Intellectual Property Rights

ON Intellectual Property FORightsCUS

ON Intellectual Property Rights

TABLEFOCUSFO OFC CONTENTSUS

INTRODUCTION

What Is Intellectual Property? ...... 2

I. INTERNATIONAL PERSPECTIVES

Why Protecting Intellectual Property Rights Matters ...... 10 A Short Guide to International IPR Treaties ...... 16 Intellectual Property Training and Technical Assistance Programs...... 26 Jordan Benefi ts From Intellectual Property Reforms...... 28 A Message From Jackie Chan: “Fakes Cost More”...... 31 Taking Action: How Countries Are Fighting IPR Crime...... 32  e U.S. Approach: Traditional Knowledge, Genetic Resources, and Folklore ...... 40

II. LAWS IN EVOLUTION

 e Challenge of Copyright in the Digital Age...... 50 What Is “Fair Use”? ...... 59  e Importance of the Public Domain...... 60 Roundtable: Enforcement, a Priority for All Countries...... 62 New Tools for Fighting Optical Disc Piracy ...... 70

III. ISSUES BY INDUSTRY

A Trade Association at Work ...... 74 Intellectual Property Rights and the Pharmaceutical Industry...... 78  e Cost of Developing a New Drug ...... 82 Malaria: Partnering to Find a Cure...... 84 Protecting Trademarks on the Internet ...... 86

IV. SOURCES

Glossary of IP Terms...... 90 Sources of Information on IP ...... 100 Additional Readings on IP ...... 104 Kids’ Corner: Educational Materials for Children and Young Adults...... 107 What Is Intellectual Property?

By Thomas G. Field Jr.

THE BOTTOM LINE tion and original expressions of creative individuals known as intellectual property (IP)? “ um and Coca-Cola,” perhaps the They do so because they know safeguard- best-known Calypso song of all ing these property rights fosters economic time, became a big hit for the Andrews growth, provides incentives for technologi- Sisters in the 1940s. It also sparked a fa- cal innovation, and attracts investment that mous U.S. court case brought to establish will create new jobs and opportunities for all the authorship of Trinidad musician Lionel their citizens. The World Bank’s Global Eco- Belasco, who had written the song several de- nomic Prospects Report for 2002 confirmed cades earlier under the title “L’Année Passée.” the growing importance of intellectual prop-  e lawyer acting for the man who published erty for today’s globalized economies, find- Belasco’s original score proved to the court ing that “across the range of income levels, that “Rum and Coca-Cola” was the Creole intellectual property rights (IPR) are associ- musician’s work and no one else’s. ated with greater trade and foreign direct in-

INTRODUCTION Belasco won recognition for his creation vestment flows, which in turn translate into and also received compensation for the faster rates of economic growth.” unauthorized use of his work because the In the United States alone, for example, United States has laws that protect the intel- studies in the past decade have estimated lectual property of talented individuals like that over 50 percent of U.S. exports now de- him and enforces those laws against those pend on some form of intellectual property who would violate them. If his publisher had protection, compared to less then 10 percent sued in a country with weak or non-existent 50 years ago. protections, Belasco’s search for recognition Intellectually or artistically gifted people and compensation would not have had a have the right to prevent the unauthorized happy ending. use or sale of their creations, just the same as owners of physical property, such as cars, WHAT IS INTELLECTUAL PROPERTY? buildings, and stores. Yet, compared to makers of chairs, refrigerators, and other tan- hy do countries such as the gible goods, people whose work is essentially United States, Japan, and The intangible face more diffi culties in earning Netherlands protect inventions; literary and a living if their claim to their creations is artistic works; and symbols, images, names, not respected. Artists, authors, inventors, and designs used in commerce: the informa- and others unable to rely on locks and fences

2 3 Left, the cover for the original sheet music for “Rum and Coca- Cola,” before Lionel Belasco’s publisher won his lawsuit. Below, intellectual property symbols in the United States: copyright (©), registered trademark ®( ), and trademark (™).

to protect their work turn to IP rights to years ago, India was losing keep others from harvesting the fruits of the battle to retain the their labor. best and the brightest of Beyond making it possible for innovators its engineers and com- and artists to be compensated fairly and for puter scientists.  e lack countries to attract foreign investment and of protection for their intellectual property technology, intellectual property protection was forcing those scientists and technicians is critical to consumers. Most advances in to emigrate to countries where their hard transportation, communications, agricul- work could be protected and kept safe from ture, and health care would not exist without unfair exploitation by competitors seeking strong IP support. easy advantages.  e Indian Parliament Increased recognition and support of fi nally passed a law in 1999 to protect the intellectual property also has much to do intellectual creations of its computer sci- with the rapidly rising standards of living entists.  e result: a burgeoning high-tech in countries like China and India. Just a few industry producing some of the world’s

2 3 most advanced software and employing ing a system of copyright, and this system thousands of workers who might otherwise is administered by the Library of Congress’ have left India for more lucrative parts of Copyright Offi ce. the world.  e U.S. Copyright Offi ce serves as a place where claims to copyright are registered and KEY FORMS OF INTELLECTUAL where documents relating to copyright may PROPERTY be recorded when the requirements of the U.S. copyright law are met. For all works, he key forms of intellectual property however — even foreign ones — prompt U.S. are patents, copyrights, trademarks, registration confers important remedial ad- and trade secrets. Because intellectual prop- vantages at little cost. erty shares many of the characteristics of Ready access to those remedies has real and personal property, associated rights spawned enormous U.S. entertainment in- permit intellectual property to be treated as dustries. According to the 2004 edition of an asset that can be bought, sold, licensed, Copyright Industries in the U.S. Economy, or even given away at no cost. IP laws enable by Stephen Siwek, the “core” U.S. copyright owners, inventors, and creators to protect industries accounted for 6 percent of the U.S. their property from unauthorized uses. Gross Domestic Product, or $626.2 billion, in 2002.  e report defi nes “core” copyright in- Copyright dustries as newspapers, book publishing, re- Copyright is a legal term describing the cording, music, periodicals, motion pictures, economic rights given to creators of liter- radio and TV broadcasts, and computer ary and artistic works, including the right to software. In the 2004 report, bookstores and reproduce the work, to make copies, and to newsstands were added to “core” industries. perform or display the work publicly. Copy- Only an author or those deriving their rights off er essentially the only protection rights through the author — a publisher, for for music, fi lms, novels, poems, architecture, instance — can rightfully claim copyright. and other works of cultural value. As artists Regardless of who holds them, however, and creators have developed new forms of rights are limited. In the United States, for expression, these categories have expanded example, strangers may reproduce a portion to include them. Computer programs and of works for purposes of scholarship, criti- sound recordings are now protected, too. cism, news reporting, or teaching. Similar Copyrights also endure much longer than “fair use” provisions exist in other countries, some other forms of IP.  e Berne Conven- too.  e scope of this exception is discussed tion, the 1886 international agreement under in more detail in the article “What Is ‘Fair which signatory states recognize each other’s Use’?” on page 59. copyrighted works, mandates that the period Copyright protects arrangements of facts, of copyright protection cover the life of the but it does not cover newly collected facts as author plus 50 years. Under the Berne Con- such. Moreover, copyright does not protect vention, literary, artistic, and other qualify- new ideas and processes; they may be pro- ing works are protected by copyright as soon tected, if at all, by patents. as they exist. No formal registration is needed to protect them in the countries party to Patents that convention. One might say that a patent is a contract However, the Berne Convention permits between society as a whole and an individual copyright to be conditioned, as it is in the inventor. Under the terms of this social con- United States, upon a work having been tract, the inventor is given the exclusive right created in fi xed form. Also, many countries to prevent others from making, using, and have national copyright centers to admin- selling a patented invention for a fi xed period ister their copyright systems. In the United of time — in most countries, for up to 20 States, for example, the Constitution gives years — in return for the inventor’s disclos- Congress the power to enact laws establishing the details of the invention to the public.

4 5 The works of composers, writers, and choreographers — such as Martha Graham, the renowned American dancer — are protected by copyright laws. Here, her company performs one of her dances, Night Journey.

A worker hangs a seven-story Spider-Man on the side of a hotel in Las Vegas, Nevada. Copyright laws protect this superhero character, although the name Spider-Man™ now is Legendary blues master B.B. King, left, plays his guitar. also a trademark of Marvel Comics. His recorded performances are copyrighted, as is most of the music he plays.

This newspaper reader in Belgrade, Serbia and Chairman of Open Port Technology, Inc., Randy Storch Montenegro, can choose among a large number of holds a patent granted to his company for least-cost routing newspapers and magazines, all of which are covered by (LCR) technology. His company says LCR reduces the cost of the copyright laws of most countries. routing messages over the Internet.

4 5 Many products would not exist without Trade Secrets patent protection, especially those that re- Any information that may be used in the quire substantial investments but, once sold, operation of a business and that is suffi ciently can be easily duplicated by competitors. At valuable to aff ord an actual or potential eco- least since 1474, when fi rst granted by the nomic advantage is considered a trade secret. Republic of Venice, patent protection has en- Examples of trade secrets can be formulas for couraged the development and distribution products, such as the formula for Coca-Cola; of new technologies. compilations of information that provide When patents are not available, technol- a business with a competitive advantage, ogy is closely held. If inventors had to rely such as a database listing customers; and on secrecy to protect their inventions, much even advertising strategies and distribution important but undisclosed information often processes. would die with them. Unlike patents, trade secrets are protected Patents, however, are not easily obtained. for a theoretically unlimited period of time, Patent rights are granted not for vague ideas and without any procedural formalities. but for carefully tailored claims. To avoid Trade secrets, however, tend to escape, and protecting technology already available, or protection is not free. Under the best of within easy reach of ordinary artisans, those circumstances, fi rms must restrict access claims are examined by experts. Because to premises and documents, educate key patent claims vary as much in value as the employees and government inspectors, and technologies they protect, applicants must closely monitor publications and trade show negotiate claims of appropriate defensible presentations. Although secrecy is expensive scope. (Defensible scope means that appli- to maintain, large companies rely heavily on cants must be careful in setting the bound- it when patents are not available.  e larger aries of what their invention consists of and the company, the more it needs legal protec- what can be protected from infringement tion for its commercial secrets. in their invention.)  is often takes two or Companies that cannot rely on a country’s more years and is expensive. courts to help preserve important secrets must rely on self-help.  ey may, for example, severely limit the number of people with access to competitively important information. More likely, information needed for critical

Above, the California Institute of Technology makes money out of patents for the rovers it created for NASA by licensing their image to toymaker Lego for commercial use. Right, Arizona Cardinals football team’s running back Marcel Shipp displays his team’s trademark-protected new logo on a helmet, hat, and fl eece.

6 7 operations will be shared only if adequate for example, the dubious quality of counter- trade secret protection is available. If not, feit and fake drugs and their potential for few, if any, local employees will be trained causing great harm, if not death, to unsus- beyond the level necessary to perform essen- pecting users. tially unskilled assembly tasks. Trademark protection is also widespread in sports, estimated to account for 2.5 per- Trademarks cent of world trade. Much support for the Trademarks are commercial source indi- Olympics, for example, derives not from cators, distinctive signs that identify certain copyrighted broadcasts, but from merchan- goods or services produced or provided by dising rights protected by trademarks. a specifi c person or enterprise. In villages, At an earlier time, purchasers of prod- cobblers’ names used to serve that function. ucts bearing the names or logos of famous Trademarks are especially important when sports teams or events would probably consumers and producers are far away from have assumed no connection, much less an one another. Children ask for Barbie dolls, endorsement of quality between the sports Lego building blocks, and Hot Wheels toy team and, say, the baseball cap bearing the cars. Some adults dream of Ferrari automo- team’s symbol. Increasingly, however, con- biles, but more can aff ord to buy Toyota or sumers assume both. As early as 1993, U.S. Honda brands.  ese consumers need trade- baseball teams alone licensed uses of their marks to seek or avoid the goods and services trademarks on $2.5 billion in goods. of particular fi rms.  roughout most of the world, trade- Other Forms of Intellectual Property marks must be registered to be enforceable, Within the basic forms of intellectual and registrations must be renewed. Yet, property, many variations and special kinds while copyrights and patents eventually of protection are possible. Geographical indi- expire, names of companies that treat cus- cations, which identify a good as originating tomers well become increasingly valuable in a locality where a given quality, reputation, over time. If trademark rights were to expire, or other characteristic of the good is essen- consumers would be collectively harmed as tially attributable to its geographic origin, much as owners. Imagine the confusion if are an example. Some countries separately unaffi liated fi rms could sell products under protect geographical indications for goods another company’s trademark. And consider, such as French cognac or Scotch whiskey. In

Above, although the ingredients in these soft drinks are public knowledge, the “recipes” for making Pepsi or Coke constitute trade secrets closely held by the Coca-Cola and Pepsi companies. Left, Barbie dolls, here dressed as astronauts, have been popular with young girls for decades. Barbie™ is one of toymaker Mattel‘s most successful trademarks.

6 7 the United States, geographical indications right. Moreover, the United States offers two are protected with collective marks and cer- specific types of statutory protection for new tification marks. ey are treated as a subset plant varieties, as well as protection unique of trademarks to prevent consumer confu- to boat hulls and computer chips. Designs sion, as well as to protect business interests. that serve no purpose other than to indicate Similarly, in the United States, famous ath- commercial source may be protected under letes and performers are able to license or to trademark law. forbid fraudulent or misleading commercial uses of their names and images. Based on EMERGING IP ISSUES: DOMAIN NAMES trademarks or related, still-developing rights of publicity, well-known figures often earn he need for new forms of IP some- more from endorsements than from activi- times arises, and the assignment of ties underlying their fame. Internet addresses has posed particularly Also, the ornamental or aesthetic aspects difficult issues. Like telephone numbers, of electrical appliances, chairs, and the like Internet addresses have the basic form are protected in a variety of ways. Many in- “123.456.123.” If that were the end of it, there dustrial designs are protected in the United would be no problem. States, Japan, and South Korea as design Because useful directories are so far un- patents. Other countries — notably in Eu- available, however, most addresses also have rope — offer copyright-like protection. In the an alphanumeric form such as “BBC.uk”, United States, works having purely aesthetic “BBC.com”, or “yale.edu”. e unique part appeal, such as jewelry or patterns that may of each (“BBC” or “Yale”) is registered as a be applied to fabrics, are protected by copy- “domain name.” Just as postal addresses indicate unique physical locations, domain names indicate unique locations in “cyberspace.” Various entities control the registration, renewal, and transfer of domain names depending on the final portion of any alphanumeric address. Addresses ending with country codes “fr” or “uk” are subject to the laws of France and the United Kingdom, respectively. ose ending with “edu” are controlled, under agreement with the U.S. Department of Commerce, by Educause, a non-profit U.S. organization. ose ending with “com” and a few other terms have a global reach. ey are governed by rules established by the Internet Corporation for As- signed Names and Numbers (ICANN), also under agreement with the U.S. Department of Commerce. Because domain names often comprise celebrities’ or companies’ names, trademarks, and the like, few people regard them as merely addresses. In the early days of the Internet, individuals quick to understand Bangalore Bio 2005, a three-day biotechnology trade show this registered many “.com” domain names featuring discoveries by Indian scientists and business for sale at hefty premiums. For example, a opportunities. India’s increased support of IPR has helped tourist agency registered “Barcelona.com” as lift the country’s living standards. its domain name, a move denounced by the Spanish city of Barcelona, which went on to

8 9 establish its superior claim to that domain Although eff ective IP enforcement serves name. Holders of domain names intending important economic ends, it also promotes to suggest unauthorized affi liations were a variety of other common social goals. By condemned as “cybersquatters.” Procedures providing the opportunity for pharmaceu- were soon established to prevent misleading tical companies to recoup investments in registrations or have ownership transferred research, enforcement of IP rights can help to others with superior claims of legitimacy. eliminate serious health risks. Besides en- Under the most favorable circumstances, couraging the creation of new technologies, however, time and money must be spent to patent and trademark laws are useful as well have a domain name transferred. Also, many to prevent serious, well-documented harm addresses may falsely suggest sponsorship posed by counterfeit goods. For example, by the same person or fi rm. Experience has those who consciously palm off medical shown that cancelling them is insuffi cient if products under false labels are apt to be others can then re-register. But maintaining unconcerned about whether their goods are registrations of possibly hundreds of spuri- worthless or toxic to unsuspecting users. ous addresses is a major waste of money. Local cultures are also at stake. Works by Such problems have been alleviated by local artists, authors, musicians, and others imposing signifi cant civil and criminal pen- are often supported in ways that are relatively alties on cybersquatters. Still, some remain independent of the need for private risk capi- beyond reach, and further measures will be tal. Yet, even when that is true, they are often needed to halt activities that often mislead displaced by the illegal sale of cheap or free computer users throughout the world. music, movies, and books originating abroad, works that would cost far more if copyrights IP MATTERS, VERY MUCH in such works were locally enforced. People everywhere who are concerned lthough the first international about cultural growth and preservation, as treaties protecting intellectual well as improved health and economic well- property rights — the Paris Convention for being, should understand how IP protection the Protection of Industrial Property and serves those ends.  the Berne Convention for the Protection of Literary and Artistic Works — were reached in the 1880s, coordination across countries for IPR protection remained inadequate until Professor Thomas G. Field Jr. helped launch the recently. Franklin Pierce Law Center in New Hampshire in 1973. He credits much of his general understanding Intellectual property rights were fi rst in- of intellectual property to students who attend from cluded in the Uruguay Round negotiations of abroad. The casebook, Introduction to Intellectual the General Agreement on Tariff s and Trade Property, is among his more recent publications. For (GATT), 1986-1993, with the Agreement more information, see: http://www.piercelaw.edu/ on Trade-Related Aspects of Intellectual tfi eld/tgf.htm. Property Rights (TRIPS). TRIPS requires signatories to make it easier for their citizens and others to obtain and enforce IP rights, although it does not deal with domain names as such. TRIPS member countries should be aware that if their IP laws seem, on paper, to support innovation and protect IP, but in practice do not, they generate little besides cynicism. Conversely, cost-eff ective means to secure, transfer, and enforce IP rights boost cultural development and standards of living, as well as promote public health and safety.

