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 3) - Patents

(Part 1 discussing Copyright can be found here and Part 2 discussing Trademarks can be found here)

The final third installment of my short introductory series into Chinese intellectual property law will discuss the final big area of intellectual property: patents. The current legislation in force in China dealing with patents in the Patent Law of the People's Republic of China (English translation can be found here, Chinese text here), having been enacted in 1984. The legislation has seen several amendments in the last few decades, with the last having been made in late 2008.

Much like the previous two subject matters discussed, copyright and trademarks, much of the content in the Chinese legislation is dictated by international treaties and conventions, making the legislation similar to those found in other signatory nations. Even though the content of the legislation would seem to afford protection much like in other nations, there are issues which still linger, which shall be discussed later in this piece.

As has been the case in the previous two instances dealing with other intellectual property topics, the Chinese law provides us with a great explanation of its goals:

"This Law is enacted for the purpose of protecting the lawful rights and interests of patentees, encouraging invention-creation, promoting the application of invention-creation, enhancing innovation capability, promoting the advancement of science and technology and the economic and social development".

Your friendly neighborhood patent troll

Patents are often thought of as purely a method of seeking out an easy pay-out due to patent trolls (entities or people who merely hold patents to sue if they're infringed, not to actually use and sell that particular invention) being an issue in the industry, but the Chinese legislation does endeavor to protect the interests of patent holders and to encourage new developments in technologies or science. Although high-minded and completely rational in its aims, much like with other countries, patent legislation can be abused in practice.

The Chinese legislation sets out patentable subject matter as "...inventions, utility models and designs". All three are defined even further in the provision. Often left as merely an 'invention' in other jurisdictions, such as Australia, all three should cover any and all patentable content accepted in other nations with similar legislation. The law however does not allow the patenting of inventions which violate the law, social ethics or harms public interest. What would constitute as violating 'social ethics' seems to be incredibly vague, but arguably could pertain to human experiments for example.

The law also sets out when a patent is the property of an employer. Should the invention be created "...in the course of performing the duties of an employee, or mainly by using the material and technical conditions of an employer" the employer has the right to apply for the patent, not the inventor. The latter part of the provisions grants the right even when just using the equipment provided by an employer and does not require an explicit agreement as to the transfer of the patent to the employer, which is a relationship defined in a much stricter sense in other jurisdictions. Is the ability to apply for the patent given automatically, what is the degree of use required? Clearly the provision could give the employer an upper-hand and could be abused to strip inventors of their patents. The provision does however expressly state that any contract giving the rights to the inventor shall prevail over the mere use of the technical conditions or equipment.

Basic requirements for an invention to be patentable are very much like ones found in Canada or Australia for example; an invention has to be novel, creative and of practical use. Although worded slightly differently, one can equate the terms in the Chinese provision with terms often used in the common law jurisdictions: novelty requiring the technology being something entirely new; creativity pertaining to a requirement of improvements to any possible prior art (i.e. inventive step); and practical use requiring a possible manner of manufacture or production, with positive results, in other words, is useful. Excluded subject matters are, again, much like in other jurisdictions, including plant and animal varieties, scientific discoveries and methods of diagnosis or treatment of diseases. The Chinese legislation saw some big changes in its third Amendment, one creating a 'absolute' requirement of novelty, which prohibits the patenting of something already published or disclosed either in China or internationally. This is a transition from the old 'relative' novelty in prior provisions, where the use or publication of something outside of China would not prevent its patenting in China.

Siri faced patent litigation in China

The standard term for an invention patent is 20 years and for a utility model or a design patent 10 years from the date of filing. The durations are similar to those used in Australia or the UK for example. In a patent application claims have to be submitted relating to the scope of protection sought for the patent, again being very similar to the requirements set in common law jurisdictions.

What plagues the Chinese patent system is not the process itself, it being much the same as in a plethora of countries, but in the enforcement of the patents and their protection. An extensive report on the matter written by the USPTO details much of the downfalls of the Chinese system, but still showing the improvements being made. The biggest issues noted of in the report relate to the rule of law (transparency, certainty, fairness, impartiality and consistency of judgments); efficacy of remedies and their enforcement; and short-comings in certain types of patents in China, such as pharmaceutical and utility model patents.

For the previous two installments, please refer to the links offered at the top of the article. As these articles are merely meant to be overviews of Chinese law, should any glaring omissions exist please do let me know in the comments of the given article (or this one) and any possible mistakes shall be corrected posthaste. Chinese legislation and its application contains more intricacies than I have even begun to discuss, so some aspects have been left untouched due to lack of knowledge on the writer's part.

