U.S. refocusing on IP enforcement — including “enforcement across borders”

I first read on IP-Watch news about recent release of a national intellectual property strategy from the US government.

IP-Watch highlight that:

“The strategy  encompasses 33 enforcement strategy action items that fall within six categories of focus for the United States: (1) leading by example; (2) increasing transparency; (3) ensuring efficiency and coordination; (4) enforcing our rights internationally; (5) securing our supply chain; and (6) building a data-driven government.”

A complete copy of the strategic plan can be viewed here.
The “Enforcing Our Rights Internationally” is particularly interesting as the strategy seeks to influence enforcement outside of US government jurisdiction.

“..Federal agencies, in coordination with the IPEC, will expeditiously assess current efforts to combat such sites and will develop a coordinated and comprehensive plan to address them that includes: (1) U.S. law enforcement agencies vigorously enforcing intellectual property laws; (2) U.S. diplomatic and economic agencies working with foreign governments and international organizations; and (3) the U.S. Government working with the private sector.”

This includes (from IP-Watch site):

“Cracking down on foreign-based and foreign-controlled websites that infringe on American intellectual property rights and having federal law enforcement agencies encourage cooperation with their foreign counterparts on enforcement investigations, particularly in China.”

PCmag.com picked up on that part in their items:
“DOJ, FBI to Monitor Foreign Web Sites for IP Piracy” and “Biden: U.S. to Target Pirate Web Sites“.
In the former PCmag include one of the voices who were not applauding the stance, the Computer & Communications Industry Association (CCIA) who:

“…warned against imposing too broad an enforcement strategy. “We are surprised that no one appears to be recognizing the broader economic debate on this issue. A proper enforcement strategy would ensure that legitimate innovation is not being squashed by an overly broad, overly zealous crackdown,” CCIA president and CEO Ed Black said in a statement. “Balanced intellectual property will promote innovation, investment, and civic discourse, while ensuring that intellectual property rights holders are fairly treated.”

The CCIA website publishes some questions they raised around the issues of the new strategy.  They quote their own report “Fair Use in the U.S. Economy“:

“…companies benefiting from limitations on copyright-holders’ exclusive rights, such as “fair use” – generated revenue of $4.7 trillion in 2007 – a 36 percent increase over 2002 revenue of $3.4 trillion. The most significant growth over this period was in Internet publishing and broadcasting, web search portals, electronic shopping, electronic auctions and other financial investment activity.”

In the preface Ed Black, President & CEO of the CCIA says:

“we are only beginning to fully understand in the 21st century that what copyright leaves unregulated—the ‘fair use economy’—is as economically significant as what it regulates.”

Interesting….

Nepal to register TMs for tea and coffee

The government has initiated steps for promoting registration of trademark and international branding of tea and coffee — two popular high potential cash crops that can help trade diversification and widen the country´s export basket.

http://beacononline.wordpress.com/2010/04/06/nepal-govt-to-support-intl-trademark-registration-for-tea-coffee

In an attempt to reverse the economic impact of a decline in exports of clothing and carpets, Nepal’s National Tea and Coffee Development Board (NTCDB) will coordinate the trademark program and identify ways to promote them in the international markets.  Traders believe that their tea is on a par with Darjeeling and hope that this program will enable them to increase export income.

As mentioned in previous posts, the use of trade marks (or GIs) to boost export revenues needs to be considered within the context of a well formulated market development plan which also addresses enforcement (see https://casipblog.wordpress.com/2010/04/12/can-science-reverse-erosion-of-darjeeling-brand-credibility).

Thanks to Shlomo Bachrach at eastafricaforum.net for this news item.

Post written by Peter Bloch, consultant to CAS-IP

Can science reverse erosion of Darjeeling brand credibility?

Darjeeling tea is one of the most expensive tea varieties in the world and is prized by connoisseurs for its distinctive taste and aroma.  Originating from a small area of India’s West Bengal state, there are only 86 Tea Estates that currently produce Darjeeling Tea. All of these are in Darjeeling District, and only teas coming from these estates can be called Darjeeling Tea.

A recent press release, details of which can be read here, indicates that the University of West Australia’s Forensic and Analytical Chemistry Group will be using isotopic analysis as an analytic tool to address fraudulent labelling of Darjeeling tea.

The Tea Board of India, a non-profit entity set up by the Indian government to administer the trade and marketing of Indian tea, controls the Darjeeling trademark. This is registered in the US and is protected under various jurisdictions.  There is a highly protected and distinctive Darjeeling logo that has only been used by the producers, packers and exporters, under license and authority of the Tea Board.  This strict control over the brand is an example of the use of intellectual property regimes to protect intangible assets and to generate income for people in developing countries.