8 9 Why Protecting Intellectual Property Rights Matters

By E. Anthony Wayne

ntellectual property issues are getting power . . . to promote the progress of science more and more attention these days. and useful arts, by securing for limited times Unfortunately, far too often the issues are to authors and inventors the exclusive right framed in such a way as to highlight con- to their respective writings and discoveries.” troversy and polarize debate. In fact, there is  e essential idea behind a copyright much about intellectual property protection is simple: Artists and creators should be on which everyone can agree. able to enjoy the fruits of their labor for a To arrive at a fuller understanding of the specifi ed time period, after which the mate- issue, it is worth spending some time consid- rial becomes available for public use. Society ering how intellectual property rights (IPR) benefi ts because this incentive to create will developed and what role they play in achiev- yield a rich and varied cultural menu for its ing widely shared objectives. What comes citizens. Indeed, one can say that copyright out of such an examination is the conclusion protection is a necessary ingredient for en- that intellectual property protection is a vital suring cultural wealth in our societies. part of social, cultural, and economic devel- But if copyright protection is important for opment. Protection of intellectual property reaching cultural objectives, then it is equally rights alone will not necessarily bring about true that the theft of these copyrighted goods this development. But it is hard to imagine — that is, the pirating of cultural works — is that a country could ever reach these goals in a threat to the creative sectors in our societ- the absence of such protection. ies. Many international institutions, such as the World Bank, the World Intellectual COPYRIGHTS AND CULTURE Property Organization (WIPO), and even the United Nations Educational, Scientifi c, and e can credit 17th century Cultural Organization (UNESCO), recognize England with the concept of a this link. In fact, if you visit UNESCO’s web “copy right,” a law that protects the creative site (http://www.unesco.org), you will fi nd an products of authors, artists, singers, and, entire section devoted to the issue and a list to reflect developments since the 1600s, of programs and publications that explain the SECTION I: INTERNATIONALfilmmakers PERSPECTIVES and software developers. This benefi ts of copyright to educational, scien- concept even has been enshrined in the tifi c, and cultural policies and provide help in U.S. Constitution, whose Article I, Section fi nding ways to fi ght piracy. 8, Clause 8 reads, “the Congress shall have

10 11 An illustration by Theodore R. Davis in Harper’s Weekly magazine (July 10, 1869) shows examiners at work at the U.S. Patent Offi ce in Washington, D.C.

Today’s bicycle manufacturers build on the patented work of several 19th century inventors. Here, a tobacco label showing a man riding a “velocipede,” the French term for a precursor of the bicycle in the late 18th century.

Policemen display some of the hundreds of fake works of art they seized in Milan in 2005, including counterfeit paintings of renowned Italian artists. Governments support artists by conducting raids of counterfeiters’ facilities and destroying their fake products.

While there has been much press play would disappear from the fi lmmaking map. recently regarding on-line downloading of Today, the industry is in better shape and music and movies in developed countries like moviegoers around the world enjoy new the United States, in fact it is in the develop- and exciting releases primarily because ing world that much of the serious damage is Hong Kong authorities took decisive action being done. Many new musical voices, new to combat the piracy problem. Studios in authors, and new stories on fi lm around the Bangladesh’s “Dhaliwood” movie industry world have never been made available, sim- went on strike in March 2004 to protest the ply because the incentives were not there for problem of piracy and demand action by these artists to take a risk.  ey have known the government. Similar developments have that whatever they produce will be immedi- taken place in the world of music. Ethiopian ately pirated — stolen — and they will not be musicians went on a seven-month strike in provided the means to develop their talent. 2003 to press for better anti-piracy measures  is is not an abstract argument: It has from the government.  ese artists all un- happened on all continents. A good example derstood the importance of protecting their is Hong Kong, where a thriving movie indus- works from pirates. try was so hurt by rampant piracy that, just a few years ago, observers were predicting it

10 11 PATENTS AND INNOVATION are associated with greater trade and foreign direct investment fl ows, which in turn trans- atents protect diverse inventions late into faster rates of economic growth.” such as industrial designs, manu- Another 2002 World Bank publication, facturing processes, high-tech products, Development, Trade, and the WTO: A Hand- and molecular compounds. Like copyrights, book, noted a number of studies which, de- patents were recognized in the U.S. Consti- spite the lack of clear-cut results, did indicate tution. The Constitution granted Congress that stronger patent regimes could: 1) lead to the powers to promote “the progress of sci- increased global trade; 2) attract more for- ence and useful arts” by providing inventors eign direct investment; 3) lead to increased the limited but exclusive right to their “dis- licensing of technologies to, and possibly coveries.” more local production; and 4) contribute to  e concept of a patent is based on a higher growth rates. trade-off .  e inventor or innovator is given A good example of this today can be the exclusive right to make or use the inven- found in Jordan, where strengthened pat- tion for a limited period of time. In exchange, ent protection has been linked to tangible most countries’ rules require the inventor to economic benefi ts (see story on p. 28).  e reveal the method behind the invention so International Intellectual Property Institute that others may understand and learn from (IIPI) released a comprehensive report in Au- it. After the exclusive period of time elapses, gust 2004 that looked at the establishment anyone can make, use, or sell the invention. of globally competitive pharmaceutical and  e inventor is granted an economic in- biomedical technology industries in Jordan. centive to take risks and create; the public  e report found that “Jordan’s economy has receives the benefi t of the invention, as well benefi ted greatly from the recent adoption of as the inventor’s knowledge for application in better intellectual property protections,” ac- other uses. cording to an IIPI release.  e report noted Americans have always prided themselves that the strengthened intellectual property in being a nation of innovators and inventors, regime, particularly for patents, “spurred a willing to try something new, whether in in- new focus on research-based innovation for dustry or politics. As a result, patents are an Jordanian pharmaceutical companies.” important part of America’s history. While  is was refl ected in a jump in the health- most American schoolchildren probably do service contributions to the Jordanian GDP not know that patents are mentioned in the from 2.8 percent in 1997 to 3.5 percent in U.S. Constitution, many of them do know 2001. Employment in the health-services sec- from their studies that one of the fi rst patents tor has increased 52 percent since 1997.  e issued was for Eli Whitney’s cotton gin, a ma- report also found that “the pharmaceutical chine that was to have a critical infl uence on industry represents Jordan’s second leading America’s subsequent development. sector, and from 1999 to 2002, drug exports But if this is true for America’s experience, from local fi rms grew by 30 percent.” then it is just as true for other countries, including developing ones. Strong intellectual TRADEMARKS AND CONSUMER protection will not only encourage innova- PROTECTION tion, it will provide the level of confi dence in an economy needed to attract foreign invest- trademark is a word, phrase, sym- ment and spur technology transfer.  is has bol, or design, or a combination been shown in a number of studies looking of words, phrases, symbols, or designs, that at the relationship between intellectual identifies and distinguishes the source of property, especially patents, and develop- the goods of one party from those of others. ment. For example, a study highlighted in They thus identify the producer of a product the World Bank’s Global Economic Prospects and serve as an indicator of quality. They also Report 2002 found that “across the range of inform consumers where to seek recourse if income levels, intellectual property rights the product fails. Some forms of trademarks

12 13 A plate from the catalogue of the 1871 London International Exhibition shows an Elias Howe sewing machine, invented in 1845. Howe patented A sketch of Eli Whitney, who invented the cotton gin the machine in the United States in 1846, and was and patented it in 1793. able to sue other companies for infringement of his patent rights.

A patented device that has brightened our world: American inventor Thomas Edison’s fi lament lamp (1879), with the fi rst practical lightbulb. A phony Pokemon card, left, held up next to a real one at Nintendo’s Redmond, Washington, offi ces. To fi ght counterfeiters, Nintendo is training customs offi cials and police in the United States how to tell the diff erence between real and fake cards.

12 13 Enduring quality: Visitors to the Great Wall in China can still see the original brick maker’s mark on some of its bricks. These marks were assurances of quality and accountability to the emperors who ordered the building of this cultural wonder.

When consumers buy counterfeit and pirated goods — in Some old packages and containers of Bayer Aspirin, a this case, pirated music compact discs (CDs) and movie well-known brand for this pain reliever. The German digital video discs (DVDs) — they lose the authentic company Bayer was granted a patent for this wonder drug manufacturers’ assurance of quality and accountability. and launched it on the market in 1899. Aspirin® is a Bayer AG Company registered trademark.

In the United States, copyright protection lasts for the life The fi rst children’s crayons ever made, in 1903, came from of the author plus an additional 70 years for works such as Crayola®, now a registered trademark of Binney & Smith. books and movies created after January 1, 1978.

14 15 have been around for thousands of years. the report, subsequent police raids uncovered Visitors to the Great Wall in China can still thousands of bags of counterfeit milk powder see the original producer’s mark on some of with the labels of 45 diff erent brands. its bricks. This mark allowed the emperors Counterfeit pharmaceuticals also have of that time to be assured of quality and, if become a serious and deadly problem around needed, accountability. the globe, especially in the developing world.  is assurance of quality and account- No one knows this better than the head ability is completely lost when counterfeiters of Nigeria’s National Agency for Food and illegally use a trademark and deceive con- Drug Administration and Control, Dorothy sumers with their goods. When many people Akunyili. Her story, which was detailed in think of counterfeit goods, they might bring a May 2004 front-page article in the Wall to mind items such as fake Rolex watches, Street Journal, seems to come straight from Zippo lighters, or Louis Vuitton handbags. an action novel. Unfortunately, it is fact,  e counterfeiting of these goods does infl ict not fi ction. Her work to expose and combat serious harm on legitimate companies, and counterfeit pharmaceuticals has led to as- it deprives governments of lost revenues. But sassination attempts against her life and counterfeiting of trademarks has another se- arson attacks against her facilities. But she rious consequence. It can threaten the health has bravely continued her work, spurred on and safety of the public. in part by the personal experience of losing  e United States is not immune to this her sister, who died because of a counterfeit aspect of the counterfeiting epidemic. In insulin injection. She, like many others, has testimony before the U.S. Senate Judiciary understood the dangers and threats posed by Committee in March 2004, U.S. Assistant counterfeiting. Attorney General Christopher Wray provided examples of trademark violations. He IP AND SOCIETY noted that, in early 2004, a man from the state of Alabama pled guilty to 28 counts here is a common thread that runs of counterfeiting and pesticide misbranding through the above discussion of copy- charges. He sold mislabeled and adulterated rights, patents, and trademarks. Promoting pesticides needed to control mosquitoes and, cultural development, fostering innovation indirectly, West Nile virus, to municipalities and growth, and protecting public health and private businesses in a number of U.S. and safety are all commonly held goals. We states.  e defendant falsely identifi ed the all want to live in societies where these values brand name of the pesticide, the manufac- are cherished and fostered. In the current de- turer, and the active ingredients. In another bate surrounding intellectual property, it is case in 2002, the U.S. Department of Justice worth remembering the role of intellectual convicted a California man on federal charg- property protection in our daily lives. es involving a conspiracy to sell counterfeit  e United States believes strongly in baby formula. After exposing thousands in the value of protecting intellectual property our most vulnerable population to coun- rights, for the reasons outlined above and terfeit baby formula, the defendant fl ed to more, and stands ready to work with others Canada in 1995. He was arrested there in to promote such protection.  2001 and in 2002 was brought to the United States to stand trial. Counterfeiting is a serious public health and safety threat in the developing world as E. Anthony Wayne is U.S. Assistant Secretary of State well. One of the more tragic stories comes for Economic and Business Aff airs. from China. In May 2004, the Associated Press reported from Beijing that 47 people had been accused of selling fake infant formula, an act that authorities said led to the deaths of dozens of children. According to

15 A Short Guide to International IPR Treaties

By Paul E. Salmon

trong protection for intellectual prop- As a strong adherent of the TRIPS Agree- erty rights (IPR) worldwide is vital to ment and all other international IPR treaties the future economic growth and develop- discussed below, the U.S. government en- ment of all countries. Because they create courages other countries to join and imple- common rules and regulations, international ment them. IPR treaties, in turn, are essential to achieving the robust intellectual property protec- TRIPS tion that spurs global economic expansion and the growth of new technologies. he TRIPS Agreement came into force  e international community, however, in 1995, as part of the Agreement did not have a single source for intellectual Establishing the World Trade Organization. property obligations and norms until the TRIPS incorporates and builds upon the 1994 Uruguay Round of the General Agree- latest versions of the primary intellectual ment on Tariff s and Trade created the World property agreements administered by the Trade Organization (WTO) and included World Intellectual Property Organization the Agreement on Trade-Related Aspects of (WIPO), the Paris Convention for the Pro- Intellectual Property Rights (TRIPS). tection of Industrial Property, and the Berne  e signifi cance of the TRIPS Agreement Convention for the Protection of Literary is three-fold: and Artistic Works, agreements that go back 1) It is the fi rst single, truly international to the 1880s. agreement that establishes minimum TRIPS is unique among these IPR accords standards of protection for several forms because membership in the WTO is a “pack- of intellectual property; age deal,” meaning that WTO members are 2) It is the fi rst international intellectual not free to pick and choose among agree- property agreement that mandates de- ments.  ey are subject to all the WTO’s tailed civil, criminal, and border enforce- multilateral agreements, including TRIPS. ment provisions; and TRIPS applies basic international trade 3) It is the fi rst international intellectual principles to member states regarding intel- property agreement that is subject to lectual property, including national treat- binding, enforceable dispute settlement. ment and most-favored-nation treatment. TRIPS, in eff ect, lays the groundwork for TRIPS establishes minimum standards for a strong and modern IPR infrastructure the availability, scope, and use of seven forms for the world community. of intellectual property: copyrights, trade-

16 17 The home web page for the World Intellectual Property Organization (WIPO), the international body for the protection of IPR and the administering agency for most international IP agreements.

marks, geographical indications, industrial At the 2001 WTO Ministerial Confer- designs, patents, layout designs for integrated ence in Doha, least-developed countries were circuits, and undisclosed information (trade given an additional 10 years to implement secrets). It spells out permissible limitations TRIPS patent and “undisclosed information” and exceptions in order to balance the inter- provisions as they relate to pharmaceuticals. ests of intellectual property with interests Because the TRIPS Agreement is a decade in other areas, such as public health and old, however, it does not address several new economic development. (For the complete developments, such as the Internet and digi- text of the TRIPS Agreement, as well as an tal copyright issues, advanced biotechnology, explanation of its provisions, see the WTO and international harmonization, the process web site at http://www.wto.org.) of creating uniform global standards of laws According to TRIPS, developed countries or practice. It sets the fl oor for minimum IPR were to have implemented the agreement protection, not the ceiling. fully by January 1, 1996. Developing-country Since the conclusion of the TRIPS Agree- members and members in transition to a ment, the World Intellectual Property Or- market economy were entitled to delay full ganization has addressed digital copyright implementation of TRIPS obligations until issues in the so-called Internet Treaties, January 1, 2000. Least-developed members namely the WIPO Copyright Treaty (WCT) were given until January 1, 2006, to imple- and the WIPO Performances and Phono- ment their obligations, with the possibility of grams Treaty (WPPT). further transition upon request. Developing What follows are summaries of other countries that did not provide patent protec- WIPO treaties that complement the TRIPS tion for particular areas of technology on Agreement, particularly in addressing new their date of application were given an ad- technological developments. For texts of the ditional fi ve years, until January 1, 2005, to WIPO treaties discussed below, see: http: provide such protection. //www.wipo.int/.

