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I could never work out why the US Free Trade Agreements included a provision on patent term extension for ‘unreasonable delays’ in the patent office (see, eg, Australia-US Free Trade Agreement Art 17.9.8). I figured there must be delays in some of the developing world countries they negotiate with.

Now I understand why - according to Patently-O, ‘the vast majority of issued patents have an extended patent term due to Patent Office delay’ - at least in his sample of patents issued in March 2008.

PS - note that the Australia-US FTA provision isn’t actually representative. Most of the FTAs require extension in the case of delay in relation to a single patent. Ours only kicks in if there is a pattern of unreasonable delays.

Some colleagues of mine (Paul H. Jensen, Alfons Palangkaraya and Elizabeth Webster), from the Melbourne Institute of Applied Economic and Social Research, have published a new Working Paper that would be of interest to people who, like me, are fascinated by international dynamics in patenting. The paper is called ‘Application pendency times and outcomes across four patent offices‘.

OK, so it’s not the most exciting title in the world. But here’s the thing. They’ve got matched patents applied for in Europe, the US, Japan and Australia, and worked out differences - in outcomes, and how long it takes to get a patent - for the same invention. They’re measuring differences in approach between the different patent offices! How many people do you know who can do that? Here’s an extract from the introduction: (more…)

Bill Patry today has an interesting post on the politics of the current Canadian copyright reform discussion, noting, in particular, the ‘bullying’ of the ‘International’ Intellectual Property Alliance (International in the same way as World Series Baseball, by the way, as Patry points out). Bill’s final point is, I think, a good one:

The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the WIPO treaties is a mystery.

I think what interests me about what is going on in Canada is exactly that - the ‘intense, negative reaction’. I think, in part, this kind of intense, negative reaction is, as Patry points out, because the relevant laws have not been proven to work at all. I also think the reaction happens for reasons that Michael Geist points out in his ‘Why Copyright’ talk - it’s about the effects that harsh copyright laws can have - on creativity, on fun stuff that people like to do, on free speech; it’s about the mismatch between copyright law on the one hand, and ‘the real world’ and the possibilities of technology that we can all see on the other.

It’s worth pointing out, though, that there’s a broader geopolitical context to this. In part, the ‘intense, negative reaction’ is a reaction against the high-handed, ignorant, contemptuous attitude of the US - US industry in the form of the IIPA, and the US government in the form of the USTR - an attitude that says that unless your law looks exactly like ours, it must be inadequate - oh, and by the way, we have nothing to learn from you; your laws could not possibly be as good as ours. I think that the copyright debate - because it is one in which that attitude is taken to extremes - crystallises a more general concern about the US ‘attitude’, as illustrated in its lobbying and trade negotiations and treaty negotiations - to the rest of the world. Similarly, I think that the copyright push by US industry and government has broader geopolitical costs to the US - it is feeding anti-American sentiment. A colleague and I have outlined this in excruciating detail in a recent paper, and I’m seeing the same thing happen in Canada.

On a positive side, it’s rather good to see some US companies in Canada pushing on the other side. That might help limit the damage to US interests more generally.

Update: see also Howard Knopf.

It must be Friday. All the IP stories are sports ones.

Several sites have picked up the story that the Major Baseball League is involved in a rather Major Technology Stuff-up. As Madisonian reports:

‘Apparently fans who purchased digital downloads from MLB have discovered that MLB has changed its DRM scheme. Fans who downloaded complete games from MLB had to log in through an MLB web page to verify that the download in question was being viewed on the appropriate, licensed computer. MLB has now removed this page, making those downloads unviewable. Apparently MLB does not know when the problem will be fixed. This means that those who purchased the downloads have been denied the benefits of their bargain.’

As the US sites are reporting - under US law, the fans are stuffed. Circumventing the DRM is illegal under their Copyright Act (the DMCA). And no one can sell the fans the means to access the games, because that’s illegal too.

Aren’t you proud that Australian law isn’t so silly? Here, under the Copyright Regulations 1969, we actually have a prescribed exception that allows circumvention of an access control to get access to stuff where:

(a) the technological protection measure is not operating normally; and
(b) a replacement technological protection measure is not reasonably available.

yay Australia! oh, but that’s right. STILL no one can sell you (or even provide to you for free, personally) with the means to do so. So GEEKY Australian baseball fans are ok. That must be a large group.

Oh, hang on, no. Geeky Australian baseball fans are not ok, because they might be circumventing under US law if they were to circumvent a US access control based on a US site … might depend on the technology; whether all the acts were occurring in Australia. Hmmm……

My brain hurts.

I’ve become more interested in copyright bureaucracies, and patent and trade mark offices: how they operate; how transparent they are; who they are; how powers are divided between them; how they interact; how they characterise their role, their ‘customers’, and their ’stakeholders’. How we make them accountable for the decisions they make - or how we fail to do so. Regular readers may have noticed this flavour seeping into some of my more recent posts and papers.

Today, my little obsession is the growth of cooperation between Patent Offices around the world. While there’s long been cooperation (Trilateral Cooperation, for example, between the US, Japan and Europe was set up as early as 1983) I’ve been detecting an increase in the number of press releases in this area, and the number of mooted pilots and activities. So, being the obsessive that I am, I thought I’d collect together what’s been going on - at least as published, that I can find - and offer a few thoughts and questions that these developments raise. (more…)

The case we all thought ended two years ago (Grokster, on the liability of the providers of the file-sharing software) continues at lower levels, with an interesting judgment on final orders, discussed by Ed Felten, and Jason Schultz (part 1, part 2).

