QMJIP

Queen Mary Journal of Intellectual Property

Month: September, 2014

Book Review (Monica Horten, A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedom)

by Olumayowa O. Adesanya

Monica Horten, A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedom (Zed Books, 2013), x + 294pp

Occasionally, the law is proactive. However, more often than not, legislations are enacted in reaction to societal advancement such that the law struggles to keep up with the ever-changing nature of society. When the concept of intellectual property arose, the originators could not have foreseen the advent of the internet nor the ease it would afford sharing of copyrighted works across borders. As such, today, we witness a call for stricter enforcement of copyright protection with the stakeholders in the creative industry at the forefront of this battle.

The battle as identified by Horten is one between copyright and free speech with the entertainment industry lobbyists on the one hand and the telecommunication industry and citizens on the other hand. Policy-makers are meant to serve as the moderator in trying to achieve a balance favourable to all parties. Whether these policy-makers remain an impartial umpire is explored in three different, albeit similar case studies undertaken in the book.

The book is divided into three parts with the first focused on the intersection between copyright and the internet. In addressing copyright infringement on the internet, the measures advocated for include a graduated response, notice and take-down and fast-track administrative injunctions. The measures advocated for by the lobbyists are a deliberate attempt to bypass court procedure in view of the apparent delays in the judicial process. In trying to interfere, the government is faced with problems ranging from restricting access to legitimate content to blocking income. The rights to property, free speech, privacy and those derived from the use of internet have to be addressed in whatever measures are adopted.

The second part of the book covers the Anti-Counterfeiting Trade Agreement (ACTA) and Ley Sinde (the Sinde law) with Section 301 of the United States’ amended Trade Act 1974 (better known as Special 301)[1] as the nexus. With a strong entertainment industry for export, the United States had found itself another ground for imperialism. Using the TRIPS agreement as a tool, it sought to enjoin other countries to accede to the ACTA as a multi-lateral agreement in waging a war against global infringement of copyright. Horten examines the role of the International Intellectual Property Association (IIPA), the International Trademark Association (INTA) and the United States Trade Representative (USTR) in the attempt to create a stricter global regime intended to supersede the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The accountability of the European Commission to the Parliament under the acquis communautaire would eventually truncate this plan in addition to the march against ACTA across various European countries in the winter. Mention is made also of the United States’ Protect IP Act (PIPA) Stop Online Piracy Act (SOPA) as unsuccessful attempts by the government to give US-based organisations the legal basis to take-down or block content that resides outside the US via a form of fast-track injunction by the US Attorney General.

Using the Special 301 Watch list, Horten identifies an attempt by the United States to blackmail Spain into passing the Ley Sinde with a provision to bypass the judicial process in dealing with copyright infringement over the internet. This is exposed in leaked communications reported by WikiLeaks. Again, public opinion would play a crucial factor in the passage of the bill in its original form such that what became law was a watered down version. True to the exposed economic pressure mounted by the United States, Spain was removed from the Special 301 Watch list upon passage of the law.

The third and final part of the book is focused on Britain’s Digital Economy Act and how the British Phonographic Industry (BPI) employed the use of tactic and diplomacy in pushing for a reform. We see how parliamentary process was abused and circumvented from Horten’s account because of industry stakeholders’ failure to reach a voluntary agreement necessitating government intervention. The public outrage that followed the bill resulted in pushing the buck to the Officer of Communications (Ofcom) to introduce technical measures via Statutory Instrument that would be subject to the Super-affirmative Procedure in Parliament. In addition, the scandal that engulfed the House of Commons prior to the 2010 election would result in the rushed passage of the bill, which remains to see whether it will stand the test of time.

Since the publication of this book, the DC Circuit Court in the United States has ruled on the Federal Communication Commission’s net neutrality[2] in the case of Verizon v. FCC. It held that the government could not prohibit Internet providers from slowing or blocking Web traffic, though it preserved disclosure requirements that Verizon opposed — in other words, carriers can make some traffic run faster or block other services, but they have to tell subscribers. In the absence of net neutrality, Internet Service Providers will be able to devise new schemes to charge users more for access and services. Thus, it becomes easier for the creative industry to make deals with ISPs to circumvent the judicial process by limiting access to infringing material on the internet. Whether this would become a reality is questionable seeing how opposed to technical measures broadband providers were in the above case studies.

