IPR

LITERATURE REVIEW

Preservation and conservation of expressions of folklore. Kamal Puri. Copyright Bull 1998, 32(4), 5-36.

Critically reviews existing legal mechanisms for the protection of aboriginal culture and intellectual property rights in Australia including copyright law and heritage legislation. Analyses alternative proposal and developments put forward both in Australia and other countries. Examines various proposals drawing from the pool of research completed both in Australia and other countries. Makes suggestions as to the most appropriate measures to be adopted locally and internationally as a basis for future action.

— Reproduced with modification from J intellec Prop Rights 1999, 4(4), 227

Conservation, preservation and the legal protection of folklore in Africa: a general survey. Folaryn Shyllon. Copyright Bull 1998, 32(4), 37-48.

From the African viewpoint, folklore is a constituent of African civilization, a matter of ethnic pride and forms a part of a larger category of intellectual property. The economic interest of industrialized countries requires the protection of computer software. Similarly, the economic interest of Africa and other developing countries demands that folklore should be protected. On the basis of reciprocity, international regulation for the protection of folklore should be adopted. The traditional culture, ideas and symbols also deserve global protection. Writing, notations, printing and publishing should not be the sole criteria for establishing legal rights. The request for the international protection of folklore either under copyright law or as generic and collective intellectual property is just for the recognition of African values and standards. An acceptance of the same would mean respect for African people and their cultures.

Intellectual property rights, the law and indigenous people's art. Rachel Massey and Christopher Stephens. Copyright Bull 1998, 32(4), 49-62.

Addresses a significant question in the new world trade order i.e. the rights of patrimony artists and their art. Following the deregulation of regional markets begins the proliferation of trade with domestic and indigenous communities occasioning the need for protection of human, moral and economic rights of their heritage and folklore including the art that represents it. It is argued that the ethnic art and the indigenous folklore should be protected under international convention and national law to enshrine the rights of distinctive people whose traditional ways as expressed and inspired through this art are the very root of contribution to the global village. Traditional environmental knowledge finds its most integral and sophisticated expression through art in various cultures whose languages of sustainability are not standard exchanges or written media but the visual art form itself.

— Reproduced with modification from J intellec Prop Rights 1999, 4(4), 228

Protecting confidential R& D information. V K Gupta. Tech Monitor 1999, 17(3), 37-42

Protection of know-how and confidential information about inventions in R & D organizations is an issue of vital concern. The TRIPS Agreement as well as the Paris Convention contains provisions to grant adequate protection to undisclosed R & D information which require R & D organizations to establish clear guidelines for their scientists on the issues of confidentiality and disclosure during and after the service. Current practices being followed in Indian organizations have also been discussed.

Asserting copyright's democratic principles in the global arena. N W Netanel. Vanderbilt Law Rev 1998, 51(2), 217-

Explores the relationship between copyright law and global democratization. The understanding that copyright serves as `the engine of free expression' is central to American copyright jurisprudence. According creators of original expression a set of exclusive rights to market their literary and artistic works, copyright fosters the dissemination of knowledge, supports a pluralist non-state communication medium and highlights the value of individual contributions to public discourse. Based upon the understanding one might conclude that requiring authoritarian and newly democratic countries to implement stringent copyright protection standards would contribute to their democratic transition and development. It has been opined that the Agreement on Trade-Related Aspects of Intellectual Property unwittingly constitutes `freedom imperialism' as it requires that countries adopt a quasi-proprietary copyright system as a condition to World Trade Organization. It is argued that the notion is seriously misguided as copyright's constitutive value for democratic development depends heavily on local circumstances. Indeed, copyright may sometimes impede democratization unless substantial limits are placed on copyright-holder rights. Assertion of copyright's democratic principles in the global arena would entail a far more nuanced approach than blithely insisting on maximalist global copyright protection. Some degree of copyright expression may generally lend support to democratic institutions and that approach would allow for a liberal use of exceptions and limitations to copyright-holder rights designed to bolster indigenous media and make an author's works more widely available in developing countries and nascent democracies. Considering the role that copyright might play at various stages of democratic development, the legal foundation for applying a democratic paradigm of a limited copyright has been outlined. The paradigm is grounded on the democratic entitlement of a set of international law norms concerning democratic governance, political participation and individual autonomy. It is contended that the international law of free expression which is a part of the democratic entitlement imposes limits on the proprietary control of information and expression. The paradigm has been applied to four controversial areas in international copyright relations ranging from questions concerning the interpretation of existing copyright treaties to the issue of parallel imports.

— Reproduced with modification from J intellec Prop Rights 1999, 4(4), 229-30

Seen one, seen them all? Making sense of the copyright merger doctrine. S Abrahamson. UCLA Law Rev 1998, 45(4), 1125-66.