16 17 TRADEMARK LAW TREATY An additional advantage of the TLT is the harmonization of the initial and renewal he Trademark Law Treaty (TLT), terms of trademark registration among sig- adopted on October 27, 1994, entered natory countries:  e TLT provides for an into force on August 1, 1996. Thirty-three initial 10-year term, with 10-year renewals. states, including the United States, are party Other key features of the TLT include the to the TLT as of July 1, 2005. The TLT was introduction of an intent-to-use application enacted to simplify procedures in the appli- system (with proof of use prior to registra- cation and registration process and to har- tion); streamlined renewal procedures; monize trademark procedures in different minimization of the elements to obtain an countries. The TLT harmonizes procedures application fi ling date; and simplifi ed proof national trademark offices by establishing cedures for recording changes in name and the maximum requirements a contracting ownership of trademark applications and party can impose. registrations.  e TLT gives service marks — the dis- Overall, the TLT is intended to facilitate tinctive identifi ers of businesses that off er a international trade: It is of particular impor- service, as opposed to goods — “equal” status tance to individuals and small businesses with trademarks. Previously, many foreign looking for markets in other countries. countries treated trademarks and service Currently, WIPO’s Standing Committee on marks diff erently.  e TLT requires mem- Trademarks, Industrial Designs, and Geo- ber nations to register service marks and graphical Indications (SCT) is conducting treat them as they would trademarks. negotiations on proposed revisions to the From the trademark owner’s perspec- TLT.  is standing committee recommend- tive, the TLT saves time and money in the ed that the WIPO General Assembly hold a preparation and fi ling of documents for the diplomatic conference March 13-31, 2006, to application. It streamlines the process for consider adoption of the revised TLT. post-registration renewals, recording assignments, changes of name and address, and PATENT LAW TREATY powers of attorney. Member countries to the TLT are now required to permit the use of he Patent Law Treaty (PLT), adopted multi-class applications, enabling trademark by WIPO in June of 2000, entered owners to fi le a single application covering into force on April 28, 2005. The PLT is multiple classes of goods and services. the product of several years of multilateral Another signifi cant feature of the TLT negotiations on harmonizing global patent that benefi ts trademark owners is its prohibi- systems. The PLT harmonizes certain patent tion of requirements by national offi ces for application procedures in order to reduce or authentication or certifi cation of documents eliminate formalities and the potential for as well as signatures on trademark applica- loss of rights. The PLT does not harmonize tions and correspondence. Many countries substantive patent law, that is, the laws of had required that any signatures submitted each country that set forth the conditions in support of registration of a mark be no- that must be met in order to receive a pat- tarized or otherwise legalized in accordance ent for an invention in that country. WIPO, with the laws of that nation. Under the TLT, however, is holding discussions regarding it is no longer necessary in most instances to harmonization of substantive patent law. go through these procedures.  is feature  e PLT will make it easier for patent enables trademark owners to complete and applicants and patent owners to obtain and fi le trademark documents more quickly, at maintain patents throughout the world by less cost. simplifying and, to a large degree, merging national and international formal requirements associated with patent applications and patents.

18 19 The fi rst Benz motor car, 1888. The German imperial patent 5789 was William Hedley developed the system that gave granted to Karl locomotives with smooth wheels suffi cient traction. He Benz in 1886 for the patented this in 1813, the same year he unveiled his famous design of an “oil steam locomotive, “Puffi ng Billy,” here seen outside of spirit motor tricycle.” London’s Patent Museum (today’s Science Museum).

Berliner gramophone, 1890. Emile Berliner patented a form of recording in which sound waves were photoengraved on a zinc disc in 1887. Eventually, his invention became the basis for the record industry.

 e PLT: for applicants and patent offices, the duplica-  simplifi es and minimizes patent application of effort involved in filing and obtaining tion requirements to obtain a fi ling date; patent applications for the same invention  imposes a limit on the formal requirements in different countries. The resulting WIPO that Contracting Parties may impose; treaty, the PCT, was signed in Washington,  eases representation requirements for for- D.C., in 1970 and entered into force in 1978. mal matters; The treaty was amended in 1979, 1984, 2001,  provides a basis for the electronic fi ling of and 2004. As of September 15, 2005, there applications; are 128 Contracting Parties to the PCT.  provides relief with respect to time limits By simplifying patent application fi ling, that may be imposed by the Offi ce of a the PCT assists innovators in obtaining pat- Contracting Party and reinstatement of ent protection throughout the world. It also rights where an applicant or owner has encourages small businesses and individuals failed to comply with a time limit and that to seek patent protection abroad. failure has the direct consequence of caus- Under this WIPO-administered treaty, ing a loss of rights; and nationals or residents of a contracting state  provides for correction or addition of fi le a single patent application, called an “in- priority claims and restoration of priority ternational” application, with their national rights. patent offi ce or with WIPO as a receiving offi ce.  is automatically lodges the application PATENT COOPERATION TREATY SYSTEM for patent protection in all 128 Contracting Parties of the PCT. he roots of the Patent Cooperation  e treaty provides a longer period of Treaty (PCT) go back to 1966, when time, 30 months, before applicants must the Executive Committee of the Paris Con- commit themselves to undertake the ex- vention for the Protection of Intellectual penses of translation, national fi ling fees, and Property called for a study of how to reduce, prosecution in every country in which they

18 19 want protection. By providing applicants and more trademark owners are using the with more time and information to evaluate Madrid Protocol every year to protect their the strength of their potential patent and to trademarks in foreign countries. As of Sep- determine marketing plans, the 30-month tember 15, 2005, there were 66 contracting period allows applicants to be more selec- parties to the Madrid Protocol. tive as to the countries in which they will  e Madrid Protocol is a fi ling treaty and fi le.  is is a major improvement over the not a substantive harmonization treaty. It 12-month priority period provided under the provides a cost-eff ective and effi cient way Paris Convention for patent applicants. for trademark holders — individuals and Under the PCT, WIPO publishes the businesses — to ensure protection for their “international application,” together with marks in multiple countries through the fi l- a nonbinding indication as to the potential ing of one application with a single offi ce, in patentability of the invention.  is nonbind- one language, with one set of fees, in one cur- ing indication is a preliminary search and/or rency. Moreover, no local agent is needed to examination by an “International Authority,” fi le the application. Applications may be fi led one of 11 patent offi ces designated by WIPO in English, French, or Spanish. that currently meet the treaty’s minimum An application for international registra- staffi ng and documentation requirements. tion has the same eff ect as a national applica-  e nonbinding indication helps applicants tion for registration of the mark in each of the decide whether to proceed with their patent countries designated by the applicant. Once applications in national or regional offi ces. the trademark offi ce in a designated country Patent offi ces also benefi t from these non- grants protection, the mark is protected just binding indications of patentability when de- as if that offi ce had registered it. ciding whether to grant national or regional  e Madrid Protocol also simplifi es the patents based upon PCT applications. For- subsequent management of the mark, since eign search reports identify relevant docu- a simple, single procedural step serves to ments that help patent offi ces to conserve record subsequent changes in ownership or resources in the examination process and to in the name or address of the holder with improve the quality of examination. WIPO’s International Bureau. Before the protocol was enacted, bur- MADRID SYSTEM FOR densome administrative requirements for THE INTERNATIONAL REGISTRATION the normal transfer of business assets often OF MARKS made it diffi cult for trademark owners to carry out valid assignments of their marks in- he Protocol Relating to the Madrid ternationally.  e protocol allows the holder Agreement Concerning the Interna- of an international registration to fi le a single tional Registration of Marks — the Madrid request with a single payment, in order to re- Protocol — was adopted in Spain’s capital cord the assignment of a trademark with all on June 27, 1989, and entered into force on the member countries. Registration renewal December 1, 1995. The protocol is one of also involves a simple, single procedural step. two treaties comprising the Madrid System International registration lasts 10 years, with for international registration of trademarks. 10-year renewal periods. The first treaty, the 1891 Madrid Agreement, Trademark owners may designate addi- provides for the registration of trademarks in tional countries if they decide to seek pro- several countries through the filing of one tection in more member countries or if new international trademark registration with countries accede to the protocol. WIPO in Geneva.  e Madrid Protocol, developed because some countries had problems with the operation of the Madrid Agreement, is seen as an improvement to the system for international registration of trademarks. As a result, more

20 Nobel Prize winners Drs. William Shockley (seated), John Bardeen (left), and Walter H. Brattain at the Bell Telephone Laboratories in 1948. Their invention of the transistor spawned the Information Age and, ultimately, the need for new or revised IP treaties to deal with issues such as domain names.

A woman looks at Microsoft® products at a shop in Brussels. Thanks to the Madrid Protocol’s improvements to the system for international registration of trademarks, it is easier for companies like Microsoft to protect their marks in foreign countries.

20 21 Bakers from Dresden, Germany, have kept the trade secret of the exact components of their Christmas cake for more than 100 years. Only about 130 bakeries and cake shops in that city are allowed to produce these cakes with a seal of quality under a registered trademark, “Echter Dresdner Christstollen.”

One of Italy’s culinary delights, Parmesan cheese, is typical of the products that the TRIPS Agreement protects under the rubric of geographical indications.

IPR protections reward the ingenuity of breeders of new plant varieties. The so-called Internet Treaties — the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty — address digital copyright issues that cropped up with the development of the Internet.

22 23 If the basic application — or registration Under the treaty, the deposit of a micro- upon which the international registration is organism with an “international depositary based — is cancelled for any reason in the authority” satisfi es the deposit requirements fi rst fi ve years, the Madrid Protocol gives of treaty members’ national patent laws. An the holder of the international registration “international depositary authority” is capa- the opportunity to turn the international ble of storing biological material and has es- registration into a series of national applica- tablished procedures that assure compliance tions in each designated country.  is series with the Budapest Treaty. Such procedures of applications keeps the priority date of the include requirements that the deposit will original international registration in each remain available for the life of the patent and country.  e holder also preserves the rights that samples will be furnished only to those acquired in each member country, even if persons or entities entitled to receive them. international registration fails.  e establishment of “international depositary authorities” off ers several advantag- THE HAGUE SYSTEM FOR es to both patent applicants and contracting THE INTERNATIONAL DEPOSIT states. Patent applicants benefi t because the OF INDUSTRIAL DESIGNS need to deposit in many countries in which they seek patent protection is dramatically he Hague System is an international reduced. Since a single deposit in any “in- registration system that enables own- ternational depositary authority” will satisfy ers to obtain protection for their industrial the national disclosure requirements of any designs with a minimum of formality and member state, patent applicants’ costs are expense. A single international application much lower. Using a single authority as a filed with WIPO’s International Bureau deposit increases the deposit’s security, and replaces a whole series of applications previ- provides a mechanism of distribution of the ously required in a number of states and/or deposit. Contracting states benefi t because intergovernmental organizations party to the they can rely on the treaty’s uniform stan- Hague System. The subsequent management dards to assure eff ective deposit and public of the international registration is consider- availability.  ey no longer need to indepen- ably easier under this system. For example, dently establish a ‘recognized’ depositary one single step is all that is needed to record a to meet national patentability disclosure change in the name or address of the holder, requirements. or a change in ownership for some or for all As of May 2005, there are 60 Patent Of- of the designated contracting parties. fi ces that abide by the terms of the Budapest  e Hague System had 42 contracting Treaty and 35 “international depositary au- parties as of April 26, 2005. thorities” in 22 diff erent countries.

BUDAPEST TREATY ON INTERNATIONAL CONVENTION FOR THE INTERNATIONAL RECOGNITION THE PROTECTION OF NEW VARIETIES OF THE DEPOSIT OF MICROORGANISMS OF PLANTS FOR THE PURPOSE OF PATENT PROCEDURE he International Convention for the Protection of New Varieties of he Budapest Treaty on the Interna- Plants (UPOV) established an internation- tional Recognition of the Deposit of ally recognized intellectual property system Microorganisms for the Purpose of Patent for the protection of new plant varieties. The Procedure, signed on April 28, 1977, was UPOV Convention encourages and rewards amended on September 26, 1980. The Bu- the ingenuity and creativeness of breeders dapest Treaty eliminates the need to deposit developing new varieties of plants. Anyone microorganisms in each country where pat- who develops a new variety of plant that may ent protection is sought. be disease resistant, drought resistant, cold tolerant, or simply aesthetically more pleas-

23 In 2001, WTO gave least-developed countries another 10 years to implement TRIPS patent and “undisclosed information” provisions on pharmaceuticals. Here, a scientist in a lab conducts quantitative analysis of medicine tablets.

TRIPS covers seven forms of IP, including trademarks and patents. Below, the recently updated logo for the Zenith Electronics Corporation. Right, Sniff erSTAR, a patented device from Sandia National Laboratories in Albuquerque, New Mexico, intended to detect airborne blister agents and nerve gases.

ing is no less an inventor than someone who at the same time, disseminate the knowledge improves an automobile engine or develops of that innovation for others to improve a new medicinal drug. The only difference is upon.  e UPOV system establishes basic that the plant breeder works with living ma- legal principles of protection that reward terial, rather than inanimate matter. breeders for their inventiveness by provid-  e process of creating a new plant vari- ing exclusive rights to their plant invention, ety is often long and expensive. Reproducing while encouraging the development of new an existing plant variety, however, can be plant varieties. quick and relatively easy.  us, an eff ective system of intellectual property protection needs to reward innovation by permitting inventors to recover their investment and,

24 25 Under the 1991 UPOV system, the most CONCLUSION recently concluded of these, the exclusive rights granted to the inventor (commonly n the information age, with technol- referred to as “breeder’s rights”) require that ogy advancing at an accelerating rate, another party other than the owner of the simply implementing the TRIPS Agreement breeder’s rights receive the breeder’s autho- is not enough to establish a robust intellec- rization to: tual property system. While it was the first  produce or reproduce the protected vari- comprehensive IPR agreement of its time, it ety; is a decade old, and reflects a “snapshot” in  condition the variety for propagation pur- time. Technological advances in information poses; and technology, biotechnology, and other fields  off er to sell or market, import, export, or require the updating of national and inter- to stock the protected variety. national laws that protect IP. Fortunately, To receive a breeder’s right, a breeder WIPO has led the way in developing new in- must invent a plant variety that is new, dis- ternational norms to meet these challenges. tinct, uniform, and stable. Under the UPOV WIPO also has led the way in simplifying Convention, however, a plant breeder gener- and streamlining the procedures for seeking, ally does not need breeder authorization to obtaining, and maintaining rights in multi- use protected plant varieties for noncom- ple countries.  rough its “Global Protection mercial or experimental acts or acts done for Services” and its harmonization treaties, it the purposes of breeding new plant varieties. saves creators and national IP offi ces a great  e UPOV Convention also allows each deal of time and eff ort. WIPO also makes member nation to restrict the breeder’s right available its excellent technical assistance in relation to any variety to allow farmers for establishing and improving IPR systems to use part of their harvest for subsequent worldwide. Countries should look to both the plantings in their own land.  ese restric- WTO and to WIPO when crafting their IPR tions, however, must be within reasonable systems.  limits and subject to the safeguarding of the legitimate interests of the breeder. UPOV member states hold biannual meetings of the Council, a permanent body of the Paul E. Salmon is a patent attorney in the U.S. Patent convention. Other UPOV bodies include the and Trademark Offi ce’s Offi ce of International Relations. Mr. Salmon also served as the Intellectual Consultative Committee, the Administrative Property Attaché in Geneva, Switzerland, where he and Legal Committee, and the Technical represented the U.S. government in meetings of WIPO Committee, made up of several Technical and the WTO. He lectures frequently on the subject of Working Parties (TWPs) across several ag- international patent law. ricultural sectors.  e TWPs meet periodically to share and discuss observations and advancements in agricultural sectors, which helps to standardize examination standards among member states.  ese TWP meetings benefi t breeders as well, since more uniform standards lead to greater consistency of application fi lings in diff erent territories. As of June 29, 2005, there were 59 member States to the UPOV Convention. UPOV membership is expected to continue to increase in the next several years. For more information on UPOV, see: http://www.upov.int.

