IP: Hague treaty: IPR issues and January 30-31 WIPO meeting

[Dave Farber <farber@cis.upenn.edu>]

>Date: Sat, 30 Sep 2000 08:06:58 -0400
>From: James Love <love@cptech.org>
>To: "Farber, David" <farber@cis.upenn.edu>
>Subject: Hague treaty: IPR issues and January 30-31 WIPO meeting
>
>Dave, I think the Hague Treaty will have a huge impact on the Internet.
>These are some questions that will be addressed in a January 30-31
>Geneva WIPO meeting on the treaty.   Jamie
>
>--------
>To:       Mary Streett <MStreett@doc.gov>
>           US Department of Commerce
>           Jeff Kovar, <Kovarj@ms.state.gov>
>           US Department of State
>From:     Jamie Love <love@cptech.org>
>           Consumer Project on Technology
>
>Date:     Sept 29, 2000
>
>Re:       Second missive regard Hague Treaty on Jurisdiction,
>           with questions about software and ecommerce patents
>           and other IPR questions, including those involving
>           the free software movement, and request for information
>           about January 30-31 Geneva WIPO meeting on Hague
>           treaty.
>
>
>This is a follow up to the missive sent earlier this morning, on the
>Hague Convention.  This follow-up addresses questions on software and
>ecommerce patents, the free software, other IPR questions, and a request
>for information regarding the January 30-31 WIPO meeting on the Hague
>Treaty.
>
>1.  Under the proposed Hague Treaty on jurisdiction (information about
>this on the web at http://www.cptech.org/ecom/jurisdiction/hague.html),
>what would be the treatment of civil litigation in cases involving
>software and ecommerce patent claims?  For example:
>
>a.  If the USA authorizes patents on ecommerce business methods, but the
>EU does not, can a US patent owner sue an EU ecommerce business in the
>US, for infringement of the US ecommerce patent, and then collect the
>judgment in the EU, even though the EU does not recognize the patent?
>For example, in cases where the EU web site provided services or goods
>to US customers.  Would this include US treble damages for willful
>infringement?  If so, could Priceline, for example, sue in a US court to
>obtain damanges when an EU businesses used its "name your price" patent,
>or could Amazon do the same if an EU businesses infringed on its one
>click shopping patent?
>
>b.   If Europe issues overly broad patents for software or business
>methods, under proposed changes to the European Patent Convention, could
>an EU firm sue in the EU to obtain damages from a US ecommerce firm, if
>it is thought to infringe on the EU business methods patent (if the US
>company sold goods or services in the EU market)?
>
>
>2.  Regarding the free software movement, I have some quesitions.
>
>a.  Could an author of free software that is widely distributed on the
>Internet be sued in any of the 47 Hague convention member states, for
>alledged violations of any intellectual property violations (copyright,
>patent, etc), and if so, would the judgement be collected in the country
>where the author lived?  What would be the case if the author was acting
>as an individual, and could not afford to defend themselves in a foreign
>legal action. Would they still be liable for the foreign judgement?
>Would the authors have an opportunity to defend themselves in their home
>country?  Which laws would apply?  The patent and copyright laws in the
>place where the author resides, or where the alleged infringment takes
>place?
>
>b.  Will the increased liability for infringement actions in foreign
>countries provide a chilling effect on the development of free
>software?  Will this harm the development of the Internet, which relies
>upon free software to avoid monopolistic technologies?
>
>c.  Will the enhanced judgment recognition shift the burden from the
>importing country to the author of the software, to address country
>specific IPR protections?   Comment here on problems such as overly
>broad or not novel patents, that can be issued in countries that do not
>have good examination systems, and rely upon a registration and litigate
>approach (such in South Africa, for example).
>
>d.  Will enhanced judgement recognition provide incentives to firms like
>Microsoft to engage in patent harassment claims against free software
>authors, filing foreign patents in countries where there is poor
>exaimination, and forcing authors to mount costly defenses to write free
>software.
>
>e.  How will the Hague treaty deal with the legal status of the GNU
>Public License (GPL), which is used to prevent embrace and extend
>strategies to make free software not free.  Have you consulted with
>Richard Stallman, Tim O'Reilly, Eric Raymond, Professor Larry Lessig,
>companies that sell Linux distributions (there are many) or others to
>determine special issues for the free software movement that should be
>addressed?
>
>
>3.  How will the treaty address cross country differences in moral
>rights of authors or inventors?
>
>4.  Will the treaty affect cross country judgment recognition in cases
>involving sui generis property rights where the right would be
>recognized in one country, but not another, including, for example:
>
>a.  Rights in folklore, indigious knowledge or biopiracy.  For example,
>could farmers in one country sue a biotechnology firm the USA for
>infringement of its sui generis law on biopiracy, using as a standard
>for damange the lowering of the export price of a crop, caused by a
>genetically engineered substitute that was based upon a plant variety
>from a country with biopiracy laws?
>
>b.  Europe has a directive on sui generis "sweat of the brow"
>protections for databases.  Lexis and West Publishing are both foreign
>owned.  Could they sue US publishers in the EU, and obtain damages for
>US web sites that infringe on the EU database laws?  Would this have an
>effect on services such as Findlaw or the Cornell free law library?
>
>5.  Crown Copyright.  Some countries have crown copyrights on all public
>documents, including laws or court opinions.  If I publish government
>documents on the Web, could I be sued in a foreign country for crown
>copyright violations, and have the judgment recognized in the USA?  Are
>you familiar with the UK case involving a crown copyright judgment
>against a former intelligence employee now living in France?  Could this
>be used to suppress state criticism?
>
>6.  Access to medicines.
>
>a.  Under the judgement recognition provisions of the Hague treaty,
>could Glaxo sue a generic company, for providing inexpensive AIDS drugs
>in Ghana, and collect the judgement in a country where the company has
>assets?
>
>
>7.  Has anyone proposed excluding intellectual property from the Hague
>Convention on Jurisdiction?
>
>
>8.  Have you consulted with US education organizations to assess the
>impact of the treaty on distance education programs?
>
>
>9.  Regarding the January 30-31 WIPO meeting on the Hague Convention.
>Could you tell me:
>
>a.  What is the agenda?
>
>b.  How do citizens and NGOs participate?
>
>c.  Which participants will represent consumer groups?
>
>d.  Which participants will represent the free software movement?
>
>e.  Which participants will represent labor unions representing creators
>of works?
>
>
>Thank you very much for addressing these important questions.
>
>
>
>Sincerely,
>
>
>
>James Love
>Consumer Project on Technology
>--
>James Love, Consumer Project on Technology
>v. 1.202.387.8030, fax 1.202.234.5176
>love@cptech.org, http://www.cptech.org