the stalling at this vital stage could be a sign of trouble ahead. No firm proposals will be made to the UN but there will be further discussion in the future.

A quick read of commentary did begin to sound rather like recent WHO and WTO discussions. No bad thing in itself - but if IP is to include human rights, as a matter of practice and policy, yet also reflect economic and commercial reality, more cohesion and agreement is necessary.

Human Rights, IP, Paradox and a bit of competition

2006-07-10T12:50:00.000Z

Charlotte Waelde and Abbe Brown presented a joint paper at the excellent CIER Utrecht conference "The Human Rights Paradox in Intellectual Property" on 3-4 July. The conference included delegates from all over the world, with a good cross section of commercial, IP and human rights perspectives. Particularly interesting were the contributions of Cees Flinterman and Rosemary Coombe - and their reminders that human rights exist, and should be respected, beyond the confines of legislation, courts and national law.

Given the focus of our project, it was interesting to observe some delegates as they embraced the new challenges of human rights or IP. Building on that, our addition of competition, particularly as a possible means of obtaining a practical result (we developed one of the case studies from our March meeting) provoked helpful comment.

We will be preparing our paper for publication in the next Molengraff edition. Many thanks to Willem Grosheide Lucky Belder and Jerzy Koopman - we look forward to many more.

Appeals and the FCC - unbundling and untangling?

2006-06-19T19:17:00.000Z

Thanks to Zdnet and also the Register for comment on a US appeals court decision upholding a Federal Communications Commission decision aimed at creating a more competitive telecommunications environment - in appropriate cases. Now, large telecommunications providers must provide discounted rates to their rivals for local and long distance sevices, only if there is a lack of competition in the market and business (as opposed to domestic) users would benefit.

The question of regulation to create competition is of course vexed, and the FCC decision was itself a departure or compromise, focussing on a competition test and the business market rather than broader mandatory unbundling of network exclusivity. Adding patented infrastructure and rights to receive and express information would only make the waters murkier.....

June 2006 TRIPS Council

2006-06-19T19:04:00.000Z

Thanks to IPWatch for timely and full reports on this. Two main themes, neither entirely surprising in terms of issue or outcome.

The EU has pressed for further action to be taken in respect of enforcement of IP in respect of (at least at present) counterfeiting and piracy. But while this may seem the less controversial aspect of IP enforcement from the developed country perspective, some developing countries sought at least further detail and objected to movement from the development agenda of the Doha Round. Australia and Switzerland sensibly pointed out the risk of overlap with WIPO - although, of course, this objection could be made in respect of all WTO IP activity.

The next issue was the fate of the CBD in terms of TRIPS, restrictions on patenting and disclosure of origin. Lots of discussion, not a lot of action - or consensus as to direction.

New edition of SCRIPT-ed

2006-06-19T18:57:00.000Z

The June issue of our Centre's publication is now available with lots of interesting things to enjoy. Most relevant here is the text of a submission by UK IP academics to the Gowers Review of IP, and of a separate submission by the Centre - the latter, in particular, (naturally) focussing on the need to consider IP together with competition and human rights.

Anyone for tennis?

2006-06-08T09:27:00.000Z

Thanks to the IPKat and his sources for an update on the long rumbling battles between Adidas (of the three stripes of course) and sports administration. Being in theory rather keen on tennis, I've been monitoring this one with interest.

The battle concerns restrictions on inclusion of manufacturer's and sponsors logos on sports attire. Measuring tapes are frequently used to establish whether the logo is too big or too small..... Complaints were made to the International Olympic Committee (by among others, Reebok and Nike) that the Adidas three stripes on clothing were often bigger than the limit and should be caught by the rules. Adidas argued that these stripes were not part of the logo and so not properly subject to the controls. Phew. But the IOC didn't agree.