24 25 Intellectual Property Training and Technical Assistance Programs By Allison Areias

ountries with effective intellectual Department, with hands-on instruction on property (IP) protection reap the ben- how to try an IPR case and operational train- efit of protecting their own intellectual prop- ing by the Department of Homeland Security erty, as well as creating a positive foreign in- to help customs officers to better identify and vestment environment. But many countries seize counterfeit goods at ports and border face serious obstacles to IP protection, such crossings. as a lack of IP awareness, inadequate laws, U.S. embassies abroad also provide and and ineffective enforcement mechanisms, coordinate IP training programs, as well as and many do not have the resources to ad- public awareness and outreach activities. dress these issues. e State Department invests significant re- e U.S. government and U.S.-based IP sources to develop the necessary IP expertise private industries provide extensive training in its officer corps overseas, so as to enable for foreign officials and nationals. During them to support our overall training efforts 2003 and early 2004, U.S. trainers spon- in addition to recognizing IP issues and ad- sored 295 programs, ranging from optical dressing them through diplomatic channels. disc forensic training in the Philippines to e U.S. private sector is also very ac- prosecution and investigation techniques tive. e Recording Industry Association of in Egypt. U.S. government IP training pro- America, the Motion Picture Association of viders include the Patent and Trademark America, the Business Software Alliance, Office, the Department of Commerce Com- the Pharmaceutical Research and Manufac- mercial Law Development Program, the turers of America, the International Intel- Department of Justice, the Department of lectual Property Institute, the International Homeland Security divisions of Customs Anti-Counterfeiting Coalition, and their and Border Protection and of Immigration member companies and contributors all and Customs Enforcement, and the Library provide training worldwide. For instance, of Congress’ Copyright Office. e U.S. State in December 2004, the International Intel- Department funds many training programs, lectual Property Institute paired with the either through the Agency for International U.S. Patent and Trademark Office to hold a Development (USAID), the Bureau of Inter- three-day seminar in West Africa for over national Narcotics and Law Enforcement, 70 participants, including judges, attorneys, or the Bureau of Educational and Cultural public health experts, and business people Affairs. ese programs include, for exam- from Nigeria, e Gambia, Senegal, Ghana, ple, prosecutorial training, led by the Justice and Burundi. e participants learned about

26 27 U.S. trainers recently sponsored an optical disc forensic training program in the Philippines. Here, Filipino offi cials from the Videogram Regulatory Board and security forces confi scate boxes of pirated video compact discs from stalls during a raid in Manila.

Web site for the U.S. government IPR Training Programs Database.

U.S. government and industry training is catalogued at http://www.training.ipr.gov. the role IP plays in economic development  e site includes brief descriptions of the for West Africa, the problems of counterfeit training programs and contact information medicines in their region, and how IP acts as for the training providers. Although many of a catalyst for the fi lm and music industries in these programs are for foreign government their countries. offi cials, some are open to the public and of- Training programs focus on all aspects fered free of charge. of IP enforcement, as well as intragovern- For more information about IP training, mental coordination and the importance please contact the Offi ce of International of strong relationships between the police, Intellectual Property Enforcement, U.S. IP offi cials, judicial authorities, and rights Department of State, at (202) 647-3251, or holders. Focusing IP enforcement training at EB/TPP/IPE, Room 3638, 2201 C Street, eff orts on smuggling trends and routes is also Washington, D.C., 20520.  critical, especially for areas where porous borders facilitate international traffi cking in counterfeit and pirated products. With the commercialization of the Internet and the Allison Areias is a U.S. Foreign Service offi cer who rise of Internet piracy, U.S. trainers also help served in the State Department Economic Bureau’s Offi ce of International Intellectual Property countries develop the legislative and enforce- Enforcement. ment framework necessary to address this growing problem.

26 27 Jordan Benefi ts from Intellectual Property Reforms

By Jeanne Holden

ntellectual property rights (IPR) pro- Laws consistent with the WTO Agree- tection can be a powerful tool for ment on Trade-Related Aspects of Intellectu- economic growth. In Jordan, for example, al Property Rights (TRIPS) now protect trade recent intellectual property reforms have secrets, plant varieties, and semiconductor greatly benefited that country’s economy in chip designs in Jordan. Registration of copy- general and its pharmaceutical sector in par- rights, patents, and trademarks is required. ticular. Jordan’s pharmaceutical sector has Copyrights are registered at the National gained new export markets and has started Library and patents are registered with the to engage in innovative research. New health Registrar of Patents and Trademarks, both sectors, such as contract clinical research, part of Jordan’s Ministry of Industry and have emerged, and health-sector employ- Trade. Jordan has signed the Patent Co- ment has grown. operation Treaty and the protocol relating Jordan joined the World Trade Organi- to the Madrid Agreement Concerning the zation (WTO) in 2000, becoming its 136th Registration of Marks, but ratifi cation was member. In 2001, it entered the U.S.-Jordan still pending in early 2005. Jordan has also Free Trade Agreement (FTA), the fi rst such acceded to the World Intellectual Property agreement between the United States and an Organization (WIPO) treaties on copyrights Arab trading partner.  rough these agree- (WCT) and performances and phonographs ments, the government of the Hashemite (WPPT). Kingdom of Jordan continued a process of Jordan’s pharmaceutical industry abides comprehensive economic reforms that had by the new TRIPS-consistent patent law. In been underway for about a decade. In fact, addition, with the signing of the U.S.-Jordan Jordan passed several new laws to improve FTA, Jordan committed to even stronger protection of intellectual property rights enforcement of intellectual property rights, prior to its accession to the WTO. “ e particularly in the pharmaceutical sector. government of Jordan has embarked on an According to Economic and Trade Offi cer aggressive program to transform the country Greg Lawless at the U.S. Embassy in Amman, from a dependence on foreign aid to success intellectual property rights enforcement has in the era of globalized trade. Trade agree- improved in Jordan. “Eff ective enforcement ments, legal reforms, and a strong IPR pro- mechanisms and legal procedures, still not tection regime are all a part of that strategy,” completed, are undergoing further refi ne- according to U.S. Embassy Chargé d’Aff aires ment,” he said. Although signifi cant chal- David Hale in Amman, Jordan. lenges remain, Jordan’s enforcement action

28 29 against audio/video and software piracy is growing in quantity and improving its capa- bility to target problem areas, he added. According to the Pharmaceutical Manu- facturers Association of America (PhRMA), the U.S.-Jordan FTA has made Jordan’s market more appealing for pharmaceutical research and development, as well as for sales and licensing agreements.  e benefi ts of the U.S.-Jordan FTA for industry include expanded data protection, elimination of ex- clusions from patentability for biotechnology inventions, and limitations on compulsory licensing. In October 2001, PhRMA established an offi ce in Amman to serve the Middle East and North Africa region. It was PhRMA’s fi rst presence in the region. Jordan’s commitment to free trade and high-standard business practices were decisive factors in the decision, according to Susan Finston, PhRMA’s associate vice president. “Jordan was the place where in less than 45 business days we could open an offi ce, get credentials, and have all of the infrastructure and the legal permits that we needed for business,” she said. Many PhRMA members have established or expanded their commercial activities in Amman, including American Home Prod- Jordan’s leading Hikma pharmaceutical company was the fi rst Arab pharmaceutical company to ucts, AstraZeneca, Sanofi -Aventis, Bristol- export one of its products — a non-steroidal anti- Myers Squibb, Eli Lilly, GlaxoSmithKline, infl ammatory drug — to the U.S. market. Janssen-Cilag, Merck Sharp & Dohme, Novartis, Organon, Roche, Pfi zer, and Scher- ing-Plough. citizens. Rapid introduction of new products Several PhRMA members are conducting would also benefi t Jordan’s medical tourism clinical trials and entering into co-marketing sector (a term referring to people who travel and/or licensing agreements with Jordanian to other regions or countries in search of companies. According to the International health-care options). According to a recent Intellectual Property Institute (IIPI), a non- IIPI report, medical tourism represents profi t economic development organization two-thirds of total tourism revenues in Jor- and think tank based in Washington, D.C., dan.  e October 2004 report, Establishing Bristol-Myers Squibb initiated a three-year, Globally Competitive Pharmaceutical and 5,000-patient cardiovascular risk factor Biotechnology Industries in Jordan, stressed study in Jordan in 2001. Moreover, PhRMA that clinical trials are enhancing physician reports that, in 2004 alone, its member com- and hospital skills and, in the process, fur- panies carried out 19 clinical trials in Jordan ther enhancing economic growth in medical for conditions such as cancer, osteoporosis, tourism. It said that a recent survey of pa- diabetes, and cardiovascular disease. tients identifi ed medical expertise of physi-  rough clinical trials, it is hoped that cians as the main reason medical tourists more innovative pharmaceutical products come to Jordan. will eventually be made available to Jordan’s

28 29 IIPI produced the report in partnership e IIPI report found that Jordan’s generic with the Achievement of Market Friendly pharmaceutical companies also benefited Initiatives and Results (AMIR) Program, a from stronger intellectual property laws, project funded by the U.S. Agency for Inter- with drug exports from local Jordanian firms national Development (USAID). According growing 30 percent from 1999 to 2002. Jor- to the U.S. Embassy in Amman, USAID has dan’s exports in pharmaceuticals in 2004 will provided significant amounts of technical top U.S. $200 million, according to estimates assistance to the Jordanian public and pri- provided by the U.S. Embassy in Amman. vate sectors in support of intellectual prop- When combined with domestic output, total erty rights improvements during the past production by pharmaceutical firms easily five years, including assistance in crafting will be over U.S. $300 million. “is repre- laws and regulations. sents a significant improvement over 2003, a At the request of the government of Jor- year in which economic growth was affected dan, USAID also is providing technical assis- by regional conflicts,” Lawless said. tance to improve the regulatory environment Jordan’s experience suggests that intel- for patents and trademarks. USAID contin- lectual property rights protection can be a ues to support Jordan’s implementation and powerful tool for economic growth. “Market enforcement of the new intellectual property size, population, geography: None of these laws by working with the Jordan Intellectual is destiny,” declared Susan Finston. “Destiny Property Association (JIPA). JIPA is hosting resides in the political will of governments to training programs for the National Library, take up the important challenge of economic customs authorities, and the private sector. reform.”  “e adoption of stronger intellectual property protection is helping to transform Jordan into the leading knowledge economy in the region,” the IIPI report concluded. Jeanne Holden is a free-lance writer with expertise in Growth in Jordan’s pharmaceutical and economics and IP issues. She worked as a writer-editor in the U.S. Information Agency for 17 years. biomedical technology industries has been strong since the implementation of a stronger intellectual property regime, it says. Health- service contributions to the Jordanian gross domestic product (GDP) grew from 2.8 percent in 1997 to 3.5 percent in 2001, and health-services employment has grown 52 percent since 1997, the report said. e international research-based pharmaceutical industry has greatly increased direct employment in Jordan since 2000, according to the IIPI report. Pfizer said it doubled the number of its local employees. Sanofi-Aven- tis and Novartis tripled their local labor forces, and Merck increased its employment in Jordan by 500 percent. e IIPI report said this growing multinational presence contributes added value to Jordan’s society through activities such as marketing and distribution, sales-force training, and educating health- care professionals and the public. Merck, for example, held some 75 educational programs and academic meetings in Jordan in 2004.

30 31 A Message from JACKIE CHAN: “Fakes Cost More”

Jackie Chan, one of the most famous names in martial arts and action movies worldwide, in his newest role: the scourge of counterfeiters everywhere. At the launch of the ounterfeiting is a major growth indus- “Fakes Cost More” campaign in Hong Kong on June 2, 2005, try, with a global market valued at U.S. Chan showed his disdain for counterfeit goods by chain $500 billion. Industry sources estimate the sawing a fake goods store and stripping a mock consumer  of all his copied clothes and shoes. The next stops in the worldwide production of counterfeit products campaign will be Europe and the United States. to have soared 1,700 percent over the last 10 years. But the most surprising aspect of this growth is not in the numbers themselves, but gain: Selling fake milk powder whilst buying the wide variety of industries that have become the real milk powder at home. When these hotbeds for fakes. people are caught they really need to be pun-  ese days, counterfeiting has moved well ished heavily and made an example of for such beyond DVDs — including those of movies terrible crimes. I’ve made — and handbags. Fake products are  is is why I am taking part in “Fakes Cost becoming popular in industries such as food, More,” a global campaign organized by the medicine, toys, even cars and planes.  is is International Trademark Association (INTA), enough to cause a threat to our safety, and re- in hopes of raising awareness around the world ally quite terrifying to think about it! in regards to the level of counterfeit goods I was horrifi ed to discover the existence infi ltration and the danger this poses to all so- of fake milk powder. Everyone knows just cieties. You can do your part, too, by refusing how fragile babies are, and they need to be to buy fakes — because they do cost more, for protected.  ese criminals even use fake milk all of us. powder to exploit the public to boost their own

30 31  : How Countries Are Fighting IPR Crime

PERFORMING ARTISTS GROUP WINS IN Universal Music estimates that up to 85 BELGIAN COURT percent of the blank recordable digital media sold in Belgium is used for downloads of pro- Brussels court ruled against an tected intellectual property, be it music, vid- Internet service provider (ISP) in a eos, movies, or software.  e Belgian Anti- lawsuit brought by SABAM, a Belgian group Piracy Federation, supported by the Motion responsible for collecting royalties due per- Picture Association of America, estimates forming artists. SABAM claims that this is that 250,000 protected movies or videos are the first such successful judgment of its kind downloaded daily in Belgium. in Europe. The November 30, 2004, ruling requires that Tiscali, a small but popular ISP, BURKINA FASO TARGETS block certain net services that permit Inter- COPYRIGHT PIRACY net web surfers to download music protected by copyright. The judge did not fault Tiscali urkina Faso, which has a vibrant management for the activity of its site users, and significant local music in- but did find that Tiscali had an obligation to dustry under assault by cut-rate imported halt such infractions of copyright. pirated music products, is fighting back. In SABAM says its goal is to turn off the the fall of 2004, the Ministry of Culture, peer-to-peer trading of data from users’ Arts, and Tourism and the Copyrights Of- hard drives when on line, a system used by fice kicked off a three-day meeting to discuss popular sites to facilitate music downloads. anti-piracy strategies against the more than Defenders of the Internet users and music 10 million pirated cassettes that enter the traders claim that compliance with the judg- country each year, 80 percent of them from ment is technically impossible.  ey liken neighboring countries. The meeting ended it to asking for an interdiction of CD writer with the incineration of 17,000 pirated cas- technology because it could be misused for settes and CDs seized by the Copyrights Of- pirating copies of music. Sources at Universal fice and the Gendarmerie in Ouagadougou Music in Brussels, one company that has suf- and Bobo-Dioulasso. fered heavily from Internet piracy, assert that Before reporters covering the meet- the screening technology does exist, and that ing, Mahamoudou Ouedraogo, minister of ISP companies could fi lter transmissions culture, arts, and tourism, called piracy “a made over their systems. cancer” for Burkina Faso and insisted that pirates should be prosecuted for their crimes.

32 South Korea’s pop band, Shinhwa, performing in Japan. Seoul amended its Copyright Act so as to stem a drastic slide in its music industry’s revenues.

Pirated compact discs are fl ooding many countries’ markets, hurting local and international artists. These are confi scated CDs at Pakistan’s Federal Investigation Agency in Karachi. A percussionist from Burkina Faso performs at the Saint Louis Jazz Festival in northern Senegal. Burkina Faso’s vibrant music industry is suff ering from an onslaught of cut-rate imported pirated music products.

32 33 People shop for music, movies, and other goods at a bazaar in New Delhi. A New Delhi court issued a warrant in August 2005 that gives police broad powers to search for and seize pirated movies in any part of the city.

Tallinn, Estonia: The Estonian Organization for Copyright Protection is partnering with other groups to teach the younger generation about the importance of IPR.

More than one million pirated CDs and DVDs were confi scated and then destroyed in this September 15, 2005, anti-piracy crackdown in Jakarta, Indonesia.

