WIPIP Session 7: International issues

Session 7 Room 145: International IP
 
Sean Flynn, Mike Palmedo, & Walter Park, Creating a
Database of Changes to Copyright User Rights in 40 Nations
 
Fair dealing is flexible (uses a balancing test) but not
open (limited classes of acts).  There
are counts of industries in different countries; empirical question: how does
the law actually impact behaviors? 
Scattered data, such as lack of enforcement of German ©s in US during
WWII, but not broad data.  Existing
surveys are static, not dynamic.  There
are various exceptions around the world; South Africa’s quotation exception,
cabined only by fair practice, not criticism/review—looks like fair use in its
openness internally.  Looking for whether
this openness has consequences for innovation.
 
Calboli: Do you find major differences b/t common and civil
law?  Portugal has adopted something like
fair use.
 
A: We’re finding openness within civil law as well.  Civil law systems often say “we don’t use
abstract norms,” but even w/o multifactor test there’s often flexibility.
 
Lunney: You show larger revenues for big content industries
in nations with fair use v. those without, but you aren’t making causal claims.
 
A: not yet.
 
Lunney: How do I figure out for the US whether flexibility
is increasing?  Not sure you can get a
map of equivalent changes v. each district court/court of appeals cases in the
US.  Explain how you will map
changes/growth in fair use.
 
A: regionalization is extremely difficult, but the key
aspects are use of citations—we probably will look for circuit court level
stuff. In Brazil we’re looking at court changes—3-4 decisions opened up
interpretations of exceptions.
 
Alexandra George, Alternative Dispute Resolution in
International Intellectual Property Disputes: A Solution to Jurisdictional
Challenges?
 
Conciliation: like mediation, but conciliator puts forward a
nonbinding settlement proposal at some point—can be good if conciliator is an
expert in the field.
 
MedArb: blend of mediation and arbitration; binding if
mediation doesn’t work. The neutral may be the same at both stages (mediator
hears your secrets, finds your bottom line, and that’s controversial) or may be
different.
 
Expert determination: usually binding unless otherwise
agreed; expert has inquisitorial powers to gather info; usually only decides
issue w/in their area of expertise; can be useful in patent cases.  Mutuals generally can be experts, which may
be an improvement on judges.
 
Benefits: certainty; few avenues of appeal exist. Cost,
confidentiality, control over neutrals, location, date, even outcomes for mediation/conciliation.  Outcomes that wouldn’t be available in court;
speed; high resolution rate—80% for mediation, nearly 100% for arbitration.
 
WIPO is involved in ADR: maintains a list of neutrals &
matches them to cases; domain name dispute resolution; trade mark office
mediation.  ADR hubs: major cities like
London, Paris, Geneva, NY, Tokyo, Singapore—but Hong Kong, Delaware, etc.
promote themselves as good places—stable & predictable legal system, lack
of corruption, high quality lawyers, perception of neutrality, arbitration law
based on UN model law, geographic convenience.
 
Int’l dimension: mediation gets more complicated, but if we
get a treaty allowing settlements to be enforced worldwide, could be an important
development. Another possibility: ADR divisions of courts.  Online ADR: newly developing.  Model: UDRP through WIPO.  Small parties w/o much money may be able to
solve int’l problems this way.
 
Q: worried about capture of ADR by well-resourced interests
like TM bullies that then skew the results. 
Concerted effort by large corporations in US to mandate arbitration in
consumer contracts—less fair to smaller parties/more vulnerable groups.
 
A: Agree it’s an issue. 
When both parties seek arbitration, it works a lot better.
 
Peter Yu: Dealing with distrust of developing countries’
legal systems doesn’t deal with the choice of law issue.
 
A: Depends on how arbitration agreement is drawn up.  May allow arbitrator to choose equitably.
 
Kamil Kiljanski & Benedikt Herz, Survey of IP Piracy in
the EU: Actually about displacement rates of consumption of AV content—unpaid consumption
is common in Europe, but effect on movie sales is unclear.  Existing studies find very different
displacement rates, 0.27 to 1—all over the place for movies.  Our study is the first to use consistent
methodology and a big sample.

Dataset: survey.  6 different European
states.  Post-treaty/recent.  Surveyed minors: 14-17, also not done
before.  Survey how much unpaid and paid
consumption each had; don’t ask them what-if questions.  Trying to find if an individual consumers
more unpaid content consumers less paid content.  Endogeneity problem: Individuals differ in
unobserved tastes for films.  If you don’t
control for this, you get bias and more modest displacement rates than the
truth.  Control: some sort of supply
instrument.  Event study: close of
MegaUpload may give you more truthful estimate of displacement. But we didn’t
have such events systematically across member states. Control for broadband,
but density is now very high/not good any more. 
Use Rob/Waldfogel methodology: exploit the fact that most films are seen
in the year of release.  Except they did
it for 500 US students and we did it for 30,000 people in Europe.
 
