Monday 25 October 2010

Intellectual property insurance

Intellectual property insurance is a topic that fascinates me, one that we don't hear or read enough about. Jane Lambert is one of the few people talking or writing about it, and she posted this very interesting piece on one of her blogs the other day. I'll come back to the subject sometime but I am pleased to be able to provide a link to this for the time being.

Wednesday 13 October 2010

The right to own DVDs

A report on picks up on an article in the Malaysian paper, The Star, about penalties for having illegal DVDs, even for private use. That sliding feeling again ...
Pirate copies of publicly-available films on DVD are clearly wrong. It must be unlawful to copy a DVD version of the film, to record it off-air (except for whatever limited purposes the law might allow, as our copyright law does for time-shifting - which sounds as if it might be related to what Phaedrus experienced ...) or to use a camera to grab a copy in the cinema. On holiday in Spain in recent years, I have noticed that the DVDs available to rent (within the expat English community at least) are all copies, and I suspect I might find something similar in England if I ventured into the right part of the underworld - but I have little interest in watching the latest from Hollywood, anyway.
What about when the film is not available? That seems to be the argument in Malaysia. There's also an argument based on the price at which it's available. Of course, illegal copying of anything would disappear immediately if the anything were available free of charge - or even for a modest cost. Film producers, and record companies, must set their prices at the level at which they expect to maximise profits (or do they? Why are CDs and DVDs priced so uniformly? Is a CD from one artist really worth the same as a CD from another artist? The selling price might be identical - but market clearing or profit maximising might call for a different price). Just because one can't afford the DVD, or CD, doesn't mean one can procure an illegal copy.
Well, back in the days when (as I just defined the era) Frank Zappa was unknown to FT readers and there was an Iron Curtain to show how different various political and social systems could be, I had an extensive collection of tapes made from friends' LPs. I also had no grasp of copyright law - but that's another matter. I am wiser as well as being older. I couldn't afford to buy all those LPs - after all, they cost as much as £2, sometimes even £2.50, each - so I taped them, and my friends taped my records, or would have done except that my collection was so eclectic that they probably didn't want to bother. I had some rarities on tape, which couldn't be obtained any other way, but mainly I admit it was sheer volume, not scarcity, that drove me. And others.
I still have some rarities on tape, somewhere - old Dylan bootlegs. There's the scarcity argument. 30 years ago his 1966 concerts were only available in bootleg form. The people who made the records could face prosecution but the fans who bought them did no legal wrong. Nearly everyone (excluding the Grateful Dead) takes a much more prorietary view of their rights now: plus, record companies and film studios are rather bigger entities, with more shareholders to satisfy. The people who make copies of music and films that they cannot afford are and must always be infringers: they should never be criminals. People who make unlawful copies on a commercial scale are and must always be infringers: whether they are also criminals is another matter, and I would say let the industry enforce civil rights before hastening to criminalise the activity, which often forms part of a wider range of activities which is clearly criminal anyway.
And price the product to make it available to all!

Russian president calls for reform of international IP treaties

Sometimes I get that sense of the world sliding away from me - as it did for Phaedrus in Zen and the Art of Motorcycle Maintenance. I vividly recall reading Frank Zappa's obituary in the Financial Times: that still epitomises for me how radically the world had changed in a few years, eliding the passing of an iconic cultural figure, the fact that he might qualify for an obit in that newspaper (a few years before, few of its readers would have recognised his name) and indirectly the disappearance of the Iron Curtain (brought to mind because of his appointment by Vaclav Havel as a special ambassador to the West - what a tribute for a fan to pay to a musician!).
The news that President Medvedev was talking to musicians at the Rhythm and Blues Café in Moscow might have caused similar feelings. The fact that there is such an establishment in Moscow might alone have been enough once to produce that sliding feeling, but I am reconciled to the fact that times have changed. The fact that he was arguing for reform of international IP conventions, singling out Berne and Geneva (the phonograms convention, I assume, not the red cross one), could also prompt the same sensation.
His point that those conventions are stuck in a different era, before the Internet allowed faithful copies to be sent around the world in the blink of an eye, when Frank Zappa was unknown to FT obituary writers, is well-made. The notion that downloading needs to be treated "like any other crime" is a bit worrying ... fortunately Russia is a different place from what it was in Vysotskiy's day.

Friday 8 October 2010

The costs of patent litigation

I haven't had a lot of time for blogging recently, for several reasons. One is that I have spent the day being a corporate finance lawyer. Another is that the Oxford IP seminars (advertised elsewhere on this page) have taken some of my time. At the first one this week, Jane alluded to a famous case on the costs of patent litigation, and I think it will be a service - a small one, but a service nonetheless - to humankind if I post the relevant paragraphs here for all to see.The case was Ungar v Sugg (1892) 9 RPC 113 at 116-117 and the judge Lord Esher MR.
"Well, then," his Lordship said (not words you see much in the law reports these days), "the moment there is a patent case one can see it before the case is opened, or called in the list. How can we see it? We can see it by a pile of books as high as this [holding up the papers] invariably, one set for each Counsel, one set for each Judge, of course, and by the voluminous shorthand notes: we know ‘Here is a patent case.’
"Now, what is the result of all this? Why, that a man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law; it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief.”

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