Monday, 19 June 2017

India: Balancing Competition - SEP Injunctions

SEP Injunctions and the Balance of IPRs and Competition in India is a posting on the IP finance blog by Mike Mireles, linking to an article in the Financial Express by Professor V.K. Unni of the Indian Institute of Management, Calcutta entitled 'Promoting Innovation: Moving Towards a Better Intellectual Property Regime'. 

The balance between IP rights and competition law is of course a crucial one to lawyers in either of (or, more likely, both) those disciplines. The learned Professor notes that the the Delhi High Court has recently considered whether the competition authorities are entitled to consider possible abuses of dominant positions by owners of standards-essential patents, and has concluded that they can, which sounds rather like the process that the Court of Justice went through many years ago to reconcile the provisions of the (then) Treaty of Rome with national intellectual property laws. But it's not for me to tell you what IP Finance, or Prof Unni, said - follow the link and read it for yourself. As my students might find themselves doing next year ...

Sunday, 18 June 2017

Theft: A History of Music

Thinking about how to engage students coming to intellectual property law for the first time is something that occupies my thoughts quite a lot these days. A copyright comic might be just the answer - and if it deals mostly with the law from that other common law jurisdiction across the Atlantic, that's not necessarily a disadvantage if the purpose of the exercise is to kindle interest rather than teach hard law. And if it has "theft" in the title I will be prepared to suspend my usual reaction to the connection of that concept with intellectual property.

A large part of grabbing a student's attention is finding a route into intellectual property law from somewhere they already know and like. Music provides an excellent entrée into copyright law - probably not Mozart, but possibly some of the more recent and high-profile cases, the two most celebrated of which were US cases (but there are many from the UK too). Music copyright is precisely what James Boyle and Jennifer Jenkins’ new scholarly comic book tells us about. It is (the blurb tells us) 'a celebration of these and other musicians and composers who crossed barriers and built the playlist of extraordinary Western music from ancient Greece to classical to hip-hop. Published by the Duke Center for the Study of the Public Domain, “Theft: A History of Music,” brings these artists’ musical borrowings to the forefront, saying that instead of stifling creativity, such “thefts” were essential to musical cross-fertilization and creation of new genres.'

The blurb continues: 'But the book also comes with a warning: At every point of new musical innovation, there was resistance and efforts to control music, whether it was from philosophers, the church, or politicians.'

You can read the full article here, and listen to James Boyle discuss the comic on NPR's The State of Things. The mere fact that it's the work (partly) of Jim Boyle is enough to sell it to me: he's an excellent writer and lecturer and I have enjoyed his work in the past, although this is the first comic book of his that I have read (the first comic book of any kind that I've read, since I gave up "war bluds" at school). I read it, pretty much in one sitting, and found it stimulating, entertaining and informative. It's going to be an ideal introduction to copyright concepts in courses I teach in the future, and best of all (coming as it does from individuals and an institution committed to the furtherance of the public domain) it's a free download. What  more could you ask?

Friday, 16 June 2017

Positional goods

Many things bother me about the state of the world. One idea that made a deep impression on me when I first read about it in "Social Limits to Growth" by the  late Fred Hirsch is what he called positional goods. I took a couple of Prof Hirsch's courses at Warwick, and learnt a great deal from them (I could have learnt a great deal more, but a memo from him tucked inside my copy of "Social Limits" explains why I didn't: it starts "I don't seem to have been seeing you at the seminar lately ..."). I bought his books, and remember struggling to read "Social Limits" during a sleepless night at the British Grand Prix at Brands Hatch, when camping in a tent brought on an attack of asthma and I spent several hours sitting in the Hillman Avenger in which my brother and I had travelled to the event. But I digress - except that this explains why my attempt to read the book were less than successful.

I did, however, take on board the idea that there are limits to growth. If everyone moves to the countryside because it's pretty and quiet, it will cease to be pretty and quiet. This is happening right now all around me. And contemplating what I think JK Galbraith identified as the problem of private affluence and public poverty (highlighted by the appalling death toll in the Grenfell Tower fire, which must have at least something to do with the public sector being starved of money), I wonder how the super-rich imagine they will derive any pleasure from their wealth if, as they travel between their City base and their place in the country, they have to negotiate traffic jams and potholed roads, or a rail system brought to a halt by defective signals or a "jumper" (a "person under a train", in official language). Even if they fly, they will see plumes of smoke from burning tower blocks. Not every day, of course, but once in a decade is much too often.

So, houses in the countryside are positional goods. They rely for their value on scarcity. This thought brought me to something else which has troubled me for years (though it is not something that would ever bring about the end of the world*), namely parallel imports of luxury goods. Trade mark owners resist parallel imports because they interfere with their pricing strategy, which is based on maintaining exclusivity, which means that luxury branded goods are positional goods like country cottages. Consumers - some of them, anyway - want to be able to buy them cheap from Tesco, but the whole point about positional goods is that if they are available cheap from Tesco they are no longer worth having.

Hirsch also wrote about the commercialization effect (and yes, he did spell it with a "z"), under which supplying something commercially diminishes the quality of a good or service. Or, to put it another way (as Wikipedia does) "market exchange ... diminishes the inherent value of the transaction by subordinating social well-being to the commodification impulse." And that leads me to think about commodification (a topic on which Marx had a lot to say), which seems to me to be what intellectual property law is all about - taking intangible creations and turning them into something that can be traded. There's a lot to think about here, and I think it is now high time I read the book (which I notice I bought in 1980 at the bookshop at Conservative Central Office, and that in itself raises some interesting questions).

* Although as my old friend - as in, he was a friend a long time ago, but I have not seen him for many years - Sir Michael Fallon once said, "it's not the end of the world - but you can see it from there". No, I won't tell you of where he was speaking.
 

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