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Yet Another Round Of ACTA Negotiations In Sight

nospam@example.com (Axel H Horns) — Tue, 09 Nov 2010 20:49:37 +0100

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.

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News From ACTA Negotiations

nospam@example.com (Axel H Horns) — Thu, 15 Jul 2010 23:48:00 +0200

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.

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The Patent System And Its Problem Of Scaling

nospam@example.com (Axel H Horns) — Wed, 14 Jul 2010 23:49:00 +0200

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.

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German Bundestag Meets Innovation

nospam@example.com (Axel H Horns) — Thu, 24 Jun 2010 14:16:19 +0200

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.

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IP And The Fight On Business Models

nospam@example.com (Axel H Horns) — Wed, 23 Jun 2010 22:13:00 +0200

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.

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Intellectual Property: Political Excesses - Or: Let Schumpeter's Creative Destruction Do Its Work

nospam@example.com (Axel H Horns) — Fri, 18 Jun 2010 21:19:00 +0200

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?

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Did Mr Gordon Brown Love Secret Patents?

nospam@example.com (Axel H Horns) — Thu, 17 Jun 2010 15:49:29 +0200

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.

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Mr Bruno van Pottelsberghe de la Potterie on 'The Quality Factor in Patent Systems'

nospam@example.com (Axel H Horns) — Tue, 08 Jun 2010 19:39:25 +0200

Mr Bruno van Pottelsberghe de la Potterie is a Senior Research Fellow at Bruegel and Professor at the Université Libre de Bruxelles (ULB), Solvay Brussels School of Economics and Management (SBS-EM), where he holds the Solvay S.A. Chair of Innovation. He joined Bruegel in December 2007. Mr Bruno van Pottelsberghe was Chief Economist at the European Patent Office from November 2005 to the end of 2007.

Mr van Pottelsberghe recently has published a first draft version of a paper titled The quality factor in patent systems. He concludes:

"This paper puts forward a new methodology that aims at comparing quality across patent systems. Quality is defined as the extent to which patent offices comply with the legal standards that rule patentability conditions (novelty, inventiveness, transparency). The methodology consists in a two-layer analytical framework composed of "legal standards" and their "operational design". Operational designs include several elements that frame the rigour and transparency of the filtering processes. The in-depth analysis of these two layers for the patent offices of the USA (USPTO), Japan (JPO) and Europe (EPO) lead to the following conclusions. The operational designs’ components are interdependent and form a coherent system. This systemic approach underlines that if legal standards are similar across countries, their operational design are heterogeneous. The empirical evidence suggests that the EPO provides higher quality services than the USPTO, the JPO being in an intermediate position. These differences call for a multi-faceted convergence of patent systems before worldwide mutual recognition and worksharing practices are to be put in place."

For sure his former colleagues at the EPO will be flattered to read this. Mr van Pottelsberghe de la Potterie explicitly has encouraged comments on his paper.

When suggesting to set up a multi-faceted convergence of patent systems before worldwide mutual recognition and worksharing practices are to be put in place there appears to be some parallelism with leaving EPO President Ms Brimelow who said some time ago that it might be all the better if substantive patent law harmonization - perhaps rendered more attractive by work-sharing arrangements which would maximize the efficiency gains that harmonization might bring - occurred after the infrastructure for dealing with another potential growth spurt had been set up, rather than before.

ACTA Draft Has Been Published. And Now?

nospam@example.com (Axel H Horns) — Mon, 26 Apr 2010 16:04:06 +0200

As recently announced in my earlier posting, the current Draft on the so-called Anti-Counterfeiting Trade Agreement (ACTA) has Officially been released. Just a few remarks:

1. Transparency and Openness

The Document is still redacted insofar as there are no longer included any indications on the negotiation positions of the various parties to the talks. Also on EU level, countries appear to be eager to hide their position from general public. For example, there is a EU Council Document 8931/10 titled 'Anti-Counterfeiting Trade Agreement (ACTA) - Special Measures Related to Technological Enforcement Means and the Internet = German position' the contents of which is not accessible.

2. The Nature of the ACTA Agreement

The title of the entire paper is misguiding. The agreement under consideration is not merely directed to Anti-Counterfeiting:

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Internet Communication Without Middlemen - The Burgfrieden is Fading

nospam@example.com (Axel H Horns) — Wed, 24 Feb 2010 00:00:23 +0100

It has always been difficult for contemporaries to recognise the peculiarities of their own epoch in which they live. Later on, after decades or centuries, it is much easier to analyse and explain things ex post in countless doctoral thesis and other scholar work. Nevertheless, those who here and now get at least some vague idea of what might be a distinguishing feature vis-a-vis history will surely enjoy the benefit of a more appropriate assessment of options and actions.

For example, in the 1960s the world saw the heydays of mechanical engineering, and in particular Germany had a strong reputation for construction and manufacturing of high quality machining tools. The automotive industries were booming, and a linear extrapolation of the near time expectations of those days to longer time scales resulted in utopian dreams of universal mechanical three-dimensional mobility by flying saucers available for everyone expected to become reality soon after the year 2000.

