Thursday, 30 August 2012

The BlaBlaMeter and the fight for lean, mean text

The editorial team at JIPLP has made known its preference for clear, no-nonsense text and has been quite interventionist in its pruning of formalistic padding from submissions before publication.  It is therefore with interest that they view a website which calls itself BlaBlaMeter.  The rubric on BlaBlaMeter's front page explains as follows:
"PR-Experts, politicians, ad writers or scientists need to be strong here! 
BlaBlaMeter unmasks without mercy how much bullshit hides in any text. 
A useful tool for everyone involved in writing! 
Simply copy your text into the white field and check your writing style. It works with English text up to 15,000 characters (overhead will be cut off). For a meaningful result we recommend a minimum length of 5 sentences".
This facility -- with which JIPLP has no relationship and which it does not endorse -- apparently rates text in English, German and Spanish. It has been tested out by solicitor and JIPLP contributor Mark Anderson for his IP Draughts weblog. You can read his comments here.

Wednesday, 29 August 2012

Off piste? ECJ decides Austrian Supreme Court's ‘Adwords’ jurisdiction question in Wintersteiger

Author: Birgit Clark (Baker & McKenzie)

Wintersteiger AG v Products 4U Sondermaschinenbau GmbH, Case C-523/10, Court of Justice of the European Union, 19 April 2012

Journal of Intellectual Property Law & Practice (2012), doi: 10.1093/jiplp/jps127, first published online: August 24, 2012

In response to a request for a preliminary ruling by the Austrian Supreme Court (Oberster Gerichtshof, OGH), the Court of Justice of the European Union (ECJ) held that an action for trade mark infringement in cases of keyword advertising may be heard by the courts in the jurisdiction in which the mark is registered as well as by the courts in the jurisdiction in which the advertiser is established.

Legal context

In contrast to the recent high profile ECJ cases relating to the permissibility of keyword advertising (such as Google France (Joined Cases C-236/08, C-237/08 and C-238/08; see S Ott and M Schubert ‘It's the Ad Text, Stupid: Cryptic Answers Won't Establish Legal Certainty for Online Advertisers’ (2009) 6(1) JIPLP 23); BergSpechte (Case C-278/08), Portakabin (Case C-588/08); Eis.de (C-91/09); Interflora (C-323/09)), this referral by the Austrian Supreme Court (Case 17 OB 8/10s) is not so much about whether use of keyword adverting may amount to trade mark infringement, but addresses instead the question of relevant jurisdiction where a foreign-registered trade mark is infringed by keyword adverting which is triggered by a sign identical with a national trade mark but shown on a search engine which aims at users in a different European jurisdiction.

With trade mark infringement under §10(1) of the Austrian Trade Mark Act qualifying as a delict (the Austrian law equivalent of a tortious act), the relevant legal provisions are found in Regulation 44/2001 on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels Regulation’). Article 2 of the Brussels Regulation stipulates that persons domiciled in ‘a Member State’ shall, whatever their nationality, be sued in the courts of that member state. Article 5(3) of the Brussels Regulation, which is an exception to Article 2, provides that a ‘person domiciled in a Member State may, in another Member State, be sued … in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

Facts

The claimant was an Austrian manufacturer of machines for the servicing and maintenance of skis and snowboards. The defendant produced similar machines in Germany and sold accessories for machines of different producers and/or origin, which the claimant neither produced nor authorized. The German defendant booked the claimant's registered Austrian trade mark (‘Wintersteiger’) as a keyword with AdWords Germany from December 2008 with the consequence that when a third party entered ‘Wintersteiger’ as a search term into the German search engine www.google.de, the defendant's ads, which did not include the term ‘Wintersteiger’, were displayed alongside the natural search results on the results page of the search engine.

By way of background: while advertisers on AdWords can restrict the display of ads triggered by the keywords chosen by, for example, language regions, countries or even cities, Google displays as ads to users, irrespective of their actual origin/location, only those ads which were booked for the respective top-level-domain (TLD), in this case: ‘.de’. The text of the ad displayed in January 2010 on google.de was as follows (translated from German into English):
title: ‘ski repair shop accessories’;
first line: ‘ski and snowboard machines’;
second line: ‘maintenance and repair’;
Display URL: ‘URL of the defendant’.
The claimant was not impressed and filed an application for an injunction together with an application for protective measures at an Austrian first instance court, requiring the defendant to stop using the trade mark Wintersteiger as an AdWord on google.de. The first instance court refused this application as inadmissible on the grounds of lack of international jurisdiction: since the AdWord concerned was limited to google.de, there was no sufficient connection with Austrian territory.

