Upcoming Events : March – April, 2016

As a soft IP lawyer, I want to highlight two events that have caught my fancy –

(I) Remixes, First Sale, and Statutory Damages: A Presentation of the U.S. Patent & Trademark Office  : 

The Copyright Society of the U.S.A. is organizing this presentation where Shira Perlmutter, Chief Policy Officer and Director for International Affairs at the U.S. Patent and Trademark Office will present the findings and recommendations of the recently published White Paper on Remixes, First Sale, and Statutory Damages by the U.S. Department of Commerce’s Internet Policy Task Force.

CSUSA
This trademark is the exclusive property of the Copyright Society of the U.S.A. Views expressed in this blog post are NOT endorsed by it.

Date : March 22nd, 2016

Venue : The George Washington University Law School Tasher Great Room

Registration Required : Yes

Price : $ 5 for CSUSA members and $ 7 for non-members.

(II) WIPO Conference on the Global Digital Content Market : 

The World Intellectual Property Organization (WIPO) is organizing a Conference on the Global Digital Content Market. The Conference will explore themes such as :

(a) copyright in the digital age

(b) the impact of the digital environment on creators

(c) the role for publishers, producers and distribution platforms

(d) digital markets, access, and participation

Date : April 20 – 22, 2016

Venue: WIPO Headquarters in Geneva, Switzerland

Registration Required: Yes

Price : None

The CSUSA presentation will not be recorded and I’ll be unable to attend it due to a clash. However, the webcast of the WIPO Conference shall be webcasted and I’ll run though the transcript for the benefit of all readers. I’m actually pretty kicked about the WIPO Conference given the impressive credentials of the panelists.

 

Event Reporter : CATO Institute’s Panel Discussion on IP and First Principles

CATO Institue
This trademark is the exclusive property of the CATO Institute including any interest and title that may arise under it. CATO Institute DOES NOT endorse the views of this blog post.

INTRODUCTION :

Apologies for my inability to give an in – person account of CATO Institute’s Panel Discussion on Intellectual Property and First Principles . The absence to attend emanating from a clash with an important meeting.

In some of my previous posts (see here and here), I’ve mentioned about my keen interest in the jurisprudential and constitutional underpinnings of IP. Hence, I made a sincere attempt to decipher many of the issues by listening to the podcast thrice ( Absolutely no exaggeration! Prof.Epstein’s portion of the discussion is particularly intriguing to my not – so – sharpened interdisciplinary approach to IP).

US Constitution
Image Courtesy www.godfatherpolitics.com

Randolph J. May of the Free State Foundation, Prof. Richard A. Epstein of the NYU Law School,  Jim Harper of the CATO Institute, Eli Dourado  of the Mercatus Center, George Mason University comprised the erudite panel.  Roger Pilon of the CATO Institute was the moderator.

The panel debated on the divide between conservatives and libertarians on the conception of IP. Essentially, they probed into the fundamental question of whether IP was akin to real property? The constitutional underpinnings of IP protection were also deliberated upon.

For the sake of brevity, I’ll not delve into every argument raised. Only pertinent issues are highlighted. (Those interested can contact me for the complete transcript of the discussion).

THE PANEL DISCUSSION :

The discussion commenced with May talking about his celebrated book, ” The Constitutional Foundations of Intellectual Property” followed by Prof. Epstein’s highly interdisciplinary discourse (at the speed of a maglev bullet train) on IP protection. ( I must confess that it was beyond my feeble comprehension after the first run through of the podcast)

The discussion progressed by Harper taking a different approach to these issues, not as an IP lawyer but as an Information Policy Practitioner . It succeeded with Eli Dourado aligning with Jeremy Benthams’s utilitarian approach to IP. Rebuttals followed by Q & A session concluded the discussion.

Randolph May’s Arguments 

May, by way of reference to his book made a case that the founders of the American Constitution accepted the applicability of Lockean Theory of Property to IP. This was based on four conditional premises, which according to him influenced the Founders –

(I) Each person had the fundamental right to enjoy the fruits of his/her labor including IP.

(II) The fruits of those labor became that person’s property.

(III) Government had a right to protect that property.

(IV) Natural rights had an influence on the drafting of the Progress Clause of the Constitution.