34 35  e director general of the government’s Of-  e Estonian Computer Club, another fi ce for the Rights of Authors, in turn, out- local NGO that boasts about 4,500 members, lined Burkina Faso’s anti-piracy strategy.  e is using a U.S. Embassy grant to organize strategy will include setting up an indepen- several IPR-related seminars and Local Area dent anti-piracy organization; issuing a com- Network (LAN) parties for young computer mon policy with the neighboring countries users.  e seminars will be held in coopera- to secure the borders against pirated goods; tion with EOCP and the Business Software setting up a subregional court in charge of Alliance. copyrights; providing intellectual property rights (IPR) training to judges, gendarmes, IN INDIA, A LAW FIRM COMBATS PIRACY police, and customs agents; and pressing WITH NEW STRATEGY criminal charges against pirates and sellers of pirated goods, of which there are an esti- he Mumbai-based law firm of Krish- mated 100,000 in Burkina Faso.  e majority na & Saurastri’s new strategy for of these sellers are street hawkers. combating copyright infringement in India is to use the legal system to inconvenience the SUPPORTING IPR THROUGH IMPROVED pirated material manufacturer through per- GOVERNMENTNGO COOPERATION sistent search-and-seizure tactics and with IN ESTONIA recurrent civil and criminal litigation. According to Sunil Krishna of Krishna & stonia’s Police Board and its Customs Saurastri, their strategy combats violations and Tax Board signed a cooperative in the pharmaceutical, software, audio, and agreement on December 27, 2004, that al- music industries. Owing to what Krishna lows them to improve Estonia’s IPR regime describes as “the reluctance of local police through the exchange of information on op- to pursue” complaints about counterfeited erations, investigations, and procedures. Both goods, his fi rm now has turned to the “Anton boards also are working more closely with Pillar” order along with other means to fi ght the country’s leading IPR nongovernmental piracy.  e “Anton Pillar” order allows for organization (NGO), the Estonian Organi- the appointment of court receivers to search zation for Copyright Protection (EOCP), in and seize suspected counterfeit property for gathering information and securing evidence custodial purposes without any prior notifi - on specific cases of IPR infringement. cation to the alleged perpetrator.  e court EOCP and other Estonian NGOs also also orders the police to provide protection work independently to teach the younger to the receiver of the goods. Krishna claims generation about the importance of IPR. Ac- that this method has proved extremely suc- cording to EOCP’s managing director, Ilmar cessful with pirated software. Harg, Internet piracy is a more worrisome After the seizure, Krishna says, he can problem than pirated CDs in Estonia, with obtain an injunction against the alleged per- an average of 50 web sites closed each month petrator.  is will prevent additional manu- because of pirated content. In November of facturing and/or trading of the counterfeit 2004, the NGO organized a media campaign products. Violating the court injunction is in Estonia’s leading newspapers explaining punishable by a minimum of six months to the criminal nature of IPR infringement a maximum of three years’ imprisonment. on the Internet.  e campaign materials Krishna argues that this sentence serves reported that, beginning in 2005, the Esto- as a deterrent against future counterfeiting nian Police will step up its investigations and operations. prosecutions of Internet piracy, and noted  e attorney cites two cases where both that the Estonian penal code calls for up to civil and criminal statutes were used in three years of imprisonment for those found successfully eradicating a spurious pharma- guilty of Internet piracy. ceutical product. Krishna said this process is time-consuming, and involves fi ling hundreds of cases against the manufacturers of

34 35 the fake goods. Convinced that it is a suc-  Register each of their production facilities, cessful strategy “guaranteed” to make the the production capacity at each facility, manufacturer or trader of illegal goods close and manager names at each facility with up shop permanently, Krishna says that the the Ministry of Industry. cost for this approach is less than 5 percent  Hang company signs outside factories in a of the legitimate turnover of the company manner that makes them clearly visible to whose goods are being copied. the public. Krishna believes the government of In-  Use and have in their possession only dia could make a few changes that would those production molds that are engraved make his job easier. He favors the continual with government-approved source identi- education of law enforcement offi cers about fi cation codes (SID). piracy. He recommends that Indian Customs  Keep records of orders, the quantity of be empowered to destroy counterfeit goods, polycarbonate (the material used to make something they cannot do now. He also discs) purchased, numbers of disc copies suggests that pirated goods coming into or produced, samples of each batch of discs going out of India could be prosecuted un- produced, and copyright agreements. der the Conservation of Foreign Exchange  Register with an internationally accredited and Prevention of Smuggling Activities Act. organization that issues SID codes, such as  e act allows for a one-year imprisonment the International Federation of the Phono- without bail for the illegal import or export graphic Industry (IFPI). of any good.  e regulations provide for the possibility of administrative sanctions, specifi cally the OPTICAL DISC REGULATIONS NOW LAW removal of a producer’s registration. Since IN INDONESIA the optical disc regulations fall under Indo- nesia’s copyright law, they call for criminal ormer Indonesian President penalties of up to fi ve years’ imprisonment. Megawati Soekarnoputri signed  ese new regulations went into eff ect on Indonesia’s first-ever optical disc regulations April 18, 2005. on October 5, 2004. The long-awaited regulations require producers to register their PARAGUAY: USE OF LAWS, production facilities, maintain and report ENFORCEMENT TO PROTECT IPR production records, and open their factories to unannounced police and/or civil service araguay moved forcefully in 2004 investigators, among other measures. Then with legislation and enforcement Minister of Industry and Trade Rini Soe- actions that strengthen IPR protection. For wandi signed the accompanying implement- instance, the government worked with the ing ministerial regulations on October 19, private sector and supported the introduc- her last day in office. In anticipation of a deci- tion of two draft laws that increase penalties sion by incoming President Susilo Bambang in criminal cases of IPR violations, one law Yudhoyono to split the Ministry of Industry for copyright piracy and the other for coun- and Trade into two separate ministries, Soe- terfeiting. The draft laws increase penalties wandi issued two separate implementing to five years or more, avoiding provisions for regulations, dividing issues and responsibili- crimes with lower penalties that provide the ties between the two future ministries. option of paying a fine in lieu of jail time. According to a local Indonesian Motion Paraguay’s Specialized Technical Unit, Picture Association consultant, who worked designed to act as an intelligence and inter- with Indonesian offi cials in drafting the new agency coordination unit for IPR enforce- regulations, these will require existing and ment, became part of the Ministry of Indus- future companies with optical disc produc- try and Commerce, and gained a stronger tion facilities to: focus on copyright piracy and falsifi cation.  is unit has participated in a signifi cant number of enforcing actions, often in coop-

36 37 eration with private sector groups. Reviews  e ministry reached agreement in Au- of company registration data following gust 2004 with Fox Sports Latin America increased cooperation (including data shar- to cooperate in ending the theft of Fox’s ing) between the ministry and the Customs programming, among the most popular in Service led to the closure of 56 importing Paraguay.  e fi rst such agreement signed by companies and the cancellation of 73 import Fox in Latin America, it allows Fox and the licenses. ministry to use the powers of the country’s A report prepared by the ministry in Feb- communications regulator (CONATEL) to ruary 2005 states that between December revoke the licenses of companies providing 2003 through January 2004, for instance, pirated cable signals, a more effi cient method action by the Paraguayan authorities re- than relying solely on the courts. Since the sulted in: 11 million virgin CDs confi scated; agreement was reached, at least four cable 1,600 CD burners confi scated; fi ve cigarette TV providers have reached accords with Fox factories raided that were suspected of pro- and stopped pirating the signals. ducing counterfeit cigarettes; three printers raided that were producing cartons and SOUTH KOREA: BRINGING SOUND labels for counterfeit cigarettes; four ware- RECORDING PROTECTION ON houses raided where counterfeit cigarettes THE INTERNET INTO THE PUBLIC EYE were stored; 15 operations resulting in the seizure of various counterfeit products, such outh Korean media headlines in Janu- as watches, toys, and cell phones; raids of 10 ary 2005 on the government’s new TV cable operator companies engaged in action to protect sound recordings grabbed piracy of cable signals; two raids in Market the attention of the Korean public. A drastic 4 in Asunción, with 11 stores raided and the slide in revenues over the last three years for confi scation of thousands of pirated CDs and the music industry in South Korea, including DVDs; and the investigation of fi ve major or- both domestic and foreign rights holders, ganized crime groups that imported CDs for prompted the government to push through sound-recording piracy. amendments to the country’s Copyright Act that require prior permission from rights holders before anyone can download music from the Internet. In an effort to protect the “cultural future” of Korea — especially the

A can of authentic Tsingtao beer (right), from China, displayed beside two similar products marketed in Taiwan. A dispute over alleged piracy erupted when the manufacturer of the product on the left, under a cooperation accord Paraguayan workers unload boxes containing smuggled CDs with Tsingtao, argued that the bottle in the confi scated during a police action in Asunción, Paraguay. center was violating his trademark.

36 37 Taiwan’s former Premier Yu Shyi- Kun holds a model of a compact disc as he attends an anti-piracy protest in Taipei. The protesters said rampant piracy of CDs is threatening the survival of the island’s music industry.

Taiwan pop singer “Black” shows off his anti-piracy badge.

“Korea wave” of popular music, TV dramas, seek prior permission from the rights hold- and films that permeates Asia — the govern- ers.  e site lists acts now illegal in Korea, ment has been very aggressively raising pub- including uploading music fi les and other lic consciousness about the new rules. copyrighted works onto web sites, mini-  e Ministry of Culture and Tourism homepages, Internet cafes, or blogs, and posted information on its web site to inform uploading music fi les with the purpose of fi le and educate the public regarding the practi- sharing to closed web sites, mini-homepages, cal consequences of the new amendments, Internet cafes, or blogs.  e government’s which went into eff ect January 17.  e web campaign seems to be bearing fruit: Record- site unequivocally states that only performing companies report that they already have ers and phonogram producers themselves received inquiries from some of the smaller can transmit their performance or phono- on-line music services asking for a meeting grams over the Internet or other networks. If to discuss contract details. the general public, the users, want to transmit phonograms over the Internet, they must

38 39 In addition, three National Assembly  e U.S. Embassy in Colombo reports members are sponsoring a bill to revise Ko- that its public/private IPR Working Group is rea’s Copyright Act yet again.  e bill would helping to coordinate private sector support, grant signifi cant additional rights to produc- including that of Microsoft, for Sri Lankan ers and performers, including the right of authorities’ continuing investigations. communication to the public.  e Ministry of Culture and Tourism’s Game and Music TAIWAN STRENGTHENS Division, in turn, drafted a new Music Pro- COPYRIGHT LAW motion Bill for consideration by the National Assembly that would introduce additional new law passed by Taiwan’s Leg- protections for sound recordings, as well as islative Yuan on August 24, 2004, authorize the ministry to set up and run an closes loopholes in the version they passed inspection team to investigate and handle il- in 2003. The new bill makes any technol- legal phonogram cases. ogy or information used for circumventing “anti-piracy measures” a crime punishable by SRI LANKA’S BIGGEST RAID DISCOVERS up to one year in prison and/or a fine of up ILLICIT DISCPRINTING PLANT to approximately U.S.$8000. It also allows Taiwan Customs to impound goods, pending lthough the sale of counterfeit CDs determination of their authenticity. However, and DVDs is common in Sri Lanka, rights holders must still take measures to ap- authorities assumed discs on sale were being ply for attachment and/or initiate criminal or imported to Sri Lanka from other parts of civil proceedings to protect their intellectual Asia. Then, on the night of October 9, 2004, property rights within three days, or Cus- Sri Lankan police investigating other crimi- toms is required to release the goods. nal activities raided a previously unknown  e 2003 law eliminated minimum sen- CD manufacturing plant, Optical Media tences for counterfeiters, giving judges the Pvt. Ltd. Owned and operated by Malaysian discretion to allow violators to pay a fi ne nationals, the plant had been in operation instead of serving jail time. Most intellectual since early that year, ironically as a company property pirates saw paying these minimal approved by the Board of Investment, the fi nes as a justifi able cost of doing business. government of Sri Lanka’s foreign investment  e new law mandates that those involved in promotion agency. The police also raided the the sale or rent of copyright-infringing opti- main bazaar in Colombo and confiscated a cal discs must be imprisoned between six large number of optical media products. The months and fi ve years, and also may be fi ned news of the raids spread to other counter- between U.S.$16,100 to U.S.$161,000.  feit CD sellers, and most of the shops have stopped displaying counterfeit copies of the Eagle brand produced by the plant.  e plant had counterfeited music, movie, and software products and produced CDs using polycarbonate resin, which will make it possible to calculate the number of CDs and DVDs that were pirated. Informants told the police that a truck had removed approximately 175,000 discs and some stampers the night before the raid. Offi cials assume that, because of the large number of discs involved and the presence of several hundred Chinese Microsoft discs, the plant must have manufactured illegal discs for export as well as local consumption.

38 39  e U.S. Approach: Traditional Knowledge, Genetic Resources, and Folklore By Jeanne Holden

U.S. agency negotiates a collab- of traditional knowledge, and preserving orative agreement with a univer- expressions of folklore, says Linda Lourie, an sity research organization in Brazil to study attorney with the U.S. Patent and Trademark plants in that country as potential sources of Offi ce’s (USPTO) International Relations Of- drugs to fight cancer. fi ce. Members of a Native-American tribe cre- As a country composed of people from all ate a digital database in which they record over the globe, as well as more than 560 Na- all of their community’s cultural knowledge, tive-American tribes, the U.S. government history, practices, and arts. has had to handle a myriad of concerns re- A U.S. corporation seeking to study mi- garding these often-complex matters. “We’ve croorganisms in Yellowstone National Park resolved these issues by national means,” enters a Cooperative Research and Develop- Lourie stressed. Some of these solutions uti- ment Agreement with the U.S. government, lize existing U.S. intellectual property laws, stating that any benefi ts of commercializa- while others do not. Tribal businesses, for ex- tion will be shared. ample, use established intellectual property  ough these situations may seem unre- laws, while Native-American expressions of lated, they have something in common: All folklore are protected by other types of laws, are mechanisms aimed at protecting the programs, and even museums. value of genetic resources, traditional knowl- In the international arena, the United edge, and folklore, three elements that are States is at the forefront in developing ben- often intertwined in daily life in indigenous efi t-sharing agreements with source coun- communities. A traditional healing remedy, tries regarding their genetic resources. “We for example, may involve preparing a local have consistently led the world in negotiating plant according to a recipe passed down from these kinds of arrangements,” she said, “and generation to generation and consuming it as we certainly would encourage other coun- part of a cultural ceremony. tries to do so.”  e United States respects and recog-  e United States is eager to share its nizes the importance of protecting genetic experiences with other countries in interna- resources, traditional knowledge, and ex- tional fora, said Lourie. “But,” she cautioned, pressions of folklore by facilitating equitable “each country has diff erent issues that need benefi t sharing, eliminating erroneously is- to be resolved diff erently. One size does not sued patents, eliminating misappropriation fi t all.”

40 41 Anthony Morales of the Gabrieleno Native- American tribe, at a powwow in California. The United States has developed a host of solutions to preserve its tribes’ traditional knowledge, folklore, and genetic resources.

A variety of herbal remedies, some of which have been traditional healing remedies for centuries.

WHAT ARE THE ISSUES? Since 1993, the international community has been working to better understand and n 1993, the Convention on Biologi- implement Article 8(j) within the framework cal Diversity (CBD) came into force. of the World Trade Organization (WTO) It represents a commitment by nations to and the World Intellectual Property Orga- conserve biological diversity, to use biologi- nization (WIPO), among others. In these cal resources sustainably, and to share the discussions, several developing countries benefits arising from the use of genetic re- have advocated creating new forms of legal sources fairly and equitably. Article 8(j) of protections for these resources at WIPO. the convention draws a connection among In response, WIPO member states estab- traditional knowledge, folklore, and genetic lished an Intergovernmental Committee resources by calling on nations to “respect, (IGC) as an international forum for discuss- preserve, and maintain knowledge, innova- ing the relationship between intellectual tions, and practices of indigenous and local property and genetic resources, traditional communities” and to promote wider applica- knowledge, and folklore. tion with the approval of the holders of such knowledge and practices.

40 41 But what is meant by these three terms? Holders of genetic resources worldwide Ultimately there is no uniformity in defi ni- also are largely focused on the issues of tions.  e term “genetic resources” is defi ned “protection,” “preservation,” and “equity,” in the Convention on Biological Diversity, although even those terms have not been Article 2, as “genetic material of actual or defi ned uniformly. potential value.” Genetic material refers to  ere have been calls for the creation of any material of plant, animal, microbial, or new international legal protections for these other origin containing functional units of resources, but many questions remain unan- heredity. swered. Who would be the benefi ciaries of According to the International Bureau any protection measures created for genetic of WIPO, “traditional knowledge” refers to resources, traditional knowledge, or folklore? systems of knowledge, generally passed from No country, international intergovernmen- generation to generation, pertaining to a tal organization, or person has been able to particular people or territory, and including identify the intended benefi ciaries of these their creations, innovations, and cultural sought-after protection measures. Similarly, expressions. By defi nition, some form of none has determined what the scope of such traditional knowledge has existed for a long protection might be, what would constitute time. However, such knowledge is not static “fair use” or other exceptions of limitations, and can be constantly evolving in response to or even what enforcement mechanisms a changing environment. Traditional knowl- could be applied. How would an expatriate of edge may focus on natural elements such as an indigenous community from one country mineral deposits, location of salmon, healing profi t from, or have the right to use, genetic properties of local plants, land management resources, traditional knowledge, or folklore practices, or agricultural technologies. from her past in her new home? How would  e term “expressions of folklore” has combinations of traditions be protected? also been defi ned by WIPO for purposes of What about traditions or knowledge that its discussions. WIPO says this term refers span borders or continents or are universally to characteristic elements of “traditional practiced? artistic heritage” developed and maintained Some countries want to prevent others by a community or by individuals who refl ect from using their traditions while others want the traditional artistic expectations of such to commercialize or profi t from such use. a community. Expressions of folklore may How could any one system encompass all be oral, as in folktales; musical, as in songs; these interests? And, to make matters even actions, as in folk dances, plays, or rituals; more complex, there is no agreement as to or tangible expressions, such as drawings, what actual harm would be remedied by new paintings, carvings, sculptures, pottery, means of protection. woodwork, metal ware, jewelry, basket weav- In the United States, tribal enterprises ing, needlework, textiles, carpets, costumes, can and do avail themselves of U.S. intel- musical instruments, and architectural lectual property laws, said Eric Wilson, an forms, among others. international program analyst with the U.S.  e concerns of traditional knowl- Department of the Interior.  e Mississippi edge holders within the United States and Band of Choctaw, for example, holds annual other countries include: loss of traditional seminars for tribal government and tribal knowledge; lack of respect for traditional industry managers on intellectual property. knowledge; the misappropriation of tradi-  e tribe is engaged in manufacturing en- tional knowledge, including use without terprises and wants to be able to avail itself benefi t sharing and off ensive use; and the of relevant intellectual property rights (IPR), need to preserve and promote the use of tra- he explained. ditional knowledge. Indigenous communities  e current laws of intellectual property have many similar concerns regarding their rights are not enough to cover all the con- traditional artistic expressions. cerns of indigenous peoples, and such laws alone cannot be expected to do so, Wilson

42 43 The National Dance Company of Korea in the traditional dance Janggochum. Some countries want IP protection for dances and other expressions of folklore. In the United States, other types of laws also protect folklore.