On appeal, the Higher Regional Court of Linz found that, even though there was jurisdiction, the application still had to be dismissed as to the substance. On further appeal, the OGH suspended its proceedings and referred the following questions to the ECJ for a preliminary ruling:
In the case of an alleged infringement by a person established in another Member State of a trade mark granted in the State of the court seised through the use of a keyword (AdWord) identical to that trade mark in an internet search engine which offers its services under various country-specific top-level domains, is the phrase ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation … 44/2001 (‘the Brussels I Regulation’) to be interpreted as meaning that:

1.1 jurisdiction is established only if the keyword is used on the search engine website the top-level domain of which is that of the State of the court seised;

1.2 jurisdiction is established only if the search engine website on which the keyword is used can be accessed in the State of the court seised;

1.3 jurisdiction is dependent on the satisfaction of other requirements additional to the accessibility of the website?

If Question 1.3 is answered in the affirmative: Which criteria are to be used to determine whether jurisdiction under Article 5(3) of the Brussels I Regulation is established where a trade mark granted in the State of the court seised is used as an AdWord on a search engine website with a country-specific top-level domain different from that of the State of the court seised?
The Advocate General's opinion

In his Opinion of 16 February 2012, Advocate General Cruz Villalón took the view that Article 5(3) of the Brussels Regulation attributes jurisdiction to the courts of the Member State where the mark was registered (here: Austria), as well as to the courts of the Member State ‘where the means necessary to produce an actual infringement of a trade mark registered in another Member State are used’ (here: Germany). The Advocate General explained his reasoning with the effect the defendant's conduct, objectively, had on the ‘Wintersteiger’ mark in Austria: the fact that the keyword registration was intended to only cover Germany, did ‘not preclude—or come close to precluding’— Austrian customers of the ‘Wintersteiger’ mark from using the google.de. search engine either in Austria or in Germany. Further, the claimant's market was international: Germany and Austria were neighbouring countries and shared the same language and the google.de website was freely accessible in Austria. Finally the link included in the ad that was displayed on the google.de website took users directly to the defendant's website, without any reference to the fact that it was a national trade mark linked to an Austrian undertaking.

Analysis

In its decision, the ECJ partly confirmed and partly disagreed with the Advocate General's opinion by holding that Article 5(3) of the Brussels Regulation:
… must be interpreted as meaning that an action relating to infringement of a trade mark registered in a Member State because of the use, by an advertiser, of a keyword identical to that trade mark on a search engine website operating under a country-specific top-level domain of another Member State may be brought before either the courts of the Member State in which the trade mark is registered or the courts of the Member State of the place of establishment of the advertiser.
Referring to its recent precedent concerning an of an alleged infringement of personality rights on the internet in eDate Advertising and Others (Cases C-509/09 and C-161/10), the ECJ explained that, ‘for reasons relating to the sound administration of justice and the efficacious conduct of proceedings’, Article 5(3) of the Brussels Regulation required the ‘existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred.’

Further, again in reference to eDate Advertising and Others, the court emphasized that the expression ‘place where the harmful event occurred or may occur’ in Article 5(3) of the Brussels Regulation was intended to cover both: ‘the place where the damage occurred’ as well as the ‘place of the event giving rise to it’, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places. Either place could constitute a significant connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly helpful in relation to the evidence and the conduct of the proceedings.

‘The place where the damage occurred’

In determining the jurisdiction under Article 5(3) of the Brussels Regulation for infringement cases involving keyword advertising, the ECJ considered the objective of foreseeability and the objective of sound administration of justice. The judges agreed with Advocate General Cruz Villalón in this regard and found that the courts of the Member State where the national trade mark was registered (here: Austria) were best able to assess whether a particular keyword advertising scenario actually infringed the protected national mark.

‘The place where the event giving rise to the damage occurred’

Concerning the interpretation of ‘the place where the event giving rise to the damage occurred’, the ECJ, inter alia, considered the ease with which that court could gather evidence of the infringement. The court explained that it was ‘the activation by the advertiser of the technical process displaying, according to pre-defined parameters, the advertisement which it created for its own commercial communications which should be considered to be the event giving rise to an alleged infringement, and not the display of the advertisement itself.’ While it was ‘true that the technical display process by the advertiser is activated, ultimately, on a server belonging to the operator of the search engine used by the advertiser’, again referring to eDate Advertising and Others, the judges took the view that, due to its uncertain location, the place of establishment of the server could not be considered to be ‘the place where the event giving rise to the damage occurred’.

