Upcoming Events & Panel Discussions : October – November, 2015

I missed the Global IP Summit 2015 organised by the Global Intellectual Property Center of the U.S. Chamber of Commerce. Details of the event can be found at – http://www.theglobalipcenter.com/ipsummit2015/.

Extensive coverage of soft IP issues – copyright, trademarks and trade-secrets is something to watch out for (not mention that it’s a great networking event sans any costs attached – a rarity in D.C. legal networking landscape!).

Seemantani Sharma

Dear enthusiastic IP lawyers in and around Washington metropolitan area, the beautiful fall months of October and November are brimming with events and panel discussions – specifically centered on copyright law. Hence, mark your calendar and suit up for the following – (Being a soft IP lawyer, I do not keep a track of patent centric events, hence sincere apologies for not highlighting them. However, if some of you want to take a lead, you are more than welcome to do so.)

G.W. Law Alumni Reception during  AIPLA

Description : Associate Dean of Intellectual Property John Whealan invites G.W. alumni, and their guests for a complimentary reception with faculty during the American Intellectual Property Association (AIPLA) Annual Meeting.

Date & Time : Thursday, October 22nd (5-7.30 P.M.)

Venue : Stone’s Throw Restaurant (Inside Washington Marriott Wardman Park), 2660 Woodley N.W., Washington, DC – 20008

Registration : At the GW Law…

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Upcoming Events & Panel Discussions : October – November, 2015

Fall in D.C.
Image Courtesy : www.washington.org

Dear enthusiastic IP lawyers in and around Washington metropolitan area, the beautiful fall months of October and November are brimming with events and panel discussions – specifically centered on copyright law. Hence, mark your calendar and suit up for the following – (Being a soft IP lawyer, I do not keep a track of patent centric events, hence sincere apologies for not highlighting them. However, if some of you want to take a lead, you are more than welcome to do so.)

G.W. Law Alumni Reception during  AIPLA

Description : Associate Dean of Intellectual Property John Whealan invites G.W. alumni, and their guests for a complimentary reception with faculty during the American Intellectual Property Association (AIPLA) Annual Meeting.

Date & Time : Thursday, October 22nd (5-7.30 P.M.)

Venue : Stone’s Throw Restaurant (Inside Washington Marriott Wardman Park), 2660 Woodley N.W., Washington, DC – 20008

Registration : At the GW Law Alumni website

IP lawyers aiming for serious networking should not give this a miss.

Copyright & Fair Use Panel Discussion at GW Law : The Lenz Decision & the rationale of Shared Responsibility under DMCA

Description : In light of the recent Ninth Circuit’s decision in Dancing Baby v. Prince (See my post here), G.W. Law and the DC Chapter of Copyright Society is co-hosting a panel discussion focusing on whether and how this recent decision fits with the Congress’s intent for copyright owners and internet service providers for addressing online intellectual property theft.

Date & Time : Tuesday, November 3rd, 2015  (6.00 P.M.)

Venue :  Tasher Great Room, Burns Law Library , GW Law School, 716 20th Street, NW, Washington D.C.

Registration : Through Copyright Society of USA’s website at a cost of $5 for CSUSA members, $7 for non-members and free for students.

Apart from an enlightening discussion, the event gives a good opportunity to meet the members of the local copyright bar.

The 12th Annual Christopher A. Meyer Memorial Lecture by Professor Brauneis 

Description : Our beloved Professor Brauneis will deliver this year’s annual Christopher A. Meyer’s  lecture on – “The Landscape of American Cultural Production, 1978-2012: A Quantitative Look Through the Lens of Copyright Registrations”.

Date & Time : Tuesday, November 17th, 2015 (6.00 P.M. – reception to follow)

Venue : Faculty Conference Center, 5th Floor, Burns Building, GW Law School, 2000 H Street, NW, Washington DC- 20052

Registration : RSVP on Copyright Society of USA’s website (http://www.csusa.org/events/event_details.asp?id=691064&group=). The event is free to attend.

I need not mention how enthralling Prof. Brauneis’s lectures on copyright are.

Google Books Scanning Project (Authors Guild v. Google, Inc.) : Analysis

Google Books Case
Image courtesy : www.goodereader.com

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works…Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”-  Circuit Judge Pierre Leval in Authors Guild v. Google, Inc. (Page 13).


