Lex Ferenda

Slightly delayed live blogging (handwritten notes and laptops) from the SCRIPTed conference in Edinburgh: programme here. All errors are mine. Comments from me in square brackets.

The first keynote speaker is Antony Taubman (Director, Global IP Issues Division, WIPO), with a remarkably upbeat assessment of the field.. While his topic was the resonant ‘Centripetal and Centrifugal Trends in International Governance of IP‘, the focus of the talk was the role of traditional knowledge (TK) in the international IP system. He commenced with some general coments on the relationship between the various institutions (not just the ‘worlds in collision’ of WIPO and the World Trade Organisation, but others such as the World Health Organisation. There are various relationships, such as between ‘old’ and ‘new’ worlds, or approaches based on indigenous rights vs commodification. There have been fundamental shifts in international IP, at the time of TRIPS but happening again now – this is a sign of success in terms of the system. In the case of TK, he traces an evolution of TK as resistance to conventional IP, through a point of pressure for reform, to a true globalisation or reconceptualisation.

The bulk of the presentation was a discussion on what developments in TK mean:

(a) Empirical, e.g. more activity from developing countries, patents based on TK, even the current International Patent Classification having new, more appropriate categories [my thought: this is a very provocative and controversial definition of success]
(b) Jurisprudential, e.g. work on new or improved understanding of concepts in IP law like innovation and person skilled in the art, which can be different in contexts such as patent review
(c) Negotiations, where nations include aspirations re TK as part of their approach to WIP and others
(d) Development – WIPO development agenda, UN Declaration on the Rights of Indigenous People article 31 as a collective right – ‘an international soft norm’ [aren't all norms quite squishy?] – the “trade and” approach (trade and – cultural, environmental, HR, political – TK a good example of this trend). Gives the illustration of NGOs etc opposing particular patents as an assertion of cultural integrity.

A general reflection from Taubman: who ‘owns’ international IP normsetting; what is the benchmark for ‘legitimacy’; debate on collective rights (which these reforms must engage with) is controversial even within international HR law alone – what is the purpose of such normsetting, a ‘global IP law’, administrative convergence, or boundary-setting/dispute settlement? Will we see small, selective regimes (with like-minded countries) before adoption in international mainstream.

Parting shots: choice of forum? how do we like trade and IP law (& ethical idea: fair, legitimate trade/unfair competition – cf Paris Convention article 10bis)? Is legitimacy defined through formal structures or is it just a framework? Are worlds colliding ore ‘are regimes remixing’? [a very appropriate phrase] – an ‘emerging multifaceted multistakeholder galaxy of jurisprudence’, with TK being very useful in bringing a sustainable approach to light.

April is a mini-conference-season for law in the UK, with a number of big ones taking place – I’m due to be attending two and aware of another. Probably the biggest (but not in my diary, alas) is the Socio-Legal Studies Association, meeting in Leicester in the first week of the month. Up in Edinburgh, as previously blogged, SCRIPT-ed’s Governance of New Technologies conference is almost here. And finally, down in Winchester, BILETA meets for its annual conference on 22nd/23rd April, with a draft programme showing that there is a wide range of topics due to be covered. Coverage of last year’s BILETA conference is available through my (too lengthy) posts tagged bileta2008. I hope to do the same this year.

The big event in Ireland this month was the third annual Legal Education Symposium, held this year at UCD. Eoin O’Dell’s even more detailed reports are available at his blog, cearta.ie.

A pat on the back for Lord Justice Toulson, who has expressed the collective frustration of the academic and practicing (political and paramilitary?) wings of the legal world in relation to up-to-date legislation (in this decision). It drives me up the wall, and some of the areas I’m interested in are particularly badly served, with a range of new definitions from EU directives and the like. It has often taken me a couple of hours to get to the bottom of something that should really take no more than a few minutes. It’s great that the Statute Law database and OPSI areheading towards completion (and good things are happening in Canada, so it’s not impossible), but if you pick a new statute, there will probably be a further list of ‘unimplemented’ changes flagged with a warning (you have to then search for and put the changes together yourself).

Toulson LJ makes four points, which I paraphrase as follows:

• The majority of legislation is secondary legislation.
• The overall volume of legislation has increased and is still increasing.
• The legislation is spread across various statutes and statutory instruments.
• There is no straightforward way for an individual to find out what the law in force is.

The pay-databases are helpful, but to a point, and as is rightly pointed out by various commentators, this is something that should be available to the public. If a team of trained librarians and a bouquet of database subscriptions is necessary in order to figure out whether that section was modified by the fifth schedule to another Act, the words given a different meaning by s. 573(a) of the Regulation transposing the Directive (with reference to the nineteenth recital), disapplied in Wales by the Order-in-Council and the penalty increased by a further Act, is it really law at all?