Since it was ‘a definite and identifiable place’ for both claimant and defendant and likely to facilitate the gathering of evidence and conduct of proceedings, the judges concluded that it was the place of establishment of the advertiser (here, Germany) where the activation of the display process was decided and where an action relating to alleged infringement based on keyword advertising could thus also be brought.

Practical significance

After its decision in eDate Advertising and Others, the ECJ in Wintersteiger handed down another extensive interpretation of the expression ‘place where the harmful event occurred’ in internet cases.

Insofar as the ECJ in Wintersteiger follows Advocate General Cruz Villalón's opinion that an action for trade mark infringement based on keyword advertising may be brought before the courts of the Member State of registration of the trade mark, the decision did not come as much of a surprise. However, the court's interpretation of Article 5(3) of the Brussels Regulation, providing that such cases may also be brought before the courts of the Member State in which the defendant advertiser is established, differs from the Advocate General's approach and appears more ambiguous. How this interpretation is to be read in the context of Article 2 of the Brussels Regulation, which already grants the courts of member states in which defendants are domiciled jurisdiction and the definition of the term establishment in Article 5(5) of the Brussels Regulation is unclear. There are further questions that remain open, albeit mostly because this case was highly fact specific. What remains unclear is whether the court's reasoning in Wintersteiger is meant to be limited to a situation in which the allegedly infringing use is committed ‘by an advertiser, of a keyword identical to that trade mark’ where that use is ‘on a search engine website operating under a country-specific top-level domain of another Member State’? In this context, Advocate General Cruz Villalón's reasoning (‘where the means necessary to produce an actual infringement of a trade mark registered in another Member State are used’) provided clearer guidance. Nonetheless, even though the ECJ does not say so, it seems fairly safe to suggest, however, that the reasoning in Wintersteiger will equally apply to an alleged infringement by use of a similar keyword, bearing in mind the ECJ's decision in BergSpechte, where the ECJ expressly extended its reasoning in Google France relating to the use of keywords that are identical to a trade mark to cases of keywords that are similar to a trade mark. By the same token, there are also no obvious reasons why Wintersteiger should only apply to search engines operating under a country-specific top-level domain. However, again the ECJ did not expressly say so.

What makes this decision more intriguing is the fact that, as regards to cases of keyword advertising, most observers regard the Austrian OGH as the most brand owner-friendly court in the European Union (OGH, 17 Ob 3/10p of 21 June 2010 BergSpechte III; also see: M Schubert and B Clark ‘“Wintersteiger”—Austrian Supreme Court Refers Jurisdiction Question in AdWord Cases to the ECJ' (2011) 6(5) JIPLP 288). In contrast, the German Federal Supreme Court has adopted what is generally regarded as a more keyword advertising-friendly approach (BGH, I ZR125/07 of 13 January 2011 Bananabay II; see: B Clark ‘Going bananas? Bundesgerichtshof decides Bananabay II’ (2012) 7(2) JIPLP 84).

While the Wintersteiger decision may certainly serve as a reminder to brand owners to perfect the coverage of their EU trade mark portfolio, it will also be interesting to see whether Wintersteiger may indeed give rise to forum shopping, as already predicted by some observers.

Tuesday, 28 August 2012

Retrospective entitlement to exploitation rights of joint owners in cinematographic works unconstitutional

Author: Mehmet Artemel (Bogazici University, Istanbul)

Judgment of the Constitutional Court, Case No 2010/73, Decision No 2011/176 of 29 January 2011; published in the Official Gazette, Issue No 28236 17 March 2010

Journal of Intellectual Property Law & Practice (2012), doi: 10.1093/jiplp/jps126, first published online: August 24, 2012

While the notion of authorship of cinematographic works has undergone changes since 1995 through subsequent amendments to the Law on Intellectual and Artistic Works of 1951, the retrospective implementation of an amendment in 2001 for the benefit of dialogue writers and animators has been ruled unconstitutional on the grounds that it prejudiced the vested rights of ownership of those joint authors as determined by a previous amendment to the law in 1995.

Legal context

Having replaced the Copyright Law of 1910 that dated from the Ottoman Empire, Law No 5846 on Intellectual and Artistic Works of 1951 is the current legislation which regulates copyright and related rights in Turkey. This was the first Copyright Act following the foundation of the Turkish Republic in 1923. The law, which has since been amended on eight occasions through amending Laws Nos 2936, 4110, 4630, 5101, 5217, 5571, 5718 and, most recently, Law No 5728 in 2008, was originally drafted by Professor Ernst Hirsch, who fled Germany in 1933 to seek refuge in Turkey.

