Ricketson and Ginsburg: Berne baby, Berne...

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

International Copyright and Neighbouring Rights: The Berne Conventionand Beyond 2nd Edition By Sam Ricketson and Jane Ginsburg, 2006,Oxford University Press Price: £225, Hardback, ISBN: 0-19-825946-8pp lxxxvii + 1540, 2 Volumes   The praise     

The internal market and the grand exception

The Oxford Encyclopaedia of European Community Law The Lawof the Internal Market By A.G. Toth, 2005, Oxford: Oxford UniversityPress Price: £155.00, Hardback, ISBN: 0-19-825600-0   This second volume of the Oxford Encyclopaedia appears somefifteen years after the first volume, which dealt with InstitutionalLaw. A third volume is projected which will cover CompetitionLaw. Given the excellence of the first two volumes, one hopesthat we will not have to wait as long for the final instalment.An update of the     

Copyright, continuums and freedom of speech

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Copyright and Free Speech Comparative and International Analyses ByJonathan Griffiths and Uma Suthersanen, Eds, 2005, Oxford: OxfordUniversity Press Price: £80.00, Hardback, ISBN: 0199276048.pp. 426   If one were to summarize this     

Multimedia Works and Categorization in UK Copyright Law

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Copyright Law in the Digital Society—The Challenges ofMultimedia By Tanya Aplin, 2005, Hart Publishing Price: £60,Hardback, ISBN: 1-84113-356-6, pp. 320   The protection of multimedia     

International Patent Law is Obsolete and Copyright is Obsolete

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

International Patent Law is Obsolete By Anna Mancini, 2006,New York: Buenos Books Price: US$35, Paperback, ISBN: 1-932848-17-7E-book Price: US$7, ISBN: 1-932848-16-9 Copyright is ObsoleteBy Anna Mancini, 2006, New York: Buenos Books Price: US$35,Paperback, ISBN: 1-932848-17-7 E-book Price: US$5, ISBN: 1-932848-19-3   In International Patent Law is Obsolete Dr Mancini's openingpremise is     

Moving beyond the law: foreign pressure and the politics of piracy in China

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

The Politics of Piracy – Intellectual Property in ContemporaryChina By Andrew C. Mertha, 2005, Cornell University Press Price:US$32.50, Hardback, ISBN: 0801443644. pp. 258   Criticism and proposed solutions surrounding China's ‘intellectualproperty problem’ in many cases have been     

A step back in time: nineteenth century US patent law revisited

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

A Treatise on the Law of Patents for Useful Inventions, FourthEdition By George T. Curtis 1873; Boston: Little Brown Books.Reprinted 2006; Clerk, New Jersey: Lawbook Exchange. Price:US$150, ISBN: 1584775807, pages xxxvii + 749   In the United Kingdom, the great patent treatise of the twentiethcentury     

Scholarship and intelligent discussion

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Intellectual Property Rights and the EC     

Terrell on Patents--a patent attorney's perspective

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Terrell on the Law of Patents By Simon Thorley, QC, RichardMiller,     

The emerging international framework of business marks in the digital economy

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Domain Name Law and     

Oh, Court of Equity!

Oh! Court of Equity, misnamed, where doubt Leads many in; whencefew or none, get out;

These woeful opening lines of a poem‘Court of Chancery’ by a Reginald James Blewittin 1827, was the way he took up the tomahawk, as he termed itin his preface, against a dire national enemy. In practice,in Lincoln's Inn, he found the great delay and ruinous expensesof a Chancery suit had become proverbial. After giving up practicehe found the tranquillity of the park at Fontainebleau moreconducive to overcoming his previous anguished existence withhis verse satirizing the tedium of proceedings, its expenseand the follies and conceits of former colleagues. Former colleaguesare named in     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

Sourcing from China: stopping the IP leaks from your clients' supply chain

Legal context: It is no secret that IP in China is a challenge. However, commercialactivity in or with China is now predictable enough that companiescan, and should, plan for it by taking control of their supplychain. This requires a combination of legal and practical measures.This article sets out some of these steps. Key points: In order to minimize the risks of IP leakage their supply chainsin China, there are three key stages of protection: (i) Pre-sourcing;(ii) Negotiating strong contracts with suppliers; and (iii)Managing the relationship with your supply chain. Practical significance: If your clients do business in China or source products fromhere and cannot answer the following questions, their IP isat risk of infringement. They need to take steps to proactivelymanage their supply chain.

• Do your clients know which factoryis producing their products?How many links are in your clientssupply chain, each one increasingthe chances for IP infringement?
• Do your clients' agreements with their suppliers adequatelyprotect their IP?
• Have your clients taken steps to prevent‘midnight productionruns’ and ‘backdoor sales’by their suppliers?
• How is the IP being provided to them?Do your clients need togive them everything for production?
• What steps have been taken post-production to ensure thatyourclients' suppliers don't continue to manufacture theirproducts?