More from Geeklawyer, The Register and Frisby Law.

Here are the other, more scattered privacy stories as promised:

1. The Information and Privacy Commissioner in the Canadian province of Ontario, Ann Cavoukian, is organising the ‘Privacy By Design Challenge‘, a workshop and presentations on how technology can be used, and in particular designed, to promote personal privacy. The fact that this event is organised by a statutory privacy commissioner is still quite remarkable (and welcome) and I look forward to finding out how it goes. Spotted via Mediacaster.
2. Another Canadian one: the 2007 and 2008 report of the federal Privacy Commissioner has been published: get it here
3. The Bar Council gets visited by some tea-leafs, who run away with the contact details of all of the barristers in England and Wales, and more besides (BBC News)
4. In related news, the Open Rights Group has a new tool to find out if your data has been disclosed, Who’s Been Losing Your Data? Nice.
5. And finally, unlucky for lawyers: Law firms are expected to register as data controllers in the UK – if not, like these three firms, they may end up paying a fine, and more importantly, probably never get a privacy case again…

Two interesting developments related to parody/satire and the law have caught my attention of late. Warning: long post ahead (I’ve been writing this one paragraph at a time for a while).

The first comes from the murky waters of English defamation law, though it ends with a victory for the newspaper. The claimant, Elton John (not a stranger to the libel courts) argued that a spoof ‘diary’ in the Guardian was defamatory; the Guardian’s defence was that the words could not have the meaning that John alleged, as the satirical purpose was clear. In a significant decision John v Guardian News & Media [2008] EWHC 3066, Mr Justice Tugendhat finds for the Guardian on this point, thus – in effect – destroying John’s case as there’s very little left beyond it. One of the most interesting points is in paragraph 22, where the judge explains the placement of the article in the Weekend section (‘not the news section’) which may well be of use to future defendants. While there is no express, standalone ‘defence’ of satire, parody or irony under libel law, in practice there are certain things that are taken to be easy to defend as not carrying a defamatory meaning. This decision clarifies the scope of this defence and is a helpful one. Further comment here and here, and read the original article by Marina Hyde here.

The second is from further afield, being the exchange on a number of excellent Canadian IP blogs regarding a decision of the British Columbia Supreme Court, Canwest v Horizon 2008 BCSC 1609. In this decision (at a preliminary stage in an ongoing case), the producers of a ‘fake’ edition of the Vancouver Sun are prevented from relying on parody as a defence to a copyright infringement claim. In the US, of course, this was the weapon of choice for a note-perfect fake New York Times (content and legal issues discussed here. The precedent relied upon is a curious enough case I remember from student days, Michélin v CAW (1996). Infamously, in this case relating to the use of Michélin trademarks and copyrighted images by trade union CAW in a campaign against Michélin, it was found that:

parody does not exist as a facet of ‘criticism,’ as an exception to infringement in Canadian copyright law. (It is accepted that) parody in a generic sense can be a form of criticism; however, it is not ‘criticism’ for the purposes of the Copyright Act as an exception under the fair dealing heading

Carys Craig argued in her contribution to the Michael Geist-edited In The Public Interest book on Canadian copyright law (available here) that subsequent Canadian cases (in particular CCH v Law Society) cast doubt on the Michélin precedent, and Giuseppina D’Agostino makes a similar argument, informed by a comparative analysis of Canadian, US and UK cases and legislation, e.g. here . I would expect that, if the decision to strike the defence in the Horizon case is appealed, this point would be made with some force (I don’t know if it was made in advance of the BC decision – the judgement does not reflect it in any event). The issue is ably summarised in a recent post at IPOsgoode by Anna Shahid. There is also a very interesting exchange between lawyer-blogger Howard Knopf and Osgoode professor Guise D’Agostino on Knopf’s blog here and here, on the question of various approaches to legal reform, legislative and otherwise.

David Vaver adds in a comment that Michélin is wrong and also that the defence in Horizon was struck out without sufficient consideration of the constitutional issues. That indeed is a troubling point.

This area is the subject of some interest across the common law world. Three examples:

1. In the UK, it was recommended in the 2006 Gowers Report that a specific defence for parody/satire/pastiche be introduced (Recommendation 12) . Further information here. (Gowers himself is back in the news this week as an opponent of the proposed extension of copyright term for sound recordings. More on that soon).

2. In Australia, there is a specific provision in copyright law introduced in 2006:

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire (s 41A, Copyright Act)
A fair dealing with an audiovisual item does not constitute an infringement of the copyright in the item or in any work or other audiovisual item included in the item if it is for the purpose of parody or satire (s 103AA, Copyright Act)

Nic Suzor has recently published an excellent article on the circumstances leading up to this amendment (PDF here).

3. Finally, a discussion document on a similar clause is planned in New Zealand for this month.