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The writing is on the wall: China is the world second largest economy and the growth rate has slowed sharply. The wages are rising, so that the fabled army of Chinese cheap labor is now among the most costly in Asian emerging economies. China, in the last thirty years has brought hundreds of millions of people out of poverty, but this miracle would stall unless China can undertake another transformation of becoming an innovation nation.
The Economist has recently popularised the notion that patents are bad for innovation. Is this right? In my view, this assessment results from too high an expectation of what should be achieved by patents or other intellectual property. Critics of intellectual property rights seem to think that they should be tested by whether they actually increase creativity.
When “The Case of the Black Macaque” scooped media headlines this summer, copyright was suddenly big news. Here was photographer David Slater fighting Wikipedia over the right to disseminate online a portrait photo of a monkey which had, contrary to all expectations and the law of averages, managed within just a few jabs of a curious finger, to take a plausible, indeed publishable “selfie”. Did Slater have the right to control the image since it was his camera on which it was recorded, or was it free for the world to use on the basis that he was not its author, the true creator being the crested black macaque who, for all her charm and dexterity, was neither a real nor legal person and therefore disentitled to any legal rights?
Disputes like this make great headlines, but cause even greater headaches for the intellectual property (“IP”) community. Most have little legal substance to them and are interesting only because of their facts, but that’s what drives journalists’ involvement and readers’ interest, making it easier for the media to attract paying advertisers. By the time they pass through the media machine these tales are frequently mangled to the point at which IP lawyers can scarcely recognise them. In one recent case involving a well-known chocolate brand, a company was said to have patented its copyright in England in order to sue a business in Switzerland for trade mark infringement. To the layman this may sound fine, but it’s about as sensible to the expert as telling the doctor that you’ve got a tummy ache in your little finger because your cat ate the goldfish last night. We IP-ers try to explain the real story, but monkeys and selfies are far more fun than the intricacies of copyright law and, by the time we’ve tried to put the record straight, the next exciting story has already broken.
“By the time they pass through the media machine, these tales are frequently mangled to the point at which IP lawyers can scarcely recognise them”
The next selfie episode to hit the headlines, far from featuring a portrait, was quite the opposite end of the anatomical spectrum. Model Kim Kardashian objected that Jen Selter’s selfies constituted copyright infringements of photos which had been taken of Kim Kardashian’s bottom (occasionally colloquially described as her “trademark” bottom, but not yet registered in conventional legal fashion). Here the only questions IP lawyers address are (i) are the pictures of Kim Kardashian’s backside copyright-protected works and (ii) does the taking by Jen Selter of selfies of her own posterior constitute an infringement? For press and public, however, the issue morphs into the much more entertaining, if legally irrelevant, one of whether a person has copyright in their own bottom.
Self-portrait by the depicted Macaca nigra female. Public domain via Wikimedia Commons
There are many IP rights apart from copyright and they all have their macaque moments. Trade mark law is full of episodes of evil corporations stealing words from the English language and stopping anyone else using them. Patent law (in which the legal protection of body parts very much smaller than bottoms, such as sequences of DNA, does have some relevance) is garnished with tales of greed and intrigue as people seek to steal one another’s ideas and avariciously monopolise them. Confidentiality and the right to publicity have their own rip-roaring encounters in court as amorous footballers who are “playing away” seek to hush up their extramarital (that’s one word, not two) exploits. Meanwhile, the women with whom they shared moments of illicit intimacy seek to cash in on their news value by selling them to the highest bidder. For IP lawyers the legal issues are serious and, when cases come to court, they achieve precedential status that governs how future episodes of the same nature might be handled. For press and public, the issues are different: who is the footballer, who is the woman — and are there any pictures (ideally selfies)?
Seriously, the rate at which not just eye-catching tales like those related above but also far less glamorous tales result in litigation, or even legislation, makes it hard-to-impossible for practitioners, academics, administrators and businessmen to keep abreast of the law, let alone understand its deeper significance for those affected by it: businesses, governments, consumers, indeed everyone. Publishers like OUP are increasingly raising the tempo of their own responses to the IP information challenge, utilising both formal and informal media, in print and online. Since legal publishing is largely reactive, we can narrow the gap between the time an exciting new event or legal decision hits the popular media and the point at which we can strip it down to its bare legal essentials. But it will take more than a little monkeying around before we can close that gap completely.