These words of Judge Leval resonate and once again reaffirm that public interest trumps intellectual property law. In an appeal from the U.S. District Court for the Southern District of New York, a three-judge panel of the  U.S. Court of Appeals for the Second Circuit upheld Google Books Library Project’s  legal status. The litigation arose in the aftermath of Google making digital copies of tens of millions of books (without authors consent) submitted to it by world’s major research libraries with the aim of making snippet view of these books available to Internet users for search.

The authors in dispute contended that Google was engaging in “massive copyright infringement” by it’s display of search results to book-seeking users.

Google’s book search functionality is described by the Court as,  “ Members of the public accessing the Google books website could enter search words or terms of their choice, receiving in turn, a list of all books in the database in which most of those terms appear alongwith the number of times.” (Authors Guild v. Google, Inc., Page 6).

Fair Use Analysis

As noted by Judge Leval, “this copyright dispute tested the boundaries of fair use“. Hence, for the sake of brevity, I will straight away dive into the the primary issue – ” Could Google rightfully take recourse to the fair use exception under 17 U.S.C. §107? “

The Court answered in the affirmative. Google’s unauthorized digitization of copyright-protected works for creating a search functionality and display of snippets from the works were non-infringing fair uses on account of following reasons –

(i) The purpose of the copying was highly transformative – 

Google’s act of making digital copies of books facilitating a search function was transformative as it had the effect of augmenting public knowledge by making available limited information about the author’s books. Further, Google’s search functionality was not a substantial substitute for author’s copyright protected works (For instance, an intended reader of Jim Bouton’s – Ball Four will in all probability not read the book on Google’s online library as only limited snippets from the text will be available for public viewing. Hence, the reader will have to explore other alternatives for procuring a copy).

(ii) The public display of the text was limited – 

The Court concluded that since a snippet view never revealed more than one snippet per page in response to repeated searches for the same term, it was difficult and almost impossible for a searcher/ reader to gain access to an extended and continuous discussion of the term.  However, the Court also expressed that if the snippet view could be used to reveal a coherent block of text amounting to 16 % of the total text then that would raise a very different question beyond the scope of the present dispute.

Suffice is it to say that, since the snippet view (in it’s present form) did not give continuous and coherent view of a large portion of text, hence was within the confines of fair-use.

(iii) The revelations (the portion of the text from the book that was made visible) were not significant market substitute for the protected part of the works in question – 

The Court concluded that the snippet view functionality as presently structured by Google substantially protected against its serving as an effective competing substitute for author’s copyrighted works.  Further, no snippet view was provided for books such as dictionaries and cook books – for which even a small percentage of view would fulfill a searcher’s needs.

The Court also stressed upon that the manner and order of the text as revealed to searchers was as important as the percentage of copyrighted text revealed. Hence, even if the search function of Google’s online library revealed 100% of the text of the copyrighted works, there would be no substitutive value if the words were revealed in an alphabetical order,  or in an order otherwise not followed in the original copyrighted work.

(iv) No denial of fair use could be found on the mere nature of Google’s commercial nature and it’s profit motivation – 

Even though Google does not receive any direct revenues from its operation of the Google Books function, the authors (plaintiffs) contended that Google was motivated by profit and sought to use it’s dominance of book search to fortify its overall dominance on the Internet search market. Thus, implying that Google indirectly reaped profits from the Google Books function.

The Court rejected this argument. Based upon precedent, (U.S. Supreme Court’s decision in Cambell v. Acuff- Rose Music Inc. ) it held that Google’s profit motivation (if any) should not deny it fair use over its highly transformative book search facility, given the absence of significant substitutive competition.

(v) Google’s act of making the digitized copies of the books available to the libraries that provided the book, on the understanding that they will be used within the limits of copyright law did not amount to infringement – 

The Court rejected plaintiff’s argument that Google’s contract with participant libraries for making digitized copies available to the latter for non-infringing fair use purposes amounted to infringement. The Court held that the present arrangement was not any different had the participant libraries made their own copies for fair use digital searches.

Further, the Court observed that based upon present record, the possibility that the participant libraries may misuse the digital copies was mere speculation. Also, there was no evidence on record to hold Google liable for contributory infringement.

The Way Forward/ Conclusion

I can only warmly welcome Judge Leval’s well reasoned and persuasive decision which once again reaffirms the public interest function of copyright law. Though not a ground breaking decision as far as the interpretation of contours of fair-use goes, my now somewhat copyright sharpened eyes can visualise following anomalies –

(a) “But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect ‘upon the potential market for or value of the copyrighted work” -Page 35 of Authors Guild v. Google, Inc.

