Three IP blogs

Lessig Blog By Lawrence Lessig United States of America Archivedback to August 2002 http://www.lessig.org/blog/ Techno Llama ByAndres Guadamuz Scotland Archived back to October 2004 http://technollama.blogspot.com/ Patently-O:Patent Law Blog By Dennis Crouch United States of America Archivedback to April 2005 http://patentlaw.typepad.com/  

In search of copyright author(s)

Who should be considered the author of a work protected by copyright?In recent years, there has been an expanding critical literatureexamining notions of authorship and the role of the author inthe creative process, often leading to suggestions for waysin which the copyright framework might be recalibrated to recognizecollective effort. This book by Lior Zemer is an excellent additionto those works. Eloquently written and skilfully referenced in the eight chaptersthat make up Zemer's book, its key aim is to persuade the readerthat the individual and the public should be seen as joint authorsof creative works. In making his arguments, he takes us froma Conceptual Challenge (Chapter 2) to a     

合作作品法律规定的完善

合作作品就是两个以上的人根据合作协议创作的作品。按照合作协议的约定履行义务,并将其贡献融入合作作品的当事人,即为合作作者。合作作品著作权由合作作者共同享有。判断一件作品是否为合作作品,须考虑三个条件:当事人之间是否有合作协议、当事人是否按照合作协议约定履行义务并将贡献融入合作作品。不能同时满足这三个条件的、由两个以上的人共同创作的作品,可能是汇编作品、组合作品或者演绎作品,而不是合作作品。现行《著作权法》及其实施条例关于合作作品的规定存在三大缺失:一是忽视了当事人之间的合作创作意图;二是将合作创作混同于单独创作;三是用实际创作取代当事人的贡献。2012年3月31日,由国家版权局发布的《著作权法》第三次修改征求意见稿,基本上维持了现状。针对此,本文提出了关于完善合作作品规定的建议。     

Kogan v Martin: A New Framework for Joint Authorship in Copyright Law

The Court of Appeal has set out a new framework for the application of copyright law's joint authorship test in a recent landmark case. Kogan v Martin brings some welcome clarity to the complex joint authorship landscape, embedding an inclusive pro-collaboration default standard. This case note contrasts the appeal court's nuanced framing of the dispute with the first instance court's narrower approach. The note then examines the new joint authorship framework and explains how it allows the test to be applied with an eye to the reality of collaborative creative endeavours. Finally, the significance of Kogan v Martin is highlighted, as are some questions which remain unanswered.     

The directive on the legal protection of computer programs

Conclusion Other matters which are essentially left to national provisions include issues of fair use (apart from Article 5), moral rights, authorship and ownership. However, the bland terms of Article 2 (dealing with authorship) was only reached after one of the more controversial proposals was rejected. This was the suggestion that the ownership of a program which has been commissioned should belong to the commissioner rather than the author. This would have been a provision which would have been out of step with most countries' copyright legislation. In any case, it is probably a matter best dealt with by contract. The author, or his employer, will be able to negotiate so that their creativity can be retained in the organisation while the commissioner can ensure that the product can be fully and beneficially used in his organisation. if that requires a transfer of the full copyright then the assignment must be contracted.Article 10(1) requires that member states shall implement the provisions of the Directive by 1st January 1991. Given that many of the requirements are already in place in the Copyright, Designs and Patents Act 1988, it will be a nice matter of judgment for the United Kingdom to decide how that implementation is to occur. There are certainly a sufficient number of differences from our present law, and ambiguities as to their effect, to require some substantive modification of the scheme of the 1988 Act.     

Trade mark use in transit: EU-phony or cacophony?

Legal context The present article discusses the opinion of Advocate-GeneralJacobs in Case C-405/05 Class International BV v Unilever NVand others, according to which trade mark owners cannot opposethe entry into the European Union of grey market non-Communitygoods placed in external transit, on the grounds of Article5(1) of the Trade Mark Directive, or any equivalent provision,as such entry does not constitute trade mark use. Key points We examine the consistency of this approach withprior case law of the European Court of Justice, namely in theCommission v France, Rioglass, The Polo/Lauren and Rolex casesand draw a parallelism with Council Regulation (EC) 1383/2003. Practical significance We conclude that trade mark owners shouldbe allowed to prohibit the placing in transit of goods whichwould infringe an intellectual property right under the lawof the transit country, unless the owner or consignor of thelitigious goods can undeniably prove that the goods are notdestined for the internal market. Stop press. At the end of the article the authors provide abrief analysis of the European Court of Justice's decision of18th October 2005 in this case.     

论合作作品中主体身份的确认

就合作作品的主体身份确认的要件而言,共同创作的行为与共同创作的意图历来被认为是核心要件.然而,对两个要件内涵的理解,一直存在模糊的认识.为此,有必要对两个核心要件进行深入地阐述和分析,以期建 立正确的判断标准,从而引起司法实务的重视.     