Between 1951 and 1995, a film producer was recognized as the sole author of cinematographic works under Turkish copyright law. As of 12 June 1995, when Law No 4110 came into effect, the producer became a holder of ‘neighbouring rights’, as they were referred to at the time, while the director, the composer of the original music and the scriptwriter were recognized as joint authors of cinematographic works. When the term of protection for cinematographic works was raised from 20 to 70 years, holders of neighbouring rights were equally granted a 70-year term. As of 3 March 2001, when Law No 4630 took effect, the producer's status was renamed as the holder of ‘related rights’, and the number of joint owners in cinematographic works was increased from three to five, with the addition of dialogue writers and animators, where animated cinematographic works were concerned.

Facts

A plea of unconstitutionality came before the Constitutional Court following a referral by the 4th Court of Intellectual and Industrial Rights in Istanbul, in its capacity as the court of first instance, where the claimant alleged inter alia that, as the director, he had been unlawfully deprived of exploitation rights to which he was entitled as an author of the films that were being broadcast on the defendant's television channel. The court of first instance saw merit in the claim that the final paragraph of Supplementary Article 2, as inserted by Article 35 of Law No 4630 of 21 February 2001, was in contravention of Articles 10 (‘Equality before the Law’), 35 (‘Property Rights’) and 64 (‘Protection of Arts and Artists’) of the Turkish Constitution. The contested clause reads as follows:
The provisions of this Law that are related to authorship of cinematographic works, shall apply to works, the production of which have commenced after 12 June 1995 when Law No. 4110 came into effect.
The claimant objected that, as of the above date, producers had continued to be solely entitled to revenues for films on which production began before 12 June 1995, while subsequently recognized joint authors whose works were broadcast on television had been deprived from claiming a share of the revenue to which they were entitled as joint owners of films.

Analysis

The Constitutional Court unanimously held that the contested clause was indeed in breach of the Constitution, but for a different reason than that suggested by the claimant and upon which the referral was based. Perhaps, having given unduly short shrift to the claimant's arguments, and not having addressed the allegations posed, the Constitutional Court elliptically stated that ‘contrary to the grounds in the file that came before the court, the rule [i.e. the disputed clause] was unrelated to the implementation of those provisions in regard to terms of protection, but that the latter had been regulated under the paragraphs that preceded the rule in Supplementary Article 2 of Law No 5846″ (s V(5) of the judgment). The court noted that the legislature's intention had simply been to prevent potential disputes and to protect the vested interests of the film producer who was deemed the sole author of cinematographic works prior to the amendments in 1995. Unconstitutionality lay, instead, in the clause which enabled dialogue writers and animators, who were subsequently included among authors of cinematographic works, to have a claim retrospectively over exploitation rights in cinematographic works. Since the offending clause was found to contravene Articles 2 and 35 of the Constitution, the court deemed it redundant to consider whether the infringing clause also breached Article 10 or 64.

Article 2 of the Constitution
While not cited in the referral, among the allegedly infringed articles of the Constitution, pursuant to the authority granted to the Constitutional Court under Article 43 of Law No 6216 on the Establishment and Litigation Procedure of the Constitutional Court, the court examined, at its discretion, whether the clause in question happened to be in breach of Article 2 of the Constitution (‘Characteristics of the Republic’) where reference is made to the rule of law. In this context, the court noted, inter alia, that save for a limited number of exceptional instances non-retroactivity of laws was an inextricable aspect of the rule of law. To ascertain whether the clause, in favour of dialogue writers and animators, which was inserted in 2001 by Law No 4630, had operated retroactively insofar as ownership in cinematographic works was concerned, the court traced the series of amendments that resulted in an increased pool of joint owners since 1995.

The court noted that with the amendments made in 2001 by Law No 4630, when dialogue writers and animators were added as authors, the final paragraph of Supplementary Article 2 ensured that the provisions on authorship of cinematographic works were to be effective as of 12 June 1995, when Law No 4110 came into effect. Put differently, this meant that neither the film producer, who was deemed the sole author prior to 12 June 1995, nor the director, scriptwriter or composer, who were defined as the three joint authors as of 12 June 1995, would be affected by the amended provisions of Law No 4630 of 2001 on authorship. Conversely, when dialogue writers and animators were included among joint authors of cinematographic works by virtue of Law No 4630 of 2001, these two entities were subject to the same provisions on authorship in accordance with the final paragraph of Supplementary Article 2, which in turn enabled them to become retrospectively entitled to authorship in works produced between 12 June 1995 and 3 March 2001, when Law No 4110 and Law No 4630 took effect, respectively.