Featured image credit: Camera selfie, by Paul Rysz. CC-BY-2.0 via Flickr.
How does the law operate when intellectual property rights overlap? When a creative output, be it a photograph, a piece of music, or any artistic work, is protected by multiple intellectual property rights such as trademark and copyright, or a patent and data protection, it can be challenging to manoeuvre through the overlapping rights. Intellectual property law seeks to defend the rights of the artistic creator, and protects the expression of ideas, but when these rights overlap in both law and practice, how do they interact?
This is a question that Neil Wilkof, member of the Bressler Group, special IP counsel to Herzog, and Fox & Neeman, Israel, was faced with when a student asked him how overlapping trademarks and copyright might operate. Here, Wilkof discusses how this question might be tackled:
In practice, intellectual property rights very rarely occur independently; there is usually an overlap. Here, Wilkof explains how the disjuncture between written law and practice can be addressed by looking at intellectual property from a practical, rather than theoretical, perspective:
With the issues of overlapping intellectual property rights in mind, Wilkof goes on to discuss how this area of law might change and develop in the future:
Featured image credit: Lady Justice, at the Old Bailey, by Natural Philo. CC-BY-SA-3.0 via Wikimedia Commons.
Intellectual property rights (IPRs) and the regimes of protection and enforcement surrounding them have often been the subject of debate, a debate fuelled in the past year by the increased emphasis on free-trade negotiations and multi-lateral treaties including the now-rejected Anti-Counterfeiting Trade Agreement (ACTA) and its Goliath cousin, the Trans-Pacific Partnership Agreement (TPPA). The significant media coverage afforded to these treaties, however, risks thrusting certain perspectives of IPR protection and enforcement into the spotlight, while eclipsing alternative, but equally crucial voices that are perhaps in greater need of legitimate dialogue to safeguard their own collection of intangible rights. Caught in the vortex of inadequate recognition and ineffective protection, are the communal intellectual property rights of indigenous communities, centred on traditional knowledge (TK), traditional cultural expressions (TCE), expressions of folklore (EoF), and genetic resources (GR).
The fundamental incompatibility between current intellectual property rights regimes and the rights of indigenous peoples stems largely from the lack of understanding of the driving forces that have led to the development of traditional knowledge, traditional cultural expressions, expressions of folklore, and genetic resources – that of the protection of whole indigenous cultures through the preservation of the traditional knowledge acquired by these communities as a whole.
The issues are complex. Professor James Anaya’s 2014 keynote speech at the 26th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO highlighted the differences governing the intangible rights of indigenous peoples generally, and why these world views have so often been left out of the current mainframe of intellectual property rights. Whereas, the majority view of IPRs tends to focus on the rights of the individual and their protection as such, indigenous cultures are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IPRs to one or a few individuals.
Apache Dancers at the exhibit ‘Dignity – Tribes in Transition’. United States Mission Geneva Photo: Eric Bridiers. CC-BY-ND-2.0 via US Mission Geneva Flickr.
As Professor Anaya articulates and the other contemplate, the similarities between the inadequacies of the protection of tangible rights of indigenous peoples (e.g. indigenous land rights) and that of their intangible rights protection (including intellectual property rights) tend to stem from a common source – the failure to acknowledge the “inherent logic of indigenous peoples’ world views”.
Perhaps the solutions lie not just in finding ways to include indigenous intellectual property rights in current IPR regimes, but through the facilitation of an entire paradigm shift to capture the nuances of these issues both effectively and precisely. How, for instance, can indigenous IPRs be valued commercially, and how may adequate compensation models be developed in exchange for the commercial use of these rights? A key to increasing the recognition of the inherent value of indigenous IPRs within their traditional cultural settings may lie in developing methods to properly value this worth in tangible terms. What seems necessary is a model to adequately measure the significance of indigenous IPRs, starting at the source (the indigenous community), and finding ways of translating this value into benefit systems that can be returned to the communities from which the IPRs were sourced. Hence recognition is attributed to the crucial part these IPRs play within the cultures from which they are derived.
