Less Offensive - US Supreme Court Takes on Disparaging Trademarks

Issues surrounding race are incredibly difficult and complex things, and clearly have no single answer to address them fully. Many efforts have been made to address various nuances of race and racial negativity, one of which is the prevention of the registration of trademarks in the US that could disparage individuals of a given race. Even so, trademarks exist that could be deemed to be offensive and disparaging (more on which here and here), and this has created a great deal of discourse on their continued existence, and similarly on the registration of other potentially disparaging marks. Should these types of marks be allowed, or should society move on and reject all trademarks that might be considered disparaging? The US Supreme Court endeavoured to answer this question once and for all this summer.

The case of Joseph Matal v Simon Shiao Tam dealt with a rock band, The Slants, who sought to register their name as a trademark in the US. The term "slants" is a derogatory term for persons of Asian descent, and the band sought to, through the use of the negative term as their moniker of choice, to reclaim it and take away its negative meaning. After filing their application for the trademark, the USPTO denied the application on disparagement grounds under 15 USC section 1052(a). The band, under the name of its lead singer Mr Tam, challenged the ruling and took the matter all the way to the Supreme Court.

The crux of the case remained that would the clause preventing the registration of disparaging be unconstitutional, particularly in terms of the First Amendment right to free speech.

At first, after setting out the legislative history of trademarks, Justice Alito (delivering the majority's opinion) considered that, while there is a valid registration system for trademarks, one does not have to register a mark to enjoy its use. In the same vein, the marks can be protected on a federal level under the Lanham Act, particularly through common law rights in those marks. Even so, certain rights are conferred to the holders of the marks through registration, and it does therefore add value and further protections over those marks, making registration very important.

Justice Alito then moved onto the test of whether a trademark is disparaging. This is whether "…the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services… [and] whether that meaning may be disparaging to a substantial composite of the referenced group". Even if the applicant is of the 'disparaged' group of people does not negate any possible findings under the test. At first instance, both the USPTO and the Appeal Board determined that the mark sought was indeed disparaging.

Before discussing whether the clause is unconstitutional or not, the Court had to first look at whether the mark was, as determined at first instance, disparaging. Tam argued that, while the disparagement provision speaks of 'persons', it cannot apply to non-juristic entities such as ethnic groups, but only to natural and juristic persons (i.e. individuals and not undefined, albeit legally defined groups). The Court swiftly rejected this argument, as Tam's narrow construction does not match with that of the provision of USPTO's definitions, which set out much broader terms, speaking of not just 'persons', but also 'institutions' and 'beliefs'. Therefore, as the Court concluded, disparagement can apply to non-juristic entities just as well as juristic entities.

Justice Alito then moved onto the main focus of the case, i.e. the constitutionality of the disparagement clause itself.

Washington's newest football team's logo (trademarked of course)

The first arguments circled around whether trademarks are government speech, not private speech or a form of government subsidy. As a primer, all government speech is exempt from First Amendment scrutiny, and can therefore say whatever it pleases (at least in theory). Even though trademarks are registered by the USPTO, the office does not itself regulate what the message of each mark is, unless it is considered disparaging under the provision. The viewpoint of any particular mark is irrelevant, and registration does not mean approval of the mark by the government. Justice Alito rejected the cases referred to in the matter, and concluded that the registration of a mark is not government speech, but private speech. In her view: "…if the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way". She also aligned the matter with copyright registration as "…if trademark registration amounts to government speech, then copyright registration which has identical accoutrements would “likewise amount to government speech".

The US government also argued that precedent set shows that government programs that subsidized speech expression specific viewpoints are constitutional. Justice Alito quickly rejected this argument, since "…[t]he federal registration of a trademark is nothing like the programs at issue in these cases". While registration does, arguably at least, confer certain non-monetary benefits to registrants, it does not provide a direct monetary subsidy, which the cases discussed did.