Nothing of that has happened. Instead, other big things are going on.

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A Unified European Patent System - The Historical Perspective

nospam@example.com (Axel H Horns) — Thu, 18 Feb 2010 21:47:00 +0100

As it is well known to all stakeholders involved, the patent system in Europe is highly fragmented: On the one hand, there is a system of patents granted or registered by national patent offices throughout Europe. On the other hand, in parallel there has been set up a European Patent Office (EPO) having the power to grant patents for up to 36 Contracting States forming the European Patent Organisation (EPOrg) on the basis of the European Patent Convention (EPC). Court proceedings in nullification and infringement matters concerning patents granted by national Patent Offices are governed both by substantial and procedural laws of the respective nation. However, unfortunately also European patents as granted by EPO disintegrate at the applicant's discretion expressed by a system of designations and national validation procedures into a bundle of national patents governed by national law. According to Article 64 EPC, a European patent confers in each Contracting State in respect of which it is granted the same rights as would be conferred by a national patent granted in that State, and any infringement of a European patent is dealt with by national law. Concerning the patent lifespan after the lapse of the Opposition period, Article 138 EPC states that a European patent may be revoked with effect for a Contracting State only on one or more of the grounds listed in a fixed catalogue of reasons set on EPC level, but all procedural matters are left to national law.

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New EU Council Resolution In The Making: 'Enhancing The Enforcement Of Intellectual Property Rights In The Internal Market'

nospam@example.com (Axel H Horns) — Sun, 07 Feb 2010 22:15:00 +0100

On February 05, 2010, the General Secretariat of the EU Council has published Document 6164/10 titled “Commission communication 'Enhancing the enforcement of intellectual property rights in the internal market' - Revised proposal for a Council Resolution” replacing its predecessor published in Document 5808/10. It has been drawn up by the EU Presidency for discussion at the meeting of the Intellectual Property Attachés on 9 February 2010. As was to be expected, the EU Council is, inter alia, about to

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ACTA: Choking Digital Economy By Increasing Liability Risks For Intermediaries.

nospam@example.com (Axel H Horns) — Tue, 03 Nov 2009 20:48:00 +0100

Mr Michael Geist reports on his Blog on the Anti-Counterfeiting Trade Agreement (ACTA) negotiations scheduled to continue in a few hours in Seoul, Korea. Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge. Sources say that the draft text, modelled on the U.S.-South Korea free trade agreement, focuses on following five issues, comprising, inter alia, two items as quoted below:

[...]
2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
[...]

As the EU is party to those talks, it might be relevant to compare such potential provision with the present state of the EU Acquis communautaire.

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General Electric's Chief IP Counsel Calls To The Arms: Another Political Threat to IP

nospam@example.com (Axel H Horns) — Sun, 01 Nov 2009 22:20:51 +0100

Mr Carl Horton

On the IAM Blog run by Mr Joff Wild, Ms Sara-Jayne Adams brings an interesting report on a lecture on The Future of IP recently organised by the Intellectual Property Institute in London. General Electric's Chief IP Counsel, Mr Carl Horton gave a talk warning of the dangers of 'monkeying with the IP system':

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Disruptive Innovations: Aspects of German And European Woes

nospam@example.com (Axel H Horns) — Thu, 22 Oct 2009 20:30:00 +0200

These days in Germany headlines of mainstream media are announcing the liquidation of the mail order retailer Quelle located in Nuremberg. Some 4.000 jobs will be lost. The holding of the group of companies to which Quelle belongs, Arcandor AG, had filed for bankruptcy in June this year, and since then no investor could be lured into acquiring Quelle GmbH. Readers of this Blog sitting abroad might not be impressed by such news but in Germany Quelle had been one of the major flagships of the so-called 'Wirtschaftswunder' years in Germany during the 50s of the 20^th century. Virtually everybody in Germany beyond a certain age knows this Quelle brand, and in earlier times millions of printed mail order catalogues have been distributed year by year.

And now it went bust. So what? It is business as usual that businesses sometimes fail. A quite disturbing aspect of this matter is, however, that at the same time where Quelle is forced to close, Amazon.com is flourishing, and news just came in that eBay.com has increased profits, both companies founded and seated in the United States. Surely there still is a huge market for distant selling. Didn't Quelle have a website? Yes, of course, they had one. You even could order items via the Internet. But their business model was still centered around that 20^th century printed mail order catalogue. The website was merely thought of as an auxiliary distribution channel, and this doctrine was proved to be fatal.

Now switching to something different. News are emerging that the new centre-right Government in Germany might be inclined to help newspaper companies and book publishers suffering from diminishing cash flow by creating a new sort of auxiliary copyright ('Leistungsschutzrecht' in German). No details are available (see reports [in German, sorry] here and there) but the central idea might perhaps be to have a licenceable right for the owner of a website to aggregate news like Google does it. Maybe that in a few years time you will not be allowed to link to a German website without having obtained written consent by the website owner and, in some cases, also paid some licence fees.

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