Over at Trademarkia, the big trademark search engine, there is an illuminating section suitable for Friday afternoons. You can look up what they describe as the ‘biggest trademark bullies‘ by class. Or consult the list of biggest victims. Moral of the story? Don’t use ‘Live’ or ‘Strong’ in your mark, or a charity will pursue you – The Lance Armstrong Foundation.
Cory Doctorow and ‘The Copyright Thing’
If you’ve read a book by Cory Doctorow, you may be familiar with what he describes as his “pretty unorthodox views about copyright”. If you haven’t read one, or better several, you’ve been missing out. If you head over to Cory’s site and download a free version of a book from it you will find this viewpoint in it:
THE COPYRIGHT THING
The Creative Commons license at the top of this file probably tipped you off to the fact that I’ve got some pretty unorthodox views about copyright. Here’s what I think of it, in a nutshell: a little goes a long way, and more than that is too much.
I like the fact that copyright lets me sell rights to my publishers and film studios and so on. It’s nice that they can’t just take my stuff without permission and get rich on it without cutting me in for a piece of the action. I’m in a pretty good position when it comes to negotiating with these companies: I’ve got a great agent and a decade’s experience with copyright law and licensing (including a stint as a delegate at WIPO, the UN agency that makes the world’s copyright treaties). What’s more, there’s just not that many of these negotiations — even if I sell fifty or a hundred different editions of this book (which would put it in top millionth of a percentile for novels), that’s still only fifty or a hundred negotiations, which I could just about manage.
I /hate/ the fact that fans who want to do what readers have always done are expected to play in the same system as all these hotshot agents and lawyers. It’s just /stupid/ to say that an elementary school classroom should have to talk to a lawyer at a giant global publisher before they put on a play based on one of my books. It’s ridiculous to say that people who want to “loan” their electronic copy of my book to a friend need to get a /license/ to do so. Loaning books has been around longer than any publisher on Earth, and it’s a fine thing.
Copyright laws are increasingly passed without democratic debate or scrutiny. In Great Britain, where I live, Parliament recently passed the Digital Economy Act, a complex copyright law that allows corporate giants to disconnect whole families from the Internet if anyone in the house is accused (without proof) of copyright infringement; it also creates a “Great Firewall of Britain” that is used to censor any site that record companies and movie studios don’t like. This law was passed in 2010 without any serious public debate in Parliament, rushed through using a dirty process through which our elected representatives betrayed the public to give a huge, gift-wrapped present to their corporate pals.
It gets worse: around the world, rich countries like the US, the EU and Canada negotiated secret copyright treaties called “The Anti-Counterfeiting Trade Agreement” (ACTA) and “Trans-Pacific Partnership” (TPP) that have all the problems that the Digital Economy Act had and then some. The plan was to agree to them in secret, without public debate, and then force the world’s poorest countries to sign up for it by refusing to allow them to sell goods to rich countries unless they do. In America, the plan was to pass it without Congressional debate, using the executive power of the President. ACTA began under Bush, but the Obama administration has pursued it with great enthusiasm, and presided over the creation of TPP. The secret part of the plan failed — ACTA ran into heavy opposition in Congress and has been rejected by Mexico and the European Parliament — but the treaty isn’t dead yet, has supporters on both sides of the house who keep attempting to bring it back under a new name. This is a bipartisan lunacy.
So if you’re not violating copyright law right now, you will be soon. And the penalties are about to get a lot worse. As someone who relies on copyright to earn my living, this makes me sick. If the big entertainment companies set out to destroy copyright’s mission, they couldn’t do any better than they’re doing now. Just as this book is coming into print (February, 2013), the big American ISPs and big American entertainment companies are rolling out “six strikes” — a voluntary plan to harass people accused, without proof, of downloading, and ultimately, to disconnect them from the net. So, basically, /screw that/.
Or, as the singer and American folk hero Woody Guthrie so eloquently put it:
“This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”
Cory Doctorow is a science fiction author, activist, journalist and blogger — the co-editor of Boing Boing and the author of young adult novels like PIRATE CINEMA and LITTLE BROTHER and novels for adults like RAPTURE OF THE NERDS and MAKERS. He is the former European director of the Electronic Frontier Foundation and co-founded the UK Open Rights Group. Born in Toronto, Canada, he now lives in London. So what do you think? Leave a comment below.