Finally, the government argued that the disparagement clause should be sustained applying only in cases that involved 'government-programs'. Justice Alito, again, rejected this argument, setting out that "…the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers". The Court deemed that you cannot discriminate against a particular viewpoint, and the disparagement clause does do so, even if the subject matter is potentially offensive to a given group of people. The Court therefore concluded that "…the disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted".

The Court then finally moved onto the question of constitutionality. whether trademarks are commercial speech, and therefore can be restricted under limited scrutiny under Central Hudson. The case allows for a restriction of free speech that has to "…serve a substantial interest and it must be narrowly drawn". Justice Alito concluded that the clause fails the Central Hudson scrutiny on the outset. It was also argued that it serves two interests, including protecting underrepresented groups from abuse in commercial advertising. The Court dismissed this interest, as the First Amendment protects even hateful speech. The second one is protecting the orderly flow of commerce, where the trademarks, through their offense, prevent or reduce commerce through their use. Justice Alito dismissed this argument as well, as the disparagement provision is not 'narrowly drawn' to prevent the registration of only trademarks that support invidious discrimination, while applying to a very broad type of people, including the dead. In her final view "…If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered". The Supreme Court therefore deemed that the disparagement clause violates the First Amendment.

The case is a hugely influential one, which opens the door for a myriad of trademarks, particularly those that are offensive or have the potential to cause offense. Free speech is a double-edged sword, and an American near free-for-all free speech is a source of pride, but can cause issues for those who face abuse or humiliation at the hands of those using that right. The case will also have a knock-on effect in the Redskins litigation, undoubtedly clearing the path for the mark to remain registered. In the end, the Supreme Court seems to be completely right here, but this writer, being a proponent of a more limited free speech (although only for very narrow and specific exceptions), can't help but feel that this will pave the way for more offensive marks in the long term.

A Different Slant on Things - Disparaging Trademarks Infringe US First Amendment

As a global society we have come a long way when it comes to racial equality and acceptance. Whether there is true equality and no lingering issues is a strong point of contention, and arguably something that will never be wholly equal, but we have come a long way when it comes to the terminology employed when discussing those of different ethnic background. Even so, there still are huge tensions when it comes to the use of racially derogatory terms, and in the light of the recent Washington Redskins litigation (discussed more here) it has become more poignant than ever in conjunction with trademarks. In similar proceedings, in In Re Tam (discussed more here), the Court of Appeals saw that the use of derogatory terminology would not infringe free speech under the First Amendment to the US Constitution, and would, therefore, not be registrable. The Court then issued a rehearing of the case sua sponte (without any applications from either party to do so), for which a decision was handed down just before Christmas 2015.

As the case's facts have been presented in the article published on this very blog earlier, they will be discussed only briefly. The case of In Re Simon Shiao Tam dealt with Mr. Tam and his band The Slants. The name, a term described as offensive to Asians, was used by the band in an effort to reclaim the negative term and to use it to inspire those of Asian heritage to embrace who they are, even in the face of negativity. Mr. Tam filed an application to register the name as a trademark in the US; however, his application was rejected as being 'disparaging' towards Asians under 15 USC § 1052. He appealed the subsequent decisions, arguing that the rejection impeded his rights under the First Amendment (an argument that was also rejected in earlier proceedings), finally ending up in the sua sponte proceedings in question.

Does section 2(a) restrict freedom of speech?

The Court, in the judgment of Judge Moore, goes onto great lengths discussing the impact that the section has, or could have, on the expression embodied in a given (applied for or registered) trademark. The Court asserts that the section "... does more than discriminate on the basis of
topic... [but] also discriminates on the basis of message conveyed". As the government, through the USPTO, rejects marks on a prima facie assessment of the message contained or conveyed through them, it will in some instances prevent the expression using those marks by rejecting them. It should, arguably allow all expression or none of it, should it be disparaging or potentially disparaging. Although they defend that the rejections only reject certain words and not viewpoints, one could argue, and the Court agreed, that this is indeed a rejection of a particular viewpoint, rather than a mere word or words (i.e. a negative viewpoint).