The book does not pretend to be what it is not: a textbook. It is simply an expose on the subvert moves by industry stakeholders to undermine the supposed transparent nature of the democratic process in an attempt to protect their interests. Horten, a veteran journalist cum internet copyright policy expert employs effectively the tools at her disposal in verifying her account. Notable is the use of the Freedom of Information Act to obtain otherwise private communications, which reveal how the closeness between policy makers and the creative industry is exploited to the advantage of the latter. The reader is left with the impression that perhaps, policy makers are not exactly neutral resulting in democracy no longer being vox populi, but rather that of the highest bidder. The conspiracy theory no longer seems farfetched after all.

Notwithstanding, Horten identifies how the attitude of citizens can ultimately affect the legitimacy of law and bring about adjustments. She ultimately advocates for a better and transparent policymaking in view of the clashing interests, but fails to recommend how this can be achieved. Whether the creative industry is justified in its attempts to explore all avenues possible to protect its interest is left for the reader to decide.

Albeit written for a lay audience, it is an interesting and easy read for professionals, industry experts and students who are interested in policy-making behind the scenes and not just the final product. It raises awareness on the debate against copyright particularly in the interests of citizens and a reason to rethink US policies purported to be in favour of the global economy.

 

 

 

[1] This is a report prepared annually by the Office of the United States Trade Representative (USTR) containing a list of countries that do not provide “adequate and protective” protection of intellectual property rights or “fair and equitable market access to United States persons that rely upon intellectual property rights”. The annual report categorises countries under three lists: “Priority Foreign Countries” for those countries judged to have inadequate intellectual property laws, “Priority Watch List” and a “Watch List”, containing countries whose intellectual property regimes are deemed of concern.

[2] The passage in 2010 of the FCC’s Open Internet Rules is rather counter-productive to the technical measures proposed by the entertainment industry, which advocate for ISPs to be directly responsible for monitoring and reducing infringement.

October IP Events

by Pedro Malaquias

In November 2013, QMJIP started to publicise IP Events across the world on its Twitter page (@QMJIP), using the hash tag #IPevents. Such information is also made available in the QMJIP blog. If you have knowledge of or are organising any IP event not shown on the list, we would be grateful if you would let us know. Simply leave us a comment or tweet us @QMJIP #IPEvents and we can add it to our list.

Here are the events for October 2014 (Date, Location, Organiser, Name of the event, Details):

 

