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Interesting comment from Michael Geist today on transparency and ACTA – making the argument that the failure to reveal text is far from normal in relation to plurilateral or multilateral agreements.

There was a recent news story about Coles changing the name of a product line of biscuits from “Creole Creams” as a response to criticisms that the name was racist.

The more interesting aspect to the story — not commented on anywhere that I could find — was why Coles might have chosen the name “Creole Creams”.

On the surface, it seems an odd choice. What does a term for persons of French/Spanish descent — and often used particularly nowadays to describe a people located around and in the Louisiana area — have to do with a biscuit (aka cookie)?

The short answer seemed to be me to be the first four letters of the word. The fragment “creo” looks very much like “oreo”. And, as the articles note, “Creole Creams” biscuits “resemble Oreo biscuits”.

A picture shows it even more clearly (noting the use of the lower case C):

Maybe I’m off-base on this one, and I’m open to comments/correction, but I wonder whether the name was chosen to fit around that fragment, on the basis it would have subliminal effect?

The Minister for Innovation has decided to ignore the Productivity Commission’s recommendations, and not to change the Australian regulatory regime for books introduced by the previous Labor government. In other words, publishers get to keep their territorial exclusivity for books, and the government thinks we should all get e-Readers instead (seriously, that’s practically in the press release).

Gans says it all really – the government, having spent the first year or two of their governmental life commissioning independent reviews and reports of various kinds has shown that lobbying can overturn any recommendations that result. Look forward to an increase in the lobbying population in Canberra.

But what I find amusing/interesting is this. When the film industry lobbied for better protection in the context of the US-Australia Free Trade Agreement negotiations, they lost. The book publishing industry has won. Which do you think has a brighter future in this increasingly audio-visual age…?

A few more news stories on ACTA including one from the ABC.

Perhaps more interesting (not for what it says, but how it says it) is DFAT’s latest update on the negotiations.

First, there’s this:

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. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.

That might be convincing, first, if the US hadn’t shown text to a whole bunch of people. Why is it that only US-based companies or industries get a say in what gets put into the treaty? It would also be more comforting if (as might have been the case once upon a time in treaty-making practice) the parties were negotiating at a high level of abstraction. Back then, secrecy might have been more ok, because details could be worked at at a local, ie domestic, negotiation and discussion with affected parties. More recent experience indicates that in this area, DFAT are prepared to negotiate treaties that leave us little flexibility to balance domestic interests or to ensure that Australian interests are protected.

Or there’s this:

The ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy. In particular, the ACTA is intended to establish, among the signatories, agreed standards for the enforcement of intellectual property rights that address today’s challenges by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights, and strengthening relevant enforcement measures. The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens.

Now, I don’t know about you, but the way I read that, the treaty is going to be intentionally one-sided: lots of IP-protective stuff, and nothing to balance that out. Now, I’m all for ensuring governments have the freedom to take the steps they think necessary to protect civil liberties, presumption of innocence and all that kind of thing. But unless that’s stated in the text, can we be sure that at some point we won’t be faced with a claim that we’re breaching the treaty by softening its enforcement effects?

Finally, it says that “ACTA is not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties”. To the extent that it proposes to include material on ISPs, ISP safe harbours (and their limitations) and ‘graduated response’ (ie three strikes type stuff), it’s very hard to see how that’s true.

Jamie Love on the Huffington Post here.
EFF here.
Howard Knopf here.
Nic Suzor/Electronic Frontiers Australia here.
New Zealand Herald here.
Atlantic here.
The IDG here.
Intellectual Property Watch here.

I would endorse the view expressed in the letter reproduced on the Huffington Post:

The only rationale for keeping the proposed ACTA text from the public is to suppress criticism and critical thinking about the norms that are being proposed. It is Orwellian and an insult to our intelligence to claim that the secrecy of the ACTA text has anything to do with national security concerns, as the term is commonly understood.

A secret process of arbitrary access, conditioned upon signing non-disclosure agreements to block public debate, does not enhance openness and transparency, and does not inspire respect for the norms that will eventually emerge.

We ask that when documents such as proposals for ACTA text are circulated to all governments in the negotiations, and when those documents are shared with dozens of Washington, DC insiders, they also be shared with everyone else.

