Author: PIJIP

Patent Pseudo-Pools and Standards

American University Professor Jorge Contreras has recently proposed a “pseudo-pool” approach to addressing patent stacking and hold-up concerns for industry standards (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232515). The proposal has attracted some attention, including from the European Commission, which had the following to say in its recent report on patents and standards (European Comm’n, Patents and Standards: A Modern Framework for IPR-Based Standardization 140 (2014)) (http://ec.europa.eu/enterprise/policies/industrial-competitiveness/industrial-policy/intellectual-property-rights/patents-standards/): Pseudo pool aggregate royalty cap. One of the most original yet promising ideas was submitted by Jorge Contreras as a written contribution to the ITU Roundtable.231 It proposes an approach to be adopted by SSO that includes some features from patent pools, while preserving the flexibility and broad activity scope required in the SSO setting. In short (and not doing justice to the depth of his analysis) Contreras argues that (1) assuming bilateral licensing processes, the likelihood for FRAND terms is highest if the negotiations are concluded before inclusion of technology in standard; (2) in practice, however, such licenses are almost invariably negotiated after this inclusion, for a variety of reasons, (3) this creates risks for hold-up prices and risks for royalty stacking and (4) a process is proposed that would alleviate such risks. In his proposal, parties participating in the SSO would at the outset agree upon an objective reasonable maximum fee level and a distribution/allocation mechanism for the individual right holders. Several adjusting mechanisms are then...

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Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities

A new report by PIJIP Professor Peter Jaszi, AU Communications Professor Patricia Aufderheide, and AU fellows Bryan Bello and Tijana Milosevic. The College Art Association has commenced a project with American University Professors Jaszi and Aufderheide to develop a Codes of Best Practice in the Creation and Curation of Artworks and Scholarly Publishing inthe Visual Arts.  The first phase of the project was to conduct “interviews with one hundred visual arts professionals and a survey of CAA members” and produce a report on “current practices and attitudes among visual arts practitioners (including artists, scholars, editors, and curators) regarding copyright and fair use.”  The full report is available here. KEY FINDINGS 1. Visual artists and other visual arts professionals, a term used in this report to include (among others) art historians, educators, professors, editors or publishers, museum professionals,and gallerists, share a common problem in creating and circulating their work: confusion and misunderstanding of the nature of copyright law and the availability of fair use — the limited right to reuse copyrighted material without permission or payment. Fair use is flexible, available, and even core to the missions of many visual arts activities. Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their...

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Nov 7: Prof. Bernt Hugenholtz Delivers the 2nd Annual Peter Jaszi Distinguished Lecture – “Flexing Authors’ Rights”

The global future of cultural institutions, information industries, and individual creative work hinges, in part, on present decisions about the scope and character of copyright exceptions and limitations. Almost everyone agrees that modern copyright law needs to be flexible in order to accommodate rapid technological change and evolving media uses. In the United States fair use is the flexible instrument of choice. Author’s rights systems in Europe are generally deemed to be less flexible and less tolerant to open-ended limitations and exceptions. But are they really? Bernt Hugenholtz, Professor of law and Director of the Institute for Information Law (IViR) at the University of Amsterdam, will address this question at the Second Annual Peter Jaszi Distinguished Lecture at American University Washington College of Law this Thursday, November 7th.  He will make the case that (1) author’s rights systems can be made as flexible as common law copyright systems, and (2) that the existing EU legal framework does not preclude the development of flexible norms at the national level. For registration, and for more details on the event, please click...

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Brazilian Officials to Launch Report Recommending the Incorporation of TRIPS Flexibilities into Domestic Law