UNITED KINGDOM AND IRELAND

  • 1 October 2014 – London – Music Ally – Copyright and Technology. Details here.
  • 2 October 2014 – Edinburgh – SCL – SSCL IT Contract Update. Details here.
  • 2 October 2014 – London – MBL – Copyright Law Conference: A UK & EU Update. Details here.
  • 2 October 2014 – London – CIPA – The CIPA President’s Dinner. Details here.
  • 02-03 October 2014 – London – CIPA – The Lifecycle of Intellectual Property. Details here.
  • 02-03 October 2014 – London – IPAG – IPAG Conference 2014. Details here.
  • 6 October 2014 – London – WIPO – Protecting your IP Overseas. Details here.
  • 7 October 2014 – London – Baker & McKenzie, WIPO and King’s College London – Copyright: If I Could Change Just One Thing… Details here.
  • 7 October 2014 – London – CIPA – Personalised Medicine. Details here.
  • 8 October 2014 – Manchester- WIPO – Protecting your IP Overseas. Details here.
  • 8 October 2014 – London – Management Forum – US Patent Formalities. Details here.
  • 8-9 October 2014 – London – Imago Techmedia – IP EXPO Europe, Cyber Security EXPO and Data Centre EXPO. Details here.
  • 9 October 2014 – Edinburgh – SCL – SCL Annual Conference. Details here.
  • 9 October 2014 – London – Taylor Wessing – Women in IP: Trade Marks – the extended protection of marks with a reputation. Details here.
  • 9 October 2014 – Glasgow – WIPO – Protecting your IP Overseas. Details here.
  • 9-10 October 2014 – London – Management Forum – Annual Conference for Senior Patent Administrators. Details here.
  • 10 October 2014 – Leeds – ITMA – Hong Kong Trade Mark Law & Practice. Details here.
  • 13 October 2014 – London – Queen Mary University of London – 2014 Herchel Smith Intellectual Property Lecture: The Hon Mr Justice Arnold. Details here.
  • 13 October 2014 – London – 2014 Luxury and Fashion Industry Conference. Details here.
  • 13 October 2014 – London – Taylor Wessing – Legal issues for start-ups roundtable. Details here.
  • 13-14 October 2013 – London – IPR Connections – The LPS – London IP Summit. Details here.
  • 14 October 2014 – London – Bird & Bird & WIPO – An evening on FRAND. Details here.
  • 14 October 2014 – London – TIPLO – Life Sciences innovation, regulation and IP imperatives – striking the right balance. Details here.
  • 15 October 2014 – London – MARQUES & UCL IBIL – Meet the Judges. Details here.
  • 16 October 2014 – London – LES – LES London Evening Meeting: Trade Secrets. Details here.
  • 16 October 2014 – Cardiff – CIPA – The CIPA Wales Meeting. Details here.
  • 16 October 2014 – London – Management Forum – IP Due Diligence. Details here.
  • 17 October 2014 – London – Management Forum – Freedom to Operate. Details here.
  • 17 October 2014 – London – CIPA – Biotech Claims Drafting. Details here.
  • 20 October 2014 – London – Management Forum – An Essential Overview of the Pharmaceutical Industry.  Details here.
  • 21 October 2014 – Dublin – APTMA & AIPPI – Developments in Design Law. Details here.
  • 22 October 2014 – London – Management Forum – Patent Box – Tips and Predictions. Details here.
  • 22-23 October 2014 – London – ACG – ACG Conference 2014: Challenges and Opportunities. Details here.
  • 23 October 2014 – London – ASLIB – Copyright: Latest Legislative Developments. Details here.
  • 27 October 2014 – Cardiff – Legal Services Board – Meet the Legal Services Board for England and Wales. Details here.
  • 28 October 2014 – London – ITMA – Update on Law and Practice in China. Details here.
  • 29 October 2014 – London – ITMA – Litigators’ Refresher Course. Details here.
  • 29 October 2014 – London – CLT – The “No-Patents” Round-Up For Non-Techie People. Details here.
  • 29-31 October 2014 – London – Management Forum – The Art and Science of Patent Searching. Details here.
  • 30 October 2014 – Edinburgh – ITMA – ITMA’s Autumn Drinks. Details here.

 