It’s about time DFAT opened up on this too. With the USTR opening up text to 42 people from various groups, DFAT needs to open up the text: both to expert groups on all sides, and, if they want any credibility at all to the negotiations or their claim to represent the Australian public, to full outside scrutiny. Otherwise they’re allowing a situation where US companies (of various stripes) get all the inside running.

Geist has a new report on ACTA here, with some discussion of the potential inclusions in an internet text. Nothing that would surprise an Australian, given our experience with the AUSFTA.

I do, strongly, agree with Michael here, when he notes that:

On the international front, it provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty. These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions.

From an Australian perspective, I suspect that the temptation for negotiators will be to say that since we are already committed to such rules in the AUSFTA, there is ‘no harm’ in signing up to similar ACTA terms. I think that would be a serious mistake. When Australia signed to such terms in AUSFTA, it did so in a trade deal, where there were other ‘benefits’ (however illusory some might have been). And it retains the freedom to step away from the AUSFTA at some future point if the costs outweigh the benefits. Signing up to such terms in an ACTA would be agreeing that these are to be general international standards: removing any remaining flexibility we have and giving a whole new set of people the right to complain if we want to resile.

It’s that time again. Anti-Counterfeiting Trade Agreement (“ACTA”) negotiators are gathering again, this time in South Korea. ACTA has been off the radar for a little while now, overshadowed by other IP developments. But now we’re up to the 6th round of negotiations, and, it would seem, interesting times await: according to the agenda that’s been published, the negotiators are expected to look at text on internet enforcement issues. As the select group – the US, the European Union, Japan, Switzerland New Zealand, Canada, Mexico, Australia, South Korea, and Singapore – meet again, it’s worth pointing out, again, the problems with these negotiations. Two broad issues: process, and substance. So it’s time to remind everyone what’s at stake here. (more…)

There have already been a few articles about the Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited case.

The first thing to note is that the decision is just on a preliminary question. This is a procedural device used where it is likely to help save the court’s (and parties’) time and resources. In this case, the issue is just: for the purposes of this suit, does the applicant actually own the copyright it is seeking to enforce. If not, obviously, it would be possible to dismiss the case straight away, saving the expense of a trial. In this case, the preliminary question is simply a determination of a basic fact. (more…)

I was interested, the other day, to see this Online Opinion article by Nick Gruen (Club Troppo) on Australia’s pharmaceutical industry and the idea of manufacturing generics for export. The basic point of in Nick’s post is that investment in the manufacture of generic biologics in Australia is being prevented by Australian patent law and provisions introduced by the AUSFTA (or, at least, government’s interpretation of those provisions). In summary:

1. Australia extends the term of patents for pharmaceuticals to compensate drug companies for delays in the marketing approval process;
2. Patents last longer in Australia than elsewhere – at least partly because pharma companies apply for marketing approval later here than elsewhere, which means marketing approval is granted later, which means the drugs come off patent later.
3. You can’t manufacture for export during the (extended) patent term, even for export (ie even where the drugs won’t be sold in Australia, and even if they’ll only be sold where the drug is off patent);
4. By the time the drugs are off-patent in Australia, generic manufacturing based elsewhere in the world has garnered post-patent market share in many countries, putting a company that manufactures in Australia too far behind the eight-ball;
5. Result: generics manufacture not possible in Australia meaning that high tech industry not possible here – even though result is only that the manufacture ends up elsewhere (like India) where there is no patent term extension.

Since I’m on record as saying that actual changes to IP law brought about by the AUSFTA were less dramatic than people said at the time, this warranted investigation. So I’ve investigated.

My view? Looking at the literal terms of AUSFTA, it looks like there are reasonably supportable ways through for Australia. AUSFTA is constraining (more constraining than TRIPS is), and that is a problem. But there’s always some room for interpretation. Which makes me wonder. Is this another potential case of Australia being the overly-conscientious ’stick to full letter and spirit of the treaty law’, ‘don’t rock the boat’ goody two-shoes, adopting a conservative interpretation of treaty language that prevents it taking full advantage of the flexibilities available? More over the fold. (more…)

SMH has the story here.

more analysis later.
updated: judgment now available on AustLII.
Further update: commentary will have to wait until after my classes today. But please consider this an open thread for any discussion!
Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in these judgments.

“Senator Kim Carr, Minister for Innovation, Industry, Science and Research, today called for written submissions on proposed reforms to Australia’s intellectual property (IP) system.

A strong and efficient IP system is a cornerstone of successful innovation.