Top Toy For Your Dog – and it’s patented
If you’re searching for a new toy for your dog, what do you look for? Something novel? Something which is not obvious? Of course you would and your wish has been granted:
An apparatus for use as a toy by an animal, for example a dog, to either fetch carry or chew includes a main section with at least one protrusion extending therefrom that resembles a branch in appearance. The toy is formed of any of a number of materials including rubber, plastic, or wood including wood composites and is solid. It is either rigid or flexible. A flavoring (scent) is added, if desired. The toy is adapted to float by including a material therein that is lighter than water or it is adapted to glow in the dark, as desired, by the addition of a fluorescent material that is either included in the material from which the toy is made or the flourescent (sic) material is applied thereto as a coating. The toy may be segmented (i.e., notched) so as to break off into smaller segments, as is useful for smaller animals or, alternatively, to extend the life of the toy. Various textured surfaces including camouflage colorings are anticipated as are straight or curved main sections. The toy may be formed of any desired material, as described, so as to be edible by the animal.
That’s the Abstract for United States Patent 6360693. So to sum that up, a stick made of wood to throw for a dog is described. “Clearly, such an apparatus would be a useful and desirable device.”
Back to the drawing board for my new device, an ‘Ossiform Chewing Toy For Canine Species Fabricated in an Osseous Material’.
Is Bioprospecting Legitimate Research or Biopiracy?
by Graham Dutfield
(originally published 26 May 2003 on scidev.net)
Summary
A growing number of critics of ‘bioprospecting’ complain that companies often fail to adequately compensate holders of traditional knowledge, and that patents on products developed in this way are actually a form of intellectual piracy.
What is bioprospecting?
‘Bioprospecting’ is a word that has recently been coined to describe the centuries-old practice of collecting and screening plant and other biological material for commercial purposes, such as the development of new drugs, seeds and cosmetics.
Companies that sponsor bioprospecting expeditions, in particular from the pharmaceutical or food industries, hope to find information from the biological resources they collect that will lead to new products, for example novel drugs. Some of these expeditions also seek to acquire useful information about such resources from local people including, in the case of drugs, native healers.
It can also be argued that bioprospecting also plays a wider role in encouraging the preservation of biodiversity. Many conservationists, for example, believe that by highlighting and — hopefully — confirming the economic potential of a wide range of biological resources, bioprospecting expeditions can create incentives to protect tropical forests, coral reefs and other biologically diverse and threatened ecosystems.
At the same time, however, a growing number of critics complain that bioprospectors often fail adequately to compensate the countries and communities that provide access to their resources and associated traditional knowledge (TK). Such critics argue that patents on products developed as a result of the efforts of ‘bioprospectors’ are sometimes based so closely on TK that they are in fact a form of intellectual piracy.
What counts as biopiracy?
The word ‘biopiracy’ was coined by the North American advocacy group, Action Group on Erosion, Technology and Concentration (ETC Group) — formerly known as Rural Advancement Foundation International — to refer to the uncompensated commercial use of biological resources or associated TK from developing countries, as well as the patenting by corporations of claimed inventions based on such resources or knowledge.
ETC Group and others allege that such patents are wrongly awarded. This could be due to a number of factors: the examiners may not have enough time and resources to conduct ‘prior art’ searches; the required standards of inventiveness being applied to patent applications may be too low; or the companies or scientific institutions applying for the patents may deliberately fail to cite the prior art upon which their inventions were based.
Groups such as ETC claim to have uncovered many cases either of patents being acquired for ‘inventions’ that are closely based on TK (such as the pesticidal uses of seeds from the neem tree), or of Plant Breeders’ Rights (PBR) certificates — a kind of IPR system for plant varieties — being awarded for plant varieties that are virtually identical to ‘folk varieties’ of the same plants. ETC Group claims to have identified over 100 cases of PBR protection being sought for varieties acquired from international genebanks, many of which they allege are folk varieties that have been subjected to little, if any, additional breeding. [1]
The bioprospecting/’biopiracy’ debate has pitted corporations against a number of developing country governments and indigenous peoples, who claim that they are being exploited by such practices. It has also led to tensions between academic researchers, who have long studied biological resources for primarily scientific reasons — and maintain that ethically sound and non-exploitative bioprospecting is possible — and environmental NGOs. [2] Indeed, some of the latter take an extreme view, dismissing all bioprospecting as biopiracy by another name.