CONTINENTAL EUROPE

  • 1-2 October 2014 – The Hague, Netherlands – EPO – PCT at the EPO. Details here.
  • 1-2 October 2014 – Stockholm, Netherlands – EPO – Online Services User Day. Details here.
  • 2 October 2014 – Munich, Germany – DJJV, DPMA, JIPA, JPAA and the Japanese Group of AIPPI – Patent Litigation in Japan and Germany. Details here.
  • 2 October 2014 – Paris, France – CERDI – Les enjeux de la protection des savoirs traditionnels. Details here.
  • 2 October 2014 – Paris, France – Legipresse – Y a-t-il des abus licites de la liberté d’expression? Details here.
  • 2 October 2014 – Madrid, Spain – IP Section of the Ilustre Colegio de Abogados de Alicante – Jornada sobre el Anteproyecto de Ley de Patentes. Details here.
  • 3 October 2014 – Geneva, Switzerland – ICTSD, OPEN A.I.R. and EPO – Innovation, IP and the role of informal sector in Africa’s development. Details here.
  • 6 October 2014 – Frankfurt, Germany – FORUM · Institut für Management – Marketing Authorisation in the Middle East. Details here.
  • 8 October 2014 – Stuttgart, Germany – INTA & KLEINER Rechtsanwälte – Rights-Preserving Use of Trademarks as Viewed by an In-House Counsel. Details here.
  • 8 October 2014 – Amsterdam, Netherlands – INTA & De Brauw Blackstone Westbroek – roundtable on the expected changes of the draft for the new Trademarks Directive and Community Trademarks Regulation. Details here.
  • 8-9 October 2014 – The Hague, Netherlands – EPO – Boards of appeal and key decisions 2014. Details here.
  • 9 October 2014 – Vilnius, Lithuania – Lithuania IP Office and OHIM – Redefining Landscape for Patent Protection in Europe. Details here.
  • 9 October 2014 – Groningen, Netherlands – Groningen Centre for Law and Governance and the Groningen International School of Law – Access to essential medicines: an essential service? Details here.
  • 9 October 2014 – Berlin, Germany – HIGG – Early Stage Researchers Colloquium. Details here.
  • 9-10 October 2014 – Berlin, Germany – HIGG – Internet Governance: Actors, Technology, Content. Details here.
  • 10 October 2014 – Paris, France – FNDE & ASPI – Droit des brevets 2014. Details here.
  • 12-15 October 2014 – Heidelberg, Germany – Dr. Haxel – 26th ICIC International Conference for the Information Community. Details here.
  • 14 October 2014 – Madrid, Spain – Fundación Salud 2000, Cátedra UPM-Clarke, Modet & Cº and Merck y Clarke, Modet & Cº – Foro de reflexión sobre Patentes y Transferencia Tecnológica en el área de Salud. Details here.
  • 14 October 2014 – Paris, France – IRPI – Actualité jurisprudentielle française et européenne en droit d’auteur. Details here.
  • 14 October 2014 – Paris, France – ASPI-GRAPI – Actualité du droit des brevets aux Etats-Unis. Details here.
  • 15 October 2014 – Madrid, Spain – MARQUES – Coexistence Agreements Workshop. Details here.
  • 15 October 2014 – Berlin, Germany – ALAI Deutschland – Einheitliches Urheberrecht durch EU-Verordnung Eine gute oder eine schlechte Idee? Details here.
  • 16 October 2014 – Milan, Italy – MARQUES – Coexistence Agreements Workshop. Details here.
  • 16 October 2014 – Munich, Germany – Taylor Wessing – European Data Protection Laws in the Making. Details here.
  • 16-17 October 2014 – Berlin, Germany – European Academy for Taxes, Economics & Law – How to Design Research & Development Contracts in Practice. Details here.
  • 16-18 October 2014 – Belgrade, Serbia – Union-IP – Exco: Autumn 2014. Details here.
  • 17 October 2014 – Vienna, Austria – MARQUES – Meet the Judges. Details here.
  • 17 October 2014 – Leuven, Belgium – University of Antwerp and the Centre for Intellectual Property Rights (CIR) – The EU Patent Package: Multidisciplinary and International Perspectives. Details here.
  • 20-21 October 2014 – Geneva, Switzerland – Federal Circuit Bar Association In Cooperation with WIPO, WTO and EPO – Systems, Challenges, Solutions:  Trade, Intellectual Property, Courts, and Governance. Details here.
  • 22-25 October 2014 – Amsterdam, Netherlands – FIAT IFTA – FIAT IAFTA World Conference. Details here.
  • 22-25 October 2014 – Tenerife, Spain – UIMP – La Moda – Marca e Identidad. Details here.
  • 23 October 2014 – Moscow, Russia – INTA & Gorodissky & Partners – Infringement of Domain Names and Trademark Rights on the Internet. Details here.
  • 23-24 October 2014 – Madrid, Spain – Universidad Carlos III – Congreso Internacional La Proteccíon Legal de la Tecnología: de la Idea a la Comercialización. Details here.
  • 23-24 October 2014 – Alicante, Spain – FORUM · Institut für Management – 14th International Trade Mark Conference. Details here.
  • 28 October 2014 – Brussels, Belgium – eLawnora – The wonderful life of EU copyright law and policy. Details here.
  • 30-31 October 2014 – Alicante, Spain – ERA – Annual Conference on Trade Marks and Designs in Europe 2014 Latest case law and EU legislative developments. Details here.