The strength of intellectual property law lies in its ability to meet the demands of a frenetically changing world, thus affording it vast amounts of power in shaping the law of the future; but this brings with it the challenge – can that power be harnessed to adequately protect rights of the past? Even if the answer is in the affirmative, it does not necessarily follow that the purpose of intellectual property rights protection should be to reduce IPRs to protectable commodities solely for the purpose of commercial exploitation. Protection of IPRs might be secured for any number of reasons, including the recognition of the right for ownership of those rights to be retained within the community. IPRs thus have the capacity to function both as shields and swords. Such weaponry however brings with it obligations: “With great power, comes great responsibility.”
Keri Johnston and Marion Heathcote are the guest editors of the Journal of Intellectual Property Law & Practice special issue on “The Quest for ‘Real’ Protection for Indigenous Intangible Property Rights”. The authors would like to thank Mekhala Chaubal, student-at-law, for her assistance. It is reassuring to know that a new generation of lawyers is willing and able. Keri AF Johnston is managing partner of Johnston Law in Toronto and Marion Heathcote is a partner with Davies Collison Cave in Sydney.
The Journal of Intellectual Property Law & Practice (JIPLP) is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.
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I can guarantee that you're not reading this on FaceBook. Why? I've stopped blogging there.
I love FaceBook. It has a great design and tools that make it much easier to use than MySpace. I've connected with hundreds of old friends and new readers there. One of the features I loved about it was the ability to directly stream this blog into my FB account.
I feel like FB is trying to have it both ways; writing the legal TOS language to give them blanket access to content, should they one day want to produce, oh say, a book of Best Blogs of 2009. Or a CD with Cutest Baby Photos Ever. Or Frat Guys Gone Wild and Photographed While Unconscious. At same time, they get to act all surprised and offended, "What! We weren't gonna do that. No way!" and refuse to change the legal language that would make the issue go away.
The New York Times today quotes writer Sasha Frere-Jones as saying that FaceBook CEO Mark Zuckerman's response to the protest "is just the modern version of ‘Ignore the fine print, ma’am, just sign here,'”
If Zuckerman truly believes what he said in the Times article, that "the philosophy “that people own their information and control who they share it with has remained constant," then he can very easily tell the company's lawyers to tweak the TOS language to reflect that.
Come on, Mark. You know it's the right thing to do. I don't have anything against good business models that turn a profit for entrepreneurs. I adore capitalism. But when you start putting your sticky fingers on other people's intellectual property, then you're turning into a Robber Baron. You're better than that. Fix the TOS.
Until that happens, you can find this blog on LiveJournal and MySpace.
And now, back to writing questions.
You wrote: What do you read, outside of researching and work?
I'm reading and reading an incredible book of poetry that I recommend to everyone: Blood Dazzler by Patricia Smith I was lucky enough to hear her speak at NCTE in San Antonio (our paths crossed at the National Book Awards, too, but we didn't get a chance to talk). I think she's one of the most talented poets writing today.
In fiction, I'm about to start Soul Enchilada, by David Maciness Gill. I read more non-fiction than fiction (I don't want too many other fictional voices in my head when I'm writing, that's why.) I just finished Eden's Outcasts:: The Story of Louisa May Alcott and Her Father and now I'm reading Edith Wharton, which is, yes, a wonderful biography of Edith Wharton.
Before I get to work, a couple of people inquired about Number One Son based on yesterday's photo. He is almost 17, but don't get your hopes up. He has a wonderful girlfriend and is not looking elsewhere.
![By Self-portrait by the depicted Macaca nigra female. See article. (Wtop.com) [Public domain], via Wikimedia Commons](http://blogoup.electricstudiolt.netdna-cdn.com/wp-content/uploads/2014/12/Macaca_nigra_self-portrait_large-628x744.jpg)