     

Editorial

Professor Maitland liked to point out that the beginnings ofthe trust are discernible in a ‘slight but unbroken threadof cases, beginning while the Conquest is yet recent.’¹This forensic Methuselah retains its vitality today becausereams of contractual boilerplate cannot compete with the efficiencyof equity's default rules. These were famously expressed bythe great Chief Judge of the New York Court of Appeals—laterto become a Justice of the Supreme Court of the United States—BenjaminCardozo, in Meinhard v. Salmon, 249 NY 458, 464 (1928):

Manyforms of conduct permissible in a workaday world for those actingat arm's length, are     

Border Bible

Enforcement of Intellectual Property Rights through Border Measures—Lawand Practice in the EU By Olivier Vrins and Marius Schneider(eds), 2006, Oxford University Press Price: £175.00, Hardback,ISBN: 0–19–928879–8, 1424 pp   It is a brave person who takes on the border regulations inone jurisdiction, let alone all of those in the Community. Experiencehas shown that the questions arising under the European borderrules are rarely plain and never simple. Hence anybody takingon the task of writing or editing a book about such things     

Does private copying need an update in the UK?

Legal context: Most European legal systems have limited the ‘exclusive’reproduction right of authors in their works to enable usersto copy, for private purposes and without the authorizationof the authors, legally acquired protected material. In exchange,authors receive compensation for their loss of control of theircreations. The UK Copyright Act does not generally permit privatecopying, but it does exempt a few acts from the exclusive rightsawarded to authors through copyright. Key points: The article examines the limitations to the reproduction rightprovided by IP law in the UK, such as time-shifting, in thelight of relevant case law—GEMA (1964), Sony v UniversalStudios (1984)—the European Copyright Directive and aEuropean sector inquiry. Many countries have established levieson copying-friendly media where their proceeds are distributedto authors as compensation. This article argues for the needto reform the IP law in the UK, arguing that time-shifting andother reproduction acts authorized by the statute are privatecopying in disguise. The paper only considers legal privatecopying, which should not be mistaken with piracy or file-sharingin P2P networks. Practical significance: Copying another's works in the privacy of one's home has becomeincreasingly popular on account of the fast-developing paceof technology and its supporting platform: the internet. Althoughlevies have often been imposed on physical media (CDs, CDRs),new technologies such as MP3 and MP4 players and USB flash drivesare often exempted, despite their widespread use as tools forprivate copying. The private copying trend is bringing greaterbenefits to the users than to the creators of protected workswho understandably would like to obtain a share of the overallprofits.     

In Person

Arnaud Folliard-Monguiral is a lawyer in OHIM's Industrial PropertyLitigation Unit. He is the regular contributor, with David Rogers,of the JIPLP annual Community trade mark case law round up.JIPLP managed to catch up with him for long enough to ask afew questions... How did you first become interested in IP? When I was finishing my law studies in the early 90s, IP wasbeing revolutionized     

Editors' Note

At the beginning of Act IV of Shakespeare's King Lear, Edgarcongratulates himself on the fact that, reduced to beggary,there is nothing worse that can happen to him. The discoverya few minutes later that his father has been blinded, ruinedand cast out quickly disabuses him of such a foolish notionand, enlightened as to the true nature of this uncertain world,he says

Who is't can say ‘I am at the worst?’... The     

Court of Appeal hears 'huge money' divorce case involving offshore trusts

On 7 March, Mr and Mrs John Charman's ‘huge money’divorce reached the Court of Appeal. Last year insurance magnateJohn Charman was ordered by the High Court to pay his formerwife £48 million in what is thought to be the biggestdivorce award in legal history. (See Trusts & Trustees,Volume 12, Issue 9, November 2006, High-value divorces and trusts,p 22, by James Freeman of Speechly Bircham LLP). James Freeman, family law solicitor at City law firm SpeechlyBircham LLP (tel. 020 7427 6584), commented on the case:

TheCourt of Appeal will rule on how parties with unusually highwealth, including offshore trust assets, should be treated ondivorce.     

Which law applies? A reply to Professor Torremans

The first 150 words of the full text of this article appear below.

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

In a recent article,¹ Professor Torremans argues that the countryof origin (sometimes called the lex originis) should be thelaw applied to authorship and ownership of copyright.² There is no doubt that several countries do apply the countryof origin to initial ownership and authorship of copyright works.Citing both the Austrian and Belgian Codes on Private InternationalLaw as examples,³ Professor Torremans also mentions the decisionof the US Second Circuit of Appeals in . . . [Full Text of this Article]