The Court further highlighted the often dual-expression contained in a trademark, and the regulation of its 'commercial speech', rather than its concrete expression, would not deflect its standards under the First Amendment. By rejecting a mark the government is rejecting the expression contained in that mark, no matter if its used for a commercial purpose (as commercial speech) or not. The Court concluded that the government did indeed restrict speech through section 2(a).

Trademarks can be used even if not registered, or are government speech

The government defended the section through asserting that it does not prevent the party from using the mark (i.e. they can still call themselves The Slants, just will not be able to register the name). The Court's focus on this was in relation to the benefits lost by the parties who faced rejection, even though they could use the name, deeming it an imposition of their freedom of speech. Arguably, the loss of a trademark through registration might push the parties to changes names to ones where they can enjoy the benefit of registration, which would prevent free speech indirectly. The value in registration if significant, and preventing the parties from enjoying this would create a disincentive to register potentially disparaging marks.

Little Timmy didn't realize just how insensitive
he was with his expression

In Judge Moore's mind this would be a significant chilling effect on free speech in the marketplace, and contrary to the First Amendment. Mr. Tam would, even in the absence of a registration, be able to defend the band's name under common law (although, Judge Moore pointed out, this would be highly unlikely), the rejection would still deny him the significant benefits that registration would afford him.

The government also asserted that a trademark registration is government speech, and therefore not covered by the First Amendment. This does not, however, include the registrant's use of the mark, but merely the act of registration or rejection of that mark. One can appreciate that the registration of a mark does not convey any endorsement or approval of a product or service adorning the mark registered, and thus, arguably at least, would not amount to any form of government speech, nor would the inclusion of the ® symbol do the same (contrary to the government's argument to the latter). Clearly, the conversion of any speech into government speech by the mere registration or affixing of the ® symbol would allow for the government to regulate that speech without infringing the First Amendment. The Court therefore swiftly rejected this argument, acknowledging the slippery slope this would create with all government registrations and their suppression on a whim. As Judge Moore summarized: "When the government registers a trademark, it regulates private speech. It does not speak for itself".

Is the registration of a trademark a subsidy?

The Court also discussed whether the registration of a mark would amount to a subsidy, but in the end strongly rejected this notion, as the denial of a benefit to a citizen under the rationale of restricting their speech (by disincentivizing their expression through the loss of these benefits). Also, as the Lanham Act derives itself from the Commerce Clause and not the Spending Clause (which allows the government to set conditions to the benefits that derive from it), it is further evidence that the registration of a trademark is not a subsidy. The Court concluded that the section is not a subsidy, and does not therefore avoid strict scrutiny.

Conclusion

The Court rejected the government's arguments and deemed section 2(a) to be unconstitutional. The case did provoke a great deal of discussion among the judges, with several concurring and/or dissenting judgments being handed down, demonstrating just how unsure the judiciary is on the section. Yet, this writer is sure that all of the judges can agree on one position, expressed by Judge Moore: "Even when speech “inflict[s] great pain,” our Constitution protects it “to ensure that we do not stifle public debate“".

The case does have a significant effect on the up-coming Redskins case, which is set for its appeals hearing later this year. Whether they adopt the position set by the Court in this case remains to be seen, but this writer would imagine the assertion that section 2(a) is unconstitutional to stick, unless the Fourth Circuit conjures up a novel way of avoiding the extensive considerations above. Nevertheless, it would set the stage for a Supreme Court decision on the case; one which many would undoubtedly welcome.

Source: Washington Post

Retrospective - IP Infringement and Free Speech

Almost as holy as expression in its many forms, is the fact that, in most countries at least, expression is largely free of limitations, and that even dissenting opinions can, and should be voiced. With this vast freedom, especially in the United States, one can argue that the freedom of expression can be misused and utilized for nefarious means, or to harm others or their more intangible assets such as reputation or notoriety. In any instances where one's reputation is harmed through the freedom of expression (assuming that expression falls within the letter of the law), those parties would clearly want to prevent that speech through any means necessary; even more questionable ones. The attempted curtailment of speech has been discussed on this blog before, but that still leaves the question of can intellectual property rights be used to prevent freedom of expression? A case in the US Court of Appeals attempted to face this very question some decades ago.

