Hon: Storm in a teacup?

The word “hon” (=honey) has been part of Baltimore, Maryland’s lexicon for decades, and it’s an inherent part of the city’s working-class roots.  But now locals have learned their favorite term of endearment has been trademarked for commercial use by a local businesswoman, and some are protesting the co-opting of what they say is a “Baltimore thing.”

You can read or listen to the story at “Baltimoreans to Businesswoman: Not So Fast , Hon”

If an entrepreneur appropriating “public domain IP” were reported from anywhere in the developing world, there would be a lot of action. When a UK company tried to trademark the Kenyan word kikoi (common name for a skirt or wrap), a coalition of NGOs filed an objection and the application was subsequently rejected.”Kikoi TM case”

Bruce Goldfarb, a Baltimore blogger, has written at length on the subject in The Hon Manifesto.  He believes that:

Whiting’s claim to exclusive commercial rights to “hon” unreasonably inhibits speech and restrains business.

And that:

Denise Whiting does not have a valid trademark on “hon.” She is a bully, trampling the linguistic commons.

What is particularly interesting about this case is that public outrage has been channeled through a variety of social media, and a Facebook event is in the works.  But Denise Whiting has only been granted protection for the word in four categories (retail gift shops, paper goods, clothing and restaurant services) and the local angst may be a storm in a teacup.

Post written by Peter Bloch

Open Rights Group Workshop; 24th July 2010

Saturday 24^th July, (despite being my sixth wedding anniversary!), I attended a workshop on the current challenges of Copyright and Digital Rights. The workshop was organised by the Open Rights Group, a non-for-profit organisation which promotes and defends freedom of expression, privacy, innovation, consumers’ rights, and creativity on the net. You can read more about them here: http://www.openrightsgroup.org/about

The day was structured between a series of presentations and small group discussions. Topics of debate included the new English Digital Economy Act, the Anti-Counterfeiting Trade Agreement (ACTA), and the movement of Open Access Data.

From the programme I believe that our readers will be mostly interested in Professor Boyle’s presentation on the shrinking of the public domain, and the discussion on open data and access to information led by the Open Knowledge Foundation Network (OKFN).  I think the discussion on ACTA could have been very interesting if more information and facts had been given – a lot of discussion was around the fact that the Act needs to be changed even though nobody is fully certain about its precise content which is still (more or less) secret!

Professor Boyle rightly argued that we currently live in a paradox: despite the fact that we generate more and more information and knowledge that enables us to be more creative and innovative, we are moving towards stricter controls to protect such information and knowledge.  Instead of letting it free, we are locking it away. Most jurisdictions have seen an ongoing stretch of the duration of copyright, from 28 years (renewable possibly for another 28 years’ period) to author’s life + 70 years, which seems to go against the original principle of promoting culture through innovation.

The decision of not dealing seriously and practically with the problem of “orphan works” is another symptom of this general over-protection of authors to the detriment of users. In this atmosphere of vagueness and uncertainty, Professor Boyle praised Creative Commons for providing a simple solution to the complexities of copyright, and urged for a real harmonisation of the exceptions, namely the situations which would not amount to breach of copyright (e.g. fair-use)

Professor Boyle gave a very similar presentation at UC Davies and which can seen on YouTube: http://www.youtube.com/watch?v=_OInGKMc1Wo

The Open Data discussion focused on the importance of keeping data freely and easily accessible and usable. Some reasons given included: such data is most of the time generated through public funding, that information which is already available in the first place cannot be locked away, and that the more openly and freely information circulates, the more additional information and knowledge is generated.

I felt that the session was quite good but that a lot of collateral issues ought to have discussed, or at least touched on if time was a constraint. For example, what happens if data has been generated using funding from the private sector as well? Is it really easy to distinguish it from confidential and/or sensitive data? Should a debate on releasing as opposed to sharing data also be tabled? What is the reality as to what data releasers want users to be able to do? (Copying in part? In full? Download and modify?).  Perhaps the OKFN does not have enough experience within the area of genetic material and access & benefit sharing, as there are a lot of concerns (possibly unfounded) like biopiracy which can be a real obstacles to the openness and sharing of data. I hope there will be other occasions in the future to address all these questions with the OKFN.