The copyright merger doctrine stems from the difficulty in distinguishing the expression of an idea from the idea itself as copyright protects the former and not the latter. The doctrine is invoked whenever the ways of expressing an idea are so few that the expression and the idea seem to have `merged' to become essentially one and the same. In practice, however, the doctrine has been a failure especially in such cases when a copyright work and an alleged infringement are substantially similar in all relevant respects, i.e. when a defendant is most likely to raise the defence of merger, no court has yet devised a test to help distinguish where the idea ends and its expression begins. The end results are: a confusion in the law, an inability for practitioners to predict case outcomes, and an increase in litigation. It is argued that the reliance upon the idea-expression paradigm as an analytical tool is misplaced because its conclusory language is inadequate to the task. Given that copyright regulates the economics of an otherwise free market economy , courts should adopt a practical approach that expressly allocates resources between the two parties as well as within the larger economic system. A positive review of the relevant case law suggests that four factors are at work in these cases: (1) balance of costs, (2) ability to recoup costs; (3) method of operation; and (4) scope of the market place affected. Despite the fault of the merger doctrine, case outcomes generally reflect a judicious allocation of resources. The author seeks not to supplant the idea-expression gloss but to supplement it.

— Reproduced with modification from J intellec Prop Rights 1999, 4(4), 230-1

An odyssey through copyright's various defences. D Nimmer. N Y Univ Law Rev 1998, 73(1), 162-92.

It is rare that an issue of fundamental importance to copyright litigation goes wholly unaddressed. Yet that rare situation applies to the question of how courts should treat affirmative defences raised by `belated' defendants, i.e. those who claimed not to have committed the infringement itself (the `primary' defendants) but who are nonetheless sought to be held responsible on the theories of vicarious liability or contributory infringement. Should those defences inure to the benefit solely of the defendant who pleads them? Or should they be evaluated in the context of the primary claim of infringement, and thus radiate outward for the benefit of all defendants in the action? Although legions of cases confront such vicarious defences, they do so in wholly uncritical fashion _ some adopt the former approach, other the latter; their unifying point is that they fail to articulate any basis for drawing the distinction. Neither do the scholarly commentaries heat the issue, notwithstanding that it would seem to be essential to sound progress in the field. The case law's failure to address the disparity would give rise to no problems if only everyone's intuition invariably agreed as to which cases fit into which categories. Recently, the author for the first time ever disagreed with the evaluation of the affirmative defence of a related defendant by a particular court. The case in question is Religious Technology Centre II. Netcom On-line Communication Services, Inc. 907 F. Suppl.1361(N.D.Cal 1995), which rejected the primary defendant's fair use defence, and then when confronting the related defendant's summary judgement motion recalibrated the entire fair use equilibrium with respect to the circumstances of that new defendant. To evaluate the wisdom of that court's treatment of vicarious fair use defence, it is necessary to take several gigantic strides backwards and to articulate a framework for how related defendants may assert their affirmative defenses, whether personally or globally.

— Reproduced with modification from J intellec Prop Rights 1999, 4(4), 232

Networked patent information systems. Wld Pat Inf 1998, 20(2), 135-41.

The IBM Patent Server provides access to the bibliographic data and text of all claims of numerous patents issued by the United States Patent and Trademark Office (USPTO) from 1974 to date, plus some patents issued during 1971 to 1973. It currently supports searches through simple keywords, phrase, patent number and the use of Boolean operators. The searchable fields are: patent number, title, abstract, all claims, assignee, inventors and attorney/agent. All fields from the title down to the patent cited by the examiners as well as the full text of US patent specifications are also being made searchable. The patent references of twenty-two years are hyperlinked, allowing users to locate and view prior art by navigating through all the cited patents. The link is bidirectional. Users can access not only the patents referenced by the examiners, but also access later patents that reference the existing document. In addition, the surfer includes the information on the USPTO maintenance fee status of all patents. This provides users information about renewal status of patents.

NEWS

IPR should include traditional knowledge
The intellectual property rights should include traditional technologies and knowledge particularly in the areas of food and health security. For this purpose the provisions relating to Trade-related Intellectual Property Rights should be modified to include the principles contained in two of the articles of Convention on Biodiversity. This is one of the amendments India has proposed in the Unesco Draft Declaration on Science and Use of Scientific Knowledge. These proposals for amendments were to be taken up for discussion and adoption at the forthcoming World Science Congress in Budapest, Hungary. (The Hindustan Times 14 June 1999)

— Reproduced with modification from J intellec Prop Rights 1999, 4(5), p.306

New Internet Laws

The Swedish government has passed two pieces of legislation designed to protect users of the Internet from unwelcome invasion of privacy of unsuitable material and data protection. The Personal Register Act (October 1998) prevents any information about an individual being posted on the Internet without the persons permission, implementing the EU Date Directive. The second law, the BBS Act provides that an Internet service provider (ISP), who provides storage as well as access to services, must remove from the Internet a message which obviously contains about the instigation of rebellion, child pornography, racial agitation, description of violence, or which infringes copyright or other rights protected by copyright law. (WISTA Intellec Prop 2(14), 1999,5)

Page turner device patented

Shirley Berows of the West Midlands is patenting a simple but elegant idea (UK Patent no. GB 2 327 665) to help people with arthritis turn the pages of a book. Each page would have a magnetic tag at the bottom right hand corner. The reader would wear a magnetic thimble, and will be able to pull the page up and over without the need to grip it. The magnetic tag can be embedded in the paper at the time of printing, like the security strip in a bank note, or adhesive tags can be sold in packs for someone with nimbler fingers to stick on each page of an ordinary book. (New Scientist, 162 (2191) 1999,7)

Patenting acquires a software angle

With a software company having patented its package on the ground that this was a new way of doing business, the issue of patentability has acquired a new dimension. It has gone beyond just patenting life forms, raised by pharmaceutical ad biotechnology companies.