Article 35 of the Constitution
The court held that the disputed clause, as it stood, was prejudicial to the proprietary rights of joint owners in cinematographic works and thereby in contravention of Article 35 of the Turkish Constitution according to which proprietary and testamentary rights are recognized as fundamental prerogatives of each individual. The court noted that since, according to Article 8(3) of the Law on Intellectual and Artistic Works, joint authors of a cinematographic work are also joint owners of the same, and each author is entitled to an equal share of the revenues from exploitation rights in accordance with Article 10 of the Law on Intellectual and Artistic Works, whereby joint owners are subject to the provisions on ordinary partnerships as defined by the Turkish Commercial Code. The court concluded that the retroactive application of the provisions of the final paragraph of Supplementary Article 2 entitled dialogue writers and animators to retrospectively claim a share of the profits which had accrued to the director, scriptwriter and composer in respect of films produced between 12 June 1995 and 3 March 2001. The court held that this effectively amounted to a limitation of the vested proprietary and exploitation rights to which only the above three authors were entitled as joint owners.

Practical significance

The ruling by the Constitutional Court seems opportune, following two recent articles in JIPLP by Stefano Barazza (JIPLP (2012) 7(6): 394) and Enrico Bonadio and Lorraine Lowell Neale (JIPLP (2012) 7(7): 493) for tracing the changes made to the copyright legislation with respect to authorship of cinematographic works in Turkey.

Moreover, the case illustrates the laboured and protracted means of redressing inadequacies in legislation drafted without due foresight through the instrumentality of the Constitutional Court—a practice which appears to have become common in recent years in Turkish intellectual property legislation, as in the case of Legislative Decrees Nos 551 and 556, on patents and trade marks, respectively, where the imposition of criminal liability through decrees was held to be unconstitutional. This has given rise to a curious anomaly that, to date, save for that of trade marks in respect of which criminal offences were reinstated through Law No 5833 of 21 January 2009, infringements of patents, industrial designs and geographical indications, which are regulated by decrees, continue to remain immune to criminal sanctions.

Monday, 27 August 2012

It's complicated: copyright law and chaos theory

Book review by Francis Davey (barrister)

Complex Copyright: Mapping the Information Ecosystem, by Deborah Tussey

Published by Ashgate, 2012. ISBN: 9780754677840, Hard cover, 143 pp. Price: £60.00

Journal of Intellectual Property Law & Practice (2012), doi: 10.1093/jiplp/jps119, first published online: August 24, 2012

I am sure that, to many people, copyright law seems ‘complicated’ but this book is not about the kind of ‘complexity’ that ‘complex copyright’ is about.

It is nearly twenty years since ‘chaos theory’ intruded sufficiently into the mainstream, when it featured not only in Stoppard's Arcadia but was the professional interest of Jeff Goldblum's dinosaur-dodging mathematician in Jurassic Park.

Chaos theory was born in the late 19th century when mathematicians such as James Clerk Maxwell and Henri Poincaré began to study systems where small changes in setting up the system could lead to large changes in the result. An imperceptible difference in, say, the position of the Moon, could lead to a completely different set of orbits after the passage of time.

What Poincaré and those who came after him realized was that, although one might have to give up on being able to predict outcomes exactly, there were techniques that let one predict some qualitative or statistical properties of the system. This area of study came to be called ‘chaos theory’.

By the 1980s it had achieved popular science status with James Glieck's book, Chaos: Making a New Science (Viking Penguin 1987) being nominated for the Pulitzer Prize. Its offspring, ‘complexity theory’, has been suggested as a solution to ‘traffic congestion, financial market crashes, terrorist attacks, pandemic viruses, and cancer’ (see Neil Johnson Two's Company, Three is Complexity, Oneworld 2007). The reality was much more modest. ‘Chaos theory’ and ‘complexity theory’ are not ‘theories’ in the sense of evolution or special relativity, but a collection of techniques that may be applied to some more or less general classes of chaotic situations. They can be powerful tools, but are not of universal application (HJ Jensen, Self-Organized Criticality, Emergent Complex Behavior in Physical and Biological Systems, Cambridge University Press 1998).

A further advance was the discovery of ‘self-organized criticality’ (SOC: see P Bak, C Tang and K Wiesenfeld, ‘Self-organized criticality: An explanation of the 1/f noise’ (1987) 59 Phys Rev Lett 381). In certain circumstances one can achieve a kind of balance between order and chaos. A system exhibiting SOC will tend towards a kind of equilibrium, exhibiting random behaviour but with well-defined statistical behaviour. A tiny change in the preparation of the system will lead to large changes in the equilibrium state but with the same statistical behaviour.