Chinese Intellectual Property Law (Part 2) - Trademarks

(Part 1 discussing copyright law in China can be found here, Part 3 discussing Patents here)

This second part of my short introduction to intellectual property in China, previously having discussed copyright and the challenges China has faced in the field, will now turn to trademarks. Often thought of as a country mostly dealing in knock-offs of well-known brands, trademarks are an important issue that the law has to take into account and protect. As said, this will be an overview of what the current legislation attempts to do in China and aim to point out some issues with it as it stands.

The current legislation in force in China is the Trademark Law of the People's Republic of China (English translation can be found here, Chinese here) enacted in 1982. The latest amendments to the legislation having been made in 2001, coming in the wake of China becoming a member of the WTO.

Much like with copyright the legislation sets out very clearly what it aims to achieve:

"This Law is enacted for the purpose of improving the administration of trademarks, protecting the exclusive right to the use of a trademark, and encouraging producers and dealers to guarantee the quality of their goods and services and preserve the credibility of trademarks, so as to protect the interests of consumers, producers and dealers and promote the development of the socialist market economy."

One has to note a similar approach by the Chinese legislature to what has been established very well here in the common law; a trademark is an indicator of the "place of origin of goods", the 'badge of origin', separating other similar goods or services from those of the ones being sold under a particular trademark. Trademarks are sought from the Chinese Trademark Office and are registrable by any legal person, natural person or organization.

Exhibit A

The Chinese law permits the registration of a sign, including "...any work, design, letter of the alphabet, numeral, three-dimensional symbol and color combination, or any combination of the above", with the list being non-exhaustive. When compared to the allowed marks for example in Australia or the UK, the Chinese legislature has left the express types of signs very short (bearing a close resemblance to those allowed in the latter), however as all legislatures allow for the expansion of the types of marks which can be a trademark, one can't make direct comparisons. The Chinese law also sets a strict list of non-registrable marks, including the Chinese flag and other national symbols. 

Much akin to what was discussed in the Australian case of Phillips v Remington, with regards to three-dimensional marks the Chinese law prevents the registration of those marks "...where the sign merely indicates the shape inherent in the nature of the goods concerned, or it is only dictated by the need to achieve technical effects or the need to give the goods substantive value". Although the provision does not mention any patents relating to those marks, one can easily make the connection between marks that "achieve a technical effect" or "give the goods substantive value" as being a link to patented parts in to the goods.

In their assessment of an application for a trademark, the Trademark Office assesses the mark's degree of public recognition; the duration of its use; the duration and extent of any advertisement of that product; the records of protection it has gained as a well-known trademark; and other factors making that mark well-known. Immediately this drew my mind to the tort of passing off (separate in itself from trademarks per say), and the factor of 'good will'. At common law there is no requirement for the mark to be "well-known", however it does have to distinguish the goods or services in question from others, which could be understood as a requirement for it to be well-known in a sense. 

Exhibit B

But even when the Chinese legislation bears resemblance to the laws of other nations, there are still some problems which plague trademarks in China. Jeroen Lallemand explained some practical issues which affect the registrations of marks: Due to the complexity of the language, companies have to register three different variants of their mark; the original brand, the 'sound-alike' of that brand, and the brand's definition in Mandarin. Without the registration of all three variants, the brand name could be used through another completely legally. Also as China has a 'first come first served' approach to trademarks and should you be late to register your trademark, it could be registered by another entity entirely. A good example of this was the problems faced by Apple with the iPad trademark some time ago.

Another issue, much like when dealing with copyright, is the lack of enforcement in the protection of intellectual property. The US has brought this issue up in WTO dispute settlement proceedings only three years ago, clearly demonstrating that there is still much to improve on that front. A lack of enforcement is illustrated by the existence of fake stores in China, portraying themselves as well-known brands selling knock-off goods under their trademark. 

At their core trademarks are treated similarly in China, and on the face of it, are offered equal protection. Even with the close resemblance of laws in China and common law countries, the lack of enforcement doesn't showcase the protection of trademarks well. Between 2008 and 2010 the Chinese customs seized counterfeit goods for a total value of roughly 160 million dollars, with an arguably much larger amount going past customs to the world market, highlighting this issue even more. Where the Chinese legislature will take trademarks remains to be see. With no amendments in the better part of a decade, one could argue that this would be the time to possibly take a look at better enforcement standards or to even widen protection to linguistically similar brands. Abuses of pre-existing brands should also be something to be looked at, as blatantly trading under a well-known western name clearly is a clash of interests.

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)