Various tennis administrators (ITF, the tennis governing bodies of UK, France, Australian and the US (the Grand Slams) and Wimbledon's All England Club) in turn produced a new interpretation of their rules. This meant that size restrictions applied not only to standard manufacturer's logos, but to distinctive design elements which identified the manufacturer. This required the stripes to be removed from sponsored players' clothing to the extent that they were bigger than the logo rules. Specific reference was made to Adidas (alone) regarding interpretation of the rules.

Adidas were not happy and ultimately raised an action in the English High for breach of EC competition law, articles 81 and 82 (applicable by the English court on the basis of Regulation 1/2003). The claims were based on the bodies together applying the new interpretation of the rules in a way which discriminated against Adidas and, by doing this, abusing individual, or collective, dominant positions. Now, just in time for Wimbledon (rain, anyone?), and at the end of a grace period (just after the ongoing French Open) the High Court has delivered its initial decision.

The court considered whether the article 81 and 82 claims could survive summary judgment applications; whether they should be dismissed on the basis that they had no reasonable prospect of success. The court also considered whether, if there was no summary judgment, interlocutory injunctions should be granted prohibiting application of the new interpretation of the rules before full trial.

This is a full analysis of the basic elements of article 81 and 82, their applicability to sporting bodies, jurisdiction, and the American Cyanamid test regarding grant of interlocutory injunction. The court made particular reference to Intel v Via, and the statement that care should be taken in granting summary judgment in article 81 and 82 claims, where facts and law often mixed and the ECJ case law was constantly evolving.

The sports bodies argued their interpretation to be objectively justified and that they did not intend to apply it in a discriminatory manner - although the judge noted that even if they did not intend to discriminate against Adidas, they may have done so. Reference was made to the Diadora two stripes and the Nike sunray. The judge held that there were arguments that these design elements would be caught by the new interpretation and no evidence that the sports bodies intended to apply the rules to anyone other than Adidas. If this was so, then the article 81 and 82 defences did have a reasonable prospect of success and summary judgement should not be granted.

The interlocutory injunction analysis is detailed, and focusses on the outcome for both sides if the injunction were to be granted, the financial and reputational impact, and the extent to which these can be assessed and compensated by damages. Ultimately, the court granted the interlocutory injunction. SO the Adidas three stripes in their present form will appear at Wimbledon.

In line with previous agreement, the claim surviving, a trial will take place at the end of the year. This is after Wimbledon and the US Open, with a decision to be available before the Australian or next French Opens.

The decision continues the sporting theme in article 82 cases - see the groundbreaking At the Races at the end of last year. These cases locate direct article 82 claims in national actions - in both cases with a hint of IP issues (although they did not form part of the claim). How long before the Eurodefence involve patents, not article 82?

And more EC competition submissions

2006-06-08T07:53:00.000Z

I'm quicker off the mark this time with the Commission's publication of the Comments on Green Paper on Damages actions. Once again, a full set of responses, not all of which are yet online; but those of Kenneth Campbell and the Irish Competition Authority very interesting.

So what is the relationship between private and public enforcement? What is the aim of damages? Not so much on human rights and even IP in the submissions, even by way of example - something for another day.

Article 82 review submissions

2006-06-08T07:34:00.000Z

I've rather belatedly been looking at these, very helpfully set out in full on the Commission website.

As to be expected, the enquiry generated a great deal of interest and many thoughtful submissions from the legal, economic and policy angles. I found the submissions of Freshfields and Shapiro and Hayes particularly helpful, notably regarding refusal to licence IP. Both note that much fuller analysis is required than "licensing only in exceptional circumstances" building on the tests set out in the cases. The question is what......I look forward to seeing what the Commission will do.

Yet more amendments to TRIPS?

2006-06-08T07:32:00.000Z

IP Watch reports on the proposal by prominent developing countries for a new amendment to article 29 TRIPS (patent applications). This will be considered at the forthcoming meeting of the TRIPS Council. It proposes disclosure in patent applications of the origin of bio resources and traditional knowledge.