The case in question was Rogers v Grimaldi, decided in the late 80s, which concerned a movie made by Frederico Fellini for the defendants in 1986. The subject matter of the movie, wonderfully titled as "Ginger and Fred", were two fictional cabaret dancers, Pippo and Amelia, who were known for their imitation of both Ginger Rogers (an Academy Award winning actress in the 1940s, and the plaintiff in the case), and Fred Astaire, who Ms. Rogers often co-starred with in various productions. The cabaret dancers were known as "Ginger and Fred" to their viewers in Italy, and the movie's title, and subsequent plot, refers to their reunion after years of retirement. After distribution within Europe and the US the movie was received rather negatively, and undoubtedly in the wake of this negative publicity, Ms. Rogers sued and claimed false designation of origin under 15 USC section 1125 and a violation of her common law rights to publicity.

Effectively what the case is assessing is a balance between free speech and the protection of an individual's (or entity's) rights in their trademarks, albeit more in the context of passing off than registered trademarks (more on which can be found here). Justice Newman presented the question well in the majority's opinion: "Poetic license is not without limits. The purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source of the product. Thus, it is well established that where the title of a movie or a book has acquired secondary meaning — that is, where the title is sufficiently well known that consumers associate it with a particular author's work — the holder of the rights to that title may prevent the use of the same or confusingly similar titles by other authors".

Frank was worried he would not be heard

In answering this question, the Court of Appeal approached the matter through a balance of public interest and those of any affected parties: "We believe that in general [15 USC 1125] should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity's name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work". What Justice Newman's opinion states, is that the potentially misleading title has to apply to the work it represents, or in other words, has to showcase or illustrate the work somehow, and not merely mislead a person to pay for the work thinking it is connected to a potentially affected party such as Ms. Rogers. Arguably this approach is sensible, as the use of IP rights to protect those rights has to be legitimate, just as much as the use of those rights in conjunction with newer works is. Free speech should be promoted through legitimate use, and not stifled merely to further shallow interests such as fame.

The Court of Appeal lengthily discuss the nuances of this approaches application, yet, what remains relevant is the use and applicability of those rights to the underlying work, and the legitimacy of that use. Ms. Rogers relied heavily on survey and anecdotal evidence in establishing a claim of false advertising of designation of origin; however this was dismissed handily by the Court: "...the title "Ginger and Fred" surpasses the minimum threshold of artistic relevance to the film's content. The central characters in the film are nicknamed "Ginger" and "Fred," and these names are not arbitrarily chosen just to exploit the publicity value of their real life counterparts but instead have genuine relevance to the film's story". No amount of confusion, arguably at least, will counteract freedom of speech, so long as the use of a name or names is relevant to the underlying work. As such the Court of Appeal dismissed Ms. Rogers' appeal.

Freedom of expression poses an interesting balancing act of human rights and commercial interests (or even other human's rights against said expression). The European Court of Human Rights weighed on the issue of copyright interfering with freedom of expression in the case of Ashby Donald and Others v France (case text only in French), and deemed that "...a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention". Even so, the case saw that the copyright interests asserted did trump the appellants' human rights, as their interests were purely commercial and did not contribute to a specific expression or discussion of opinion. As such, the case can be seen to align with the view that intellectual property rights should not hinder legitimate expression, but can, and should, be used to protect commercial interests.

Overall one can appreciate that freedom of speech is seen as a valuable tool for discussion and a strong point of public interest, yet it should not overshadow the protection of some rights, at least in some instances. A blatant use of copyrighted material, or trademarks, for the purposes of making a quick buck should be dissuaded; however one man's folly should not silence a nation.

