Alternative systems for Intellectual Property in the digital age

This paper investigates the current turbulent state of copyright in the digital age, and explores the viability of alternative compensation systems that aim to achieve the same goals with fewer negative consequences for consumers and artists. To sustain existing business models associated with creative content, increased recourse to DRM (Digital Rights Management) technologies, designed to restrict access to and usage of digital content, is well underway. Considerable technical challenges associated with DRM systems necessitate increasingly aggressive recourse to the law. A number of controversial aspects of copyright enforcement are discussed and contrasted with those inherent in levy based compensation systems. Lateral exploration of the copyright dilemma may help prevent some undesirable societal impacts, but with powerful coalitions of creative, consumer electronics and information technology industries having enormous vested interest in current models, alternative schemes are frequently treated dismissively. This paper focuses on consideration of alternative models that better suit the digital era whilst achieving a more even balance in the copyright bargain.

UK Design as a Global Industry : International Trade and Intellectual Property

The importance of design to the UK economy is widely recognised. It is one of the key pillars of the knowledge economy, it plays an important role in the innovation process, and it is one of a number of specialisms that help to set the UK apart from global competition. But despite this importance, the nature of design-intensive industries – the businesses that practice and sell design – is remarkably hard to pin down. This uncertainty renders it hard to analyse, and makes it difficult to develop clear, consistent policies to support the designers. The Hargreaves Review recommended that more research was needed to develop a clear evidence base for improving the intellectual property system for design. This report forms part of that evidence base. It examines how UK design figures in the global economy, and considers how the intellectual property system can best support its growth.

UK Design as a global industry : international trade and intellectual property Executive Summary

This is an independent report comissioned by the Intellectual Property Office (IPO) and supported by the Design Council.

Intellectual property and joint ventures

This chapter outlines the most important ways in which intellectual property is protected in Australia, and also the factors which affect the rights of joint venture participants in the absence of specific agreement between such participants. It then examines particular issues which may be considered in preparing appropriate documentation for any joint venture which involves the utilisation or generation of intellectual property to ensure that the joint venture participants achieve their desired result in terms of the allocation of ownership and control of such rights. The analysis includes and explanation of the special considerations which affect co-operation in research between industry and a university or government research institution. Finally, the rights of the joint venturers to intellectual property upon termination of the joint ventures are considered.

Intellectual Property and Development : Theory and Practice

The book examines the correlation between Intellectual Property Law – notably copyright – on the one hand and social and economic development on the other. The main focus of the initial overview is on historical, legal, economic and cultural aspects. Building on that, the work subsequently investigates how intellectual property systems have to be designed in order to foster social and economic growth in developing countries and puts forward theoretical and practical solutions that should be considered and implemented by policy makers, legal experts and the Word Intellectual Property Organization (WIPO).

Intellectual property, TRIPS and development

Intellectual property is crucial to the promotion of innovation. It provides an incentive to innovate as well as security for investment in innovation. The industries of the 21st century-information technology, biotechnology, pharmaceuticals, communications, education and entertainment – are all knowledge-based. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement), adopted in 1994 at the conclusion of the Uruguay Round of trade negotiations, requires all WTO member countries to provide for the protection and enforcement of intellectual property rights. Having forged a link for the first time between intellectual property rights and the international trading system, the adoption of TRIPS means that any country that aims to participate fully in the global economy needs to understand the role of intellectual property and align its intellectual property laws and practices with the international minimum standards prescribed by TRIPS. However, for developing and least-developed countries, the implementation of intellectual property systems and enforcement mechanisms raises questions and challenges. Does recognition and enforcement of intellectual property serve their development needs and objectives? Does TRIPS encourage or hinder the transfer of technologies to developing and least-developed countries, particularly those that meet urgent needs in areas such as public health, food security, water and energy? What is the effect of TRIPS on developing countries’ access to knowledge and information? Is there scope for flexibility in implementation of TRIPS in pursuit of development strategies?

Intellectual Property and Joint Ventures

As in the first edition of the book, this chapter outlines the most important ways in which intellectual property is protected in Australia, and also the factors which affect the rights of joint venture participants in the absence of specific agreement between such participants. It then examines particular issues which may be considered in preparing appropriate documentation for any joint venture which involves the utilisation or generation of intellectual property to ensure that the joint venture participants achieve their desired result in terms of the allocation of ownership and control of such rights. The analysis includes and explanation of the special considerations which affect co-operation in research between industry and a university or government research institution. Finally, the rights of the joint venturers to intellectual property upon termination of the joint ventures are considered. The chapter incorporates the legislative changes and new cases in the field since the publication of the first edition.