This excerpt from the decision raises a question which has been left unanswered by the Court – “how should significant or meaningful effect upon the potential market be quantified?” – would it be loss of few sales in the primary market or would it even extend to the market for derivative rights?

While I understand that addressing this question would have been judicial overreach, it would have benefited had the Court made a cursory remark based on the facts of the present case.

(b) ” The contract between Google and each of the participating libraries commits the library to use its digital copy only in a manner consistent with copyright law, and to take precautions to prevent dissemination of their digital copies to the public at large.” – Page 44 of Authors Guild v. Google, Inc.

The delay in publishing this post (even though I had read the decision on the day it was penned down) has primarily been due to my struggle with the quoted excerpt of the decision. During one of the brainstorming sessions, my otherwise highly astute IP lawyer friend raised a pertinent question (stemming from a strong patent focus),  – ” How can a searcher/reader access full scanned copies of the book?”.

Two alternatives come to my mind – either by entering into a license agreement with the participating libraries (how will the specifics of the license play out is something I am still struggling with) or with Google (however if a license is entered between the searcher and Google without providing for a royalty to the author, Google’s fair use argument for it’s Library Project will fall at it’s face). Some have even suggested that the latter alternative might not even be an option since Google never actually sought the consent of authors.

Hence, these are precisely the sort of questions that have been left unanswered by the Second Circuit, leaving much to anticipation.

( I hope to get a better insight into these issues from none other than Professor Brauneis and Professor Oman , who I intend to meet on October 22nd at the GW AIPLA Networking Reception. This also serves as a gentle reminder to all G.W. IP lawyers in and around Washington D.C. –  you may not want to miss this!).

Being a public spirited person and as an ardent supporter of the open access movement (keeping aside the copyright lawyer in me at bay), I raise the utilitarian value of the Google Books Library Project – if after expending massive resources on digitizing rare books, searchers cannot access the full digitized(scanned) copies without entering into esoteric license agreements (capable of being understood only by lawyers) then the limited purpose served by the Google Books Library Project  is unfathomable to me.

Irrespective, the decision is a big victory for bibliophiles – who  should rejoice the decision keeping the esoteric nuances of the case much to the raking of copyright lawyers. The period of rejoice may be short-lived – considering that Authors Guild is likely to appeal the decision to the Supreme Court.

As a bibliophile myself, I can only pray that the Supreme Court takes note of the public utility function of the Google Books Library Project, without getting throttled by a restrictive fair-use regime.

Google Books Scanning Project Legal: U.S. Court of Appeals

While I had solemnly resolved not to inundate the followers of this blog with another piece this week, the hyperactivity stems from another path breaking decision on “fair-use” rendered by the U.S. Court of Appeals for the Second Circuit.

Just 20 minutes back, the Second Circuit ruled that Google’s ambitious project of building an online library was legal. To refresh the memory of all copyright law enthusiasts, Google was sued by individual authors and the Authors Guild for the former’s act of scanning millions of books for a building an online library.

Circuit Judge Pierre Leval (for me his status is nothing short of a demigod) noted that Google was within the boundaries of fair-use for making short snippets of 10 million books online. The Court found that the project served public interest without violating intellectual property law.

This is a massive win for crusaders of  access to knowledge movement , which was lately being throttled by an overtly protectionist and restrictive copyright regime.

The decision is not yet in public domain. As soon as it is available, I will analyse the contours of “fair-use” for the benefit of readers (not to mention that this decision directly impacts my current work!). My guess is that the decision will be nothing short of atleast 50 pages (tell only will tell!).

Leaks, Leakages & Intellectual Property : Draft Indian IPR Policy Text Out

The world saw her as a feistyfem
Impervious to, that she too had a heart
Unleashing the damsel in distress in her

(This amateurish autobiographical poetic device, resonates my apparent state of helplessness and frustration – though only figuratively. Having spent two consecutive sleepless nights in analyzing the draft National IPR Policy, I lost the final draft to a technical glitch. What you will read now, is a shoddy piece of analysis done in an hour. Kindly bear with it, for I am not in the frame of mind to peruse that highly “pedantic” policy document for the nth time.)