For example, it is almost certainly the case that if Hitler had died in infancy, history would have been very different but we would almost certainly have seen a series of wars in Europe; different but, if history truly exhibits SOC as claimed, the overall sweep would be much the same. Characteristically, studies of SOC systems focus on the whole rather than the parts, and it is often difficult to predict the behaviour of the whole merely from contemplating the parts of which it is made.

A characteristic feature of most SOC systems is scale invariance. The behaviour of the system is the same at all scales. For example, if you saw a plot of earthquake intensities over a period of time, it would be difficult to work out its scale merely from its shape (CF Richter and B Gutenberg, Seismicity of the Earth and Associated Phenomena, Princeton University Press 1949). Scale invariance turns up in enormously varied circumstances, not only in physics but also biology (T Gisiger, ‘Scale invariance in biology: coincidence or footprint of a universal mechanism?’ (2001) 76 Biol Rev 161) and economics (J Creedy and VL Martin (eds), Chaos and Non-Linear Models in Economics, Theory and Applications, Edward Elgar 1994).

Scale invariance is often a result of another feature common in SOC, self-similarity. This occurs where parts of the system resemble the whole. For example, the buds on a floret of a Romanesco broccoli resemble the floret itself, and the same is true of the buds on the buds.

Professor Tussey's thesis is that ‘copyright’, understood in its broadest sense to include the whole environment in which copyright law operates, taking in publishers, authors and consumers—is a complex adaptive system exhibiting self-organizing criticality and that this realization should inform policy and condition the way in which future research is conducted. The book is an exposition of that subject in five chapters.

Her first chapter, ‘Are publishers really like prairies?’, does not quite answer the question it poses. She presents us with many features that copyright shares with the prairie ecosystem—for example, feedback loops or complex interaction between large numbers of actors—but the whole discussion feels impressionistic. At best, Professor Tussey suggests that the two systems might be similar enough that one could draw conclusions from one to the other, for example by applying principles learned from conservation to copyright, but there was no attempt to build any models, even crude ones, or demonstrate that the similarity goes beyond a hunch.

The second chapter consists of an outline of justifications for copyright with a criticism that they have simply been taken for granted, rather than subjected to empirical testing.

Though reference is made to ‘labour’ and ‘personhood’ theories it is clear that the author is only concerned with a utilitarian view of copyright. In discussions of theory in later parts of the book it is assumed to be the only one that need be considered. In any case, it makes little sense to talk of ‘testing’ a theory based, for example, on natural rights since natural rights theories do not claim that copyright law is justified on the basis of its outcomes.

I felt the whole chapter was unnecessary. Competing theories were mentioned and then forgotten. The discussion was necessarily at a very surface level and contributed little to the book's main argument.

The third chapter purports to look at ‘systems analysis’ for complex copyright. It does contain some useful material, including a sketch of empirical research on the effect of copyright law. While it does not seem to be a comprehensive study, it might provide a useful starting point for someone wanting to find a way into the field.

No concrete examples are offered of applying systems analysis to copyright. Instead, generalities are offered, such as a need to take a holistic view or look at the social and cultural effects rather than the narrow economic outcomes.

The high point of the chapter is an argument that the failure of analysis results from, on the one hand, the practising lawyer's habit of focusing on detail to the neglect of the whole and, on the other, the academy's retreat from empirical analysis to theory—a trend Professor Tussey clearly hopes to change.

Chapter 4, which starts with neuroscience, is an apparent attempt to persuade the reader that, because the brain is a complex adaptive system, so must be copyright. That is a non sequitur. It is not suggested that brains and copyright exhibit self-similarity; rather, the brain must be intended to be one of the classes of atom which make up copyright as a system. As we have seen, the behaviour of the individual elements of a complex system is often quite unlike that of the whole system.

The rest of the chapter addresses the phenomenon of creativity. Here I think the book provides food for thought. Many arguments about copyright focus either on economic incentives to create or the availability of other works as a substrate for future creations, but individual creativity has other drivers than the economic and other constraints than the availability of works for re-use. We are encouraged to find ways to analyse copyright that consider how it might foster creativity from a more holistic point of view.

Her final chapter looks forward. She makes some general recommendations for policy makers such as ‘nudge—don't shove’, which seem reasonable enough, but I felt there was a failure firmly to establish that they followed from her analysis. The chapter concludes by calling for more research and, more importantly, more data. Here, she makes some useful suggestions about data collection—for instance, that large copyright interests might be required to supply data as a quid pro quo for copyright registration.

