July 28, 2009
Possibly in retaliating to the United States’ infamous annual US Special 301 Report, the European Commission has released a report finding fault with a number of American IP practices.
In the report: United States Barriers To Trade And Investment For 2008[pdf] Europe calls the pot black and charges the US with having failed to bring its Copyright Act into compliance with World Trade Organization rules on IP since radio music can be played in pubs and clubs without paying royalties (the Irish music case). According to the report, European producers and performers “do not enjoy broadcasting rights granted to the US” as a result.
Another “particularly problematic” issue is geographical regional names, with a number of European wine names being considered “semi-generic” by the US.
Another issue of concern is the US IP boycott of Cuba, where, to pressurize the Cuban government, the trademark for Havana Club rum is considered unenforceable, contrary to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights,TRIPS.
According to the report, the US government frequently fails to comply with Article 31 of TRIPS which requires governments that use patents to promptly inform the patent right holders when governments use patented technology.
On recognising the first to file a patent application (like the rest of the world) rather than first to invent, the US discussion of patent reform is “going in a good direction,” the EU said.
Another cause for concern is US provisions on plant varieties in the Plant Patent Act which “seriously impede trade in breeding material for ornamental plants.”
For good measure, software patentability and the first to invent as a pose to first to file were also examined.
Leave a Comment » | 
Application of Origin, Copyright, Fair Use, Intellectual Property, Patents, US, WTO, World Trade Organization, appellation of origin, infringement, software Patents | 
Permalink
Posted by Dr Michael Factor
July 28, 2009
Charles Nesson, a Harvard Law Professor, is to defend Joel Tenenbaum, a 25 year old down-loader of copyright songs, claiming the “fair use” exception to Copyright Law since the downloading was for personal use and not commercial. The trial is due to take place at the United States District Court for the District of Massachusetts under Judge Nancy Gertner and is expected to be completed by the end of this week. In addition to the fair use defence, Nesson is planning to challenge the legality of the fines, claiming that the plaintiffs, the RIAA, Sony and Warner Brothers — are “seeking to punish him beyond any rational measure of the damage he allegedly caused,” and that the punishment violates the 5th and 8th Amendments. Only one down-loader has been tried under the Digital MillenniumAct, with most people accused of downloading songs preferring to settle out of Court. That case was determined a mistrial, with performers whose rights were being inforced, claiming to be ashamed of the prosecution on their behalf. Nesson, who co-founded the Berkman Center for Internet and Society in 1996, has argued that Tenenbaum was initially accused of illegally sharing seven songs, a tally later increased to 30 songs. The RIAA estimates that illegal music-sharing worldwide costs $12.5 billion each year and causes 71,000 job losses in the United States. Nesson is on record as defending free Internet, He does not dispute the need for copyright laws but believes that existing copyright laws should be modified to reflect the evolving social norms of a digital, interconnected world.
The Fair use defence is well established. It is determined by four factors:
- the purpose of one’s use
- the type of work under copyright protection
- the amount and importance of the portion used
- the effect of the use on the market
If Nesson’s strategy succeeds, the case could set a precedent that legalizes all non-commercial file-sharing, on the grounds that such behavior in a digital society does not violate existing copyright laws.
See http://www.thecrimson.com/article.aspx?ref=528613 for more information.
Leave a Comment » | Copyright, Fair Use, infringement | Permalink
Posted by Dr Michael Factor
