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LEGAL VIEWS ON IP AND IPR - CONT'D

Existing International Copyright Treaties

They are:

  • Berne Convention: signed in 1886, revised many times and ratified by more than 160 countries. Berne establishes minimum standards of protection (types of works protected, duration of protection, scope of exceptions and limitations) as well as the principles of “national treatment” (works originating in one country receive other countries copyright protection) and “automatic protection”.
  • WIPO Copyright Treaty: signed in 1996, specifies that computer programs and databases are protected by copyright. Also that the creator holds the right to transmit works over the Internet. In addition it defines as copyright infringements (i) the removal of digital locks and (ii) the removal of embedded rights management information.
  • The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS): active since 1996, includes provisions related to the enforcement of IP rights. It says that national laws have to make the effective enforcement of IP rights possible, and describes in detail how enforcement should be addressed.

 

Existing Patent Treaties

They are:

  • Paris Convention for the Protection of Industrial Property
  • Patent Cooperation Treaty
  • World Trade Organization – Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
  • Procedures under the European Patent Convention
  • Swakopmund Protocol for the African Regional Intellectual Property Organization (ARIPO)
  • The Bangui Agreement for the Organisation Africaine de la Propriété Intellectuelle (OAPI)
  • Eurasian Patent Convention

 

New Copyright and Patent Treaties (in progress)

ACTA – Anti-Counterfeiting Trade Agreement

Is an agreement negotiated in secret, to create new global IP enforcement standards, above and outside the control of nations. The treaty was signed by US, the EU, Switzerland, Canada, Australia, New Zealand, Mexico, Singapore, Morocco, Japan, and South Korea. EU rejected it later on by 92% of public votes.

ACTA Provisions:

  • Internet Service Providers (ISPs) turn Into copyright police
  • Violation of citizen’s privacy and violation of due process
  • Restrictive digital locks
  • Greater civil and criminal penalties for copyright enforcement
  • Overrides country legislation
  • Nondemocratic enforcement committee created
  • Adopt criminal sanctions for copyright infringement done without commercial motivations

 

TPP - Trans Pacific Partnership Agreement

Is a multi-national trade agreement being negotiated in complete secrecy between the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. Its main component is the extension of IP rules well beyond ACTA’s, across the globe.

TPP’s Provisions (as leaked):

  • ISPs Turning Into copyright police and potentially liable for failure
  • Temporary copies equated to copyright Infringement
  • Expand copyright terms to life +70 years for personal works and creation + 120 years for corporate works
  • Escalate protections for digital locks by making it a criminal offense
  • Ban importation of works from alternate sources without the author’s permission
  • Adopt criminal sanctions for copyright infringement done without commercial motivations
  • Overrides country legislation

 

IPR Conclusions for Copyright Laws

Copyright law has been evolving since the 1880’s when the Bern Convention was first signed. Up to 2011, most copyright laws throughout the world had similar terms. They all had the intention of safeguarding the rights of the creator but also provided for some social benefit, particularly when it comes to education and the manipulation of the work for personal use. More recently, there were some unique developments, such as the promulgation of the Digital Copyright Millennium Act (DMCA) in US. This law broke conventional legal tradition and imposed penalties out of all proportion for damages caused by copyright breaches. Unfortunately, this was only the tip of the iceberg. The US, through its lobbying, diplomatic methods, and threatening ways has been trying to impose similar draconian laws throughout the world. These types of laws are heavily biased in favour or corporations, leaving very little as social or private benefits. The ACTA and TPP treaties exemplify such efforts where copyright breaches are being taken out of Civil Law and into Criminal Law with the help of yielding governments.

 

IPR Conclusions for Patent Laws

Patent law has been evolving since at least 500 BC. Up to 2011, most patent laws throughout the world had similar terms. They all had the intention of safeguarding the rights of the inventor but also provided for social benefits by demanding full disclosure of the invention’s details. More extreme and unbalanced views are being promoted at the worldwide level by the US through many initiatives, including the ACTA and TPP treaties. These new approaches do not consider IPR breaches as disagreements between people but criminal offenses against society. These views are being promoted into laws by governments with similar views as the US.

 

Legal views on IP and IPR – Conclusions

Form a legal standpoint and studying IP and IPR laws from as back as possible, they all had the same idea. They tried to find a balance between personal ownership and “social” benefits. The general notion was always that IPs are properties and as such their ownership is not absolute but limited by what “society” determines. In a sense, other than tradition, laws purely reflect the thinking of their time in a mechanical manner. They offer no insight or guidance as to the rationality or irrationality of IPs or IPR and are, therefore, irrelevant to our discussion.

Note: please see the Glossary if you are unfamiliar with certain words.

Continue to Intellectual Property Rights Are Dumb - Part 4

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