This week should be designated as the “week of leaks in the IP world” . On Saturday, the highly contentious – TPP’s, final negotiated draft IP chapter was leaked. ( Jeremy Malcolm‘s substantive analysis is a worthwhile read). And today,  just when I had called it a night (well past midnight),  my phone beeped signalling that the final draft of India’s National IPR Policy  had been leaked (perhaps the only disadvantage of literally living in two time zones!). Hence, burning the midnight oil seemed inevitable.

Images - National IPR Policy
Image Courtesy : www. slideplayer.com

Whilst I am still in the process of reading and analyzing the draft policy, I started-off with the section on Traditional Knowledge (G.W. IP folks know how sensitive this issue is to my heart) and have made a steadfast progress towards the section on public health- for reasons best known to all of us.

Before going in for publication, there was no extensive commentary from SpicyIPSwaraj Paul Barooh’s post is a quick snapshot on the timeline of the National IPR policy andPrashant Reddy does a quick overview of the draft text (I reckon that it will take few days for an extensive analysis to come-by).

Traditional Knowledge Section of Draft IPR Policy (Page 33-35)

Without sounding overtly dramatic, I salute to the IPR think tank for coming out with such a comprehensive policy on TK , though it’s merit and implementation is an altogether different matter.  Never ever did I imagine that TK would garner such extensive attention from our policy makers.

Having extensively researched on biopiracy, TK and other associated issues as part of my LL.M. research, I will highlight and analyse some substantive issues of the policy that raises my eye-brows  (Please note that I do not claim to be an expert and this is merely a feeble attempt on my part to analyse the TK policy of the draft National IPR Policy)

(I) Development of a sui generis legislation to provide a holistic and comprehensive legal framework to preserve, safeguard, protect and develop TK and TCE’s – 

This proposal for developing a sui generis framework is a welcome initiative. However, not spelling out the definite contours of the proposed sui generis legislation leaves much to the whims and fancies of our “subject-matter” expert legislators (note the sarcasm!).

While, I understand that a policy cannot be akin to law, it would have benefited had the IPR think tank given some concrete suggestions on what should be incorporated in the proposed legislation. (Honestly, after riffling through the entire draft text of the policy, at the outset the policy seems banal, bereft of any concrete proposals).

(II) Guidelines for establishing prior informed consent and benefit sharing will be reviewed and strengthened so that benefit sharing is improved and assured – 

Now this proposed policy again suffers from vagueness. It would have helped had specific guidelines been spelled out, their structural weakness identified and solutions to combat them proposed.

My primary concern with this part of the Draft IPR Policy is it’s complete absence to address the issue of ownership, making it superfluous. Seeking the prior informed consent of the TK holder before co-opting it, is morally, ethically and legally a sound policy. However, absence of addressing the issue of ownership makes this proposal redundant.

Following questions come to my mind – how can prior informed consent of a TK holder be sought when ownership cannot be ascertained?In whom does the ownership vest – is it the entire community or a specialized group of people in that community who spearhead the profession as TK holders?

For better illustration of the readers, take the case of Yoga – whose ownership has been a highly contentious issue. For protecting yoga and  other forms of TK from usurpation, a legislative or policy initiative spelling out the issue of ownership would go a long way.

Another example that crosses my mind is that of famous “Madhubani” paintings of Bihar and Nepal – who will qualify as custodians of this art form? Will it be each artisan sufficiently skilled in the art or will there be community ownership or will ownership rights vest with a union of artisans? (There can be endless permutations and combinations on this issue and my intent is not to get embroiled into critically examining the best strategy for addressing the issue of ownership, which is worthy of a doctoral dissertation).

One of the primary objectives of constituting the IPR think tank was to – “identify areas in IPR where study needs to be undertaken and give recommendations to the Ministry of Industry & Commerce“.  My not-so perfect eye sight (with glasses on) could not spot even a single recommendation.

(Dear emmetropic readers, should you spot “anything remotely in the nature of concrete recommendations”, then kindly intimate thy ignorant, blind author!)

(III) India will continue to engage actively and constructively in the deliberations in various international forums to develop legally binding international instrument(s) to protect TK, GR and TCE –  

Engage actively and constructively in the deliberations in various international forums….(BIG YAWN)” –  Suffers from acute banality and vagueness. Primary point that strikes me is the absence of defining the scope of these “various international forums” – does it include WIPO, WTO, CBD or any other fourth forum whose existence I am not yet aware of (maybe the United Nations Security Council ! – readers please appreciate the humor of the situation. However, these are precisely the sort of anomalies you can expect in the absence of precision).