Today at 2pm, an event will be held at the Brazilian Chamber of Deputies to launch Brazilian Patent Reform: Innovation Towards Competitiveness.  This report was developed through a long consultative process (including seven workshops in 2011 and 2012)  by a technical team led by FGV’s Pedro Paranaguá.  It proposes legislative reforms that would  incorporate lawful TRIPS flexibilities into domestic law, enhancing access to generic medicines.  C Proposed reforms include: eliminating patent term extensions and data exclusivity, restricting patents on new forms and new uses and tightening the the inventive step requirement (following the India example), adopting a government use procedures, and clarifying the role that ANVISA, its drug regulatory agency, plays in the patent examination system. There will be a formal launch ceremony by high level government officials, followed by a roundtable of international experts.  Click here for the full report (PDF). PIJIP Prof. Sean Flynn will participate in the roundtable.  Hewill present three documents – each endorsed by experts or organizations from around the world – in support of the proposed reforms.  The documents were jointly written by Flynn and Professors Brook Baker and Amy Kapczynski. Open Letter from International Intellectual Property Scholars and Experts Supporting Brazil’s Proposed Patent Reform (PDF) Brief Technical Review of Brazil’s Proposed Patent Law Reforms (PDF) Civil Society Statement in Support of Brazilian Patent Law Reform to Increase Access to Medicines for All...

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Letter from 67 Academics to Colombian Leaders Regarding Copyright Legislation

67 legal academics have endorsed a letter to Colombian leaders to express concern over copyright legislation intended to implement the country’s obligations under their trade agreement with the U.S.  The letter warns that the provisions in the legislation “restrict the activities of information consumers more than is necessary or appropriate, more than the FTA requires, and more than do the provisions U.S. copyright law itself.” It recommends that Colombia give “serious consideration” to a “flexible approach to limitations and exceptions” and offers other suggestions for provisions that protect user rights in copyright. The letter was circulated by PIJIP Professors Peter Jaszi and Sean Flynn.  It was sent to President of the Senate Roy Barreras Montealegre President of the Senate, President of the House of Representatives, Simón Gaviria Muñoz and Minister of Commerce Sergio Díaz-Granados Guida. Click here for the full letter....

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PIJIP Res. Paper: Intellectual Property Reform in Colombia and ISP Liability

PIJIP Research Paper no. 2013-03 Authors: Glushko-Samuelson Intellectual Property Clinic in Collaboration with Andrés Izquierdo and Fundación Karisma Introduction: In April 2011, Bill 201—known as “Ley Lleras 1.0”—was introduced by the Colombian legislature to implement certain provisions in the US-Colombia Free Trade Agreement (FTA).  The law placed strong burdens on Internet Service Providers (ISPs) to police the Internet and would have allowed ISPs to collect information about users, including which websites they frequent, what content they access or post, and with whom they communicate.  It also permitted ISPs to deactivate subscribers’ Internet access without a court order verifying that the subscriber had posted or accessed copyright-infringing material. Fortunately, Ley Lleras 1.0 was archived in November 2011 after civil society groups harshly criticized it as shattering the notion of privacy and standing as a barrier to the free access of information.  However, this attempt to pass an overly restrictive ISP law reveals how the Colombian legislature has not fully considered the impact such laws could have on the fundamental rights to expression, information, privacy, and due process.  Public discussion and debate are necessary so that future ISP liability laws will not violate these precious rights for all Colombians. Ley Lleras 1.0 developed out of Colombia’s attempts to foster more positive relationships with other democratic nations worldwide.  To further strengthen ties between Colombia and the United States, these two countries entered into...

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PIJIP Res. Paper: Intellectual Property Reform in Colombia

PIJIP Research Paper no. 2013-02 Authors: Glushko-Samuelson Intellectual Property Clinic in Collaboration with Andrés Izquierdo and Fundación Karisma Introduction: In January 2013, the Colombian Constitutional Court struck down on procedural grounds the controversial copyright law known as Ley Lleras 2.0, which presented Colombia with a tremendous new opportunity to draft balanced copyright legislation that meets the needs of its citizens. Ley Lleras 2.0 developed out of Colombia’s attempts to foster more positive relationships with other democratic nations worldwide.  To further strengthen ties between Colombia and the United States, these two countries entered into a Free Trade Agreement (FTA) in 2006.  This FTA emphasized market access for agricultural products and removed barriers between Colombia and its largest trading partner, which made selling goods more profitable and assisted the Colombia’s continued development. The Colombia-U.S. FTA included flexible language that gave Colombia wide discretion to create laws implementing the FTA in ways that best serve Colombians’ needs.  However, when the Colombian legislature attempted to pass two controversial and restrictive laws, it failed to take advantage of the flexibility afforded by the FTA in a way that maximized the benefits for all Colombians. The FTA required Colombia to provide creators of copyrighted works with control over their works in a way that was consistent with international intellectual property regimes; however, the agreement did not provide exceptions for incidental copies, educational use, satire, or commentary. ...