Germany, Spain, France, UK, Poland, Sweden; 2014.  Report the way they saw the movies surveyed.
What about underreporting? We ensured anonymity; avoided terms w/negative
association, such as “illegal” and “piracy,” embedded questions in other
questions; specifically named known sites in each country.
 
Results: big differences b/t countries.  Much less illicit consumption in Germany than
in Sweden or Spain.  1/7 movies viewed
through illegal means.  1 illegal 1st
view reduces legal 1st views by 0.416 units.  Estimated displacement rate is higher than
with cross-sectional approach.  Illegal
first view slightly increased 2nd legal view: 0.04 units.  Higher in Spain than France or Germany.  For the whole sample, we estimate lost movie
sales to be 4.27%.  Germany v. Spain: 4x
difference in percentages.
 
Bartow: kind of movie? Blockbusters/special effects v.
romantic movie?  Some movies have staying
power.
 
A: this is just blockbusters/biggest sellers in the
country.  If it’s the rate for
blockbusters, it’s probably lower for other movies, because blockbusters are
the most-pirated.
 
Q: Are you just looking at movie attendance?
 
A: Cinema attendance, DVD, legal download—etc.
 
Q: what about delayed release of DVD?
 
A: we used release date country by country.
 
Q: Views v. downloads: people download stuff they don’t
watch.
 
Peter Yu, The Investment-Related Aspects of Intellectual
Property Rights:
 
Eli Lilly’s $500 million complaint against Canadian gov’t;
challenges against plain packaging by tobacco companies.  Concerns: (1) process—high arbitration cost,
$8-10 million on average and up to $30 million, compared to $300,000-400,000 in
TRIPS WTO dispute; (2) impartial/unaccountable artibrators; lack of transparent
proceedings; frivolous disputes; (3) interpretation: lack of binding precedent,
no appeallate process, oversimplified view of IPRs; ignore TRIPS flexibilities
and safeguards; narrow focus on IP side of bargain.
 
Outcome: large awards, $50 billion to Yukos Oil; used to
challenge legit regulations: environmental, labor; more forums to sue gov’t;
more lawsuits by private actors; more coverage beyond TRIPS based IPR;
rewriting TRIPS and other multilateral bargains.
 
TPP: says hearings will be open and available to public; all
submissions will be published for US cases. 
Attorneys’ fees for unreasonable claims. 
Amicus submissions allowed for stakeholders.  Right to regulate in public interest for
public health, safety, financial stability, and environment; also a
tobacco-specific measures allowing regulation. 
Burden on claimant in all instances to prove all elements of claims;
investor expectations aren’t enough.

Remaining concerns: Some improvements in TPP, but still concerns—high arbitration
costs; ignore TRIPS flexibilities and safeguards. To prevent forum shopping, a
claimant must waive the right to institute parallel proceedings in other
forums.
 
Suggestions for improvement: interrogate whether IPRs at
issue constitute investment.  Rights don’t
equate to investment in a country—investment protection focuses on investment
being taken away.  Registration of
patents, for example: you can register based on foreign examination in some
cases; just claiming patent rights shouldn’t be enough.
 
Contingency: there are a lot of contingencies in IPRs—invalidation;
maintenance/renewal fees; free speech and competition law constraints. This should
be recognized.  Many patentees will stop
paying maintenance fees if patent not valuable. 
 
IP investment protection—might need to look at overall
protection for investor, such as FDA protection, or understand that competition
law reduces protection.  State: recognize
state’s foundational contribution to registration and enforcement
infrastructure; bargain-based contribution—some companies might get tax
concessions/free land and that should be considered.
 
Examine relationship between TPP and other int’l agreements
like TRIPS.
 
Institutional improvements: Advisory center, similar to WIPO’s.
Small claims arbitration.  Appellate
process improvements.
 
Silver lining: TPP investment chapter maybe can be baseline
for ISDS safeguards.  Developing
countries may make traditional knowledge/traditional cultural expression claims
and may be able to use ISDS against them. 
May reduce WTO litigation as home gov’ts say: bring your own claim!  Benefits to small/medium enterprises if costs
of arbitration can be limited.
 

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