Free Speech and Copyright - When Copyrights and Personal Rights are at Odds

Although intellectual property law protects expression in its multitude of applications sometimes it comes at odds with the rights that are conveyed through the aforementioned expression, whether it was intended or not. Previous examples are the potential curtailing of criticism by using trademarks, where the line between the intended protection offered by trademarks and its potential misuse against freedom of speech came to light. Copyright in itself can potentially be used in a similar fashion, although most common law jurisdictions do expressly allow for copyrighted content to be used for criticism. A recent instance in the United States faced this very conundrum; can copyright trump your right to criticize another?

The case in question was Garcia v Google, which concerned Ms. Cindy Lee Garcia, who acted in a small role in a movie titled "Desert Warrior" (a working title at the time of casting). Even though Ms. Garcia had participated in the filming of the movie, the finished film never saw the light of day. Some time after Ms. Garcia's scene was used in the infamous YouTube video "Innocence of Muslims", in which her scene was partially dubbed having her say "is Mohammed a child molester?". As a result Ms. Garcia soon began receiving death threats from various parties, and she subsequently took precautions and asked Google to remove the aforementioned video relying on the Digital Millennium Copyright Act and its take-down provisions. Google refused her initial reasoning for the video's removal, finally having Ms. Garcia resort to a copyright claim over the video's content, asserting it infringed her copyright in her performance.

Although the case discussed Ms. Garcia's copyright in the film quite extensively, it remains but worth a mention. In Chief Justice Kozinski's judgment Ms. Garcia did have a copyright interest in the film, even though her part was only 5 seconds long in a 13 minute video. As a copyright interest was seen by the court Google were ordered to remove the video from YouTube due to it infringing the aforementioned rights. In Chief Justice Kozinski's view this was a matter of balancing equities, in other words, an assessment of the balance of fairness, and saw that Ms. Garcia's rights in the video overshadowed those afforded in the First Amendment of the American Constitution through free speech. Her security was also a consideration in this assessment; a truly sad result of her unwilling part in the video.

Compliance, or passive aggressiveness?

What should be discussed in this instance, and has rightfully so become the vocal point of this case, is whether copyright should be able to be used to curtail free speech. As Google argued in the case: "[a] court order requiring removal from YouTube of the Film or any portion thereof would impose a substantial burden on free expression, without preventing any future harm to [Ms. Garcia]". In the majority's opinion Ms. Garcia only had the likelihood of success in her claim, or in other words, potentially had a copyright interest in the work, and the majority subsequently saw that this potential interest would weigh heavier than the public interest under free speech. Commenting on this, in his dissenting judgment, Justice Smith saw that "...the law and facts do not clearly demonstrate how granting a preliminary injunction in Garcia's favor would serve the public interest". Clearly one can agree with Justice Smith in this instance, at least under these facts. Although this writer fully accepts that Ms. Garcia's safety is paramount and should be a consideration in this instance, her argument fails in the uncertainty of her copyright interest and lack of concrete harm caused. Her protection should not be handled through copyright, and as stated by Justice Smith: "It's disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights".

The Garcia case is an unfortunate result of unforeseen circumstances and the infamy to which the video rose. The decision has since come to a vote over whether the 9th Circuit Court of Appeals should rehear the case. The video's infamy served a two-fold purpose when gauged under US law; it started a conversation over religion and attitude's towards it, however it also caused severe distress to Ms. Garcia and even fear for her life. Her argument through copyright was flimsy at best, but seemingly was her only avenue for respite. The majority's view on the matter can be argued to be incorrect, and does not fairly assess the balance between her alleged copyright interest and the public interest. As Google stated: "...[o]ur laws permit even the vilest criticisms of governments, political leaders, and religious figures as legitimate exercises in free speech", and this right should be protected, although not used as a veil to protect those who wish to blatantly infringe copyright under the guise of free speech. Even though copyright and free speech do overlap quite extensively, their relationship does come with a price, and each case will present a different situation where the court will have to find the right spot where protection is afforded, but not at the expense of free speech. Copyright serves as a shield to those expressing themselves, and it should not be used to stifle others; something which clearly was not Ms. Garcia's intention in her action.