Disintegration: Environmental Protection and Article 81 EC

This article addresses the question of whether the modernisation and decentralisation of EC competition law will affect the integration of environmental protection requirements into the framework of Article 81 EC. First, the interface between competition policy and environmental protection at both the constitutional level and operational level is investigated. Following this, the Commission's assessment of environmental benefits under Article 81(3) EC prior to decentralisation and modernisation is explored. It is submitted that the Commission's expansion of its interpretation of the first two positive criteria of Article 81(3) EC allowed environmental objectives and competition goals to be balanced within the framework of Article 81 EC. Finally, this article examines the extent to which the decentralisation and modernisation of Community competition law may impede the integration of environmental protection into the definition and implementation of Article 81 EC.     

New pitfall for the pharmaceutical industry

Legal context This article reviews the Commission decision thatfined AstraZeneca 60 million for abuse of Article 82 EC. Itlooks at the decision in the context of the EU legal frameworkfor pharmaceuticals and considers the legal basis for the Commissiondecision. Key points The article highlights the key points of the allegedabusive practices that do not appear to be consistent with theEU regulatory legal framework and the ECJ jurisprudence in particular,read in conjunction with the principle of commercial freedom. Practical significance The Commission decision (if upheld bythe courts) would have an significant impact on the way thatpharmaceutical companies run their business. This would constitutean unprecedented interference with the principle of commercialfreedom afforded to pharmaceutical companies and specificallyrecognised by the ECJ.     

Making sense of HIPAA Privacy: solutions for complex compliance dilemmas

This Article examines and proposes solutions for the following compliance problems under the Health Information Portability and Accountability Act's Privacy Rule: (a) determining compliance requirements when multiple provisions of the Privacy Rule allow a use or disclosure of protected health information; (b) managing minimum necessary for disclosures to noncovered entities; (c) managing interaction between organized healthcare arrangements and noncovered providers; (d) processing joint health and life/disability insurance applications; (e) reconciling family coverage explanations of benefits and family member's confidential communication demands; and (f) explaining denial of protected health information access based on endangerment. In the course of the analysis, the Article presents a Privacy Rule Compliance Tool that summarizes the compliance requirements associated with each Privacy Rule provision that allows protected health information use or disclosure.     

Who controls the Naomi Campbell information flow? A practical analysis of the law of privacy

Legal context. The House of Lords held that the medical privacyof the glamorous supermodel Naomi Campbell was violated by publicationof details of her drug addiction treatment and a paparazzi picture.English law is developing under the influence of Article 8 (theright of privacy) and Article 10 (the right of freedom of expression)of the European Convention of Human Rights. The court explainedhow the action for breach of confidence protects privacy. So,who controls the Naomi Campbell information flow? Key points. Primarily, the courts control the flow of privateinformation. They do so through the cause of action of breachof confidence and remedies. In deciding liability, the courtsshould ask whether the benefit of publication is proportionateto the harm done by the invasion of privacy. To answer the question,they must balance the public interest in the right of privacyagainst the public interest in the right of freedom of expression.They may settle on a Reynolds type test by considering a numberof non-exhaustive factors. The article examines seven suggestedfactors and the remedies which can be deployed by the courts.Judgments from the English courts and the European Court ofHuman Rights are considered, including Campbell v MGN (HL),Douglas v Hello! (CA), McKennitt v Ash (HC), Peck v UK (ECtHR),Édition Plon v France (ECtHR), and Von Hannover v Germany(ECtHR). Practical significance. There are an increasing number of privacyclaims against the media. The article includes a checklist ofseven factors to help determine where the balance lies betweenprivacy and freedom of expression.     

Conversion in the trade mark context

Legal context. The paper examines the formal requirements formaking a conversion application and provides an overview ofall the significant time limits which have to be observed. Key points. All relevant decisions taken by the Court of FirstInstance and the OHIM's Boards of Appeal are analysed by theauthors, particularly regarding the geographical scope and registrabilityof English language words. Consideration is also given to transformationand conversion under the Madrid Protocol and explanations areprovided regarding the five different types of conversion andtransformation in that context. As a special feature, the articledeals with conversion in the new Member States as well as inthe context of multiple oppositions. Practical significance. The article looks at conversion of Communitytrade mark applications and registrations into national trademarks from a practical and regulatory perspective. It explainsthe different considerations for requesting conversion froma commercial, legal and factual point of view and, in particular,the different grounds for requesting conversion.     

