QMJIP

Queen Mary Journal of Intellectual Property

Category: Book Review

QMJIP – Volume 6 – Issue 1 (February 2016)

by Pedro Malaquias

QMJIP – Volume 6 – Issue 1 (February 2016) has been published. The list of contents reads as follows:

  • ‘Editorial‘, Johanna Gibson;
  • Making the case for a pluralistic approach to intellectual property regulation in developing countries‘, Miranda Forsyth;
  • ‘The saviour of Chinese traditional cultural expressions? Analysis of the Draft Regulations on Copyright Protection of Folk Literary and Artistic Works’, Luo Li;
  • ‘A historical analysis of the criminal sanctions in the Malaysian copyright regime (1902–1969)‘, Ainee Adam;
  • ‘Indian claims over Geographical Indications of Bangladesh: sustainability under intellectual property regime‘, Mohammad Ataul Karim;
  • ‘A comparative study on research exemptions in plant breeding under intellectual property rights protection‘, Shun-Liang Hsu;
  • ‘Copyright exceptions and contract in the UK: the impact of recent amendments‘, Adrian Aronsson-Storrier;
  • ‘Book Review: Sheldon W Halpern and Phillip Johnson, Harmonising Copyright Law and Dealing with Dissonance: A Framework for Convergence of US and EU Law (Edward Elgar Publishing, 2014) 196 pp’, Hector MacQueen;
  • ‘Book Review: Jacques de Werra (ed), Défis du droit de la concurrence déloyale – Challenges to Unfair Competition Law (Schulthess, 2014) 188 pp’, Marc D Mimler;
  • ‘Book Review: Robert Cunningham, Information Environmentalism: A Governance Framework for Intellectual Property Rights (Edward Elgar Publishing, 2014) 320pp’, Catherine Pocock.

Further information is available here.

QMJIP – Volume 5 – Issue 4 (October 2015)

by Pedro Malaquias

QMJIP – Volume 5 – Issue 4 (October 2015) has been published. The list of contents reads as follows:

  • Editorial‘, Johanna Gibson (free content);
  • Mr Skemp’s preposterous provision: the drafting of the Patents Act 1977 and harmonization in the 1970s‘, Phillip Johnson (free content);
  • Tethered technologies, cloud strategies and the future of the first sale/exhaustion defence in copyright law‘, Christoph B Graber;
  • Africa’s food security in a broken global food system: what role for plant breeders’ rights?‘, Chidi Oguamanam;
  • Enforcing the WTO rulings on trade marks and trade names in Havana Club‘, Matthew Kennedy;
  • Gene-related inventions in Europe: purpose- vs function-bound protection‘, Jessica C Lai;
  • A novel method of IP R&D using patent analysis and expert survey‘, Sunghae Jun, Seung-Joo Lee, Jea-Bok Ryu and Sangsung Park;
  • Research on subjective elements for the indirect copyright infringement of IPTV manufacturers in China‘, Zhe Wang and Wei Li;
  • Expanding the reach of India’s ‘Bolar’ exemption‘, Emmanuel Kolawole Oke;
  • Having a patent department alone cannot constitute a specific intent to cause direct infringement under US patent law‘, Ping-Hsun Chen;
  • Book Review: Lionel Bently and Brad Sherman, Intellectual Property Law, 4th edn (Oxford University Press, 2014) 1440 pp‘, Trevor Cook;
  • Book Review: Sharon Sandeen and Elizabeth Rowe (eds), Trade Secrets and Undisclosed Information (Edward Elgar, 2014) 968 pp‘, John Hull;
  • Book Review: Noam Shemtov and Ian Walden (eds), Free and Open Source Software: Policy, Law and Practice (Oxford University Press, 2013) 544 pp‘, Andrès Guadamuz.

Further information and access to the free content is available here.

 

QMJIP – Volume 5 – Issue 3 (July 2015)

by Pedro Malaquias

QMJIP – Volume 5 – Issue 3 (July 2015) has been published. This is a special issue of Queen Mary Journal of Intellectual Property. Its six contributions were all part of the 2014 The International Society for the History and Theory of Intellectual Property workshop. The list of contents reads as follows:

  • Editorial‘, Marianne Dahlén, Martin Fredriksson and Eva Hemmungs Wirtén (free content);
  • Public architectural art and its spirits of instability‘, Aura Bertoni and Maria Lillà Montagnani;
  • Judicial snapshots and fair use theory‘, Michael Birnhack;
  • How to patent a chemical? The instability of a new type of intellectual property (Switzerland, 1888–1907)‘, Nicolas Chachereau;
  • Intellectual property for the neurocentric age: towards a neuropolitics of IP‘, Jake Dunagan and Debora Halbert;
  • Protecting the musicians and/or the record industry? On the history of ‘neighbouring rights’ and the role of Fascist Italy‘, Rasmus Fleischer (free content);
  • Tactical destabilization for economic justice: the first phase of the 1984–2004 rhythm & blues royalty reform movement‘, Matt Stahl.