But even with these efforts, there have been widespread reports of fraudulent use of the logo, and evidence that as much as 50% of tea sold as Darjeeling in Germany is in fact inferior product.  And according to Teas.com.au:

“Almost 40 million kg is sold as “Darjeeling Tea” when the actual production capacity is just 10 million. Most of this tea comes from Sri Lanka and Kenya …Some of the fake tea is called Lanka Darjeeling or Hamburg Darjeeling but most of the time it’s called Pure Darjeeling.”

The Tea Board has been unable to adequately enforce its trademark and, as a result, the brand credibility has suffered with an ensuing loss of consumer confidence.  The question is whether scientific traceability can be an effective tool in reversing this erosion.  Experience suggests that a significant investment in enforcement will also be necessary.  For more on this subject, see https://casipblog.wordpress.com/2010/01/22/ethiopia’s-gi-bill

Post written by Peter Bloch, consultant to CAS-IP

Intermediaries’ role in online copyright enforcement; a study

Article on the Media Law Prof Blog earlier this month linking to a paper entitled “Global Trends in Online Copyright Enforcement: a Non-Neutral Role for Network Intermediaries?”.  This is a topic we have pondered on once or twice on the CAS-IP blog, specifically regarding the changing rules of engagement against online piracy.  This paper, written by Jeremy de Beer and Christopher D. Clemmer is an extensive look at the issues, pressures for change, and the action-reaction of shifts in policy in a number of jurisdictions. Implications are complicated, and the environment is ever changing. The paper ends by saying:

“Whether or not intermediaries should ultimately play a more active preventative role in online copyright enforcement remains an open question. That question can be answered in an intelligent manner only if lawmakers and policymakers are informed about its broader context and implications. This article has demonstrated that a major policy shift in the global governance of online intermediaries is taking place with little or no deliberate consideration of the substantive matter, the reasons why such a shift may be happening, or even full realization that the shift is occurring at all.”

Africa as a dumping ground for counterfeit goods

I made a reference to black market Kiwi shoe polish in a previous post.

The current issue of the BBC magazine Focus on Africa contains a cover story, Copycats Go for the Kill:

“…recent research by ICF (International Climate Facility) found that in the East African Community $500 million in revenues from unpaid taxes was lost to counterfeit goods…”

The article cites cases of counterfeit toothpaste bearing the Unilever brand and suggests that 30% of medicines on sale are fake.  And a 2009 UN report revealed that:

“Revenues gained from 45 million counterfeit anti-malarial medicines were worth $438 million, greater than the GDP of Guinea-Bissau.”

One of the objectives of the ICF is to “secure property rights” throughout Africa, and I suspect that the definition of this goal has now been broadened to include IP.

Addressing the observation that Africa has become a dumping ground for counterfeit goods will require a general crackdown on corruption, new legislation and the strengthening of IPRs.  So this is a problem that will not be resolved without political will.

Post written by Peter Bloch, consultant to CAS-IP

Three strikes strikes back

As readers may remember from the blog that Kay Chapman posted on 26 June 2009, the French government initally failed to implement a system whereby internet users repeatedly accused by private companies (and/or individual copyright owners) of breaching copyright would be disconnected and blacklisted by the Internet Service Providers (“ISP”). However, Lord Mandelson, UK First Secretary of State, is strongly campaigning to pass a law which gives the government the power to disconnect internet users who continue to allegedly infringe copyright after a number of warnings.

This would mean that alleged infringers would not have the right to prove the contrary and present their case in court. But if this was considered unconstitutional in France, will it not be unconstitutional in the UK? Or would not having a written constitution give the government some legitimacy?! Further, it seems unlikely that the law will contribute to decreasing the percentage of infringers, as the savvy ones will simply turn to encryption. Isn’t the concern of enforcers that the use of encryption will make their job so difficult that the UK government will reconsider the proposed law?

Joe McNamee, Advocacy Coordinator at European Digital Rights commented:

“perhaps the most fascinating aspect of the whole campaign is the “analysis and evidence” aspect, with regard to the costs and expected benefits of the measures.”

According to the Digital Britain report, the cost for ISPs (to be borne ultimately by consumers, obviously) is set at a total of 290-500 million pounds while the unjustified and unexplained “benefit” (the profit, if the figures are correct, going to record labels) of 1700 million is plucked from the air and contradicts credible and recent research that file sharing as either no impact, or is even provides a positive benefit to the music industry (http://www.news.harvard.edu/gazette/2004/04.15/09-filesharing.html, https://casipblog.wordpress.com/2009/04/27/copyright-enforcement-new-challenges-for-new-markets%E2%80%A6).

Its doubtful that the current UK government will be able to pass the law before the next election, after which Gordon Brown’s and his party face an uncertain future…so watch this space. The silence of the Tories on this issue, however, has been deafening.