Many thanks to Joe (McNamee, Advisor to the European Digital Rights) who invited me to the event!

Post written by Francesca Re         Manning of CAS-IP

Copyright 2010; designing an ‘ideal’ copyright regime

I recently attended the 2010 Copyright Forum that the British Council organised to mark the 300th anniversary of the Statute of Queen Anne. It seems that the majority of the audience agreed on the following points, namely:

• the current copyright regime is inadequate and probably the result of the general laziness of authors, politicians, and publishers (in a lateral sense) who have not adapted their fundamental structures to the changing technology and needs;
• copyright has gone too far and the public is increasingly concerned about preserving the commons and the public domain; however, the expectation is to have completely free and unrestricted access to information and material;
• copyright encourages creation by rewarding authors; however, copyright clearance (the equivalent to Freedom to Operate in patents) has become too lengthy and expensive, so much so as to hinder creativity itself;
• using and sharing information and data can only increase knowledge, and only attribution should be a matter of concern;
• technology should be seen as the solution rather than the problem to the current condition; authors should carve out what users are not allowed to do rather than the other way round (effectively what Creative Commons does);
• too many restrictions prevent the use of knowledge and information in a way which could potentially benefit developing countries as in the case of poor scientists who should have access openly and freely.
 
I think we cannot disagree with the above considerations. However, I would like to make a few further comments:
 
1. How effective are these kind of discussions? There is a common agreement that copyright should serve culture and education and that new legal frameworks, which enable the use and sharing of information, should be developed. Yet, secretive discussions on anti-counterfeiting (and beyond) rules without any degree of transparency are going on.
2. Discussions should not be confined to national levels. Today’s technology allows users in every part of the world to access work and information no matter where it is created and held. Therefore, the principles and rules of how to protect, guarantee the use/reproduction/dissemination etc., and exploit to the author’s benefit need to have a global prospective.
3. Are we really sure that without copyright protection innovation and productivity would not continue? Or are we effectively merely concerned with the preservation of economic monopoly (as in the case of Walt Disney)?
4. Developing countries need to be careful with the copyright system they adopt and/or enforce. It seems to me that the risk for countries which mimic the developed world is that the different background and conditions will lead to a friction within the system. However, at the same time, those countries which do not have a copyright regime yet, have in front of them a clean sheet upon which they can draw a set of rules and practices which would not be encumbered by the same practices that have and are currently hampering our countries.

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

This post was a follow up to our previous blog item on the Copyright Forum.  Click HERE to view our submission prior to the event.  For further information and discussion about this initiative you can visit these pages of counterpoint online. 

 

IPRs & research for the public good

As I have quoted in the past; Victoria Henson-Apollonio once said:

“think of IP as a tool, like a hammer you can use it to knock a nail into a piece of wood, or you can smash a window..!”

I was reminded of these words reading a piece printed in the Guardian entitled “The Shackling of Science: ownership rights pose real danger to scientific progress for public good”.

The final paragraph of the article points to:

“The Manchester Manifesto, produced by an interdisciplinary and international group of experts … explores these problems and points the way to future solutions that will more effectively protect science, innovation and the public good. It calls on all interested parties to find better ways of delivering the fruits of science where they are most needed.”

The commercial gains cited as a large part of the problem are probably evidence enough IPRs aren’t going away anytime soon.  Therefore a prudent action would be to make sure public sector institutions become more savvy when managing their own intellectual property, especially when dealing with the private sector.  That way efforts can be made to ensure public sector research outputs remain available.  There are examples of positive application of the IP tool, but they aren’t going to make headlines in the same way as the negative ones…

No More Enola Patent!

http://www.patentlyo.com/patent/2009/07/mexican-yellow-bean-patent-finally-cooked.html

This is GREAT news!  The controversial Enola Patent is no more!!  See the lead link for the PatentlyO write up.  (UPDATE:  There is now also information and comment both on the CIAT blog and the CIAT official release on CIAT’s main website.)