A Submission to the Advisory Council on Intellectual Property in Relation to the Issues Paper Relating to the Enforcement of Trade Marks - February 2002

With respect to “shape” marks, there would appear to be a “break”, imposed by the Australian Courts, in the logical conclusion that registration of a shape, which performs a functional purpose, or even further, is indistinguishable from the shape of the item or product, creates a perpetual monopoly in the manufacture of that product.

Intellectual property, innovation, and the environment (2014) edited by Peter Menell and Sarah Tran: A review

Peter S. Menell and Sarah M. Tran (ed.), Intellectual Property, Innovation and the Environment, Cheltenham (UK) and Northampton (MA): Edward Elgar, 2014, 756 pp Hardback 978 1 78195 160 6, http://www.e-elgar.com/bookentry_main.lasso?id=15063 There has been a longstanding deadlock over intellectual property and clean technologies in international climate talks. The United States — and other developed countries such as Japan, Denmark Germany, the United Kingdom, Australia, and New Zealand — have pushed for stronger and longer protection of intellectual property rights related to clean technologies. BASIC countries — such as Brazil, South Africa, India, and China — have pushed for greater flexibilities in respect of intellectual property for the purpose of addressing climate change and global warming. Small island states, least developed countries, and nations vulnerable to climate change have called for climate-adaptation and climate-mitigation technologies to be available in the public domain. In the lead-up to the United Nations Climate Summit in New York on the 23rd September 2014, it is timely to consider the debate over intellectual property, innovation, the environment, and climate change.

From Kafka to KAFTA: Intellectual property, and the Korea-Australia free trade agreement

This paper provides a critical examination of the intellectual property sections of the Korea-Australia Free Trade Agreement 2014. Chapter 13 of the Korea-Australia Free Trade Agreement 2014 deals with the subject of intellectual property law. The Chapter covers such topics as the purposes and objectives of intellectual property law; copyright law; trade mark law; patent law; and intellectual property enforcement. The Joint Standing Committee on Treaties in the Australian Parliament highlighted the controversy surrounding this chapter of the agreement: The intellectual property rights chapter of KAFTA has drawn considerable attention from academics and stakeholders regarding the proposed need for changes to Australian intellectual property law and the inclusion of intellectual property in the definition of investment with regard to the investor-state dispute mechanism. Other concerns raised with the Committee include the prescriptive nature of the chapter, the lack of recognition of the broader public interests of intellectual property rights, and possible changes to fair use provisions. Article 13.1.1 of the Korea-Australia Free Trade Agreement 2014 provides that: ‘Each Party recognises the importance of adequate and effective protection of intellectual property rights, while ensuring that measures to enforce those rights do not themselves become barriers to legitimate trade.’ This is an unsatisfactory description of the objectives and purposes of intellectual property law in both Australia and Korea. There is a failure to properly consider the range of public purposes served by intellectual property law – such as providing for access to knowledge, promoting competition and innovation, protecting consumer rights, and allowing for the protection of public health, food security, and the environment. Such a statement of principles and objectives detracts from the declaration in the TRIPS Agreement 1994 of the public interest objectives to be served by intellectual property. Chapter 11 of the Korea-Australia Free Trade Agreement 2014 is an investment chapter, with an investor-state dispute settlement regime. This chapter is highly controversial – given the international debate over investor-state dispute settlement; the Australian context for the debate; and the text of the Korea-Australia Free Trade Agreement 2014. In April 2014, the United Nations Conference on Trade and Development (UNCTAD) released a report on Recent Developments in Investor-State Dispute Settlement. The overall figures are staggering. UNCTAD reports a significant growth in investment-state dispute settlement, across a wide array of different fields of public regulation. Given the broad definition of investment, intellectual property owners will be able to use the investor-state dispute settlement regime in the Korea-Australia Free Trade Agreement 2014. This will have significant implications for all the various disciplines of intellectual property – including copyright law, trade mark law, and patent law.

Japonica rice: Intellectual property, scientific publishing and data-sharing

This article examines a series of controversies within the life sciences over data sharing. Part 1 focuses upon the agricultural biotechnology firm Syngenta publishing data on the rice genome in the journal Science, and considers proposals to reform scientific publishing and funding to encourage data sharing. Part 2 examines the relationship between intellectual property rights and scientific publishing, in particular copyright protection of databases, and evaluates the declaration of the Human Genome Organisation that genomic databases should be global public goods. Part 3 looks at varying opinions on the information function of patent law, and then considers the proposals of Patrinos and Drell to provide incentives for private corporations to release data into the public domain.