Source: Reuters

The Law of the People - Finland Tackles "Crowdsourced" Copyright Legislation

Representative democracies in the western world often suffer from voter apathy, or a feeling that a single citizen has absolutely no control over the laws that are created and govern them. This brings about a thought; could citizens directly contribute or shape legislation, and would that be a good idea? One very unlikely nation in the cold North has seen a movement regarding its copyright legislation in the last few months, potentially having a significant impact on that particular legislation.

Finland - Copyright by the people, for the people

To give the process that the Finns are going through some exposition, all Finnish nationals have a right to start a petition of sorts to either their local government or national government to act in a certain way, or to even create laws themselves. If such a petition garners over 50,000 supporters in six months, it is passed on to Parliament to be dealt with. The petitions themselves are not binding on Parliament to act on, but function as a potential basis for debate, further legislative measures, or at the very least an indicator as to the will of the people.

The measure in question, roughly translated as "Bring sense into copyright laws" (the contents of which can be found here), was sent to the Finnish Parliament on the 23rd of July, having gathered over 53,000 signatures supporting the drafted piece of legislation. The petition is an amendment to the current copyright law, wholly drafted by Finnish citizens - a first of its kind in the world. The aim of the amendment is stated clearly in its beginning, voicing the will of the people (roughly translated):

"The main goal of the measyre is to fix the existing legislation's overshooting with regards to web surveillance and damages in copyright infringement cases. The petition's purpose is not to legalize downloading of content governed by the law, but to treat an individual's copyright infringement as a non-criminal act. A more severe charge under criminal sanctions enables domestic searches, confiscation of personalty and very large damages. Such acts in a commercial scale would still be charged as a criminal act with such sanctions. 

 A secondary goal is to improve the position of artists', other content creators' and developers using new web technologies.

The most important effect of this petition is to get rid of the position where it is the consumers against the artists, and to enable constructive conversations for the further development of copyright legislation."

Projected celebrations should the law be passed

The measure also wants for the current legislation to be clarified so individuals with no legal education can understand them. This has been an issue, as the legislation has been built on through a number of amendments, leaving it very complicated and hard to understand. It also seeks to amend specific provisions such as relating to domestic copying and fair dealing.

Overall what the people seek is for fairness and clarity when it comes to copyright. With more and more emphasis being put on content creators and their rights, while at the same time detracting from consumers' rights, it is clear that such calls for change are needed. While the UK and Australia are taking steps in improving their fair dealing provisions (both of which have been discussed on this blog: UK here and Australia here), it still leaves room for improvement.

So can citizens impact the laws that directly affect them? It will remain to be seen what the Finnish Parliament will do with this petition and the issues it brings up. One cannot think that it will be ignored, but its efficacy in actually creating concrete legislation can be questioned. If it generates discussion surrounding such issues, it will have done at least something, but should the Finnish people not react to instigate change if it is largely ignored, the attempt will fall flat. Parliament will deal with the measure soon, the results of which this writer cannot wait to see.

Source: TorrentFreak

Chinese Intellectual Property Law (Part 1) - Copyright

With China having become a huge economic power in the last few decades, I thought it'd be about time to write a short overview of the different aspects of intellectual property law in China. These posts will be split into three parts, each discussing a different area. We'll kick things off with copyright law. Often the more disputed topic in the area, when close to a third of all counterfeit imports to Europe were from China in 2009.

The Chinese copyright legislation has been an issue for most of the 1990s and early 2000s, as other nations saw their laws as inadequate and their enforcement of the provisions lax at best. The first iteration of their copyright law was enacted in 1990; the Copyright Law of the People's Republic of China (English translation can be found here, Chinese here). 

The aim of the legislation is simple: 

"This Law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences". 