IP Watch reports on a range of views, not surprisingly, between countries, and also of the possibility of more forum shop/shift debates involving the WIPO PCT, WTO and CBD (no human rights bodies, at least at this stage). If the development is to have any substance, WTO/TRIPS must be pursued - but as has been seen with essential medicines and compulsory licensing/parallel importing, this would be the start, not the end, of the road.

GikII - Ad Break

2006-06-08T07:27:00.000Z

Quick plug for the GikII workshop in Edinburgh on 5 September at the Computer Law World Conference organised by Lilian Edwards. The call for papers is still open and it should be a fascinating event.

I'm hoping to present a paper "Must Worlds Collide". This will look at the differences, and parallels, between the real and virtual world(s) from a legal perspective. Although this is an increasingly developed field, I'm (naturally) hoping to contribute by adding IP, competition and human rights to the pot.

WHO resolutions

2006-05-29T08:49:00.000Z

After much negotiation, the World Health Assembly passed a resolution on 28 May. Against the backdrop of TRIPS, the resolution (see attached link from IP Watch, resolution itself not yet available) calls for flexbility and dialogue between international trade and health.

This is clearly an important first step: however, attempts by leading developing countries, (particularly India, Brazil and Venezuala) over preceding months to introduce more significant or practical wording failed or were dropped; and a call to explore the flexibilites in TRIPS (the core of the problem) were met by a request from the US for this to be done "where appropriate".

SO, same old same old? Remains to be seen.

Privilege XXX?

2006-05-29T07:55:00.000Z

The complex and (to the uninitiated) arcane question of legal privilege lies at the heart of the next round of disputes about ICANN's rejection of the .xxx domain. As ever, the Register provides excellent coverage of this (and the link in turn links to the less controversial introduction of ".mobi".)

Since the end of the last year, there has been increasing concern at the impact of the US government on the decision making processes of ICANN. Those making the .xxx application sought information from the US Department of Commerce under freedom of information legislation to clarify their conduct regarding .xxx.

The DoC redacted (blanked out) parts of the documents produced - a subject and practice dear to my heart from years of experience. This is now being challenged on the basis that the documents can only be privileged if ICANN is a federal agency or under government control. Scylla and Charybdis anyone? Thought ICANN was distinct from the US government.

As the Register points out, nice symetry in this application being made at the same time as plans for the first meeting of the Internet Governance Forum. This was established at the WSIS to allow global involvement in internet governance, but no substantive change, on the basis that the US Government wasn't really in charge just now. More details of this are at http://www.theregister.co.uk/2006/05/25/igf_blueprint/

Hmmm - interesting times.

BIICL IIEL WTO Conference

2006-05-25T15:38:00.000Z

I attended this conference with lots of initials earlier this week. It was an excellent and stimulating gathering of world trade experts, with small but vocal groups from the sustainable development, IP and human rights perspectives.

The most striking thing for me was that however entrenched interdisciplinary boundaries might seem, particularly when one is engrossed in a particular point of research, fields indeed do, and should, merge into one another. Long may this continue - questions of health and environment cannot be addressed without reference to economics and trade reality; likewise trade debates should not proceed apart from wider issues.

The WHO discussions continue

2006-05-25T15:37:00.000Z

and who knows if they will reach IP? IP Watch is an excellent source of regular updates. We look forward to reporting on any decisions.

OECD, patents and research exemption

2006-05-22T16:11:00.000Z

Thanks to IPWatch for this excellent overview of an OECD enquiry into patents, the scope of research exemptions, if any, in different countries, and the impact of this on future academic work.

This is a key area of interest for our project, particularly given the negative consequences (both economic and societal) of preventing valuable research, the growth of commercial research and testing (when, if even, would this be covered by the exemption) and the increasing narrowing of research exceptions in respect of copyright. Any "roadmap" would at least be a start.

Supreme Court (Case 05-130), eBay and injunctions

2006-05-16T12:37:00.000Z

Thanks to the world's media for the deluge on this, but in particular to the IPkat for an excellent collation of views - including those of Duncan Bucknell (link provided by the IPkat).