A Cambodian troupe that performs Khmer classical and folk dance and music.

42 43 A worker near Trombetas, Brazil, with new sprouts of native vegetation that will be used to reforest and replenish the country’s rich genetic resources.

An ethnobotanist examines a specimen from the Brazil nut at the New York Botanical Garden, which for years collected plants in Latin America under a program that developed benefi t-sharing with source countries.

Cecilia Bearchum goes over a binder used to teach Walla Walla Native-American vocabulary and grammar at the Umatilla Indian Reservation in Oregon. Staff at the University of North Carolina in Chapel Hill’s Southern Folklife Collection — one of many U.S. institutions that preserve, protect, and distribute American expressions of folklore.

44 45 stressed. “Indigenous values,” as they are “However,” Lourie explained, “if our pat- sometimes called, are quite broad and vary ent examiners in Virginia do not know about among the tribal communities, with some traditional practices overseas, they cannot interests belonging to an entire tribe, a clan, protect them.” or an individual. Lack of information about a traditional In order to achieve protection of intel- remedy led to a problem in 1995 when a U.S. lectual interests, Wilson suggested that some patent covering the use of the turmeric plant of the solutions will need to come from the in healing wounds was mistakenly granted indigenous communities themselves. He to Indian nationals from the University of said that it would be appropriate for national Mississippi Medical Center. Turmeric has governments to give legal recognition to cus- been used for a long time in India to heal tomary indigenous law. wounds, and this had been documented in Indian publications.  e Indian Council for TRADITIONAL KNOWLEDGE Scientifi c and Industrial Research requested a reexamination of the patent, and the U.S. ne approach taken to respond to Patent and Trademark Offi ce revoked the traditional knowledge holders, said patent for lack of novelty.  e ability of a Linda Lourie, consists of ensuring that pat- third party to request reexamination and the ents are not granted on known products or eventual cancellation of the claims when a processes, including those that are consid- mistake has occurred demonstrate that the ered traditional knowledge. current patent system works well to correct A patent is a grant by a national govern- itself. ment to an inventor for the right to exclude  e importance of publishing traditional others from making, using, or selling his or knowledge and making that information her invention. To qualify for patent protec- available to patent examiners internation- tion in most countries, an invention must be ally cannot be overemphasized, said Lourie. new, it must be useful, and it must not be a “If traditional knowledge is documented, trivial extension of what is already known. that knowledge may not be the subject of a Some holders of traditional knowledge fear patent, even if it is not widely known in an that others will seek patents based on their industrialized country.” long-held knowledge and reap the benefi ts  e United States is encouraging other from it. But an applicant trying to patent countries to create digital databases to cata- traditional knowledge likely cannot meet the log their traditional knowledge and protect three necessary requirements, Lourie said. it from patent attempts. Digital databases “Traditional knowledge is already known, would allow patent examiners all over the so if it has been documented; it’s no longer world to search and examine traditional new.” knowledge. Several developing countries According to the U.S. Patent Act (Title are working toward this end. India and 35 U.S. Code, Section 102), if an invention a) China have been very involved in develop- was known or used by others in the United ing searchable digital libraries of their tra- States, or patented or described in a printed ditional knowledge, Lourie said. U.S. patent publication in this or a foreign country be- examiners regularly check the international fore the invention thereof by the applicant for databases that are already in use. patent, or b) was patented or described in a Lourie acknowledged that some tradi- printed publication in this or a foreign coun- tional knowledge holders might want to keep try or in public use or on sale in this country, certain aspects of their knowledge secret more than one year prior to the date of the or limited to specifi c individuals or groups. application for patent in the United States, If so, she said, they may want to take steps then it is not entitled to a patent. to guard their knowledge as a trade secret. In the United States, infringement of a trade secret is considered a type of unfair competition.

44 45 Within the United States, some Na- FOLKLORE tive American tribes are cataloging their tribal values in a way that fulfi lls the need for n the United States, expressions of documentation and the need to limit outsid- folklore are protected in a variety of ers’ access to information. According to Eric ways, ranging from standard U.S. intellec- Wilson, the Tulalip Tribes in the U.S. state tual property laws to laws and programs spe- of Washington, for example, have developed cifically designed to protect and preserve the a sophisticated digital computer inventory, cultural heritage of its indigenous peoples. named “Cultural Stories,” that delineates One mechanism is the Indian (Native who is to have access to what traditional American) Arts and Crafts Act, a federal law information about their knowledge, history, enacted in 1935 and amended in 1990.  is culture, or practices. Some users have unlim- truth-in-advertising law prohibits the mar- ited access, while others, such as U.S. patent keting of products misrepresented as Native examiners, may have limited access. American-made. It covers all Indian and In- Some holders of traditional knowledge dian-style traditional and contemporary arts want to be sure that any new discoveries and crafts, such as baskets, jewelry, masks, derived from their traditional knowledge in- and rugs. An individual or business violating clude an equitable sharing of benefi ts.  ese the act can face civil penalties or criminal communities may want to negotiate contrac- penalties or both. tual benefi t-sharing agreements regarding  e Database of Offi cial Insignia of Na- new products or processes created through tive-American Tribes was established at research using their traditional knowledge. the USPTO in 2001 in response to Native- Lourie cautioned, however, that it could be American concerns about the preservation of a mistake to expect a windfall from such expressions of folklore. Offi cial insignia are contracts; to date, very few fi nancial benefi ts not trademarked designs; they are insignia have accrued from commercialization of tra- that various federally and state-recognized ditional knowledge. Native-American tribes have identifi ed as their offi cial tribal emblem. Inclusion of offi cial insignia in the database ensures that an examining attorney will be able to identify

Left, a woman from Almolonga, Guatemala, using a traditional design in her weaving. Above, young students from the Beijing Shaolin Kung Fu School. Monks from the Shaolin monastery in Henan province — considered the cradle of Chinese martial arts — are trying to protect the Shaolin trademark from encroachment by marketers who use it to push products ranging from medicine to cars and furniture. 46 47 any offi cial insignia that may preclude regis- grassroots cultures in the United States and tration of a mark where the mark suggests a abroad. Its collection includes many thou- false connection with the tribe. sands of commercial discs, audiotapes, com- In addition, all trademark applications pact discs, still images, videotapes, and mo- containing tribal names, recognizable like- tion picture fi lm. It produces annual folklife nesses of Native Americans, symbols per- festivals, recordings, exhibitions, documen- ceived as being Native American in origin, tary fi lms, and educational materials. and any other application that the USPTO  e newest U.S. eff ort to protect and believes suggests an association with Native preserve Native-American culture is the Americans are examined by an attorney at Smithsonian Institution’s National Museum the USPTO who has developed expertise and of the American Indian, which opened in familiarity in this area. Washington, D.C., on September 21, 2004.  e U.S. government has taken several It is the fi rst national museum in the United other steps to protect and preserve its peo- States dedicated to the preservation, study, ples’ expressions of folklore.  e American and exhibition of the life, languages, history, Folklife Center in the Library of Congress and arts of Native Americans. was created in 1976 by the U.S. Congress “to preserve and present American folk life” GENETIC RESOURCES through programs of research, documentation, archival preservation, live performance, hroughout the world, many com- exhibition, public programs, and training. munities are focusing on issues of  e center incorporates the Library’s Ar- equity as well as protection and preserva- chive of Folk Culture, established in 1928 tion of resources. Those communities have as a repository for American folk music.  e expressed their concern that industrialized- center holds more than 1,000,000 photo- country companies could utilize source- graphs, manuscripts, audio recordings, and country natural resources for agricultural moving images. and pharmaceutical products and assert  e U.S. government also maintains the intellectual property rights claims. Smithsonian Center for Folklife and Cultural Heritage to promote the understanding of

The National Museum of the American Indian in The Jeff erson Building of the Library of Congress. Washington, D.C. Congress created the Library’s American Folklife Center “to preserve and present American folklife.”

46 47 Many others believe that such concerns is was the program in which NCI first have been overstated. Where the U.S. gov- developed policies for benefit-sharing with ernment, including the National Cancer source countries. “We began letting out con- Institute (NCI), is involved in genetic re- tracts to high-quality research organizations source research in other countries, it enters in the United States for collections overseas,” into benefit-sharing agreements with those explains Bjarne Gabrielsen, senior advisor countries to gain fair access to genetic re- for drug discovery and development in NCI’s sources and/or traditional knowledge, said Technology Transfer Branch. “e Missouri Linda Lourie. “ere are many success Botanical Garden collected plants in Africa, stories” involving collaborative agreements the New York Botanical Garden collected in and contracts for cooperation negotiated on Latin America, the University of Illinois in mutually beneficial terms. Chicago collected in South Asia,” he said. “NCI was ahead of the Convention on Bio- “e collections were done mainly in tropical logical Diversity by about three or four years” and subtropical countries, mainly developing in negotiating agreements with source coun- countries.” tries regarding their resources, says scientist At this stage, Cragg’s program started Dr. Gordon Cragg. using Letters of Collection, agreements Cragg, chief of the Natural Products among NCI, a U.S. contractor organization, Branch of NCI’s Developmental erapeutics and a collecting organization in the source Program, explained that, in the 1980s, NCI country. “e U.S. contractor goes into an started developing policies for collaborating area, obtains the necessary permits, and with source countries on the use of their ge- collects plants and marine organisms for netic resources in research aimed at finding us” with the source country organization, more effective treatments for cancer. ese said Gabrielsen. “e NCI does the extrac- agreements provided the source countries tion and testing.” In addition to short-term with short-term benefits that would accrue benefits, NCI requires that, if a promising without having to wait and see whether potential drug is discovered and licensed to a promising discoveries were derived from pharmaceutical company, the company must their resources. e benefits included train- negotiate an agreement so that benefits, such ing source-country scientists in NCI labora- as part of the royalties, will be returned to tories or U.S. universities’ laboratories and the country. technology transfer, he said. Over time, in response to the Convention “e chances of a discovery becoming a on Biological Diversity and to greater aware- commercial product is usually said to be one ness on the part of source countries about in 10,000,” said Cragg, adding, “I think that is the value of their resources, research orga- optimistic.” nizations and pharmaceutical companies in- NCI, part of the U.S. National Institutes creasingly have adopted policies of equitable of Health, one arm of the U.S. Department of collaboration and compensation. Health and Human Services, functions much In this, too, NCI has been a leader. In the like a non-profit pharmaceutical company. 1990s, NCI de-emphasized its collections in Established in 1937, NCI had evolved by the its plant-derived drug discovery program in 1950s into a drug research and develop- favor of expanding closer collaboration with ment center, collecting plants mostly in the qualified source-country scientists and orga- United States, Mexico, Canada, and parts of nizations under agreements called Memo- Africa and Europe. In the 1980s, NCI began randa of Understanding. a collection program for plants and marine “Where source-country organizations organisms in tropical regions. have the skills, expertise, and knowledge and some reasonable infrastructure in their labs, we support them by helping them further their own drug discovery research programs,” said Cragg. For example, he said, NCI’s Developmental erapeutics Program

48 49 has provided a research organization at the “ e U.S. view of protection of genetic re- Federal University of Ceara in Fortaleza, sources,” Lourie said, “is to encourage other Brazil, with the training and cancer cell lines countries to establish appropriate access and to establish their own cancer drug discovery benefi t-sharing regimes that provide benefi t program.  is group is now screening mate- sharing on mutually agreed terms.” Some rials from research programs all over Brazil. countries develop policies limiting access by “We have fi ve such agreements in Brazil,” creating so many barriers as to almost pro- said Cragg, as well as collaborations with hibit collaboration, thus ruling themselves organizations in Australia, Bangladesh, out of the potential benefi ts of collaboration, China, Costa Rica, Fiji, Iceland, South Korea, said Cragg. Mexico, New Zealand, Nicaragua, Pakistan, Panama, Papua New Guinea, South Africa, CONCLUSION and Zimbabwe.  rough this type of collaboration, the he United States has developed developing-country organization may make a wide variety of mechanisms to a promising discovery in-country, said Cragg. respond to concerns regarding the protec- Even if they send NCI a sample for more ex- tion of traditional knowledge, folklore, and tensive testing, such testing is regarded as genetic resources. In the U.S. view, intellec- routine and NCI makes no intellectual prop- tual property laws are and should continue erty claim, he said. “ e results are sent back to be available to indigenous individuals and to them and the source-country organization peoples who meet the appropriate criteria for can take out the patent, if appropriate. such legal protection. “To our minds,” stressed Cragg, “it is an  e U.S. government supports the ex- ideal process. ... If a pharmaceutical com- change of views on traditional knowledge, pany wants to use the discovery and the expressions of folklore, and genetic resource-country organization has the patent, sources in international fora, particularly in it must negotiate a licensing agreement and WIPO, which has the necessary expertise the source-country organization can dictate and resources to tackle these complex and [the] terms. technical issues. WIPO activities have in- “By establishing these close collaborations cluded fact-fi nding missions, case studies aimed at developing promising treatments and surveys, sample contractual clauses, and for the U.S. and global cancer population, examples of databases. we achieve NCI’s mission and also the goals U.S. experts agree that intellectual prop- of the Convention on Biological Diversity,” erty protections do not off er a solution for said Cragg. “ e source country is deriving all of the issues involved in the protection, signifi cant benefi t.” preservation, promotion, and use of tradi- Linda Lourie pointed out that the U.S. tional knowledge, expressions of folklore, government also requires a contract when and genetic resources worldwide. In the U.S. companies want to collect genetic resources view, however, the key to resolving these from federally owned lands or from the ap- issues satisfactorily is a solutions-oriented proximately 56 million acres of land the approach rooted in each country’s national federal government holds in trust for U.S. context.  tribes and individual Native Americans. For example, in order to study unique microorganisms in the hot springs of the U.S. government-owned Yellowstone National Park that can withstand great heat, researchers must enter into a Cooperative Research and Development Agreement (CRADA) with the U.S. government that includes benefi t sharing, with milestone payments if the results are commercialized, she said.

48 49  e Challenge of Copyright in the Digital Age By Marybeth Peters

ince its inception, copyright law has for copyright law, including the following: responded to technological change.  Ease of Reproduction: Once a work is Today, the changes that are grabbing all rendered in digital form, it can be repro- the headlines relate to digital technology duced rapidly, at little cost, and without and digital communications networks, such any loss of quality. Each copy, in turn, can as the Internet and personal computers. be further reproduced, again without any These technologies, like many innovations, loss of quality. In this way, a single copy of are both promising and potentially harmful a work in digital form can supply the needs to various parties interested in the use and of millions of users. We have seen how the exploitation of works of authorship, from compact discs (CDs) containing the origi- books and music to films and web pages. nal digital versions of recorded music and There is no doubt that the issues related to sold to consumers in the ‘80s and ’90s have achieving the right balance between these become the “masters” from which billions interests in light of recent developments are of copies have been made and distributed daunting and justifiably can be described as on computers and on the Internet in this “new” or “unique.” But, at the same time, they decade. are merely one step in a journey of continual  Ease of Dissemination:  e emergence and successful adaptation that character- of global digital networks allows the izes the history of copyright law. This article rapid, worldwide dissemination of works examines some of the digital issues faced by in digital form. Like broadcasting, digital copyright law today. networks allow dissemination to many

SECTION II: LAWS IN EVOLUTION individuals from a single point (although, CHARACTERISTICS OF DIGITAL unlike broadcasting, digitized materials TECHNOLOGIES WITH need not reach each individual simulta- COPYRIGHT IMPLICATIONS neously). However, digital networks allow each recipient on the network to engage he technologies that presently are in further dissemination of the work, raising issues for copyright law are which can cause the work to spread at a those related to digital storage and transmis- geometric (sometimes called “viral”) rate sion of works. There are a number of aspects of increase.  is, combined with the ease to these technologies that have implications of reproducing works, means that a single

50 51 Copyright law in the United States and in other countries is coming to grips with new digital technologies and communications networks, such as the Internet and personal computers.