The proposed reforms are designed to help Australian innovators take their inventions to a global marketplace and encourage foreign investors to bring their new technology to Australia.

This means growth both for our economy and our skilled workforce.

The call for submissions provides a valuable opportunity for interested parties to contribute to the Government’s work in strengthening Australia’s innovation sector and boosting the nation’s economic prosperity.

The multifaceted reforms aim to reduce barriers in the innovation landscape for researchers and inventors, allow patent claims to be resolved faster and strengthen penalties for counterfeiting and other serious forms of trade mark infringement.

The Australian Government is committed to working with business and professionals to get the balance right so the IP system can better serve innovation in Australia.”

Media Release here.
Discussion/Reform Papers on IP Australia Website here.

Submissions due by 8 May 2009.

According to the Exec Summaries of the two papers, the proposed reforms aim to improve the balance in the patent system by:

1. raising the thresholds set for grant of a patent in Australia and better aligning Australia’s key
   patentability standards with standards in countries which are our major trading partners; and
2. improving the scope and stringency of examination to reduce inconsistencies and give
   greater certainty in the validity of granted patents.
3. introducing a statutory exemption covering certain experimental activities

Let the fun begin!

I’ve discovered podcasts. Yes, I know it’s a little late in the piece, but really, it’s been a pretty recent thing: since I (a) got an iPhone and (b) started walking to work every day. At half an hour each day, I get a lot of listening done and music doesn’t quite do it for me. And lo and behold, there are all these interesting things to listen to online. I want to promote one specific thing, which is actually not a podcast, but a Webinar:

Managing IP magazine’s Asia editor Peter Ollier will be conducting a live online interview with IP Australia director general Philip Noonan on Friday March 6 at 4pm Australian Eastern Standard Time (3pm for us Brisbanites).

The one-hour interview will cover topics such as the recommendations in Terry Cutler’s venturousaustralia report, innovative step and inventive step in Australia’s patent law, the controversial Anti Counterfeiting Trade Agreement and the impact of the credit crunch on patent and trade mark applications in Australia. Registration for this event is free. To register please go to www.managingip.com/webseminars. Listeners will also be able to submit questions during the interview. Click here to go to the registration page.

Hey, how often do you get to hear about IP from the ‘horse’s mouth’, the dude in charge, so to speak? Think up your tricky questions about ACTA and the Innovation Review now! The other thing I wanted to mention was podcasts. There are a lot of cool podcasts out there. Apart from the wonderful material from our ABC, it’s worth highlighting:

1. The IP Colloquium (run by Doug Lichtman, UCLA);
2. The Software Freedom Law Center podcasts (all things open source)
3. The amazing collection of stuff at iTunes U – lots of free lectures on all kinds of interesting things: from Berkeley, Stanford, LSE and other exciting places;
4. TED.com. Very cool.
5. Digital Planet at the BBC
6. Search Engine on CBC (Canadian Radio)
7. Academic Earth (great lectures on all kinds of topics)

I’m sure there are others. Feel free to add them in the comments. Always looking for good new listening!

IP Australia is reviewing the penalties (criminal offences) and additional damages in trade mark law. Actually, they’ve been reviewing this for a while: we had the ACIP Review, and then an Options Paper (pdf) published by IP Australia back in November; submissions on the Options Paper close this week.

Anyway, I was just reading through the options paper again, and I noticed that IP Australia is proposing to adopt something like the tiered system of liability that we now have in the Copyright Act: or at least, some of it. They are proposing to have indictable offences for intentional trade mark infringement, and summary offences for negligent trade mark infringement. This, of course, is based on the Copyright Act system. And so I thought it was raising the question again: what kind of a silly standard for criminal liability for IP infringement is negligence? (more…)

Hi everyone (or at least, those of you who are still there. probably just an echo, right?). Been a while, hasn’t it?

I’d vowed to resist, so far as possible, the blogging thing on IP. There were good reasons for resisting: I have lots of other work to do; I need to spend time working on publishable material rather than current commentary; after my last post a certain friend and colleague started calling me Kimberlee ‘Sue the User’ Weatherall … (ok that last one was just funny). And, of course, there’s been plenty of people to fill the gap: Warwick Rothnie, Nic Suzor, the wonderful folks at the Australian Trade Marks Law Blog…

But you know, every now and then I get the urge to say something. So I’m not going to apologise for radio silence. But I am going to post. Sometimes. When I think something won’t be covered by anyone else!