Big issue in the case: what kind of injunction to order. Do you order the defendant to stop all infringements using their software? Some? who decides whether the system is ‘good enough’? Clearly, the court has struggled with this issue. It decided on an order that required steps to reduce infringement, but not 100% effectiveness.

This is all sounding very, very familiar. Kazaa redux, methinks.

On the weekend, news that Trade Minister Warren Truss announced that Australia would join, as a third party, the dispute resolution brought in the WTO by the United States against China relating to enforcement of intellectual property rights.

[Update: apparently the Labor party (or at least Simon Crean) approves this decision, labelling it a ‘tentative’ step in the right direction.]

Hmmmm. Do you think this (a) a silly move; (b) a considered and sensible way to protect Australia’s interests; (c) another example of Australia doing its ‘me too’ act with the US on intellectual property law regardless of Australia’s own economic interests? Let’s have a think about this. (more…)

The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

There have been a couple of interesting developments in social networking land lately. One demonstrates the value that these networks represent. The other highlights some complicated issues about risks associated with using social networking tools, as well as possible privacy and more general regulatory concerns. (more…)

The New York Times carried a story about a lawsuit filed by restaurant owner Rebecca Charles, proprietor of the Pearl Oyster Bar in New York’s West Village. The article mentions that she has sued Ed McFarland, owner of Ed’s Oyster Bar, she considers to be a “knockoff” of her own. McFarland was her former sous chef for six years. [And yes, apologies for the pun in the title.] (more…)

Google has a new public policy blog, and in an interesting post, Andrew McLaughlin (their Director of Public Policy and Government Affairs) notes a story now circulating - that Google has been having

fairly quiet discussions …with various parts of the U.S. government, including the Departments of State and Commerce, the Office of the U.S. Trade Representative, and various House and Senate committees.

in which Google has been making the case that ‘For Google, it is fair to say that censorship constitutes the single greatest trade barrier we currently face’, and that:

Just as the U.S. government has, in decades past, utilized its trade negotiation powers to advance the interests of other U.S. industries, we would like to see the federal government take to heart the interests of the information industries and treat the elimination of unwarranted censorship as a central objective of our bilateral and multilateral trade agendas in the years to come.

This has of course elicited some of the expected critiques - ‘how can Google say this when it actively collaborates with censorship in foreign countries’. Personally, I think that’s a pointless and ill-considered criticism - Google might well be censoring now - because, oh, it has to under the laws of the countries where it operates. That doesn’t prevent it actively trying to break down the censorship rules so it can stop complying with them.

I think there’s more serious criticisms that need to be borne in mind by Google when it makes this argument about injecting its concerns into bilateral trade negotiations. As someone who is based in Australia - a country that has had a bilateral trade negotiation with the US - I find the idea of the US injecting even more policy issues outside immediate trade issues into its FTAs a bit offensive. I know, from the Australian experience, what this means. And that is, that good as the intention might be, it is likely to become seriously perverted by the USTR and trade negotiation process. I hope (in the spirit of constructive criticism) that Google gives serious thought to whether this can work as it might hope, even in the most hospitable environment. (more…)

Hew Griffiths was sentenced to over 4 years in gaol on Friday for criminal copyright infringement (the US court has recognised time served already in Australia challenging extradition; this means he will spend about 15 months in prison in reality). Hew Griffiths was extradited to the US from Australia in February to face a US court - even though he had never previously set foot in the country.

Earlier commentary on the case can be found at Larvatus Prodeo, Catallaxy, Legal Soapbox (here and here), Inchoate, and IPWars - and even the IPKat, as well as the mainstream media (here and here). Malik and the House of Commons have commented on the endgame, as has Club Troppo. It’s interesting to read the commentary: a lot of people really are quite torn over this one. Griffiths did some pretty serious stuff in terms of copyright infringement - about as serious as you can imagine it getting. Nevertheless, is extradition appropriate/proportionate?

Today, I have a short comment in Crikey. More over the fold. (more…)

Just prior to the last election campaign, there was a big debate about patent evergreening, in which IP academics and patent lawyers around the country nearly had heart attacks as Opposition leader Latham and PM Howard debated the finer points of patent law in the heated atmosphere of Parliament. Too much excitement!

Part of the debate was about whether provisions in AUSFTA, requiring linking of marketing approval mechanisms for drugs (ie, the Therapeutic Goods Administration processes) and patents would cause or contribute to or enable ‘evergreening’. Latham coined the immortal phrasing ‘bodgy patents’ to explain this.

Well, I know this is all water under the bridge now. But I think it’s worth point out that now that the US has a democrat-dominated Congress, there are some changes happening in trade policy. Specifically, for the agreements still awaiting Congressional approval (Peru, Colombia, Panama, Korea), there’s been an agreement reached between USTR and the Democrats in Congress to change the FTA text - specifically, to introduce more flexibility in the patent provisions (as well as some labor/environmental stuff).

You mean all that angst was for nothing? (more…)

Judge Eduardo Robreno of the United States District Court for the Eastern District of Pennsylvania has handed down a very interesting judgment dismissing two motions by Linden Labs (the makers of Second Life) in a lawsuit brought by lawyer Marc Bragg.

Bragg signed up to Second Life in 2005. He said he was induced into “investing” in virtual land by representations made by Linden and Rosedale in press releases, interviews, and through the Second Life website, and paid real money as “tax” on his virtual land. (more…)

about fair use, space shifting/personal copying, the DMCA - can be found on Bill Patry’s blog here.