FBI ON THE TRAIL OF THOSE WHO STEAL INTELLECTUAL PROPERTY RIGHTS

Thieves of intellectual property rights should be looking over their shoulders because the FBI is now playing a lead role in investigating intellectual property crimes and may be planning a sting operation that will net them some serious prison time. FBI is currently working over 400 such cases, many of which are of global nature. Read the entire article by clicking the following link.

FBI ON THE TRAIL OF THOSE WHO STEAL INTELLECTUAL PROPERTY RIGHTS | MISCELLANEOUS NEWS ITEMS | Sky Valley Chronicle Washington State News

Appeals court ruling threatens used software sales

Can copyright holders prevent a buyer from reselling or renting a product after an initial sale, as long as additional copies aren't made? What does the San Francisco Federal Appeals Court say about this 102-year old First-Sale doctrine?

Read the entire article by clicking this link.

Interested in participating in the Advanced LL.M/MSc programme of combined Intellectual Property Law and Knowledge Management?

Interested in participating in the Advanced LL.M/MSc programme of combined Intellectual Property Law and Knowledge Management, while enjoying the life in the Northern part of Europe? Go to Maastricht, the Netherlands.

The program is designed to train graduates to work as legal practitioners or management in knowledge-intensive industries and research institutes. The programme is divided into three terms, which are spread over one or two years, depending on whether the student is full or half time.During the first term, all students will learn the fundamentals of the law regarding knowledge valorisation and the protection of intellectual property.

They receive in-depth instruction in the workings of the EU and US systems of intellectual property protection. They also learn the form and function of international organisations, such as:

• World Intellectual Property Organisation;
• World Trade Organisation; and
• European Patent Office.

Students from both master's programmes follow the same programme structure into the second term, but with greater individual focus and more freedom to incorporate electives into the curriculum. During the third term, students will work on a master´s thesis.The advanced master in Intellectual Property Law and Knowledge Management (LL.M.) is primarily for lawyers and technology transfer officers, and offers a more generalised education in intellectual and property law.

The advanced master in Intellectual Property Law and Knowledge Management (MSc.) The MSc programme offered by Maastricht University may serve as a key step in preparing for the European Qualifying Exam. Please note that the profession of patent agent is highly regulated. Admission to the EQE is subject to precise requirements set by the EPO. These requirements include prior degrees obtained and work experience. See www.epo.org/patents/learning for information.

Benelux Office for Intellectual Property

The official website of the Benelux Office for Intellectual Property (http://www.boip.int/). Information in three languages: Dutch/Flemish, French and English.

When God closes His Doors, He will open His Windows.

Abuse of Intellectual Property Rights?

http://the-ip-world.blogspot.com/

I was invited to by the National Commission for the Supervision of Business Competition on 30 August 2010 to act as an expert resource person in their discussion on the interpretation of the rules on abuse of dominant position.

This particular area of law is quite broad. One of the topics to be discussed relates to intellectual property. One of the key rules of Indonesian competition law is the prohibition of abuse of dominant position, pursuant to which enterprises may not abuse their dominant positions by way of, inter alia, restricting (access to) the market and restricting technology advancement. I agree with this and will discuss this somewhere below.

One sentence in their proposed outline that has intrigued me reads: IP rights holders may not abuse their IP rights.

I believe that this proposition is too far-reaching. In my opinion, IP rights holders may do whatever they want with their IP rights, because IP rights are the so-called "rights in the production of the soul" - I have invented this English translation for the German term "Rechte an den Produkten des Geistes" and the Dutch term "rechten op de voortbrengselen van de geest". I don't know whether this English term is known in IP Law.

Intellectual Property rights are the rights in the production of the soul and no one can be deprived of their rights in the production of the soul, as IP rights are also human rights - vide Article 27 of the 1948 United Nations Universal Declaration of Human Rights. However, there are balance of rights of obligations and there are also rules on exceptions and limitations in the areas of IP.