CAS-IP has been supporting CIAT in moving this process along since 2000, when John Dodds filed the original request for re-examination.  CAS-IP had also assisted CIAT and pro bono lawyers from Morrison&Foerster with the drafting and presentation of an Amicus brief to the Court of Appeals.

Victoria Henson-Apollonio, manager of CAS-IP wrote the following note on the decision:

“On Friday, the U.S. Court of Appeals for the Federal Circuit (CAFC) dealt a final blow to the patent claims of the Enola patent, U.S. Patent No. 5,894,079. 

In its ruling the CAFC said:

“In a combined proceeding in which a third person sought re-examination of an issued patent and the patentee sought re-issue of the patent to broaden the claims, the United States Patent and Trademark Office’s Board of Patent Appeals and Interferences (“Board”) held the patent claims invalid on multiple grounds, including that they would have been obvious at the time the invention was made. We affirm the obviousness ruling and therefore sustain the Board’s decision without reaching the Board’s other grounds.”

 Here is the pdf file from the CAFC’s Internet site http://www.cafc.uscourts.gov/opinions/08-1492.pdf

With this decision, the Court has invalidated this patent.  The patent owner, Pod-Ners LLC (Larry Proctor) can no longer sue buyers and sellers of yellow beans in the U.S.  This is a victory for all genebanks that hold and distribute yellow beans, especially the genebank of the Centro Internacional de Agricultura Tropical/International Center for Tropical Agriculture (CIAT). CIAT holds and distributes germplasm from many crops, including beans, to subsistence farmers and those that work to help poor farmers, everywhere in the world.”

For more background information visit the CAS-IP site.  We will be updating this page shortly.

Strategic use of IP from South Africa?

http://afro-ip.blogspot.com/2009/01/south-africa-new-ip-rights-act.html
The Afro-IP blog posted an entry last week about a new law in South Africa regarding IP rights.  The blog post publishes the following quote from the Department of Science and Technology:

“The specific object of the legislation is that intellectual property emanating from publicly financed research and development should be commercialised for the benefit of all South Africans, and protected from appropriation.”

Of course, it is not without criticism – see the linked article here from a technology news site called “IT web”  for some comments from Andrew Rens, who is an intellectual property fellow at the Shuttleworth Foundation. 

“The Bill will have wide-ranging consequences for the South African research community … the country could see a decline in research co-operation from international consortia with universities, a decline in philanthropic funding and a move away from open access.”

Patents & commercialisation issues; the Indian “Bayh-Dole”

http://www.scidev.net/en/opinions/indian-patent-bill-let-s-not-be-too-hasty.html?utm_source=link&utm_medium=rss&utm_campaign=en_opinions
An article in SciDev Net earlier in the month talked about the possible introduction of a law in India to promote technology transfer by encouraging an increase in university patenting.  The new law is inspired by the US Bayh-Dole Act (background to this act can be found on the AUTM website: http://www.autm.net/aboutTT/aboutTT_bayhDoleAct.cfm)
The SciDev article calls for more debate, as there are concerns the legislation has been pulled together too quickly.  The Spicy IP blog is tracking the development of this bill http://spicyipindia.blogspot.com/search/label/Bayh%20Dole.  (In fact, it was one of SpicyIPs bloggers who wrote the piece for SciDev Net.)  The discussions around this issue are interesting as they raise important questions about commercialisation and the provision for public goods that could be of interest those in the CGIAR.

Eco-Patent Commons

http://www.wbcsd.org/templates/TemplateWBCSD5/layout.asp?type=p&MenuId=MTQ3NQ&doOpen=1&ClickMenu=LeftMenu

This interesting idea was mentioned on patentbaristas.com today (http://www.patentbaristas.com/archives/2008/05/07/patents-going-green/).  Aim stated is to “unleashing dozens of innovative, environmentally-responsible patents to the public domain”.