In conclusion, I felt this was a brave effort to cover a difficult subject in a relatively short space. It suffers by being too general, including material better covered elsewhere, which perhaps distracted from a more focused study of the new ideas Professor Tussey is bringing to the table.

It was hard to know who was the intended reader. The book covers ground that would be challenging for a beginner, but it also includes material that is elementary in nature.

The most serious failure is that complexity theory is never explained sufficiently clearly that one could usefully apply it. The whole book has an impressionistic feel. For example, having observed earlier that complex systems are frequently ‘non-linear’, with the mathematical meaning that outcomes are not proportionate to inputs, she elides this use of ‘linear’ meaning ‘in a line’ referring to thought processes observing simple cause and effect. The words are the same, but to a mathematician they have completely different meanings in context.

I am not sure that someone reading the book without already understanding complex adaptive systems would really have any idea what they were at the end of it. This is not helped by a lack of references to peer-reviewed material on complexity theory rather than to popular works.

If, as Professor Tussey claims, the publishing or copyright world does exhibit self-organizing criticality, where is the quantitative evidence of it? It seems entirely plausible that variables such as sales and profitability of works exhibit scale invariance as she claims, but there are no figures, diagrams or references to back up this claim. I would have welcomed rather more rigour.

The best that can be said for the book is that it is thought-provoking. There is much to chew over, but readers will have to do much of that work themselves. A first book on such a complex subject is always going to be difficult. I hope to see more in the future. For now, readers may be better advised to read Professor Tussey's original paper (D Tussey ‘Music on the Edge of Chaos: A Complex Systems Perspective on File Sharing’ (2005–2006) 37 Loy U Chi LJ 147) and follow references from there.

Tuesday, 21 August 2012

The best IP judgment that has never been written

Here's a bit of summer fun from Oxford University Press, publishers of the Journal of Intellectual Property Law & Practice (JIPLP) -- it's a competition with a chance to be creative, to play at being an intellectual property judge (even if you are one) and win something of value.  The details, which appear on JIPLP's official website, are reproduced here for your convenience:
Enter our JIPLP competition for 2012 and you could win a year’s free subscription to JIPLP. All you have to do is send us your account of the best IP judgment that has never been written.

This should be a short piece of writing explaining who you are (contributor, board member, subscriber etc) and what you think is the best IP judgment that has never been written.

The winning entry will receive £250 of OUP books and a year's free personal sub to JIPLP and the runner-up will receive £100 worth of OUP books. Entries will be judged on how entertainingly written and engaging they are and, the extent to which they draw on actual examples of content from intellectual property writing. 
The winning entries will be decided upon by JIPLP editor Jeremy Phillips and the JIPLP Team at OUP. We’ll also post the winning entry to the JIPLP website. Entries should be between 500-600 words, and be submitted by 30 September 2012. The winning entries will be announced on 3 December. Entries to be submitted to Christopher.wogan@oup.com

What the prize is
Winner - £250 of OUP books and a year's free personal sub to JIPLP
Runner-Up - £100 worth of OUP books

Who decides it
JIPLP editor Jeremy Phillips and the JIPLP Team at OUP

Date of award
3 December 2012

Closing date for entries
30 September 2012

Format of entries
Entries to be between 500-600 words

Criteria for judging
Entries will be judged on how entertainingly written and engaging they are and, the extent to which they draw on actual examples of content from intellectual property writing.

Monday, 13 August 2012

September JIPLP now online, with editorial message: "Keep it simple"

The September 2012 issue of the Journal of Intellectual Property Law & Practice (JIPLP) is now available online to subscribers. Both subscribers and the public at large can peruse the contents of this issue here. Non-subscribers can purchase short-term access to JIPLP's articles and Current Intelligence notes by visiting the journal's official website here.

You can read the editorial for this issue below. As its title suggests, this is a plea that the balance in intellectual property law should be tilted more in favour of principles and less towards complex detail:
Keep it simple: fuzzy IP law for fuzzy folk

For the most part, we live our lives in a world of calculation, estimation and approximation. The vast amount of data that we possess or acquire and are expected to process, the number of decisions we make and the quantity of law which, whether we know it or not, affect our every move, make us as dependent on our intuition as on our intellects.

In our everyday private lives, we understand and accept that this is so. That is why we do not travel precisely within the speed limits laid down for us, do not make exact calculations as to whether and when we can pay for each item purchased on a credit card, and do not take legal advice before shaking a stranger's hand or kissing a proffered cheek as to what level of response might incur civil liability. In short, if our conduct generally falls within a fuzzy and ill-defined category of normality, we forget about it and concentrate our attention on more important things.