Have’nt negotiations been going on since the past fourteen years at WIPO? I was expecting a nail hitting policy clearly spelling out India’s strategy to press for an internationally binding legislation on TK.

Further, why is there no mention of India’s stance on pressing for addition of Article 29 bis to TRIPS. To refresh the memory of readers, six developing countries led by India had proposed to the TRIPS Council for adding Article 29 bis warranting for disclosure of origin of genetic resources as one of the requirements for seeking patent protection.

(IV) Databases will be developed for documenting oral traditional knowledge taking care that the integrity of the said knowledge is preserved and traditional ways of life of communities are not compromised – 

While I am appreciative that development of databases for codifying oral traditional knowledge finds habitat in the National IPR policy, I would have applauded had the policy been based upon a permissive approach (consent of the TK owner is sought). Any endeavour aimed towards preservation of TK without involving all stakeholders (especially the owners and holders of TK) would be an anathema to the ethical, moral and human rights paradigm of intellectual property.

(V) The scope and coverage of Traditional Knowledge Digital Library (TKDL) will be enlarged to include additional medical formulations –  

Given that considerable opinion has been voiced from all quarters against the structural and legal defects of TKDL and it’s inadequacy in addressing patent related biopiracy (read Gopika’s post here, Sumathi’s post here, Balaji’s post here  and here, Madhulika’s posthere and my  research paper here), it is unfathomable that there is a proposal for enlarging TKDL’s scope at the cost of taxpayers money (I am by no means suggesting that nothing should be done to curb patent related biopiracy).

Rather than enlarging the scope of TKDL, I was hoping to see a  concrete redressal  mechanism for addressing the inadequacies. (By the way, TKDL has received scathing remarks even internationally).  As I  have opined in my paper, protecting TK entails international negotiations – rather than creation of a TKDL natured database. Hence, enlarging it’s scope is likely to be a futile endeavour.

(VI) TKDL will be appropriately utilized for defensive protection against wrong grant of patents through selective access to patent offices abroad under confidentiality agreements- 

Given that the average cost of revoking a patent internationally lies anywhere in the range of $0.2-0.6 million, as a citizen of a developing country, I would rather expect scarce resources to be directed towards welfare endeavors rather than patent revocation proceedings (Just to clarify again, I am by no means suggesting that patent related biopiracy should be tolerated).

Answer to protecting TK does not lie in defensive protection but rather in a robust positive protection strategy wherein rights of communities over their resources are clearly recognized.

(VII) Initiatives for international co-operation in exploration of traditional health and wellness systems will be encouraged by introducing strategic research collaborations with reputed research centres – 

After all the cynical comments, I wholeheartedly welcome this proposal by the IPR think tank. Infact, my eyes were searching for exactly the same worded policy.

The Merck- Costa Rican deal serves as a model agreement which India can explore and possibly replicate (obviously after weighing the pros and cons).

(The Merck- Costa Rican deal strikes the most amongst pharma-patent lawyers in the U.S. – I was personally told about it’s existence by none other than the Honorable Gerald Mossinghoff , who also mentored my LL.M. research. There is an interesting remark that he made, which goes at the root of India- U.S. IPR standoff. I may have discussed this with many of you. Being a public forum, I will restrain making his comments public. Patriotic Indian lawyers keen to know about his remarks should talk to me in person – you shall hear nothing but the truth!).

With this, I conclude my scathing analysis of the draft IPR policy- just the portion dealing with TK. The only words that come to my mind after reading this text of the Draft IPR Policy are “banality”  and “indefinite“. Not to mention, a half-hearted attempt to write IP policy – which is likely to resonate for years to come.

Prashant Reddy aptly puts it- “ I for one pray that the wrong text has been leaked“. Let’s all pray during this pious period of Navaratri for a miracle to happen. (I am fasting for straight nine days for the Goddess to manifest and overturn this seemingly scholarly draft National IPR Policy!)

Event Reporter : How Should Libertarians Think About Intellectual Property?

