Wednesday, November 25, 2009

Act against ACTA Secrecy

The governments of the United States, the 27 member countries of the European Commission, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, and Mexico are negotiating a trade agreement named the Anti-Counterfeiting Trade Agreement (ACTA).  Despite the name, the agreement is designed to address not only counterfeiting, but a wide range of intellectual property enforcement issues, including civil and criminal enforcement, IPR in the Digital Environment, etc.. Thus, ACTA seems to be not just a simple trade agreement but something with much wider ramifications.

In most multi-lateral negotiations, generally, sunlight is usually considered the best disinfectant, mainly because secrecy cannot really be maintained over a long period. However, in this case, the specific details of ACTA have largely been kept secret. The United States Trade Representative (USTR) has refused to release even the agenda and lists of particpants for the June 2008 ACTA negotiating sessions. For over two years, the U.S. government has claimed the negotiations can be shielded from disclosure under laws protecting the national security of the United States. Two senators, Senators Bernie Sanders and Sherrod Brown have written to USTR, asking that the ACTA text be made public. Then, in response to sustained pressure for openness, the Obama administration began inviting lobbyists, corporate law firms and big companies to see the "national security" secret documents under non-disclosure agreements that by contract prohibit public criticisim or discussion of the ACTA text. 

I think this makes the secrecy even worse -- the fact that only interested pressure-groups are being allowed to see it and not the general public at large makes it seem that a conspiracy against the interests of the people who are kept in the dark (WIPO, developing countries, NGOs) is being cooked. More specifically, there is no evidence so far that ACTA contains safeguards embodied in Articles 1, 6, 7, 8, 40 and 44.2 of TRIPS, which together protect the public interest.  Further, the very fact that there is a different enforcement mechanism (not really necessary as there is a well-negotiated mechanism in TRIPS Articles 41, 44.1, 45, 46, 47, 50, and 61) gives rise to fears that the new provisions may be more restrictive or undemocratic in their impact.

The Australian Government and the Canadian Government defended the secrecy in an identically worded statement, thus:"A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."

I think this secrecy is uncomfortable, and unjustifiable. Until the ACTA, nearly all global negotiations on multilateral intellectual property norms were comparatively much more open and transparent. See these documents 1 2 3 that lay down the extent of transparency in other multi-lateral negotiations.

However, maintaining secrecy is very difficult. There have been leaks of the ACTA text, which seem to suggest that the concerns over the lack of transparency are justified, in that they seem to bend to copyright pressure groups in imposing copyright industry demands on the global Internet, that will impose policing and infringement protection responsibilities on ISPs in the signatory countries. Worse is in store. And these represent only a minuscule portion of the text that has been leaked. What else lurks beneath is a real concern.

Why should India bother about ACTA?
As this commentator puts it, "Because ACTA is intended to create new global international IP enforcement standards, including these provisions will allow US negotiators to achieve what they have not been able to do to date – ensuring that the US's overbroad implementation of the WIPO Internet Treaty TPM obligations becomes the global standard."

India must be bothered about anything that might get pushed down its throat without its consultation or involvement. That's why.

Tuesday, November 24, 2009

Strong IPR regimes counterproductive for technology transfers

Technology transfers to developing countries for climate control related technologies are not possible due to their weak IPR regimes. This oft-expressed notion has been called into serious question by a 64-page Discussion Paper titled Emerging Asia contribution on issues of technology for Copenhagen jointly authored by representatives of 5 countries' Research Institutes. They evaluated the domestic status and transfer of 3 key mitigation technologies, viz. clean coal, solar power and biofuels, to China, India, Indonesia, Malaysia and Thailand.

They point out that Malaysia and Indonesia have strong IPR regimes, but yet have not benefitted from technology transfers of these clean technologies.

They argue that strong IPR regimes may even hinder developing countries' access to technology. Where patents are honoured, as most patents are held by foreign companies, it stifles local research and prevents adaptation of technology to local needs. 

These are strong arguments indeeed, and their eventual recommendation is even more startling: TRIPS allows individual countries to override patents in a national emergency, so it could be worthwhile to declare climate change a national emergency and climate change mitigation as a public good.

This report should set the cat among the pigeons if any of the developing countries were to follow their recommendation, and their cogent arguments backed by data will surely be the topic of heavy discussion at Copenhagen later this year.


