The IP Factor

The Israel Ministry of Trade, Industry and Labour has hosted a two-day conference on TRIPS.

The impressive speaker’s list on the first day included:

Dr Guy Pessach of the Hebrew University, who spoke about the controversial Premier League decision, (see Moving Copyright Goalposts?), now on appeal. Although I agree that he was correct to emphasize the TRIPS and Budapest elements that Judge Michal Agmon Gonen had ignored,  I think he was wrong to ignore the Israel Supreme Court Decision in Tele-Event that should have been binding precedent.

Mr Wolf Meier-Ewert of the intellectual Property Division of the WTO in Geneva, who spoke with authority about geographic indications and appellations of origin.  He gave the example of Jaffa, Israel’s only appellation in the Lisbon Register. Unfortunately, however, as I pointed out, since the mark is used for oranges grown in Australia and South Africa to provide year round coverage, the mark is somewhat controversial, and, speaking from the floor, Deputy Commissioner of Patents and Trademarks, Noach Shalev Shmulovich, provided more details on the topic.

Adv. Reuven Azoff of the Israel Tax Authority who spoke about enforcement by Customs.  He explained that the cost of storage and destruction of infringing goods was charged to the rights holder, and informed us, when I queried the statement, that Judge Abraham Yaakov’s decision regarding Levi’s Jeans (see Judge slams Israel Customs for billing Levi’s for Storage and Disposal of the Jeans) was being appealed.

Mr Pierre Arhel of the WTO Secretariat lectured throughout the two days. His talks were informative, well constructed and comprehensive. Although his English was flawless, the lectures were given in an Inspector Clousseau type accent that was slightly distracting. Among other issues covered, he presented a short overview of WTO and the main TRIPS agreement, discussed the Public Health dimension of enforcement and the non-WTO Anti-Counterfeiting Trade Agreement ACTA, spoke authoritatively on patents and trade secrets under TRIPS, on how anti-competitive practices could delay the development fo generic drugs, patenting lifeforms and traditional knowledge.

The Honorable Judge Gideon Ginat spoke about IP protection in Israel, and gave a balanced, reasonable presentation.  He believes that in patent cases, the judges should use court appointed experts and that judges within the court should specialize in IP. He is not sure that specialist IP courts are really justified. Judge Ginat endeared himself to me, by introducing himself in the coffee break and informing me that he follows the blog.

The most controversial presentation by far, was given by the Honorable Judge, Dr Michal Agmon-Gonen, who justified her position in the Premier League case by arguing that streaming technologies were not copying and that free access to films, sport events and the like, was a fundamental human right(!)  She acknowledged that viewers rights had no basis in the Law, but felt that they could, nevertheless, be read into the Law. She is concerned by powerful IP lobbies ganging up on the little guy and quoted Lawrence Lessig extensively.

The thing is that Lessig is an academic. Dr Agmon-Gonen is a judge. As an academic position; indeed, as a lobbyist position, her views were admirable. I too, think that the balance has been lost and copyright protection is too long. However, I think that judges should leave policy to the government, legislation to the Knesset, and should also be bound by Supreme Court precedent.  In other words, I am in favour of activism, just not of judicial activism. It was no surprise to learn that Dr. Agmon Gonen was an article clerk for Supreme Court President and Supremo Judicial Activist Aharon Barak.  

It may be that the Knesset is slow in legislating IP rights, but this is no longer a problem. Once public access is defined as a Human Right, no doubt it can be considered a judicially created Basic Law and used to overturn any Knesset legislation. After all, to further democracy, we can’t let the democratically elected legislative and government sign international treaties and write laws can we?    

The event was well put together, mostly interesting, but nevertheless, sparsely attended. We suspect that poor advertising combined with the fact that the event was spread over two days, contributed to this development.

The first day was attended by some 30 participants. From the pile of not collected folders, there were some 30 IP practitioners that registered but didn’t show up. Our firm was, however, well represented, by Adv. Aharon Lewin, head of litigation, by Adv. Aharon Factor who heads up our trademark department and is active in working with customs on enforcement, and by myself.

The organizers generously provided lunch in their canteen and there was coffee and tea, soft drinks and rogeluch and burekas throughout the day. The food was not up to the standard of that provided by IP firms in hotels, but as this was funded by the tax payers,  was, I consider, most appropriate.

The event was held in the Generic Govt. Building opposite the Bank of Israel. I noted with approval that the synagogue there has a dedicated women’s section, and that there was a room set aside for breast-feeding purposes.

We congratulate Barak Sharabi of the Ministry of Industry, Trade and Labor, for putting the thought-provoking and challenging event together.