U.S. Federal Bureau of Investigation (FBI) anti- piracy warning text, for display on digital and software intellectual property.

digital copy of a work can be multiplied grams or sound recordings with aggregate many thousands of times around the retail values in the millions of dollars. To- world within a few hours. When trans- day’s popular iPod portable music player mitted through high-speed transmission can store nearly 70 times that amount lines, like coaxial cable networks or even (around 10,000 songs) in a device the size fi ber optic lines, the process is even faster, of a cigarette pack. and the capacity for the transmission of works grows as well. NEW FORMS OF EXPLOITATION … AND  Ease of Storage: Digital storage is dense, ILLICIT COMPETITION and it gets denser with each passing year. Ever-increasing quantities of material can he revolution in the way new tech- be stored in a smaller and smaller amount nology can reproduce, disseminate, of space. In the early 1990s, CDs, which and store digital information, including can store over 600 megabytes of data, were copyrighted works, is truly a double-edged perhaps the predominant form of digital sword for authors and rights holders. On the storage used by commercial pirates for one hand, it can provide for new and exciting storing entire libraries of computer pro- ways for authors to provide copies of their

50 51 works in convenient, inexpensive ways to a COMMON THEMES much larger audience than in the past. For example, a recording artist can put his or his article mentions several com- her music on a web site that can be accessed mon themes in the approach that by fans from around the globe, without a the copyright law of the United States took large investment in manufacturing, packag- to past technological changes, and how chal- ing, and shipping physical products to these lenges posed by those once-new technologies remote locations. On the other hand, these were addressed. new technologies make it easier for pirates and those who want to compete illicitly with Embracing New Forms of Expression: that author to make and distribute infringing Time and again over the last two cen- copies of the work. turies, the subject matter of copyright has  e challenge of copyright in the digital embraced new forms of authorship. Photog- age is to preserve the author’s and rights raphy, cinematography, electronic databases, holder’s incentive to create new works and and computer programs are some examples. use new technologies to distribute them In each case, policy-makers ultimately were to users and consumers in the face of such able to look beyond the particular technol- a competitive threat from the illicit use of ogy or medium of expression in order to technology by infringers. It also involves recognize the common thread of creative au- making sure that benefi cial uses of works are thorship that runs through all of copyright. not being needlessly stifl ed by a copyright system rendered ineffi cient by the advance Maintaining the Framework of of new technology.  is article describes Exclusive Rights: how the United States has met this chal- A fundamental tenet of both national and lenge in the past, and how it may meet it in international systems of copyright is that the future. authors are entitled to exclusive rights over certain activities (e.g. reproduction, distribution, or performance) involving their creative

U.S. offi cial William Lash III shows pirated copies of A billboard for the Apple iPod, which can store around DVD movies to journalists. Once a movie is rendered 10,000 songs, nearly 70 times the amount that CDs can in a digital form, it is easy for commercial pirates to hold. reproduce it rapidly and at little cost.

52 53 works.  ese rights allow the author to pre- At the same time, legislators have had to serve both his economic and non-economic examine the nature and scope of exemptions interests in his creative works, which, in from exclusive rights. For example, the limit- turn, promotes literary and artistic creativ- ed exemptions for reproduction of computer ity and benefi ts the public welfare.  is same programs contained in Section 117 of the U.S. principle is recognized in a provision of the Copyright Act were considered an appropri- U.S. Constitution authorizing Congress to ate means of tailoring exclusive rights to the grant exclusive copyrights “To promote the need of that technology, namely, the need to Progress of Science and useful Arts.” As new make copies in the course of authorized use technologies have expanded the means by and the need to make backup copies to guard which works may be exploited, policy-mak- against mechanical failure or accidental ers periodically have had to reexamine the erasure. Similarly, in 2002, the United States exclusive rights granted to authors under revised and adapted exemptions for educa- copyright, to ensure that authors and owners tional use of works to accommodate new of copyright continue to exercise exclusive “distance learning” technologies that allow control over their works. teachers to reach students via communica- On occasion, a more expansive interpreta- tions networks like the Internet. tion of existing rights is the answer. In the In short, new technologies often prompt United States, for example, an existing right debate about whether the set of exclusive of public performance was interpreted to rights granted to authors and rights hold- include radio and television broadcasts. On ers should be modifi ed, either with new or other occasions, new rights have been added broadened rights or new or broadened ex- to the copyright bundle, as when rights of emptions, to continue to serve the purpose communication to the public were added to of copyright. the primary international copyright treaty, the Berne Convention, in response to the advent of broadcasting.

U.S. rapper Ludacris surveying his songs on a pay-for-download music site.

52 53 Market-Driven Solutions: works, is another approach to purported in- One reason that a system of exclusive effi ciencies of the marketplace. For example, rights like copyright has been so successful in the United States, Sections 111 and 119 of throughout history at providing the means the Copyright Act grant compulsory licenses to support creative activity is that it allows for the retransmission of broadcast television copyright owners to rely on the marketplace signals because of the high transaction costs to fi nd fi nancial support for their creative associated with obtaining necessary permis- endeavors. In particular, where technologi- sion for such retransmissions. cal change is very rapid, the fl exibility of the  e U.S. experience in this area has marketplace is often the most effi cient way to shown, however, that the best forms of col- make sure that works continue to be created lective management of copyright are those and disseminated to the public. that retain as many characteristics of a Any marketplace will have its ineffi cien- marketplace of exclusive rights as possible. cies, however, and it is a challenge for coun-  is requires that any system of collective tries to try to address them. For example, an administration be voluntary, non-exclusive, exclusive right does not necessarily benefi t a and responsive to market forces (including rights holder if ineffi ciencies in the market- market forces brought on by technologi- place make the exercise of the right impracti- cal change). All three of these factors point cable.  e exploitation of public performance toward private entities operating within a rights in musical works is a classic example in competitive environment for collective ad- the United States. Typically, the value of any ministration of rights. In addition, the third single public performance of a musical work factor suggests that collective administration is small.  e class of users, which includes of rights should be decentralized in order to broadcasters, bars, restaurants, supermar- account for diff erent market conditions in kets, and the like, is extremely large. In ag- diff erent countries. gregate, the value of this form of exploitation Moreover, the imposition of a compul- is substantial, but so is the cost of adminis- sory license administered by the government tering rights over such a large base of users. can be costly to society. First, a compulsory  is ineffi ciency of the marketplace has license is a signifi cant derogation from the largely been overcome in the United States norm of exclusive rights. Second, a compul- through a familiar market-driven solution: sory license can cause signifi cant distortions collective administration of the right of pub- in the marketplace, since it serves to control lic performance. In this system, collecting prices, both directly through the mecha- societies collect license fees from each user nisms for setting royalty rates and indirectly and then distribute these payments to the through the control of supply.  ird, once a writers and publishers. For example, in the compulsory license has become established, United States, performing rights societies a web of reliance interests builds up around such as the American Society of Compos- it, making it extraordinarily diffi cult to elim- ers, Authors, and Publishers (ASCAP) and inate even after the conditions that justifi ed Broadcast Music, Inc. (BMI), grant blanket its adoption cease to exist. public performance licenses to many ven- For all of these reasons, compulsory ues and distribute the income from these licenses are permitted sparingly under in- licenses to their members. ternational copyright treaties and should A similar approach is being attempted for be approached with great caution at the na- administering reproduction rights — pho- tional level. Market failure, such as in the tocopying, electronic copying — with some cable and satellite retransmission market success. For example, in this area the Copy- where transaction costs are prohibitively right Clearance Center has fi lled a void in the high, may be one justifi cation for use of a marketplace and acts as mediator to license compulsory license. a wide range of uses. Compulsory licensing, where the government creates and administers a license for the use of copyrighted

54 55 Members of the rock band Transmatic, who signed a deal with Virgin Immortal Records after being “discovered” in cyberspace.

A digital camera from Kodak, one of the many companies that are off ering new products and services for the digital age, including Picture CD software and on-line photo-sharing services.

Chinese pop singer Zhang Jie in Beijing April 19, 2005, during an event to promote a Chinese music distribution platform that adheres to international IPR standards by promoting distribution of legitimate products.

54 55 EARLY CHALLENGES Under the WCT, countries must put effective legal remedies in place against the he advent of digital technology circumvention of technological measures posed a number of challenges to the that owners use to safeguard their rights. international copyright community. Countries must also provide legal remedies against persons who delete or alter rights Maintaining the Framework of management information attached by the Exclusive Rights copyright owner to the work. In the United Because of the degree to which advances States, the principal change to U.S. law in digital technology have facilitated rapid, in the legislation implementing the WCT widespread reproduction and dissemination was the addition of provisions on techno- of works, the international community has logical adjuncts to copyright protection. paid signifi cant attention in recent years to Title I of the Digital Millennium Copyright the need to adjust the existing framework Act (DMCA) created a new form of liability of exclusive rights to address issues of new for circumventing technological measures technology.  e conclusion internation- that restrict access to protected works, ally has been that the existing framework is or that control reproduction, distribution, generally adequate to accommodate the new public performance, or public display of pro- technologies and needs minor revisions rath- tected works. er than a major overhaul.  is is refl ected in  e WCT, therefore, recognizes that own- the modest, though important, scope of the ers cannot rely on technological measures WIPO Copyright Treaty (WCT), concluded alone to protect their works, because every shortly after digital technology started to technical device can be defeated by some- become prevalent. one who is determined to access a work. In  e WCT requires member countries to other words, while the framework of existing recognize certain exclusive rights designed property rights continues to be appropriate, for activity that takes place over new digital the meaningful exercise of these rights in communications networks like the Internet. the context of new uses, such as those on the Among other things, it requires that authors Internet, requires supplementing them with enjoy a right of communication to the public, legal rules that prohibit the compromise of including the right of “making available” their their technology. works, such as providing downloads from an Internet web site. While many existing copy- Markets and Management of Rights right laws provide such a right through the As discussed above, collective manage- more traditional rights of reproduction or ment of rights is a market response to the performance, the WCT made clear that such ineffi ciencies of individually licensing rights a right, in whatever form, must be granted to to large numbers of works to large numbers authors. of users, where the value of any individual use is relatively small. Traditionally, indi- Technological Adjuncts to vidually licensing such works would result Copyright Protection in transaction costs that exceed the value of While the WCT leaves the existing the license. framework of exclusive rights largely intact, At fi rst blush, collective management of it does contain provisions, relatively new to rights appears to be an attractive approach international copyright agreements, on tech- to managing rights to at least some works nological adjuncts to copyright protection. on digital networks. It’s unclear, however, to  ese adjuncts are intended to further the what extent the same conditions apply.  e development of digital networks by ensuring information infrastructure that permits rap- that copyright can be meaningfully enforced id, inexpensive dissemination of works may and licensed online. also enhance the ability of rights holders to manage rights individually.  e private sector currently is working to create technolo-

56 57 gies that facilitate individual transactions be- Aimster, Grokster, Morpheus, and Kazaa, tween rights holders and users.  e intensive provided software and services to users, and use of automation could reduce the cost of earn advertising dollars based on the size of such a transaction to levels that would make the audience the infringing activity attracts. individual rights management economically Secondary liability doctrines have long been feasible. Alternatively, or additionally, such part of the U.S. common law of copyright. technologies could be used within a frame-  ey provide an eff ective means of enforce- work of collective management as a supple- ment by placing liability on those who are ment to traditional blanket licenses. benefi ting from the infringement and are For these technologies to meet their full in a position to control or restrain it.  ese potential in the marketplace, however, they doctrines may play a much more important must be allowed to develop with minimal role in copyright in the future, as more and interference. Market forces — and not more technological developments permit governments — must determine whether companies to take advantage of individuals’ collective management of rights, individual infringing activity. management of rights, or some combination  e various cases brought against such prevails. companies suggest the courts may be having trouble fi nding the appropriate standard for FUTURE CHALLENGES secondary liability in the digital age. In the United States, the prospect of secondary li- Determining the Proper Scope of ability for copyright infringement tradition- Secondary Liability in the Digital Age ally was an important safeguard that dis- Another interesting facet of the rapid couraged businesses from using copyrighted evolution of digital technologies in the past works as a “draw” for customers without decade is the personal nature of the new permission.  is prospect of liability, how- technology. A single individual, with very ever, had to be balanced by the courts with little investment, now can copy and distrib- freedom to engage in largely unrelated areas ute millions of copies of works over the In- of commerce. ternet, especially works that can be digitized  e U.S. Supreme Court addressed these easily, like music or motion pictures or pho- issues more than 20 years ago in the case of tographs. In the United States, we have seen Sony Corp. of America v. Universal Studios, companies deploy peer-to-peer networking Inc. Ever since then, this case has guided the technology to take advantage of this fact, courts in the proper application of the doc- essentially enlisting millions of consumers trine of contributory infringement. Sony in- into a network of copyright infringement on volved the sale of the Betamax videocassette a scale never seen before.  e fact that the recorder, which purchasers used to “time- activities of many individuals can cause mas- shift,” that is, to record broadcast television sive, large-scale infringement raises serious programming for viewing at a later time.  e questions about enforcement. It is quite dif- Court found no contributory liability, saying fi cult for copyright owners to identify, locate, that there would be no such liability as long as and bring enforcement actions against the a product was capable of “commercially sig- vast number of individuals who might be in- nifi cant” or “substantial non-infringing uses.” fringing their works. And even if the owners Since the Court found that the predominant could bring such actions, it is unlikely that use of the Betamax was non-infringing, it did such individuals would be able to pay for the not need to further clarify what it meant by damage their actions have caused. “substantial non-infringing uses.” However, In an eff ort to address effi ciently the the Court did acknowledge that copyright infringement in these circumstances, U.S. owners are entitled to eff ective, not “merely copyright owners have turned to doctrines symbolic,” copyright protection. of secondary liability to hold the facilitators of these networks liable for the infringement.  ese companies, such as the old Napster,

56 57 Most recently, in MGM Studios v. also provides that individual with the ability Grokster, the U.S. Supreme Court addressed to become an author by creating and dis- whether the providers of peer-to-peer soft- seminating her own works. Often that author ware could be held liable under secondary would like to use some of the material he or copyright liability theories. e Court ruled she might find, but is unsure of the copyright unanimously that such providers could be status of a work or whom to ask for permis- held liable if they “distribute a device with sion. As we described above, collective li- the object of promoting its use to infringe censing of works can help such an author by copyright, as shown by clear expression providing efficient mechanisms so he or she or other affirmative steps taken to foster can obtain permission to use works. infringement.” In other words, if a tech- ere may be, however, some or even nology provider induces its customers to many works for which the author cannot infringe copyrights, it can be held liable for find an owner or an administering collec- that infringement. e Court instructed tive agency, and he or she cannot resolve lower courts to examine all the facts and the question of whether the copyright law circumstances to determine whether such permits or prohibits using such works. One inducement took place, and held that the rule challenge for the future is how the law should in the Sony case does not prevent liability treat these so-called “orphan works.” If it is where the defendant has been found to have truly the case that the copyright owner of induced infringement. is rule should allow such a work no longer cares about its subse- copyright owners to obtain effective enforce- quent use, then such use should not be re- ment of their copyrights against software strained merely because of uncertainty about and service providers who seek to encour- a work’s status. is result would deprive the age and profit from copyright infringement. public of access to a new and productive use Many commentators have already called this of the work, which is ultimately the goal of case one the most important in the history of any efficient copyright system. U.S. copyright law. In the United States, the Copyright Office As an international matter, there is very has begun an inquiry into the orphan works little uniformity among national laws as to question to determine the nature and scope secondary liability, whether it be liability for of the problem and what legal or regula- a company that uses peer-to-peer technology tory solutions might be needed to address it. to encourage infringement, or, as the United Other countries, including Canada, have States addressed in Title II of the DMCA, an already developed mechanisms for issues Internet service provider that provides facili- related to orphan works. Part of the chal- ties used by others to infringe. is may be lenge in addressing such a problem is ensur- an area that warrants examination concerning that it is fully consistent with and does ing international standards for such liability, not derogate from the legitimate interests especially given the global nature of the In- of authors and rights holders, and that it ternet, where a company can set up an in- complies with international copyright rules fringement-facilitating operation that serves that prohibit the imposition of formalities customers throughout the world from one that are a condition to the enjoyment and country. Maintaining effective protection exercise of copyright.  for copyright in the digital age might require such international standards.

Reducing Inefficiencies for Marybeth Peters is the Register of Copyrights, U.S. Subsequent Users Copyright Office, Library of Congress. As we have seen over the past decade, the Internet provides the individual with access to a vast reservoir of information of all types, from text to photographs to music to audiovisual works. Moreover, digital technology

58 59 WHAT IS “FAIR USE”?