Monday, November 23, 2009

File Sharing and Copyrights

A new chapter has been written in the File Sharing/ Peer-to-peer networking legality saga.

Pirate Bay, one of the most popular Bit-Torrent trackers, which has been going strong for 5 years, has been forced to close down after a Swedish District Court decision that found them guilty of assisting copyright infringement. Their defences were two-fold: (a) they never really hosted any of the files, but only tracked where they were hosted. (b) Even Google and other search engines provide direct access to illegal .torrent files, so there was nothing specially illegal about what they did -- which is, maintain a sophisticated tracker that leads users to where the .torrent files are hosted.

In the aftermath of the verdict, several private BitTorrent trackers including Nordicbits, Powerbits, Piratebits, MP3nerds and Wolfbits, have closed down in what could be the greatest voluntary tracker collapse ever.

The MPAA had claimed damages of $15 Mn against Pirate Bay but the awarded damages were much lower, though substantial. In a parallel suit, the MPAA has won $110 Mn from TorrentSpy, another .torrent tracker site, in a US federal court.

I am now waiting to see if the MPAA also, having tasted blood, goes behind Google.

Proactively chasing trademark and brand merchandise rights infringers

Private detectives may be used to carry out checks on violation of Intellectual Property Rights (IPRs) on official trademarks and brand merchandise of the Commonwealth Games (CWG) in Delhi next year to avoid monetary loss to the tune of crores of rupees, according to a report in the Business Standard.

This is good news indeed.

Sunday, November 8, 2009

Want to use the Mahatma's pictures? Pay royalty to a German!


A canny German named Peter Ruhe has allegedly made a career of collecting Gandhi memorabilia, and has already collected over 12,000 original pictures of the Mahatma and other memorabilia and is intent on auctioning them to the highest bidders. 

Now, he has gone one step further. He is claiming royalty for use of the Mahatma's likeness in Narayan Desai's book, My Life is My Message. He has sold a few items in auction for Rs.8 crores (bought by Vijay Mallya), and also recently offered some photographs to Sabarmati Ashram for Rs.5.5 crores. He claims to be only an agent for the copyright holders in making this royalty claim.

Wonder what the Mahatma would say at international laws which can allow such a situation. 

Friday, November 6, 2009

IPR in the IPL: An update

This is an update for the entry dated 30 October, 2009.

After two seasons, the BCCI (which owns the IPL brand) has woken up to yet another revenue stream. During the two seasons, it was noticed that Bollywood refrained from new movie releases. As a result, enterprising cinema operators started selling tickets for IPL on the big screen -- they just relayed the TV feed onto their screens. Particularly during Season 2, this really took off, and several multiplexes raked in the moolah even though there were no film releases.

An auction was announced for cinema screen rights -- with a base bid of US $2Mn. The auction was bagged by Entertainment & Sports Direct (ESD) at Rs.330 crores for 10 years till 2019 for audiences in cinema halls, stadia, water borne vessels, buses, trains, armed service establishments, hospitals, bars, hotels, restaurants, airports, railway stations, shopping malls, offices, construction sites, oil rigs, clubs, auditoriums, spas, salons and other similar public venues.

Wednesday, November 4, 2009

Suit for violating NDA and Misappropriating Trade Secrets

In the overcrowded market for e-Book readers, the second-largest book-seller in the world after Amazon, Barnes and Noble, has been sued for violating NDAs and misappropriating trade secrets by Spring Design. Spring Design launched its Alex e-book reader on Oct 18th, and B&N followed suit with its Nook e-book reader, both based on Google's Android OS.

Spring Design filed for patents in 2006, and says that it began talks with B&N in early 2009, and disclosed innovative features of their reader under non-disclosure agreements. Apparently, nothing came of these talks, and B&N introduced the "Nook" less than a month later, with similar dual scree features.

If the allegation is proved, B&N have quite a bit to answer for, and this will draw them into a legal fight when what is important is to concentrate on growing the e-book market.

This case highlights the importance of protecting one's trade secrets and insisting on NDAs -- if Spring Design did not have the signed NDAs, they would not have had the chance of a snowflake in Hell of extracting damages or winning a suit.