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PIJIP and the AU Center for Social Media Release Set of Principles in Fair Use for Journalism

[Reposted from pijip-impact.org] This document is a statement of principles to help journalists in the United States interpret the copyright doctrine of fair use. It is intended for anyone who engages in the set of practices that entails creating media of any kind that refers to real-life events of public interest, in service of public knowledge, whether that person is a full-time professional or an individual who takes it upon himself or herself to report about specific issues or events. In other words, the definition of “journalism” to which this document speaks is defined by acts, not titles, and is an inclusive one, reflecting (in part) the changing nature of the technologies that support and enable journalistic practice. The project was coordinated by American University Professors Peter Jaszi (Program on Information Justice and Intellectual Property, Washington College of Law) and Patricia Aufderheide (Center for Social Media, School of Communication). FULL REPORT:  Set of Principles in Fair Use for Journalism Organizations Endorsing the Principles: Association for Education in Journalism and Mass Communication Association of Schools of Journalism and Mass Communication Association of Alternative Newsweeklies J-Lab Mediashift NABJ Digital Journalism Task Force National Lesbian & Gay Journalists Association New America Media Poynter Institute Robert R. McCormick Foundation Additional Resources: Frequently Asked Questions on Fair Use for Journalism Fair Use and Journalism: You Be the Judge! American University Center for Social Media...

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Kirtsaeng v. John Wiley & Sons: A Post-Argument Discussion with Counsel for Parties and Amici

Today at 6pm, American University’s Program on Information Justice and Intellectual Property hosted a discussion of this week’s ruling in Kirtsaeng v. Wiley, in which the Supreme Court held that “the ‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad.” VIEW WEBCAST.    Supap Kirtsaeng helped to finance his doctorate in mathematics at the University of Southern California by having friends and family send him textbooks they purchased in Thailand for resale in the United States through eBay.  Although these books were lawfully purchased in Thailand, Kirtsaeng was sued by John Wiley & Sons for copyright infringement. In this case, the Supreme Court revisits the relationship between the Copyright Act’s limits on importation of a copyrighted work without the copyright owner’s permission and the first sale doctrine, which permits resale of copies of a work without permission.  The Court divided evenly over this issue in a 2010 case pitting Costco against Omega. On March 19, 2013, the Supreme Court held that “the ‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad.” Arguments were heard in October 2012. This spring,  PIJIP is pleased to welcome Counsel of Record for Petitioner along with Counsel for amici, to discuss the case, the oral argument, and the implications of the case going forward. Panel Peter Jaszi Washington College of Law, Moderator Eleonora Zlotnikova Sam P. Israel...

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Statement of Michael Carroll on the White House Open Access Policy Directive

Today, PIJIP Director and PLoS Board Member Michael Carroll commended the Obama Administration for issuing an historic policy Directive that opens up access to the crucial results of publicly funded research by directing all federal agencies with annual research and development budgets of $100 million or more to provide the public with free and unlimited online access to the results that research: “Today, the Obama Administration’s Office of Science and Technology Policy adopted a pro-Internet, pro-science, pro-innovation policy that requires research articles reporting the results of federally funded research to be made available over the Internet.  Importantly, the policy also addresses research data and directs that these data should be made public to the greatest extent feasible. Agencies should embrace these opportunities to increase the value and impact of the research they fund with vigor and creativity.” The federal government funds tens of billions of dollars in scientific research each year, with the understanding that this taxpayer investment will advance science, spur the economy, accelerate innovation, and improve the lives of all Americans or members of the public.  This research is then published in peer- reviewed scientific journals.  Yet most taxpayers – including academics, students, and patients – cannot access this public funded research because the publications are too expensive and hard to access. Today’s action directs that the results of government-funded research – including both unclassified articles and...

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