A trademark owner has an absolute right to manage and dispose of his/her/its trademark. He/she/it may exploit his/her/its trademark commercially to the fullest extent and a trademark is always renewable. Therefore, a trademark owner can always prevent anyone else from using a trademark which is similar in substance or in entirety with his/her/its own trademark, and if necessary, in the worst battle before the court, to defend his/her/its rights. In the area of trademark law, there are nos such things as compulsory license.

Likewise in the area of Geographical Indication law. It is nonsense to condemn owners of GI rights for exploiting their rights to the fullest extent. GI belongs to the society or a group of companies in a certain geographical territory. GI rights are perpetual and there are no such things as GI licensing.

The exercise of these absolute rights should be viewed as not protecting IP owners only, but also protecting the consumers because:

What the law mandates is that in exercising these absolute rights, IP rights owners must take the needs of the community into account. Therefore, there are rules on compulsory licensing in the area of patent law and, in accordance with the Annex of the Berne Convention, which is also embodied in our Copyright legislation, for educational purposes, local peoples may be given a license by the government to have foreign-language books translated and reproduced only for the purposes of meeting the academic needs. Compulsory licenses are not exclusive, but commercial licenses are.

In my opinion, there are no such terms as "abuse of IP rights by IP rights owners", but it is possible that IP licensees (who are not the real IP rights owners) who will likely have the chance and opportunity to abuse their dominant positions as exclusive licensees, by restricting (the access to) the market and restricting technology advancement. If licensees are given rights equal to those of patent rights owners, for instance, then licensees may prevent others from making technology advancement. This is something that has been disliked since 1948.

IP licensees are not IP rights owners and cannot exercise their rights excessively as if they were the real IP rights owners - European Court of Justice ruling in the case of Konstanz und Grundig [PS: I forgot the case number]. That's what I learned as an LL.M student in the Netherlands, back in 1998.

What do you think?

Assignable Service Marks of Professional Services

In our Indonesian Trademark Law (Law No. 15 of the Year 2001) it is provided under Article 41 that:

(a) Assignment of marks can be accompanied by the assignment of goodwill, reputation and other things related to or pertaining to such marks; and

(b) the rights in registered service marks, which are inseparable from the capability, quality or personal expertise of the relevant service provider can be assigned to third parties provided that there is a guarantee and indemnity for the quality of the services to be rendered by the assignee.

My thought/thinking is that if the quality of the services rendered by the service provider is inseparable from his/her own personal capability, quality or expertise, how can the service mark, which he has registered for promoting his/her own quality services, be assigned to any third parties?

In our Civil Code it is written that obligations deriving from an act that can be done by a certain person cannot pass to any other persons.

Thus, if a father is a lawyer and so is the child and they form a law firm, the quality of the professional services rendered by the father is naturally different from that of the child, although if the father is a registered capital markets legal consultant and so is the child, the obligations deriving from the professional services rendered by the father in the area of capital markets law can pass to the child who is also qualified to practise in that area of law. But the quality of the professional services rendered by the father and the child respectively is different.

It will be a different situation in which a person runs a securities company that provides services, for example the underwriting of negotiable instruments issuance to be listed on the stock exchange. The services rendered by the company are not related to the personal capability, quality and expertise of the founders of the securities company. In this case it is very logical if the service mark is assignable.

My question is, why should the law open a possibility for individuals working professionally to render services, of which quality is inseparable from his/her own personal capability, quality and expertise, to assign the service mark which is related to his/her professional services if that is very illogical? Although the law allows the assignment of such service mark provided that there is a guarantee and indemnity for the the same quality of the services, such provision will intrigue people to give such guarantee/indemnity which in reality they cannot perform and, therefore, will be susceptible to a lawsuit or criminal prosecution for giving false statement.

What do you think and how does your national legislation deal with such issue?

IDLO Sharing Network

The International Development Law Organization (IDLO) - www.idlo.int - has created a sharing network for all of its alumni. A special theme on Intellectual Property is highlighted, including a home for IDLO Intellectual Property Resource Persons. The link is as follows: Pages - Home

Intellectual Property and Human Rights

PART ONE

What makes me think of the link or correlation between intellectual property and human rights?