Intellectual property issues in joint ventures and collaborations

Legal context: The IP issues involved in forming, operating, and (inevitably)terminating a joint venture or collaboration are much more numerousthan would typically apply to a straightforward investment inan organic growth, or on a merger or acquisition. The pitfallsare also more insidious. Key points: The author approaches the topic within the commercial context,discussing the commercial rationale behind joint ventures andcollaborations and the life cycle of a joint venture or collaboration. The article explores the four key stages of a joint ventureor collaboration: (1) pre-contract stage: confidentiality andtrade secrets; due diligence; structural considerations; (2)formation stage: assignment and licensing of existing rights;the terms of transfer; valuation of IP contributions; (3) durationstage: future contribution of existing and future backgroundrights; ownership and exploitation of foreground rights; maintenanceand protection of rights; and (4) termination stage: providingfor both unexpected and expected events. The article also provides advice as to avoiding the pitfallsof joint ownership: understanding the differences between jurisdictions;potential problems; and avoiding the banana skins. Practical significance: Joint ventures and collaborations are widely used across a rangeof industry sectors, but particularly high-tech sectors, suchas pharma/bio, information technology, and communications, inwhich IP rights are particularly important. Parties consistently cite the loss of background IP rights asa major risk in joint venture collaborations, and dealing withIP that is generated in the course of a joint venture or collaborationcan also present particular problems, particularly if it isto be used or owned jointly by more than one party.     

Classical Sāṁkhya on the Authorship of the Vedas

The question as to whether the Vedas have an author is the topic of vivid polemics in Indian philosophy. The aim of this paper is to reconstruct the classical Sāṁkhya view on the authorship of the Vedas. The research is based chiefly on the commentaries to the Sāṁkhyakārikā definition of authoritative verbal testimony given by the classical Sāṁkhya writers, for these fragments provide the main evidence (both direct and indirect) for the reconstruction of this view. The textual analysis presented in this paper leads to the following conclusion. According to most classical Sāṁkhya commentaries, the Vedas have no author. Two commentators state directly that the Vedas have no author, and four commentators allude to the authorlessness of the Vedas. Only one commentator seems to hold the opposite view, stating that all the authoritative utterances are based on perception or inference of imperceptible objects by authoritative persons, from which it follows that the Vedas too have an author or authors.     

Human rights and trade mark rights

Legal context. For some time the UK Trade Marks Registry hasrefused to register trade marks which consists of the name ofa well-known individual. This article examines whether the practiceis permissible, not in the terms of intellectual property lawbut whether it is in contravention of the applicant's humanrights. Key points. Looking at the application of the Human Rights Actin the United Kingdom, the article asks how it could apply toan intellectual property case, concluding that the Trade MarkRegistry is clearly a ‘public authority’ and thatthere are a number of ways in which current practice in respectof well-known individuals could be said to infringe their humanrights. Practical significance. It remains to be seen what the Registry'sresponse will be to such arguments and whether it might in thefuture be possible to obtain protection for the name of a celebrity.     

The European Commission's Opinions under Article 6(4) of the Habitats Directive

The contribution examines the Opinions which the European Commissionhas issued so far under Article 6(4) of Directive 92/43 (HabitatsDirective). It examines Member States' reasoning for justifyingthe application of Article 6(4) of the Habitats Directive inthe light of the European Court of Justice rulings, and comesto the conclusion that probably not one of the cases submittedwould have been accepted by the Court.     

Death of an exception or much ado about nothing

Hospitals often engage in physician recruitment in an effort to fulfill a community need for a particular medical specialty. In doing so, the hospital must comply with the regulatory requirements of the physician recruitment exception of the Stark law, which over the years has generated a great deal of discussion and perhaps confusion. The publication of the Stark II, Phase II regulations in March 2004 was supposed to provide guidance and clarity, but the new regulations have raised a number of new issues and concerns, particularly regarding the requirements imposed on recruiting arrangements involving group practices. This Article reviews the regulatory requirements of the new physician recruitment exception and addresses several of the concerns that have been raised. Specifically, it examines the new regulatory definition of the "geographic area served by the hospital," the restrictions on income guarantees when the recruited physician joins a group practice, and the prohibition on additional practice restrictions. The author concludes that, while some of these concerns are legitimate, others will have little practical implication and should not hinder the ability of hospitals to engage in reasonable, beneficial recruitment activities.     

Sexual Slavery: Do We Need This Crime in Addition to Enslavement?

The article focusses on the crime of sexual slavery in the ICC Statute. It examines the legal definition of enslavement in Article 7 (2) (c) ICC Statute and the Elements of Crimes (EOC) of enslavement and sexual slavery as well as the jurisprudence of the SCSL which was the first to deal with the application of the EOC of sexual slavery to a concrete situation (so-called ‘forced marriage’ phenomenon). The author questions whether there is a necessity to have two crimes against humanity of enslavement and sexual slavery but on the other hand, no war crime of enslavement. Further, she rejects the interpretation that human trafficking has become part of the definition of slavery/enslavement as the footnote in the EOC seems to suggest. The author argues vigorously that the phenomenon of ‘forced marriage’ should be prosecuted as sexual slavery and not under the residual offence of inhumane acts as a ‘new’ international crime.