Owning the new economy: A guide to intellectual property management for Australia's clean technology sector

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level some of the foundational questions that ought be asked by entities involved in the 'cleantech' industries. Beginning simply at what is IP and why it matters, this manual examines the models of IP management available to market participants around the world. The process of IP management is defined and assessed through a commercial lens; assessing the 'pros' and 'cons' of each management choice with a view to equipping the reader to determine which approach may be best adapted to their given clean tech project. The manual concludes with a brief survey of alternative models of Intellectual Property management, including relevant examples from overseas and prominent suggestions arising out of the academic discourse. It appears inevitable that the global warming challenge will prompt specific legislative, regulatory and multi-lateral responses by nation states, however, the ultimate form of any such response remains a highly contested political and social issue. Accordingly, the structure of this manual, and the discussion points raised herein, seek introduce the reader to some of the more contentious debates occurring around the world at the intersection between IP and climate change.

Australian Property Institute Inc, Submission to the Productivity Commission on Intellectual Property Arrangements – Issues Paper

This submission responds to the document Intellectual Property Arrangements Issues Paper (Issues Paper) released by the Productivity Commission in October 2015 for public consultation and input by 30 November 2015. The API is grateful for the extension of time granted by the Commission to complete and lodge this submission. The overall need for an inquiry into intellectual property is supported by API. In particular it is noted with approval that the Commission states in its Issues Paper that it is to consider the appropriate balance between “incentives for innovation and investments, and the interests of both individuals and businesses in assessing products”.1 However, API is of the view that intellectual property in the area of real property presents a number of issues which are not fully canvassed in the abovementioned Issues Paper. Intellectual property embedded in valuation and other property-related reports of API members involves the acquisition of information which may possibly be confidential. Yet, when engaged in banks and financial institutions the intellectual property in such valuations and/ or reports is commonly required to be passed to the client bank or financial institution. In the Issues Paper it is proposed that there are seven different forms of intellectual property rights.2 It is the view of API that an eight form exists, namely private agreements. The Issues Paper, however, regards private agreements between firms as alternatives to intellectual property rights. The API considers that “secrecy or confidentiality arrangements”3 as identified in the Issues Paper form a much larger part of the manner in which intellectual property is maintained in Australia for the purposes of trade secrecy or more often, financial confidentiality...

Turing and the Trans-Pacific Partnership: Intellectual Property, Public Health, and Access to Essential Medicines