First of all, from the legal point of view, the term "intellectual property" refers to "copyright" as opposed to "patent", "trademark", "industrial design" and "trade secret" which are classified as "industrial property" (Paris Convention of 1883 on the Protection of Industrial Property).

Article 2 paragraph 1 of the Berne Convention of 1886 for the Protection of Literary and Artistic Works, Paris Act 1971 as amended on 28 September 1979, reads as follows:

"The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramaticomusical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography,topography, architecture or science."

It is clear that the Copyright, which legally means intellectual property (as opposed to Patent, Trademark, Industrial Design and Trade Secrets, which are classified as industrial property), protects every production in the literary, scientific and artistic domain.

Now, how can I say that intellectual property, which legally means Copyright, constitute human rights, or at least is related to human rights? This is the answer.

Article 27 of the 1948 United Nations Universal Declaration of Human Rights reads as follows:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Thus, it is clear that intellectual property, which legally means Copyright, constitute human rights, or at least is related to human rights.

Continue to read PART TWO.

Intellectual Property and Industrial Property

In the world of intellectual property, intellectual consolation is always preceded by commercial isolation, or in other words: intellectual consolation always follows commercial isolation. Therefore, intellectual consolation always ensures that commercial isolation stays on its track and will never go beyond its limits.

In the world of intellectual property, the most important historical time-line where intellectual consolation follows commercial isolation can be described as follows:

• Year 1440: The Printing Press was created by Gutenberg.

• Year 1557: Queen Mary I of the House of Tudor promulgated the Statute of Mary, pursuant to which the Stationer's Company had enjoyed monopoly to buy manuscripts from authors but once purchased, would have a perpetual monopoly on the printing of the work. Authors themselves were excluded from membership in the company and could not therefore legally self-publish, nor were they given royalties for books that sold well.

• Year 1710: The first-ever copyright legislation in the world was promulgated by Queen Anne of the House of Stuart, repealing the Statute of Mary. The Statute of Anne vested authors rather than printers with the monopoly on the reproduction of their works. It created a 21 year term for all works already in print at the time of its enactment and a fourteen year term for all works published subsequently. It also required that printers provide nine copies to the Stationer's Company for distribution to the Royal Library, the libraries of Oxford, Cambridge, St. Andrews, Glasgow, Aberdeen, Edinburgh, Sion College and the Faculty of Advocates in Edinburgh. When Ireland united with Great Britain in 1801, the Trinity College and Kings' Inns in Dublin were added as two further depositories. Interestingly, the Statute of Anne's long title was: "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".

• The term "intellectual property" did not exist until 1767 in the Blackstone's commentary on the Books of Law. The only reason why it took 3 (three) centuries since 1440 for the term "intellectual property" and the idea of copyright to come into existence is that it took that long for literacy to spread and grow enough for printing books and selling them to become a good business proposition. The change was gradual, but it accelerated in 1700s with the quickening rise of commerce and the middle classes.
  

• Year 1783: In his book titled "Ueber den Büchernachdruck", Christian Sigmund Krause, a German philosopher wrote (as translated into English):

  "No, no, it is too obvious that the concept of intellectual property is useless. My property is exclusively mine; I must be able to dispose of it and retrieve it unconditionally. Let someone explain to me how that is possible with ideas. Just let someone try taking back the ideas he has originated once they have been communicated so that they are, as before, nowhere to be found. All the money in the world could not make that possible."

• Year 1883: The Paris Convention on Industrial Property (Patent, Trademark, Industrial Design, Trade Secret), which supports commercial isolation, was signed.
  

• Year 1886: The Berne Convention for the Protection of Works in Literary, Artistic and Scientific Domain, which supports intellectual consolation, was signed.
  

IDLO IP Impact Programme in Indonesia: The Fourth Training Workshop

Organized for two (2) consecutive days in November 2008 in Jakarta at Grand Kemang Hotel, the fourth training workshop on intellectual property within the context of IDLO Intellectual Property Impact Programme was attended by 15 jurists, most of them were private sector lawyers. There were several members of the academia as well as public sector lawyers and lawyers from NGOs

The training workshop had the main topic: "IP Licensing, IP Audit and Legal Arguments in IP Disputes - How to Win IP Cases" and saw the contribution of the following experts:

• IDLO Intellectual Property Resource Person for Indonesia: IP Licensing and IP Audit;
• IDLO Director of Anglophone Department and Intellectual Property Specialist: Legal Arguments in IP Disputes - How to Win IP Cases.