Constitutuonal Foundations of IP
Image Courtesy : www.amazon.com

Further, he pointed out that the Founders imbibed Locke’s view that the Government’s primary purpose was to protect a person’s property including IP. He made a cursory reference to Noah Webster’s , James Madison’s and Abraham Lincoln’s views on property and it’s clout on the final version of the Progress Clause.

Remarks on post – constitutional developments and sub – war era were also made. He concluded by stating that the intellectual, constitutional and historical background viewed copyrights and trademarks as natural rights.

Professor Epstein’s Arguments 

What happens when one of the most frequently cited legal scholars is debating on a seemingly complex topic? You try to grapple with your ignorance by listening to his portion of the podcast thrice and still end up muddying the waters. Hence, I urge all readers to exercise caution while relying upon my interpretation of his arguments.

Following arguments are noteworthy –

(I) He was a sympathetic critique to May’s ( fondly addressed as Randy) natural rights underpinnings to the Progress Clause. For him, it was a matter of political construct rather than a natural one.

(II) He made a scathing remark on Locke’s Theory of Property calling it incomplete and uninspiring.

(III)  He was in favor of a utilitarian conception for protecting IP.

(IV) He was of the opinion that modern IP policy was flawed on grounds of long duration of protection.

He concluded by stating that a strong property rights system with an appropriate duration was more important as it led to reduced rents and genuine innovation. Further, IP in many ways worked better than physical property. To substantiate this, he drew a parallel between IP and real (physical) property.

Jim Harper’s Arguments

Though trained in IP law, Harper’s approached these issues as an Information Policy Practitioner, which was a breath of fresh air. Apart from his thought provoking anecdote on the stray mitten, following pertinent points were made –

(I) His approval of IP as a concept, possibly emanating from his pro – property rights approach. Though he distinguished between IP and real property.

(II) Transposing the property law concept of “abandonment” to IP. While real property was seldom abandoned, abandonment of IP was a common phenomenon.

(III) There was a goal setting problem in IP as the dividends flowing from it were not easy to determine.

(IV) Non – homicidal nature of IP  made it’s protection to many irrational.

He concluded by stating that while protection for real property was visible, same was not true for all forms of IP. Further, he called for IP protection for personal information.

Eli Dourado’s Arguments

Being a libertarian and as an ardent follower of Eli’s work, it is always a lucullan bliss to hear him. To my delight, my prognostication of his arguments were true. Following points were noteworthy –

(I) Aligning with Jeremy Bentham, he stated that IP was deep rooted in libertarian principles.

(II) Congress was not obligated to protect IP under the Progress Clause. It was a discretionary power.

Progress Clause
Image courtesy : www.valuablepatents.com

(III)  His perception on natural rights as not being something normal.

(IV) Application of alternative First Principles to IP.

(V) He was critical of the  retroactive term extension by CTEA. He viewed it as pure rent seeking under the garb of copyright protection which did not lead to the promotion of the Progress Clause.

(v) He lambasted at the role of the Patent Bar in lobbying for the creation of  Court of Appeals for the Federal Circuit. This according to him was an epitome of maneuvering the political system in favor of corporate interests. Further, more than half of patents granted in recent years were software related, which was in sharp contrast to Supreme Court precedents. (For more on this, read his essay here).

He concluded by stating that the judicial decisions had been severely manipulated in favor of IP owners.

CONCLUSION :

A yet another enlightening discussion on one of my emerging areas of interest. No formal announcement in whose favor the debate tilted was made.  However, due to my political affiliation and as Eli’s fan, I personally align to his position that strong IP protection was not necessarily innovation inducing.

May’s argument is a motivator for me to read his book ( I’ve already ordered my copy! ). Prof. Epstein’s  awe inspiring colloquy got my grey cells working really hard (after a long time I must admit! ). And  Harper’s out – of – box approach to these issues combined with witty anecdotes were music to my ears.

Overall, a healthy discussion and not worth missing particularly for those interested in the politics of IP. A piece of advice, “listen to the podcast when time is an article of abundance and when grey cells are at their active best.”