Further information and access to the free content is available here.

 

@PedroMMalaquias (LL.M. in Intellectual Property Law at Queen Mary, University of London; Portuguese Qualified lawyer; Queen Mary Journal of Intellectual Property, Associate Editor)

QMJIP – Volume 5 – Issue 2 (April 2015)

by Pedro Malaquias

QMJIP – Volume 5 – Issue 2 (April 2015) has been published. The list of contents reads as follows:

  • Editorial‘, Johanna Gibson (free content);
  • The need for a new Copyright Act: a case study in law reform‘, Richard Arnold (free content);
  • HAVE A BREAK and the changing demands of trade mark registration‘, Jennifer Davis and Alan Durant;
  • Evaluating the legitimacy of geo-location circumvention in the context of Technical Protection Measures‘, Christopher Hilliard;
  • ‘‘Notice and takedown’: a copyright perspective’, Althaf Marsoof;
  • The responses in the United Kingdom and United States to groundless threats of patent infringement proceedings’, Trevor Cook and Corinne Atton;
  • The protection of indigenous terms and expressions by the Merchandise Marks Act in South Africa‘ ES Nwauche;
  • And they lived happily ever after UPC Telekabel: a copyright fairy tale or a chance to strike a fair balance?‘ Giulia Dore;
  • Piracy in Sweden: remedies for an unauthorized upload of a music album on the Internet prior to official release in Sweden‘, Miina Viitala and Julius Berg Kaasin;
  • Book review Phoebe Li (ed), Health Technologies and International Intellectual Property: A Precautionary Approach (Routledge, 2014) 256pp‘, Olumayowa O Adesanya.

Further information and access to the free content is available here.

 

@PedroMMalaquias (LL.M. in Intellectual Property Law at Queen Mary, University of London; Portuguese Qualified lawyer; Queen Mary Journal of Intellectual Property, Associate Editor)

QMJIP – Volume 5 – Issue 1 (February 2015)

by Pedro Malaquias

QMJIP – Volume 5 – Issue 1 (February 2015) has been published. The list of contents reads as follows:

  • Editorial‘, Johanna Gibson and Lord Hoffmann (free content);
  • Confusion in a legal regime built on deception: the case of trade marks ‘, Chris Dent (free content);
  • Time-shifted morality: a critique of the legal discourse on online copyright infringement ‘, Tito Rendas;
  • Interoperability for data portability between social networking sites (SNS): the interplay between EC software copyright and competition law ‘, Sih Yuliana Wahyuningtyas;
  • International exhaustion of trade marks and parallel imports in the US and the EU: how to achieve symmetry?’, Andrea Zappalaglio;
  • Exhaustion without Exasperation: Intellectual Property, Parallel Imports and Border Measures‘ Pedro Malaquias;
  • Book review: Daryl Lim (ed), Patent Misuse and Antitrust Law: Empirical, Doctrinal and Policy Perspectives (Edward Elgar Publishing, 2013) 512 pp’ Steven Anderman;
  • Book Review: William Van Caenegem (ed), Trade Secrets and Intellectual Property: Breach of Confidence, Misappropriation and Unfair Competition (Wolters Kluwer, 2014) 270 pp‘ Tanya Aplin;
  • Book Review: Alastair Mullis and Richard Parkes (eds), Gatley on Libel and Slander, 12th edn (Sweet & Maxwell, 2013) 1620 pp‘ Phillip Johnson;
  • Book Review: Kelvin W Willoughby (ed), What Can Be Patented? Confronting the Confusion in Patent Law About Patent Eligible Subject Matter (Scholars’ Press, 2014) 216 pp‘ Gwilym Roberts.

Further information and access to the free content is available here.

 

@PedroMMalaquias (LL.M. in Intellectual Property Law at Queen Mary, University of London; Portuguese Qualified lawyer; Queen Mary Journal of Intellectual Property, Assistant Editor)

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.