The award of the certificates of participation took place at a dinner organized after the training workshop.

IDLO IP Impact Programme in Indonesia: The Third Training Workshop

Organized for three (3) consecutive days in June 2007 in Jakarta at the Training Centre of the Ministry of Foreign Affairs, the third training workshop on intellectual property within the context of IDLO Intellectual Property Impact Programme was attended by 20 jurists, most of them were private sector lawyers. There were several members of the academia as well as public sector lawyers, such as judges, public prosecutors, police officers and customs officials.

The training workshop had the main topic: "Enforcement of Intellectual Property Rights: The National Application of Articles 41-61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights" and saw the contribution of the following experts:

• IDLO Intellectual Property Resource Person for Indonesia: International Intellectual Property Law and Civil Procedures;
• Official from the Attorney-General Office: Criminal Procedures
  
• Official from the Customs Office: Border Measures

IDLO IP Impact Programme in Indonesia: The Second Training Workshop

Organized for 3 (three) consecutive days in September 2006 in Jakarta at the Erasmus Huis - Dutch Cultural Centre, the second training workshop on intellectual property within the context of IDLO Intellectual Property Impact Programme was attended by 23 jurists, most of them were private sector lawyers. There were several members of the academia as well as judges.

The training workshop had the main topic: "The Role of the Judiciary, Arbitration and Mediation in the Settlement of IP Disputes" and saw the contribution of the following experts:

• IDLO Intellectual Property Resource Person for Indonesia: International Intellectual Property Law;
• Mrs. Erna Letty Kusoy (Hadiputranto, Hadinoto & Partners - Baker & McKenzie): Cancellation Action and Infringement Action
  
• Mrs. Elijana Tansah SH (Former Judge of the High Court of Jakarta, Ad-Hoc Judge of the Commercial Court, Expert Staff of the Minister of Law and Human Rights): The Role of the Commercial Court in IP Disputes
  
• Mrs. Karen Mills (KarimSyah Law Firm): The Role of Arbitration in IP Disputes and Domain Name Arbitration
  

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IDLO IP Impact Programme in Indonesia: The First Training Workshop

Organized for five (5) consecutive days in January 2006 in Jakarta at the World Trade Centre, the first training workshop on intellectual property within the context of IDLO Intellectual Property Impact Programme was attended by 25 jurists, most of them were private sector lawyers. There were several members of the academia as well as public sector lawyers.

The training workshop had the main topic: "Intellectual Property Law in Practice: How to Protect and Enforce IP Rights" and saw the contribution of the following experts:

• IDLO Intellectual Property Resource Person for Indonesia: International Intellectual Property Law;
• IDLO Head of Anglophone Department and Intellectual Property Specialist: Industrial Design;
• Dr. Cita Citrawinda Noerhadi: Patent and Trade Secret
• Mr. Henry Soelistyo Boedi SH LL.M: Copyright
• Mr. Gunawan Suryomurcito SH: Trademark

Articles on Intellectual Property

Impressed and inspired by world-class masterpieces in the areas of intellectual property, the Statute of Anne of 1710 and Christian Sigmund Krause's Philosophical Concept of Intellectual Property, the IDLO Intellectual Property Resource Person for Indonesia has written his articles on intellectual property. The first one, published in the Bulletin of the Indonesian Capital Markets Legal Consultants Association/Himpunan Konsultan Hukum Pasar Modal Indonesia, was written in the Indonesian language and titled: Sekuritisasi Hak Cipta, Suatu Gagasan untuk Pembangunan (English: Copyright Securitization, an Idea for Development).

Click here to read the entire article.

Click here to read the IDLO Intellectual Property Resource Person for Indonesia's thought of the Statute of Anne, 1710 and Christian Sigmund Krause's Philosophical Concept of Intellectual Property (in Indonesian).