Mr. Praveen Anand, a patent attorney, said there was a need to discuss why almost 95% of all patents filed in India were, directly or indirectly, by multinational corporations (MNCs). He pointed out that over the 21-year period, 1970-91, while R & D expenditure doubled, only a few patents had been filed. The reasons for this could range from a lack of venture capital financing, ignorance, a language gap or a perception that the Indian patent system is weak. Mr. Anand also added that the scientific community in the country lacked faith in our patent system preferring to file overseas. Mr. Mohan Dewan, a trademark and patent attorney, while speaking at a seminar on Indian Patents Law: Approaches, organized by the Union Ministry of Industry, pointed out that the existing Indian patent system should protect MNCs, as they were the largest in filing patents. (The Economic Times 8 August 1999)

— Reproduced with modification from J intellec Prop Rights 1999, 4(5), p.307

Piracy laws strengthened in EU

In France, the European Parliament voted to significantly strengthen legislation on online piracy. Full backing was given to artists concerned by the spread of digital media such as the Internet. The assembly adopted almost all of the controversial amendments proposed by its legal affairs committee, including tougher measures on copies for personal use, teaching and scientific research made during Internet transactions.

The legislation which now goes to the fifteen European Union governments and then comes back to the parliament before being finally adopted sets out the basic principle that authors, performers, producers, and broadcasters have the right to authorize reproductions of their works and control how it is used in the digital era.

Among the Parliament's amendments are: (a) EU governments may allow consumers to make copies of texts or recordings, analog or digital, for their personal use but only if the right-holders receive `fair compensation'. Private copying of digital recordings that are protected by anti-piracy technologies would be banned, (b) Governments may allow individual to make copies to aid teaching or scientific research, but only if right-holders are compensated, (c) "Transient and incidental" copies such as those made automatically during Internet transactions are exempt from normal copying protection, but only if the use of the original work has been authorized by the right-holder or permitted by law, and (d) EU government must deter the manufacture and distribution of devices or components primarily designed to contract anti-copying or controlled access technologies. (WISTA Intellec Prop 2(13), 1999, 3)

— Reproduced with modification from J intellec Prop Rights 1999, 4(4), p.237.

WIPONET for better IPR administration

The World Intellectual Property Organization (WIPO) is working on a project called WIPONET to exploit the potential of information technology for addressing the problems faced in intellectual property rights administration by member-states and IP community.

The network will ensure exchange of updated information among member-states, IP community and WIPO. WIPONET will have primarily two types of services in phase I _ basic and IP-related. Basic services relate to providing dedicated Internet connectivity to IP offices, with secure end-to-end services in 171 member-states.National IP offices will be connected via a dedicated higher bandwidth backbone between the International Bureau (IB) of WIPO and ten technically appropriate locations, and will have 32 kbps or higher bandwidth.

WIPONET will also have extension to Trilateral (US Patents and Trademark Office, Japanese and European Patent Offices) frame relay and secure virtual private network (TSVPN) for exchange of priority documents between IB and TSVPN in a secured manner. TSVPN provides the facility for creating single exchange file for multifile documents. Data integrity and originator authentication are ensured via digital envelope to maintain data confidentiality.

The basic services of WIPONET will be available for e-mail, public Web access, Web hosting and publishing, file transfer facility, remote participation in WIPO meetings, confidential data exchange, and electronic mailing lists. A 24-hour helpdesk will be available with support provided in six languages.

The IP-related services will include access to intellectual property digital libraries, access to PCT services, distance learning, WIPO World-wide Academy and an arbitration centre. WIPONET deliverables for IP offices will have six windows _ NP upstations with DVD drives, MS Office, e-mail, browsers, anti-virus back-up, a printer, a scanner, security hardware and software, and a PC-video camera. WIPONET will be a direct provider of the minimum level of hardware equipment and services to ensure connectivity to Internet. It will be a facilitator for providing details on technologies and related standards. It will also define minimum modernization standards and provide an implementable mechanism through National Focused Action Plans and future WIPONET support services

The bids for implementing WIPONET had already been received by the International Bureau of WIPO and were likely to be finalized by September 1999. The objective of WIPONET is to derive the practical benefits from the project, especially for developing countries, so that the gap between the developing and the developed countries can be reduced substantially. (The Financial Express, 12 July 1999)

— Reproduced with modification from J intellec Prop Rights 1999, 4(5), p.305

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Information Today & Tomorrow, Vol. 19, No. 2, June 2000, p.78-p.21
http://itt.nissat.tripod.com/itt20002/ipr2k02.htm