IP Politics

As reported earlier, the Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement. After a series of draft text leaks in 2008, 2009 and 2010 the negotiating parties had published a first official version of the then current draft on April 20, 2010. A new consolidated draft text, reflecting the outcome of the final (Tokyo) round of negotiations, was released on October 06, 2010. Now, papers have leaked saying that ACTA Parties agreed to have a technical meeting to finalise the legal scrub of the ACTA text. Australia has offered to host the meeting on November 30 to December 03 or, if neccessary, up to December 04, 2010.

It appears not to be easy to properly assess the impact this ACTA version might have on future Intellectual Property enforcement regimes in the European Union and elsewhere. In a paper drafted by the EU Commission DG Trade now circulating on the Internet a statement is given to the effect that while it was obviously in the interest of the Commission to achieve a result in the negotiations that is as close as possible to the rules in force in the EU (including TRIPS), it was not possible to reproduce, in such an international negotiation, the acquis to the latter. According to the EU Commission and from a legal point of view, there are no objections against agreeing on a lower level of harmonisation in ACTA, compared to the EU acquis. Nevertheless, the EU Commission has bothered themselved with drawing up a list of Provisions of ACTA that provide value compared to existing international standards and in particular WTO/TRIPS.

The ninth round of negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) was held in Lucerne, Switzerland, from June 28 to July 01, 2010. After the eighth round of negotiations on ACTA held in Wellington, New Zealand, from April 12 to April 16, 2010, a redacted version of the draft version had been published but obviously there was no intention to keep the negotiation process transparent in general. Secrecy prevailed as usual. It needed another leak in order to keep the general public informed.

As it was to be expected, this much anticipated breach of confidentiality has happened; a copy of the consolidated text dated July 01, 2010, appeared on the Internet. A transcribed text version can be found here. The document apparently comes from the Civil Liberties Committee (LIBE) of the European Parliament.

There are myths about patents on computer-implemented inventions a.k.a. software patents which won't ever die.

One of them is the allegation that patents are a tool to steal a software developer / programmer the hard-earned fruits of labor. The software is the developer's / programmer's own work and he or she should be entitled to some sort of ownership.

But there are those evil and pesky patent owners, all of a sudden jumping out of the bushes, armed with a patent certificate comprising a long list of patent claims, demanding to cease and desist commercially using the poor developer's / programmer's software on the grounds of patent infringement. Despite the fact that the software developer / programmer has not only conceived the algorithm for the software by himself or herself but also written every line of code without cheating or copying, the patent owner threatens to prevent him or her enjoying the fruit of this ownership. Patent critics like to construe this scenario as some sort of forced dispossession.

Politicians love to preach on 'innovation'. Europe shall become the most innovative region on earth, and, of course, Germany requests to have a full share of the fruits of her orientation towards technological progress.

The lower chamber of the German Parliament, the Bundestag, is a distingushed body centrally situated within the landscape of German political culture, representing more than 60 years of successful post-nazidom democracy.

But if innovation meets Bundestag, strange things may happen. A couple of days ago, Mr Jimmy Schulz, a MP from the parliamentary group of the Liberal Democrats, was due to deliver a speech. Instead of traditionally preparing a paper printout of his presentation and reading aloud therefrom, he thought it might be useful to be innovative and use some of the new electronic gadgets available in our days instead.

In my previous posting I had reported and commented on certain lobbying efforts of (newspaper) publishing companies. Those entities were used to run on a long-established business model which apparently is doomed to fail in the age of the Internet. But the publishing companies in question won't let their business model die without further fighting, and they are cudgeling hard to push the state into politics offering help by creating a new type of auxiliary copyright bespoken to the suppositious needs of this branch of businesses.

The reason offered as justification for such doing - which of course would degrade the prospects of other entities running different and conflicting business models - is that traditional press media are essential to the functioning of a parliamentary democracy. Others, however, doubt that the role of traditional print media is that singular to justify the creation of additional IP rights.

There are different business models which did not exist since long but the proponents of which are lobbying to push the politicians and public to accept them as legitimate forms of doing business. In this context, I think of so-called Non-Practicing Entities (NPEs), companies monetising patents by issuing licenses but not providing any other goods or services. Others strongly prefer to name such entities Patent Trolls, and it becomes clear that there is a big dispute on the legitimacy of their business model.

It is a well-known fact that in particular numerous newspaper publishing companies are currently suffering from an increasing downturn of their classic paper-based business model.Their long-established but obviously now depreciated business model had been centered around the exploitation of the relative scarcity of news contents. Paying buyers of paper copies who can also be fed with advertising material were attracted, creating a handsome stream of revenues both from buyers of paper copies as well as from advertisers. Now the Internet has gained dominance, creating an abundance of free news contents and, in addition, offering vast chances for effective and cheap on-line advertising. Hence, print runs as well as total turnover generated by advertising are declining, and publishers find it very hard to maintain revenue streams essentially needed for their survival. Maintaining a publishing company on the basis of advertising revenues of a free website alone also appears to be difficult.

In this situation, instead of realising that their business model is - at least on the long run - as dead as mud and going back to the drawing board in order to invent innovative new ones, German publishing companies started fighting for the status quo ante. Their first targets were news aggregators like Google News, arguing that they ought to pay to the publishers because of their business relies on publisher's contents, but the publishers soon had to recognise that they can't win their fight by means of copyright law as it stands now. According to established case law, deep linking is generally allowed in Germany unless particular circumstance of the individual case let such doing appear unfair. And, of course, publishing companies are not only free to decide on whether or not they will operate a website with free contents but they also have the power to install a paywall restricting access to paying customers. And, finally, news aggegators will respect the robots.txt crawler exclusion convention, and there would be no technical difficulty to prevent say, Google News, from indexing their contents. Hence, if publishers don't like their on-line products to be indexed by aggregators, remedies are easily available. However, simply abandoning to be included in the indexes of the aggregators taken alone does not generate any additional revenue streams.

What can publishing companies do in such situation?

Secrecy Orders per 10.000 patents (Source: New Scientist)

According to a report in New Scientist, UK patents are being declared state secrets more than three times as often as those filed in the US.

In particular, as can be seen in the above chart published on the New Scientist website, there appears to be a surge in the number of secrecy orders in (or shortly after) 2007. Interestingly, this correlates with the replacement of Mr Tony Blair by Mr Gordon Brown as Prime Minister of the United Kingdom in July 2007, followed by a re-shuffle of the Cabinet in 10, Downing Street. However, I do not have any idea as to whether or not this coincidence is based on political causality.