A recent controversy in the United States over drug pricing by Turing Pharmaceuticals AG has raised larger issues in respect of intellectual property, access to medicines, and the Trans-Pacific Partnership (TPP). In August 2015, Turing Pharmaceuticals AG – a private biopharmaceutical company with offices in New York, the United States, and Zug, Switzerland - acquired the exclusive marketing rights to Daraprim in the United States from Impax Laboratories Incorporated. Martin Shkreli, Turing’s Founder and Chief Executive Officer, maintained: “The acquisition of Daraprim and our toxoplasmosis research program are significant steps along Turing’s path of bringing novel medications to patients with serious disorders, some of whom often go undiagnosed and untreated.” He emphasised: “We intend to invest in the development of new drug candidates that we hope will yield an even better clinical profile, and also plan to launch an educational effort to help raise awareness and improve diagnosis for patients with toxoplasmosis.” In September 2015, there was much public controversy over the decision of Martin Shkreli to raise the price of a 62 year old drug, Daraprim, from $US13.50 to $US750 a pill. The drug is particularly useful in respect to the treatment and prevention of malaria, and in the treatment of infections in individuals with HIV/AIDS. Daraprim is listed on the World Health Organization’s (WHO) List of Essential Medicines. In the face of much criticism, Martin Shkreli has said that he will reduce the price of Daraprim. He observed: “We've agreed to lower the price on Daraprim to a point that is more affordable and is able to allow the company to make a profit, but a very small profit.” He maintained: “We think these changes will be welcomed.” However, he has been vague and ambiguous about the nature of the commitment. Notably, the lobby group, Pharmaceutical Research and Manufacturers of America (PhARMA), disassociated itself from the claims of Turing Pharmaceuticals. The group said: “PhRMA members have a long history of drug discovery and innovation that has led to increased longevity and improved lives for millions of patients.” The group noted: “Turing Pharmaceutical is not a member of PhRMA and we do not embrace either their recent actions or the conduct of their CEO.” The biotechnology peak body Biotechnology Industry Organization also sought to distance itself from Turing Pharmaceuticals. A hot topic: United States political debate about access to affordable medicines This controversy over Daraprim is unusual – given the age of drug concerned. Daraprim is not subject to patent protection. Nonetheless, there remains a monopoly in respect of the marketplace. Drug pricing is not an isolated problem. There have been many concerns about drug pricing – particularly in respect of essential medicines for HIV/AIDS, tuberculosis, and malaria. This recent controversy is part of a larger debate about access to affordable medicines. The dispute raises larger issues about healthcare, consumer rights, competition policy, and trade. The Daraprim controversy has provided impetus for law reform in the US. US Presidential Candidate Hillary Clinton commented: “Price gouging like this in this specialty drug market is outrageous.” In response to her comments, the Nasdaq Biotechnology Index fell sharply. Hillary Clinton has announced a prescription drug reform plan to protect consumers and promote innovation – while putting an end to profiteering. On her campaign site, she has emphasised that “affordable healthcare is a basic human right.” Her rival progressive candidate, Bernie Sanders, was also concerned about the price hike. He wrote a letter to Martin Shkreli, complaining about the price increase for the drug Daraprim. Sanders said: “The enormous, overnight price increase for Daraprim is just the latest in a long list of skyrocketing price increases for certain critical medications.” He has pushed for reforms to intellectual property to make medicines affordable. The TPP and intellectual property The Daraprim controversy and political debate raises further issues about the design of the TPP. The dispute highlights the dangers of extending the rights of pharmaceutical drug companies under intellectual property, investor-state dispute settlement, and drug administration. Recently, the civil society group Knowledge Ecology International published a leaked draft of the Intellectual Property Chapter of the TPP. Knowledge Ecology International Director, James Love, was concerned the text revealed that the US “continues to be the most aggressive supporter of expanded intellectual property rights for drug companies.” He was concerned that “the proposals contained in the TPP will harm consumers and in some cases block innovation.” James Love feared: “In countless ways, the Obama Administration has sought to expand and extend drug monopolies and raise drug prices.” He maintained: “The astonishing collection of proposals pandering to big drug companies make more difficult the task of ensuring access to drugs for the treatment of cancer and other diseases and conditions.” Love called for a different approach to intellectual property and trade: “Rather than focusing on more intellectual property rights for drug companies, and a death-inducing spiral of higher prices and access barriers, the trade agreement could seek new norms to expand the funding of medical research and development (R&D) as a public good, an area where the US has an admirable track record, such as the public funding of research at the National Institutes of Health (NIH) and other federal agencies.” In addition, there has been much concern about the Investment Chapter of the TPP. The investor-state dispute settlement regime would enable foreign investors to challenge government policy making, which affected their investments. In the context of healthcare, there is a worry that pharmaceutical drug companies will deploy their investor rights to challenge public health measures – such as, for instance, initiatives to curb drug pricing and profiteering. Such concerns are not merely theoretical. Eli Lilly has brought an investor action against the Canadian Government over the rejection of its drug patents under the investor-state dispute settlement regime of the North American Free Trade Agreement (NAFTA). The Health Annex to the TPP also raises worries that pharmaceutical drug companies will able to object to regulatory procedures in respect of healthcare. It is disappointing that the TPP – in the leaks that we have seen – has only limited recognition of the importance of access to essential medicines. There is a need to ensure that there are proper safeguards to provide access to essential medicines – particularly in respect of HIV/AIDs, malaria, and tuberculosis. Moreover, there must be protection against drug profiteering and price gouging in any trade agreement. There should be strong measures against the abuse of intellectual property rights. The dispute over Turing Pharmaceuticals AG and Daraprim is an important cautionary warning in respect of some of the dangers present in the secret negotiations in respect of the TPP. There is a need to preserve consumer rights, competition policy, and public health in trade negotiations over an agreement covering the Pacific Rim.

Intellectual property : designing 4 success. Safeguarding your innovations - rights, obligations and opportunities in creating intellectual property by design

Design talks LOUDLY!!! Is a series of interactive presentations exploring issues and opportunities involving professional design. --------------- These seminars are organised by the Industrial Design Network Queensland (IDnetQLD) in coordination with the Design Institute of Australia (DIA). This event was held at the State Library of Queensland (SLQ) with invited public presentations by a panel of industry experts from the Australian Government – IP Australia. --------------- The first seminar "Intellectual Property : designing 4 success" highlighted to design professionals how the various forms of Intellectual Property interact, what protections and pitfalls exist, and how these impact upon the work and responsibilities of designers. The overlaps, gaps and in congruencies in the various IP protection systems were highlighted by the expert line-up of speakers. --------------- The underlying message is that a clear understanding of all IP types is necessary in order to gain the best advantage from IP protection and therefore eliminate potential IP ownership issues before they become a problem.