Patenting traditional knowledge
In principle, application of intellectual property rights to biological resources should not be exploitative, as anyone has the right to apply for — and enjoy the fruits of — an invention based on a biological discovery. In practice, however, patent rules tend to favour corporations rather than indigenous communities. A native healer, for example, may have developed a therapeutic plant extract or herbal formulation. But acquiring a patent for it would be extremely difficult, first because applications usually require inventions to be described in technical language, and secondly because the cost of applying for a patent is likely to be prohibitive.
At the same time, while most TK cannot be patented due to lack of novelty, some researchers argue that they have added an ‘inventive step’ that makes their version of a product patentable. Such arguments are frequently accepted as legitimate by patent offices. For example, the pharmaceutical giant Pfizer has obtained a licence to manufacture the anti-obesity drug P57 — the active ingredient of the Hoodia cactus — originally patented by the South African Council for Scientific and Industrial Research (CSIR). In March 2002 — after threatened legal action — the CSIR reached a preliminary agreement to share any benefits arising from the commercialisation of P57 with San bushmen, who claim they have been using the cactus to stave off hunger for thousands of years. [3]
Challenges to patents on TK have been successful in the past. For example, in May 2000, the European Patent Office revoked a patent covering the fungicidal properties of neem tree seeds due to the absence of an inventive step. And a US patent awarded in 1995 to the University of Mississippi for the use of turmeric powder in wound healing — a property well-known in India — was revoked following a legal challenge by the Indian government.
Ironically, the challenge to the turmeric patent would not have succeeded if it had relied on the argument that the ‘invention’ was common knowledge in India, since US patent rules do not recognise foreign undocumented knowledge as ‘prior art’ if it is not also known in the United States. It was only when the Indian government provided written proof (including an ancient Sanskrit text) that the patent was revoked due to lack of novelty. [4]
Rules on the eligibility of ‘novel’ biological material for patent protection are quite demanding. Usually it is not sufficient simply to describe how a plant compound exerts a therapeutic effect, or even what this compound is. Meeting requirements of ‘novelty’ and ‘inventive step’ — or ‘non-obviousness’ in the United States — means that the applicant usually needs to produce at least a synthetic version of the compound or a purified extract. On these grounds, many scientists deny most — if not all — allegations of biopiracy, arguing that the patent is intended to reward the extra work necessary to produce a patentable invention from a biological resource, not the initial discovery of the resource itself.
Critics, however, challenge this argument by claiming that the most creative achievement was frequently the initial discovery of the useful characteristic of the resource by indigenous community members, as well as their development of techniques and procedures to apply it. The subsequent isolation and elucidation of the active compound by laboratory scientists, they argue, can be relatively routine tasks. In addition, they point out that some national patent offices do not conduct thorough examinations of patent applications. Consequently, patents that do not describe genuine inventions are sometimes granted mistakenly.
Legislating to protect indigenous communities
In recent years, these issues have been debated in several international forums under the auspices, for example, of the Convention on Biological Diversity, the World Trade Organisation, the World Intellectual Property Organisation (WIPO), and the UN Food and Agriculture Organisation.
A number of policy measures are being considered to ensure that bioprospecting is regulated in ways that benefit all the stakeholders. Proposed measures include the introduction of ‘access and benefit sharing’ legislation that require bioprospectors to negotiate access to genetic resources with governments and indigenous peoples, and to share any financial benefits from these activities with such communities. The Philippines, for example, already has such legislation. [5]
In addition, several countries, such as India, have proposed that patent applications for inventions resulting from bioprospecting expeditions should indicate the source of biological material on which the invention was based, and also include documentary evidence that the provider country had given its prior informed consent to the collection. [6] In fact, Costa Rica and member states of the Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela) already include both requirements in their legislation.