 

NORTH AMERICA

  • 5-8 October 2014 – San Francisco, USA – LES – LES Annual Meeting. Details here.
  • 6 October 2014 – Berkeley, California, USA – USPTO – The 7th Annual Privacy Lecture. Details here.
  • 8-11 October 2014 – Chicago, Illinois, USA – PTMG – The Multi-Faceted Personality of a Pharmaceutical Trade Mark. Details here.
  • 9-10 October 2014 – Arlington, Virginia, USA – George Mason University School of Law – Common Ground: How Intellectual Property Unites Creators and Innovators. Details here.
  • 10 October 2014 – New York, USA – Columbia Law School – Making Copyright Work for Authors and Performers. Details here.
  • 12-15 October 2014 – Arlington, Virginia, USA – INTA – 2014 Trademark Administrators and Practitioners Meeting. Details here.
  • 12-16 October 2014 – Los Angeles, California, USA – ICANN – ICANN 51. Details here.
  • 15-17 October 2014 – Halifax, Nova Scotia, Canada – IPIC – Legal Ethics and the IP Lawyer: Ten Easy Ways to Lose Your Client and Your Reputation Before the Court. Details here.
  • 16 October 2014 – Washington DC, USA – George Washington University Law School – Costly Designs. Details here.
  • 17-18 October 2014 – Alexandria, Virginia, USA – USPTO – National Trademark Expo. Details here.
  • 22 October 2014 – Washington DC, USA – George Washington University Law School – The Fall 2014 A. Sidney Katz Lecture. Details here.
  • 23-25 October 2014 – Washington DC, USA – AIPLA – AIPLA 2014 Annual Meeting. Details here.
  • 24 October 2014 – Chicago, Illinois, USA – Center for Intellectual Property Law The John Marshall Law School Review of Intellectual Property Law – The John Marshall Law School Review of Intellectual Property Law 6th Annual Symposium – Art Meets Law: The Intersection of Art and Intellectual Property. Details here.
  • 27 October 2014 – New York, USA – Copyright Alliance – NY Chapter Lunch. Details here.
  • 28 October 2014 – Berkeley, California, USA – USPTO – October 2014 USPTO Roundtable: Department of Commerce Multistakeholder Forum on Improving the Operation of the DMCA Notice and Takedown System. Details here.
  • 28 October 2014 – Chicago, Illinois, USA – Center for Intellectual Property Law The John Marshall Law School Review of Intellectual Property Law – The John Marshall Law School Review of Intellectual Property Law 6th Annual Symposium – European Patent Practice Seminar 2014. Details here.
  • 28-29 October 2014 – New York, USA – ALM and Corporate Counsel – Annual IP Trademark, Copyright & Licensing Counsel Forum. Details here.
  • 29-30 October 2014 – Guanajuato, Mexico – Jornadas Expo Ingenio 2014. Details here.
  • 30 October 2014 – Cambridge, Massachusetts, USA – Authors Alliance – Authorship in a Digital World: How to Make It Thrive. Details here.
  • 30-31 October 2014 – Chicago, Illinois, USA – Center for Intellectual Property Law The John Marshall Law School Review of Intellectual Property Law – The John Marshall Law School Review of Intellectual Property Law 6th Annual Symposium – Advanced PCT Seminar for Patent Administrators. Details here.

 

SOUTH AMERICA

  • 6 October 2014 – São Paulo, Brazil – ASPI – A Semiótica Aplicada à Propriedade Intelectual. Details here.
  • 16-17 October 2014 – Bogota, Colombia – Association of Intellectual Property – The Value of IP for Innovation and Health. Details here.

 

ASIA AND OCEANIA

  • 1 October 2014 – Ramat HaSharon, Israel – IPFactor – A time to sow and a time to reap. Details here.
  • 16-17 October 2014 – Melbourne, Australia – Clifton and IP Australia – Melbourne Short Course in Trade Marks Database Searching. Details here.
  • 18 October 2014 – Mumbai, India – INTA – The Madrid Protocol – A new opportunity for Indian Brand Owners to file trademarks abroad. Details here.
  • 30-31 October 2014 – Canberra, Australia – Clifton and IP Australia – Canberra Short Course in Trade Marks Database Searching. Details here.

 

Pedro Malaquias is a Portuguese Qualified lawyer. Currently, he is a LL.M. student at Queen Mary, University of London and works as an Assistant Editor at Queen Mary Journal of Intellectual Property (QMJIP). @PedroMMalaquias