Seldom do you imagine a slumberous mid – week late afternoon leading to desultory facebook browsing to be a fruitful endeavour.  A cursory glance at the G.W. LL.M. group rapts my attention, for I see the words ” libertarians” and “intellectual property” in close proximity to each other (you needn’t guess my pause at the word “intellectual property“, however “libertarianism” apart from sounding music to my ears is also my dominant political and philosophical thought). Hence, the two combined together and my ecstasy knew no bounds. Also, lately apart from reading, thinking and writing on the jurisprudence of copyright law, I have been vehemently opposing an overtly protectionist copyright regime (for people interested, please read my comments to David Newhoff’s blogpost, which by the way is an excellent piece. Just to be clear, I  am not an abolitionist).

Hence, the time was ripe for a discussion on the public policy rationale for protecting intellectual property from the perspective of libertarians. So after calling it a day from work, day before yesterday, I attended R Street Institute’s Panel discussion on, ” A Skeptics Guide to IP: How Should Libertarians Think About Intellectual Property?”. The event was hosted by Reason (the monthly print magazine of “free minds and free markets”) and the R Street Institute (the Washington D.C. based think-tank advocating for free markets and limited government).

The impressive panel  was constituted by, my former classmate Sasha Moss from G.W. who was filling in for her senior Mike Godwin of the R Street InstituteWayne Brough of Freedomworks Brink Lindsey of the CATO Institute (my personal favorite free market think tank) and Eli Dourado (with whom I had an occasion to speak at length on pressing international IP policy issues prior to the start of the discussion and who was also kind enough to gift me two rare books on the jurisprudence of copyright) of the Mercatus Center at the George Mason University.

It was moderated by the editor-in-chief of Reason, Nick Gillespie .

The broader issue that the panel sought to delve into was the concept of intellectual property from a libertarian perspective. The primer to the panel discussion and the ensuing question and answer session is as follows –

(It is pertinent to note that only the primary issues have been highlighted. Complete transcript of the panel discussion can be obtained by contacting the author at ssharma2@law.gwu.edu).


Issue 1: Nature of Intellectual Property – Real or regular property?

In light of the Progress Clause of the U.S. Constitution, Nick raised the issue to Eli, which goes at the crux of protecting intellectual property, Was intellectual property akin to real or regular property? Or essentially, was the Lockean theory of property applicable to IP. Eli argued that as an average guy on the street (he is anything but average!), there was a need to protect IP as any other real property (land), for rewarding labour expended on creation of a work.

My understanding of his statement is that he was aligning (if not advocating) for a “sweat of the brow rationale for protecting all forms of IP (patents, copyright and trademarks). Just to clarify, the “sweat of the brow” doctrine is a copyright concept and is inapplicable to patent law.

Issue 2: Copyright Term – Lengthy copyright term and it’s repercussions?

Nick raised the issue of the ever expansive copyright term and what it meant for the innovation industry. He set-forth that at the inception of the U.S.Constitution, copyright vested in original works for fourteen years. However, the copyright term as it stands to date was – life of the author + seventy years. Sasha was swift to address the issue. To my delectation, her response resonated with my own view that lengthy copyright term had a stifling affect on innovation.

Issue 3: Intellectual Property Laws – Indispensable for innovation?

Nick raised the issue of the utilitarian value of intellectual property laws – which is now being increasingly debated upon by legal scholars and economists. How instrumental were intellectual property laws in fueling innovation? To this Brink made a noteworthy point that majority of the inventions were not under patents and that they occurred independently of patents. On this point, the panel was in unison.

(This is also in consonance with Economist’s article titled, “A Question of Utility“. While many have refuted the arguments made in this article, I partially agree that the current state of patent laws are anti-consumer and do not promote innovation. Respectfully, vehement opponents of this article are the pharma lobbyists, for whom patents are nothing but a means to perpetuate their monopoly at the cost of affordable healthcare).

Coming to copyright, Nick and Eli gave the example of Wikipedia – the world’s largest online encyclopedia, to which copyright was totally irrelevant. Even in the absence of copyright protection, Wikipedia was highly successful in widespread dissemination of knowledge. (Just to clarify, Wikipedia operates on an open- source basis, meaning that the content and other media is free of charge).

Eli’s argument hit the nail on the ground when he said that people in general were using copyright for everything apart from protecting original works of art.

Issue 4: Trans-Pacific Partnership Agreement (TPP) – Imposition of US standards of IP internationally? 