The great divide between common law and civil law traditions is instructive because it suggests that, in legislative terms, those who live within the civilian culture are comfortable to be guided by general principles, to which they adhere unless and until new principles, legislatively enacted or judicially articulated, nudge them into a different direction. The common law tradition, which is perhaps more focused on the precise meanings of words than on their general drift, has however produced two great English-speaking nations populated by those who, while, abjuring the literal interpretation of statutes and precedents, are magnetically attracted to literalism and cannot literally get it out of their system.

This divide is found in intellectual property law where, in the United States, each word of a legislative draft becomes a battleground over which battles economic, political, cultural and semantic are fought, the contestants each invoking the terms of a constitution which are expressed in terms of principle which warmly accommodate a variety of conflicting positions. It is also found in the European Union, where the relatively spare and principled prose of harmonising directives, nourished by the fertile pronouncements of their respective recitations, is accommodated in the national law of civil jurisdictions with greater ease and at less length than in common law lands, where the notion that Parliament means what it says —and means to be silent over that which it does not say —remains deep-rooted.

Copyright and patent law both furnish food for thought in this context. In the United States, in Canada and in the United Kingdom there has been continued tension as to the correct dividing line between copyright infringement and the fair use by one person of another person's copyright-protected work. This has generated proposals for legislative reform, legal and economic reviews, litigation and furious lobbying. In similar vein neither the passage of the America Invents Act, nor the declaration that an acceptable solution has been found for the one-Europe-one-patent question, has led to debate dying down. Rather, it has shifted it from one set of issues to another.

The truth is that there are more permutations of fact, more hypothetical prospects for their multiplication and more possibilities for both the good and bad use of intellectual property rights than any degree of legislative detail can accommodate. Most of us are content to live our fuzzy lives without testing the boundaries of the lawful and the unlawful but, wherever those boundaries are placed, there will be those who go right up to them and some will see what happens if they cross them. Some of those who transgress will be burnt as martyrs for the causes of private freedom or fair competition; others will be punished amid general acclaim that they had it coming to them and deserved their fate; others again will cross the line and find out that nothing happens at all, because they are too small to see or too small to sue. No amount of legislative tweaking can resolve this in advance, so we may as well just keep it simple.

Sunday, 12 August 2012

Restrictions, restrictions, restrictions ...

"The London Olympics 2012—restrictions, restrictions, restrictions", by Victoria Horsey, Rachel Montagnon and Joel Smith (all of Herbert Smith LLP), has now been published online by JIPLP. According to the abstract:
This article explains the three types of rights of association with the London Olympics and Paralympics and how they apply in references to the London 2012 Games.

The authors discuss both civil and criminal penalties, as well the restrictions in place in relation to "fair use" in media coverage of the Games and the restrictions on advertising and trading in the vicinity of the Olympic venues.

Another area that is discussed is the regime within which individual athletes and their sponsors must operate.
We had hoped to publish this article ahead of the opening of the Olympic Games and apologise to the authors and to our readers for our failure to do so.  The article is however still of immediate relevance since, as the abstract makes clear, in addition to the London Olympics, it discusses the legal position regarding rights of association with the London Paralympics, which commence on Wednesday 29 August and conclude on Sunday 9 September.

This article is available through JIPLP's Advance Access facility, both to subscribers and to readers who wish to purchase short-term online access to it.

Monday, 6 August 2012

Of journals ... and orphans

The printed, hard-copy version of the August issue of JIPLP should by now have reached all subscribers. If you're still receiving just the printed version and wish you were getting hold of JIPLP earlier, the online version offers you that facility.  The August issue was available in full on 13 July, and its individual contents were all placed online before that date via the publisher's Advance Access system.

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Meanwhile, do remember that intellectual property law is such a vast topic that it can hardly be contained within the covers of a single journal.  Other journals from Oxford University Press often carry IP topics too.  A recent example is "Law versus technology: looking for a solution to the orphan works’ problem", which has recently been published online in one of JIPLP's sister journals, the International Journal of Law and Information Technology (IJLIT). Its authors are Giuseppe Colangelo (Assistant Professor of Comparative Law and Intellectual Property Law at the Economics Faculty of the University of Basilicata) and Irene Lincesso (a Research Assistant at the Economics Faculty in the same institution. According to the abstract:
"The aim of this article is to analyse the different regulatory and practical solutions proposed both in US and EU scenarios to overcome the orphan works’ issue. Orphan works pose a problem because users, who are legally obliged to obtain prior authorization for making works available to the public, are unable to locate and contact the relevant rightsholders. The size of the problem, in terms of the number of works considered orphans or the value of those works, even if difficult to state with precision, is known to be significant".