 

 

 

 

 

Gong Xi Fa Cai, IP and Upcoming Events

As they say, better late than never. The unusual delay in posting this piece is attributable to my ill – health stemming from extensive travel while I was at my home turf and landing amidst Snowzilla ( I was in India for almost three weeks in January after more than a year).

Hence, could there be a better timing than the commencement of the Year of the Monkey to syncopate this deafening silence on my part. Little did I know that my inability to wish the readers a Happy New Year as per the Gregorian calendar was paving the path for me to wish all of you Gong Xi Fa Cai! May the Monkey be an epitome of vitality, prosperity and success for all.

Year of Monkey
Image Courtesy :  www.mixcloud.com 

 

On this occasion, I also want to thank each one of you for your unflinching support to my blogging endeavour. A special thanks to my Philadelphian cousin Terence Tuhinanshu, who not only inspired me to blog but being the dreamer – writer sorts also took upon himself to review my writing ( To know what does it mean to write like a dream, visit his blog).

I’m also grateful to Dr. Amal Punchihewa for his timely encouragement and words of advise, Pratik Sanwaria for giving suggestions on topics to cover, Mario Zuniga, Andras Jokuti and friends back in India for their valuable inputs on improving the blog. Last but not the least my parents who have always held a steadfast belief in my goals.

On the first day of the Chinese Lunar Calendar, I also make a solemn New Year resolution of writing atleast three quality posts every month. While I would ideally want to stick to my previous promise of weekly posts, with a deluge of professional and scholarly commitments, it seems far fetched.

Today, I shall not delve into anything elaborate. For the benefit of readers, I want to highlight two upcoming events which have caught my fancy –

(1) Panel Discussion on Intellectual Property and First Principles

The Cato Institute’s Center for Constitutional Studies and the Federalist Society for Law & Public Policy Studies is organising a panel discussion on how libertarians and conservatives conceive intellectual property. The panel discussion seeks to delve into the question,whether intellectual property was akin to really property in the sense of conferring a natural right upon the owner or was it a government conferred monopoly impeding innovation.

The discussion will be held at Hayek Auditorium on February 10th, 2016 from 11.00 A.M. to 1.00 P.M. Prior registration to the event is imperative. For those who can’t attend, the event will be live webcast.

By now, many of you may be aware of my keen interest in this topic, which essentially goes to the jurisprudential roots of IP protection. I see this topic as an extension of the conversation which took place in one of the panel discussion’s organised by the R Street Institute and Reason in October last year.  For an extensive coverage on that discussion, see my post here.

Given my keen interest in the topic (to the extent that I’ve been researching independently on the topic and deliberating upon writing a paper on it), I’ll be attending the event and doing an extensive commentary and coverage on it. Watch out for the next post on my views on the discussion.

(2) International Conference on Intellectual Property and Development   

The World Intellectual Property Organization (WIPO) is organizing an International Conference on Intellectual Property and Development on April 7 and April 8, 2016 in Geneva.  Prior registration for the Conference is imperative. For those who can’t attend ( I’m on the list. I will not possibly travel to Geneva to attend one Conference even though the topic is of immense interest to me!) , the conference will be live webcast from April 7, 9 : 00 a.m. Geneva time ( Unfortunately, the link to the live webcast is not yet available. I’ll post it as soon as I find about it).

The Conference seeks to delve into the seemingly debatable issue of role of IP in development.  What strikes me most about this Conference is it’s wide range of discourse on the influence of IP on development. Traditionally, I’ve mostly attended or have read about the role of IP in social and economic development (most of the panel discussions that I’ve attended in Washington D.C. revolve on the interplay of IP with economic development). Hence, it’ll be interesting to hear about the role of IP in cultural development.

The agenda for the Conference also states some interesting case studies that will be presented to demonstrate the role of IP on the three facets of development, ” economic, social and cultural.”  Given my interest in Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE), I’m particularly keen to hear about the ” From the heart – Moldovan brands” , ”  Jamaican jerk seasoning” and the ” Amouage luxury perfumes” case studies.  I want to be able to gauge their interrelationship (if any) to TK and TCE.

Needless to say, I’ll be watching the entire live webcast and doing an extensive coverage and commentary on the same.

 

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.

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).

DISCUSSION

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.)

QUESTION & ANSWER SESSION

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.

CONCLUDING REMARKS

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.