In light of the recently concluded and highly contentious, Trans- Pacific Partnership Agreement (TPP), a discussion on how libertarians perceived intellectual property internationally was expected. Questions revolved around the ramifications of imposition of US standards of intellectual property globally, as has been seen with the TPP. (For those of you following the IPR negotiations of the TPP, the final negotiated text of the IP Chapter was leaked by Wikileaks yesterday. Jeremy Malcom ‘s analysis on the leaked text is an informative read)

Wayne conceded that the existing regime of US intellectual property led to a wealth transfer from developing to developed countries.

Sasha specifically spoke in the context of India that eventually it would align with U.S.’s standards of IP. As an Indian, I found her position preposterous considering that India is already TRIPS compliant and is not compelled to adhere to U.S.’s standards of IP protection. Further, her remarks were particularly interesting given that just two days back Indian judiciary, which has always been accused of bias by the US rendered a decision in favor of Merck – a U.S. based pharmaceutical company. (For the recent Delhi High Court judgement, see Mint – a good read for non-lawyers, Shamnad Basheer’s analysis for lawyers and for the pharma-patent folks, the hundred and thirty three page decision is a blessing in disguise. I have skimmed through the first seventy-five pages of the decision and the chemical composition of the drugs in issue has captured my imagination!)

Issue 5: Piracy  – Was it really a big deal?

Now, how can any discussion on IP not touch upon piracy. There was a unanimity amongst the panelists that piracy was not as big an issue as what was made to be one by the Washington D.C. based lobbyists. Eli specifically mentioned that the scale of piracy varied across the three sectors, journalism , video and music.

Further, Brink took a stand that any attempt to curtail private, non-commercial copying would fall hopelessly. (Now this is an important remark especially in light of the recent Ninth Circuit’s decision in Lenz v. Universal. For those interested, my  analysis on the same can be found here.)


As libertarians, each panelist was asked the most pressing IP reform required in the U.S.

Sasha advocated that urgent reforms were required in the realm of statutory damages for copyright infringement. She added that massive damages for innocent acts of non-corporate infringement should be done away with (I really wonder how would the lobbyists react to this. Statutory damages is an extremely sensitive issue to them!).

Eli stressed upon the need for eliminating the US Court of Appeals for the Ninth Circuit since it was dominated by the patent bar. He further conceded that it’s status had become akin to that of the U.S. Supreme Court which severely undermined the hierarchy of judiciary.

Wayne and Brink seconded each other on the need to undo with software and business method patents.


The panel concluded in unanimity that the premise that innovation was dependent upon a stringent intellectual property regime was a flawed argument and that there were empirical studies to prove the same.  This was especially true in the context of copyright, which is the last thing on the minds of true creators and artists.

Now, take the case of Mr. Navros (in the picture), as my friend describes him as a really musicophile boy, do you think that copyright is remotely on his mind while he is in a state of trance playing the flute!

As the Melody Dries by Andras Jokuti
As the Melody Dries by Saturninus

(Image courtesy vests with my dear friend Andras Jokuti – who apart from being a highly astute Intellectual Property lawyer at the Hungarian Intellectual Property Office is also an internationally acclaimed photographer. To all connoisseurs of photography, his online photography exhibition is not worth missing.)

Overall, though very brief, the discussion was healthy and touched upon many pressing issues. As an Indian IP lawyer and given the stand-off between U.S. and India on latter’s IP policy, to my dismay I found the discussion especially in the context of pharma patents very shallow. Hopefully, not too distant in future, there will be an in-depth discourse on U.S’s IP policy vis-a-vis India,  amongst the Washingtonian libertarians.

Deciphering Legal Issues in Building Social Media Collections: The Classic Case of Twitter (Introduction)

Some anecdotal observations.

Seemantani Sharma

In the fast paced world of  Web 2.0, social media has gradually ousted the traditional modes of written communication viz. letters, postcards and journals. Whilst, I cannot recollect the last time I wrote a letter (perhaps seven years back or so), today morning’s turn of events were rather astounding. During my routine mailbox inspection,  I was enthralled  to discover the rare sight of a light blue colored –  inland letter languishing underneath a  pile of bank statements. Perplexed, thinking it be another mailbox fudge up by USPS, my attempt to return it (without looking at the name of the intended recipient) to an otherwise jubilant concierge was countered by an unfathomable question (it seemed one at that time) – “Have you changed your name to Simone or Samantha?” Little did I know that my stoic “no” to her question was garnering much attention from my Sino –…

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