Another approach has been for individual countries to develop legislation specifically designed to protect indigenous knowledge, which is currently largely excluded from patenting on the grounds of lacking novelty. This might be done, for example, by documenting TK that is not publicly available and providing access in exchange for monetary and other benefits. Peru has recently passed legislation based upon such an approach. [7]
It remains uncertain where international debates on this issue are heading. But international organisations increasingly consider it necessary to provide forums to discuss appropriate solutions. WIPO, for example, established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in 2000. And the state parties to the CBD have set up a new body, the Working Group on Access and Benefit Sharing, which first met in Bonn in October 2001.
All parties are hoping that such meetings will be able to develop ways of reconciling the often conflicting scientific, commercial and social implications of bioprospecting. Equally, all agree that achieving this goal will not be easy.
The author is based at the Queen Mary Intellectual Property Research Institute, University of London.
(update by editor, 2012: Graham Dutfield is now at Leeds)
References
[1] Doing Well by Doing Little or Nothing? A Partial List of Varieties under RAFI Investigation. Rural Advancement Foundation International, 1998.
[2] Political uncertainty halts bioprospecting in Mexico. Nature 408, 278 (2000).
[3] Bushmen to share gains from ‘slimming cactus’. SciDev.Net, 27 March 2002.
[4] Siddhartha Prakash (1998) India. Part 2: Agriculture (Trade and Development Case Studies). WTO / World Bank Trade and Development Centre.
[5] Graham Dutfield (2000) Intellectual Property Rights, Trade and Biodiversity: Seeds and Plant Varieties. Earthscan Books, London.
[6] WTO Committee on Trade and Environment / Council for TRIPS (2000) Protection of Biodiversity and Traditional Knowledge: The Indian Experience. Submission by India.
[7] National Institute for the Defence of Competition and the Protection of Intellectual Property (2000) Proposed Regime of Protection of the Collective Knowledge of Indigenous Peoples (in Spanish only).
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U.S. Claims Global Jurisdiction of .net and .com Web Sites: Is .edu Next?
By Jim Farmer
On January 13, a UK magistrate ruled a 23-year-old student can be extradited to the United States for running a website posting links to pirated TV shows and films; this despite significant doubts over whether such sites break any UK laws. He has become the “guinea pig” of expansive U.S. justice.
About four years ago Richard O’Dwyer, a computing student at Sheffield Hallam University, began a website registered as TVSHACK.net. It “posted links to pirated material. It did not directly host any files, which meant, according to the student’s lawyers, that it acted as little more than a Google-type search engine and did not breach copyright.” The US Immigration and Customs Enforcement (ICE) seized the domain name in July 2010 and subsequently TVSHACK.cc in November. (Seizure must be challenged with ten business days, difficult for someone outside the U.S.).
The defence team pointed out that the only UK prosecution of a similar site, TV-Links, ended last year with the case being thrown out. [In Europe, copyright infringement requires that the copyrighted material themselves be hosted on the website in question.] O’Dwyer has never been to the U.S. In his case, UK authorities did not attempt to prosecute for copyright infringement. The U.S. Department of Justice argues the U.S. has world-wide jurisdiction over all .com and .net domain registrations. Both registries are operated by Verisign under contract with the U.S. Department of Commerce’s National Telecommunications and Information Administration. Verisign is based in Virginia.
In July, ICE’s “assistant deputy director told the Guardian that ICE would now actively pursue websites similar to TVShack even if their only connection to the US was a website address ending in .com or .net.” Those familiar with the operation of the Internet know that traffic between two U.K. websites would not flow through the U.S. The domain names—TVShack.net for example—would yield only an Internet Protocol numeric address that determines routing of the message traffic.