One key difference has to be noted; the Chinese law actively encourages the dissemination of works. Often omitted in especially common law nations, the notion of dissemination of works is more often than not left on the back burner, as a hand-down in the form of "fair dealing" or "fair use". While still being a part of the given legislation, it seems it's not as intrinsically embedded in the laws as it seems to be in the Chinese equivalent, at least on the face of it.

The law provides protection for the typical assortment of subject matters that most legislatures seem to have offered, such as written, oral, photographic and graphic works. The protection is also offered to foreign nationals who are subject to treaties to which China and their nation are signatories to, such as the Berne Convention and TRIPS. The legislation is heavily modeled after the Berne Convention and thus all aspects of the law need not be expanded upon further, as they mirror most national legislations in common law countries, and possibly civil law countries as well.

Copying taken to an extreme

Terms for copyright are, again, very similar to ones found in, for example Australia and the UK, where protection is offered for life and 50 years after death, aside from cinematographic works which are given 50 years of protection from its first publication. The latter differs from Australia for example, where the duration is 25 years after initial publication.

Some issues are presented in the Chinese "fair dealing" provisions or situations where works may be used without permission or payment to the creator of the work. Several of the categories, such as the permission to rebroadcasting or publishing of speeches or content published by other newspapers or news outlets, are opt-out provisions. By default there is an assumed ability to reuse your content, even by competitors. Secondly, there is a provision allowing the live performances of works for free. This provision allows for a very wide and open-ended ability to utilize content at any events which don't charge an entrance fee, such as conventions or festivals. Not really the biggest of issues, but does leave a gaping hole when it comes to the protection of a performer's right to their content. Most of the "fair dealing" provisions in the legislation are standard ones found in most common law countries, either in express categories or through the common law.

Overall the legislation follows Berne very closely, and should sound familiar to those who've dealt with it before. Not being entirely familiar with the starting point of the Chinese legislation it is hard to say just how far they have come in the last few decades, but surely the standard of protection has gotten better as the country has become more and more "capitalist".

There has been contention over the legislation since its inception. China has been dispute settlement through the instigation of other countries at the WTO 30 times since 2002, after it became a member of the organisation in 2001. There have been noted issues in especially the enforcement of the protection of intellectual property rights, where China has been lacking for years.

Even with its shaky emergence into the wider intellectual property regime, China has made strides towards a more universally accepted standard of protection given to intellectual property rights. The National Copyright Administration of China released its Draft Proposal only a few months ago, which would bring about much needed amendments to the current legislation. The aim of the amendments is to extend the scope of copyright, to encourage its registration, include resale royalties and to amend restrictions applying to certain types of copyright. When and how the law is finally amended remains to be seen, but it should bring China closer to a more international standard.

(Part 2 discussing Trademarks can be found here, Part 3 discussing Patents here)

Raising the Bar

Legislation not endorsed by the TV show

Tomorrow, on the 15th of April, a new piece of legislation will come into force here in Australia regarding patents, trade marks and designs, although the main emphasis is on the former two. The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 will make some changes into existing laws, mainly amending the Patents Act 1990, the Trade Marks Act 1995 and the Designs Act 2003. 

As explained by IP Australia, the legislation makes some key changes, including:

- Raising the quality of granted patents by implementing changes to the key tests for patentability and more closely aligning these with international standards.

- Reducing delays in the resolution of opposition proceedings concerning patents and trade marks.

- Implementing changes to the regulation of patent and trade marks attorney professions and the increasing the ways in which they can operate.

- Implementing procedures for dealing with imports suspected of infringing IP rights and making it harder for importers of counterfeit goods to evade an IP right holder.

- Providing access to a simplified and more effective IP system.

The Act seems to amend some practical aspects, as well as attempt to speed up some of the processes, which no doubt are all welcome changes to all patent practitioners. However, as I lack the direct knowledge of patents in practice, whether these changes will actually impact the field will be left for someone to clarify for me.

A more comprehensive guide to the IP Reforms is provided for all to read, and gives more insight into the changes brought in via the Act.