In essence, the Supreme Court confirmed that a well established 4 step test, for considering whether to exercise the court's discretion and grant an injunction, was to apply to patent infringement.

The court rejected the more mandatory approach of the Court of Appeals of the Federal Circuit. This court had reiterated its own established approach to patent cases, with injunctions being refused only in exceptional circumstances (an approach very much based on the property rights of the patent owner). The Court of Appeals had in turn rejected a more "expansive" approach taken by the District Court, which considered factors other than the 4 step test to be relevant to granting an injunction.

So in summary, lawyers are happy because the type of test we are familiar with (reasonable criteria to be applied to each set of facts) continues; others are less so because attempts from either side of the patent divide to obtain an approach more consistent with their view of the world have failed.

Interesting to consider how a similar case would fare in UK jurisdictions: permanent injunctions/interdicts are clearly in the discretion of the courts - however, Ludlow v Williams and Microsoft v Plato saw arguments consistent with the Federal Court of Appeals approach (although dismissed on different grounds).

Fair Use and Australia?

2006-05-15T08:30:00.000Z

The question of exceptions to copyright is one close to our heart, as is the impact of "free" trade agreements on IP. Interesting, therefore, to note the consideration in Australia of its copyright law, and whether "fair use" should be introduced. On this matter (and many others) can do no better than refer to Kim Weatherall's blog.

ipedinburgh

December "action"

British Academy update

Latest instalment

So many developments....

Essential environmental technologies: first workshop

“Obtaining, protecting and using essential environmental technologies: a holistic analysis”

World Intellectual Property Day 2010

British Academy Award

ISPs, human rights and power

BILETA and standards

Oh it seems to be March

A2K4

IGF Report and ongoing work

P.S.

Catching up

Forthcoming Edinburgh Lecture: Microsoft

There IS a WIPO Development Agenda

And so it begins...

And after all that

And just when it looked like the debate had moved on...

India and TRIPS - the question remains

WHO and IP: and slowly it goes on

**New survey on use of open content licences by cultural heritage organisations **

Rwanda, TRIPS and Health

The new EU "??"

Are we there yet? The WIPO Development Agenda

ICN Guidance proposed on unilateral conduct

Where does the time go....

Brazil/Merck: compulsory license

The EPO, national courts, and the real question

US Agencies report - IP and Antitrust

Happy World IP Day

Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition

GIKII TWO 2007

BILETA 2007

British Academy Event - Edinburgh

Jurisidiction stumps competition challenge

US TR TRIPS Approach

WIPO Development Agenda Progress

International developments

Court of Appeal - abuse of a dominant position

Court of Appeal - abuse of a dominant position

Wiki - The Personality Rights Database

New Project - Free Trade Agreements and ICT

COMPLIMENTS OF THE SEASON

Ad break: Gowers Review - Challenges for Scotland - 7 Feb 2007

Scottish Competition Law Forum

Gowers in all its glory

WHO: IP and Health

Pre - Budget, Pre - Gowers

Compulsory Licensing

WTO GM Biotech: panel decision

The OFT "embraces" IP?

More TRIPS PLUS

Private copying? Sign up here

Image and Trust; publishing - and IP?

Whither Doha, IP and health

VITA standards

The IGF

TRIPS and enforcement

Business Method and Software Patents - Court of Appeal

Article: Human rights: in the real world

WTO, China and Patent

And the Independent continues

Google and beyond

WIPO and the Development Agenda

ICANN catch up news

JIEL article

Note of Expert Meeting: Intellectual Property, Competition and Human Rights

The plot thickens

The world of music

Computer Law World Conference and GikII

Personality Rights Survey: contributions welcome

Barney Barney

Ignorance of the law??

Whither Apple?

World Computer Law Conference Edinburgh September 2006

New appointment

The outcome in France

New survey on use of open content licences by cultural heritage organisations