In addition to arguing that registration of a domain name in the U.S. is sufficient to give jurisdiction, ICE also argued jurisdiction because the referenced materials had a U.S. copyright. Unlike the U.S. interpretation of the law, an index site—one that refers to rather than contains material—does not violate European law. In a similar case:
Judge Ticehurst gave his judgment, announcing that TV-Links had won their case. He ruled in detail for the first time in a Crown Court in relation to Section 17 of the European Commerce Directive 2000, stating that Section 17 indeed applied and afforded TV-Links a complete defense in criminal proceedings in England and Wales for their linking to other web sites. In a nutshell and to coin a familiar phrase, the site was deemed a mere conduit of information
But on January 13, the UK district judge, Quentin Purdy, ruled that O’Dwyer should nonetheless face trial in the U.S. “There are said to be direct consequences of criminal activity by Richard O’Dwyer in the USA, albeit by him never leaving the north of England,” Purdy said. “Such a state of affairs does not demand a trial here if the competent UK authorities decline to act, and does, in my judgment, permit one in the USA.”
Now the extradition treaty itself has been criticized. The Daily Mail reported:
Former Liberal Democrat leader Sir Menzies Campbell yesterday attacked efforts by the U.S. to extradite a British computer student for trial.
The QC said the extradition treaty between Britain and America was “never intended” for people like Richard O’Dwyer, whose offences are not even a crime in this country.
Sir Menzies’ comments have extra weight because he is leading a review of the UK’s extradition arrangements on behalf of Liberal Democrat leader Nick Clegg.
The U.S. approach may have some unintended consequences:
- Websites may re-register outside U.S. jurisdiction and practices, especially when, as in the UK, indexing sites are not illegal. There already are examples.
- Websites that do provide copyrighted materials—Bit Torrent sites are estimated to provide 50% of movies and music subject to copyright—will begin to encrypt these transmissions. Early this month Torrent Privacy was introduced. The software addition permits any Bit Torrent site to encrypt their transmissions. The software uses the same encryption technology and level of security during transmission typical of websites that handle financial transactions, including ordering goods.
- There is now are conflicts between U.S. law and the provisions of U.S. extradition treaties as practiced and the European Union Directives on electronic commerce, copyrights in the information society, enforcement of intellectual property rights and processing of personal data and the privacy in the electronic communications sector taken collectively.
- The O’Dwyer case may be motivation for countries to review their free trade agreements and extradition treaties with the U.S. The protection of U.S. intellectual property has been a major provision of recent free trade agreements with Panama, Columbia, and Korea.
U.S. Internet Domain Registries have become an enforcement agent. In a December Intellectual Property Magazine interview Verisign’s Pat Kane said: “I think the registry operators will always have to live within the laws of the jurisdiction in which they operate in. … When it comes to content take down, the reality is that the registry operator doesn’t end up taking down the content. We basically remove a route that gets to that content, and if you want to have real effectiveness from a take down it really must go to the hosting company. For a lot of websites out there, there are multiple routes than go through multiple top-level domains.” He was careful to say that “we don’t identify [infringing] content and we don’t act upon content.”
Germany has taken a different path to protect intellectual property. Indexing is not a crime. The copyright holder first identifies specific infringement, and then the copyright holder may seek a reasonable license fee. For the major U.S. studios this fee has been between 500 and 1000 Euros or US$ 650-1,300 (unlike the multi-million dollars claims in the U.S.) The typical response has been to pay the license fee. This avoids the frequent intense enforcement and litigation found in the U.S.
Most U.S. colleges and universities have domain names registered with EDUCAUSE using .edu as their top-level domain. EDUCAUSE operates the education domain under an agreement with the U.S. Department of Commerce. On September 11 of this year it was extended through 2016. EDUCAUSE is subject to the same enforcement actions as Verisign.
Internet search providers and higher education are vulnerable to demands for enforcement. All of these websites have, intentionally or not, material subject to copyright. Faculty and students, intentionally or not, may post materials subject to copyright. A copyright holder can seek to “take down” a site that, under current U.S. practice, only points to a source. For example a posted syllabus can point to copyrighted articles, books, movies, audio, and even, under U.S. law, blogs. Institutions need to have a way of removing content and links to external websites before court action seizes the domain name and deletes references to the site by U.S. based search engines.
About
Jim Farmer is an engineering economist at instructional media + magic inc. His interests include educational technology, academic research, and information standards. He also writes for Intellectual Property Magazine. For more information, see his profile page.
See original article and also U.S. Copyright Infringement – U.S. Strikes in New Zealand