Looking at the impact on developing countries, where there are already issues about set rules and enforcement, would Ghana (where piracy is a major concern), for example, be able to overcome such obstacles and build an efficient music industry? If, however, copyright laws were re-thought and seriously adapted to the new era, perhaps it could serve everyone’s interests, including the authors and the users.

Post written by Francesca Re Manning, consultant to CAS-IP

Copyright enforcement v constitutional rights

http://www.theregister.co.uk/2009/06/10/france_three_strikes_hadopi_suspended/
There has been an interesting development in France’s attempt to reduce illegal downloading of copyrighted materials.  The idea was to implement a “three strikes and you are out” rule, the penalty being suspension of internet connection to those repeatedly infringing copyright through illegal downloads. 

According to the Register,

“Judges deemed that two parts of the legislation …contravened two major areas of the 1789 Declaration of the Rights of Man and Citizen”.

They go on to report however that:

“the French Government would resubmit the law to Parliament, taking account of the Court’s objections”

France isn’t the first country to try (and so far fail) and implement such a system.  ZeroPaid.com reports similar stories from both Spain,  and New Zealand.

Seems the possibility that such measures could help reduce internet piracy by up to 70% are just too tempting despite the controversy? (see reference to the “Digital Britain Report”  again on ZeroPaid.com)

Enlarging the ‘territorial’ nature of IP rights for goods in transit

An article recently posted on IP Watch provokes a rather interesting discussion regarding the way IP rights have been enforced on goods that are in transit.  Also relevant to the discussion are the previous posts from the CAS-IP blog:
a) https://casipblog.wordpress.com/2009/02/10/ip-law-enforcement-in-eu-trips-up-shipment-of-generic-drug-from-india-to-brazil/; and
b) https://casipblog.wordpress.com/2009/03/18/patent-enforcement-the-doha-declaration/).

Some would also perhaps remember we had very similar events in agriculture on this, although not entirely the same: http://www.guardian.co.uk/science/2006/feb/22/gm.argentina

Monsanto, in the above case, tried to sue importers of Argentinean soy in the EU but was unsuccessful.  The growth of cases in the health sector now seems to indicate that generic drugs could be seized while on transit in the EU on the grounds of (potential) infringement of IP rights in the EU when the latter is not the final destination of those products.  This is very disturbing indeed.

One could argue that this amounts to enlarging the ‘territorial’ nature of IP rights, especially when no such rights exist in the country of final destination.  One can also imagine this could have implications for developing countries’ “freedom to operate”.

There is another point in the IP Watch article that I am unclear of as well.  According to Médecins Sans Frontières (MSF), the previous EU law seems to focus mainly on trademark issues (counterfeiting and piracy) instead of being all encompassing to include also patents.  I am not sure what the rationale is for the previous EU legislation, limited to only stopping counterfeit and pirated goods.  Should there be a difference and if so, why?  Perhaps an expert reader out there would be able to help me on this point and share some further comments on this news?

Post written by Guat Hong Teh, Legal Specialist for CAS-IP

The Pirate Bay decision

http://news.cnet.com/8301-1023_3-10224201-93.html

On 17 April the Stockholm District Court found the three operators of the Swedish file-sharing portal “The Pirate Bay” guilty of complicity for breach of the Swedish Copyright Act.  The translated judgment can be found here http://www.ifpi.org/content/library/Pirate-Bay-verdict-English-translation.pdf

Without commenting either on the choice of the name of the server (Pirate…!) nor on the unbiased nature of the court, (Judge Tomas Norstrom is a member of the Swedish Copyright Association and sits on the board of Swedish Association for the Protection of Industrial Property), the case opens a debate on several issues.

The discrepancy between national criminal laws and copyright laws needs to be addressed.  For example;  an act which might be found to be a criminal act in one country, may not amount to the same criminal act in other country.  Likewise the concept of “secondary liability and indirect secondary liability” should be regulated in a consistent way.

We live in an era of fast-moving technology – the law ought to realising this and seriously start re-thinking copyright law to make it truely international and trans-border.  We do not need stronger provisions of the old rules, rather new and more modern rules!

Copyright law should still guarantee protection to authors and the music/film industry to foster creativity, but it should also promote benefit sharing and access to knowledge.   Abolishing copyright law like Smiers suggests is not the answer; what we need is to use the current system, without reinventing any wheels, but by adapting it the modern times.  No need to be draconian, simply pragmatic!

Post written by Francesca Re Manning, consultant to CAS-IP

Copyright enforcement & new challenges for new markets…

http://www.guardian.co.uk/music/2009/apr/21/study-finds-pirates-buy-more-music
I read this article last week and I had to smile at the irony of it all. 
A recent study has found that

“those who download music illegally are also 10 times more likely to pay for songs than those who don’t.”

The article began:

“Piracy may be the bane of the music industry but according to a new study, it may also be its engine”

So, that leaves the music industry with a bit of a dilemma….