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