“ air use” is an exception to the exclu-  e distinction between “fair use” and sive protection of copyright under infringement may be unclear and not easily American law. It permits certain limited uses defi ned.  ere is no specifi c number of words, without permission from the author or owner. lines, or notes that may safely be taken without Depending on the circumstances, copying permission. Acknowledging the source of the may be considered “fair” for the purpose of copyrighted material does not substitute for criticism, comment, news reporting, teaching obtaining permission. (including multiple copies for classroom use), Keep in mind that, even in an educa- scholarship, or research. tional setting, it is not “fair use” to copy for a  e 1961 Report of the Register of Copy- “commercial motive” or to copy “system- rights on the General Revision of the U.S. atically,” that is, “where the aim is to substi- Copyright Law cites examples of activities that tute for subscription or purchase.” No factor courts have regarded as “fair use”: “quotation by itself will determine whether a particular of excerpts in a review or criticism for pur- use is “fair.” All four factors must be weighed poses of illustration or comment; quotation together in light of the circumstances. See the of short passages in a scholarly or technical U.S. Copyright Offi ce’s Copyright Information work, for illustration or clarifi cation of the Circulars and Form Letters for “Circular 21 author’s observations; use in a parody of some — Reproductions of Copyrighted Works by of the content of the work parodied; summary Educators and Librarians.” of an address or article, with brief quotations, in a news report; reproduction by a library FOR CLASSROOM USE, HOW DOES of a portion of a work to replace part of a “FAIR USE” APPLY? damaged copy; reproduction by a teacher or  e Internet magnifi es the possibility for student of a small part of a work to illustrate making an infi nite number of perfect copies, a lesson; reproduction of a work in legislative which changes what it means to be “fair.” Be or judicial proceedings or reports; incidental careful when using material from the Internet; and fortuitous reproduction, in a newsreel or keep in mind the four factors of the “fair use” broadcast, of a work located in the scene of an test, or get permission from the owner.  e event being reported.” National Digital Library Program goes to great To determine whether a specifi c use under eff ort to identify possible copyright owners for one of these categories is “fair,” courts are re- items in American Memory, though it is often quired to consider the following factors: unable to ascertain possible rights holders  the purpose and character of the use, because of the age of the materials. When the including whether such use is of a rights holder is known to the program, it will commercial nature or is for nonprofi t provide that information in the Restriction educational purposes; Statements accompanying the collections.  the nature of the copyrighted work;  the amount and substantiality of the portion used in relation to the copyrighted work as a whole (is it long or short in length, This material was drawn from the Library of that is, are you copying the entire work, as Congress’ Copyright Offi ce web pages, http: //www.copyright.gov/fl s/fl 102.html and http:// you might with an image, or just part as you memory.loc.gov/ammem/ndlpedu/start/cpyrt/. might with a long novel); and  the eff ect of the use upon the potential market for or value of the copyrighted work.

58 59 e IMPORTANCE of the Public Domain By Anita R. Eisenstadt

he patent and copyright clause of information contractually designated as the U.S. Constitution (Article I, unprotected), or been abandoned. Section 8, Clause 8) that provides Congress Public domain is different from “open with the power “[t]o promote the Progress of access,” which typically refers to works that Science and useful Arts,” speaks of “securing are copyright-protected, but whose authors for limited times to authors and inventors, or publishers have chosen to make the work the exclusive right to their respective writings freely available to the public. Even if works and discoveries.” The insertion of the phrase are in the public domain, users should still “ for limited times” shows that the Founding acknowledge the source of the work, since Fathers of the United States realized that it failure to do so could constitute plagiarism. is critical to balance the intellectual prop- e U.S. government, producer of the erty interests of authors and inventors with single largest public body of scientific and society’s need for the exchange of ideas. They educational information, is one of the world’s achieved this balance by limiting the term of greatest contributors to the public domain. Its the exclusive right and allowing the growth Office of Management and Budget’s Circular of an unrestricted “public domain.” Just as A-130, ”Management of Federal Information a functioning intellectual property system Resources,” recognizes that government in- can generate significant cultural and eco- formation is a valuable national resource and nomic benefits, a robust public domain also that the free flow of information between the contributes to a democratic society, a strong government and the public is essential to a economy, and the advancement of science. democratic society. U.S. government practic- e term “public domain” refers to mate- es also have promoted broad dissemination rials and information that are not protected of information generated by federal govern- by intellectual property rights (IPR). Infor- ment funding. Grantees who receive federal mation in the public domain is available for government funding are strongly encouraged the public to use without prior authorization to share the results of their research. or restrictions on reuse. In the United States, this includes factual information1 and works created by federal government employees in 1 Note that the European Database Directive the scope of their employment. e public adopted in 1996 created a new type of intellectual domain also includes works subject to copy- property protection (sui generis) for databases, right protection, but for which such protec- restricting certain uses of factual information tion has expired, been renounced (such as compiled in databases.

60 61 A customer at the U.S. Government Printing Offi ce bookstore. The agency is the federal government’s primary resource for gathering, cataloging, producing, providing, and preserving published information, most of it in the public domain.

A robust public domain also contributes to a democratic society: Much of the U.S. government’s published information is now available electronically.

International and intergovernmental or-  UNESCO Policy Guidelines Related ganizations — UNESCO, the United Nations’ to Governmental Public Domain World Summit on the Information Society, Information, http://portal.unesco.org/ci/ the International Council for Science (ICSU), ev.php?URL_ID=15863&URL_DO=DO_ and the Committee on Data for Science and TOPIC&URL_SECT. Technology (CODATA) — have focused on  WSIS Declaration of Principles and the importance of the public domain for both Plan of Action, http://www.itu.int/wsis; developed and developing countries. www.CODATA.org. Certainly, there is tension in fi nding the  Duke Law School Conference on the optimal balance between the public domain Public Domain, http://www.law.duke.edu/ and intellectual property protection. It is pd/.  essential to promote the broad dissemination of knowledge and information while ensuring that authors and inventors receive appropriate protection for their work.  e Anita R. Eisenstadt is a foreign aff airs offi cer for approaches to resolving this tension are al- Communications and Information Policy in the State Department’s Bureau of Economic and Business most as diverse as the governments seeking Aff airs, Offi ce of International Communications to resolve it. However, one thing is clear: Free and Information Policy, on detail from the National and forward-moving societies need both. Science Foundation where she serves as assistant For additional reading on this topic, see: general counsel. She is an expert on federal scientifi c   e Role of Scientifi c and Technical Data data policy. and Information in the Public Domain: Proceedings of a Symposium, National Research Council, http://books.nap.edu/ catalog/10785.html.

60 61 Roundtable: , a Enforcement Priority for All Countries

any countries have adopted Customs and Border Protection Service, part sophisticated laws to protect of the Department of Homeland Security. intellectual property in order to join interna- According to these experts, eff ective tional or regional accords and organizations. enforcement of intellectual property rights By doing this, a country has taken an impor- should be a priority for all countries seek- tant first step. However, the creation of laws ing economic growth and full participation alone will not enable a country to effectively in the world economy.  e following is their enforce the rights of property holders. That discussion. requires the development of appropriate enforcement mechanisms. MODERATOR: First, where does enforce- Why does eff ective enforcement often lag ment fi t into an overall intellectual property behind the institution of law? What are the strategy? barriers to enforcement? Will the benefi ts of enforcement be shared by all countries or SMITH: As the world economy develops and just a few? as economies are more reliant on high-tech-  e State Department’s Bureau of Inter- nology sectors, the importance of protecting national Information Programs (IIP) invited intellectual property rights is rising. a panel of U.S. government experts to dis- When the Patent and Trademark Offi ce cuss these and other questions regarding began conducting overseas training in 1997, the enforcement of intellectual property the emphasis was on advising countries about rights (IPR). Led by moderator Berta Gomez, drafting legislation that would conform to then a senior writer-editor in IIP’s Offi ce of obligations under the World Trade Organiza- Economic Security, the roundtable discus- tion’s Agreement on Trade-Related Aspects sion included: Michael Smith, an attorney of Intellectual Property Rights (TRIPS). Over adviser in the Offi ce of Enforcement at the time, the focus has shifted from these laws to U.S. Patent and Trademark Offi ce (USPTO); what countries actually are doing on a daily Jason Gull, a trial attorney with the U.S. De- basis. We’ve found that many countries have partment of Justice’s Computer Crimes and laws on the books that are TRIPS-compliant, Intellectual Property Section; and Joseph but that much remains to be done to actually Howard, a senior attorney adviser in the In- enforce those rights at the borders and in the tellectual Property Rights Branch of the U.S. civil and criminal court systems.

62 63 A U.S. Federal Bureau of Investigation (FBI) “wanted” poster for an individual charged with copyright infringement.

Los Angeles, California, health department offi cials during a news conference announcing the confi scation of illegal pharmaceuticals. In the United States, a variety of federal laws and agencies protect consumers from counterfeit products that endanger health and safety.

As copyrights, trademarks, and patents in shipping, technology, telecommuni- become more important each year to the U.S. cations, and the Internet, has created mar- economy, our interest in protecting those kets that are increasingly global in scope. rights abroad increases. And U.S. and other Just as tangible things can move easily rights holders around the world are reluctant and cheaply across borders, IP problems can to invest in countries where, on a day-to-day likewise be exported. For example, counter- basis, copyrights, patents, trademarks, and feit products manufactured in East Asia have trade secrets are not adequately protected. been a problem for a long time. But counterfeit production like this becomes an even GULL: From our perspective at the Depart- greater problem as the products become less ment of Justice, the harmonizing of intellec- expensive and easier to ship to other parts of tual property laws around the world through the world. international agreements, going back even to  e Internet allows for instantaneous the Berne Convention, is important to defi n- distribution of information around the world ing the rights of authors, inventors, and com- at essentially no cost. So, in addition to all panies in products they develop. We would the positive activity this technology allows, like to see countries come to a general agree- people are using the Internet to engage in ment about what those rights should be. massive infringement of intellectual proper- But without eff ective enforcement, these ty.  is problem is growing as the digital sec- laws are essentially empty promises. Eff ec- tor of the economy is growing in the United tive enforcement of these rights is required States and in other countries. so that authors and inventors can make ratio- nal decisions about whether they’re going to MODERATOR: You said improvements in publish, release, or invent something. shipping make it easier for goods to cross In the last few years, enforcement has be- borders. Is this one of the barriers to eff ective come a much more signifi cant issue. A com- enforcement? bination of factors, including improvements

62 63 HOWARD: Perhaps the most critical ob- Conversely, countries that neglect IPR en- stacle to eff ective enforcement is the absence forcement will tend to see their reputations, of a full understanding of the value of intel- and the investment climate, suff er. lectual property rights to every nation that engages in international trade. SMITH: Another key barrier to eff ective en- I’ve spoken in several countries overseas, forcement is a lack of political will. Without and in each I was asked, “Why should we do political will starting at the very top of the this? Why are we protecting the wealthy na- government, it’s hard for enforcement au- tions or manufacturers who own these intel- thorities to look at these issues as important lectual property rights?” and to commit resources to solving them. My response is that, fi rst, if your country When the USPTO conducts technical is governed by the rule of law and has signed assistance, we try to explain why enforce- certain international agreements, it is obli- ment is important to the local economy. gated to adhere to its agreements. Secondly, For example, local music is not only an as your country develops its own sectors in indigenous cultural heritage issue; it is a which manufacturers, inventors, or artisans copyright issue of economic concern to lo- are creating intellectual property, it’s impor- cal industries. We have found, particularly in tant that you give them the full value of their Asia, that there’s a link between the ability of rights. the country to provide eff ective enforcement Many times, people don’t appreciate that mechanisms and the growth of music made protecting intellectual property is important by local artists. to employment, which leads to growth and a better quality of life. If you don’t respect MODERATOR: But how does a government intellectual property rights, no one wants to go about providing eff ective enforcement invest in your country. You won’t attract the once it has decided to do so? foreign capital that you need to improve the lifestyle of your nation’s inhabitants. GULL: Although political will is certainly Once people appreciate the value of the important, that is not to say that protecting rule of law, then it’s clearly not just benefi ting intellectual property rights is just a matter of the wealthy countries. convincing the upper levels of government that this is an important issue, and that their GULL: I, too, am asked by foreign audiences, decrees will trickle down to street-level en- “Why protect intellectual property when forcement. it’s all American or rich countries’ brands?  e government also has to work on pub- Why should I do the bidding of these U.S. lic awareness to make sure that the public companies?” One answer is that, in much the agrees that intellectual property is worth same way that trademark owners must work protecting. Michael’s point about indigenous to protect their brands, countries themselves music is an excellent one. must work to enforce IPR to protect the Of course, many pirated products are country’s own reputation. copies of goods produced by U.S. companies, A trademark is simply a brand. It con- such as Microsoft’s software or American pop veys information about the reputation of stars’ CDs, which are then sold overseas. But the manufacturer and the reputation of the if a country allows piracy to go unchecked, product. If a particular trademark holder its own industries – music, or fi lm, or soft- starts turning out poor-quality products, ware — will likely fi nd their own products people will stop buying them.  e reputation being pirated along American ones. Since goes down. the domestic creators of music, or movies, or To encourage investment, you need an software, tend to rely more heavily on their eff ective legal regime that protects people’s own domestic markets for their livelihoods, rights, including intellectual property rights. a high level of piracy at home may hurt these A country can help build its own brand im- domestic producers most of all. age by ensuring eff ective IP enforcement.

64 65 A soil compressor destroys counterfeit CDs and tapes in Brasilia on Brazil’s National Counterfeit Fighting Day. Governments should make sure that their publics agree that IP is worth protecting.

Foreign media in China were invited to this IPR case being heard in Beijing’s highest court. In many countries, low damage awards are not a deterrent to pirates and counterfeiters.

A police offi cer throws a box of pirated CDs into the fi re near Jakarta. Indonesia has imposed harsher laws providing fi nes and jail terms for copyright violators.

Sheriff Deputies in Whittier, California, check counterfeit In Cressier, Switzerland, offi cials crush counterfeit Microsoft registration hologram stickers seized following an Swiss watches. To support one of its most famous undercover investigation. A criminal investigation can be industries, Switzerland’s border control confi scates initiated through the complaint of a rights holder, but this thousands of counterfeit watches every year. should not be a requirement before police can act. 64 65 Piracy can make it even tougher for intellectual property rights that are recorded domestic industries to compete with large with us, information about exclusion orders foreign companies. In countries where every issued by the USITC is entered into the IPR kind of CD, DVD, or software is available module for dissemination to fi eld offi cers. for a couple of dollars per disc, a local fi lm  e public version of the IPR module1 can studio or software publisher will fi nd it very be easily accessed.  e web address is http: diffi cult to compete, based on price, with the //www.cbp.gov. Click on the “Quick link” at latest Silicon Valley software or Hollywood that page for “Intellectual Property Rights,” blockbuster. and at the next page click on “Intellectual Ironically, countries that want to avoid Property Rights Search (IPRS).”  e web site being overrun by American goods might also contains a wealth of information about consider strengthening their protection of our intellectual property rights border en- intellectual property.  at would serve local forcement program. industry in the long run by allowing that industry to grow and encouraging investment. MODERATOR: And this is a case in which If the public is on board with protecting new technology actually helps enforcement? intellectual property, then police offi cials will be willing to shut down street vendors HOWARD: Yes. But as my colleagues have selling pirated and counterfeit products. pointed out, people have to want to do it. Prosecutors will be willing to pursue those  at’s crucial. cases because they won’t face the wrath of an unhappy public. Judges will be more will- MODERATOR: Do you have examples of ing to mete out deterrent penalties, whether countries in which you’ve seen progress and prison time or monetary damages. growing interest in protecting IPR?

HOWARD: It is particularly important for a HOWARD: I was in Egypt when they were country to have a mechanism whereby a for- talking about IP enforcement issues, and the eign rights holder can bring a problem to the people I spoke with said that they wanted a attention of authorities and have a realistic customs system like that in the United States. chance of receiving enforcement activity on It seems people from all over the world look his or her behalf.  is overcomes the inertia to our government for guidance on how to that otherwise is present. It encourages the do certain things.  ey might not like what authorities to enforce rights. we say in some instances, but they’re open to considering what we have to say. MODERATOR: Can you describe the train- 1 The Intellectual Property Rights Module (IPR ing or speaking that you do overseas? module) is the U.S. Customs Services’s automated system containing information about recorded HOWARD: I’ve gone to other countries, intellectual property rights. The IPR module looked at legislation, and talked to people currently contains over 25,000 recordations. about what we do. I explain that it’s reason- It provides a systematic listing and detailed able, if you don’t have the resources to have information, including images, to assist Customs a database of all the intellectual property offi cers in providing adequate protection on a rights that might be infringed, to at least have timely basis. The IPR module is an extension of the a mechanism so that others can bring infor- Customs recordation process. Recordation refers mation to your attention. Many countries to bringing a valid, federally registered intellectual thought that that was useful. property right, a trademark or copyright, to the IPR Branch, Offi ce of Regulations and Rulings, Bureau  e U.S. Customs Service also enforces of Customs and Border Protection and recording exclusion orders (legally binding commands that right with the IPR Branch. Information about barring entry into the United States of goods that intellectual property right is entered into the that allegedly violate U.S. intellectual proper- IPR module and made available to fi eld offi cers. ty rights) issuing from the U.S. International A public version of the IPR module is available to Trade Commission (USITC). Just as with those outside of Customs.

66 67 SMITH: I think most countries would agree that the U.S. system for protecting intellectual property rights at the border is one of the most effi cient systems in the world. But a lot of what is done in the United States is not practical for most countries. Certainly developing and least developed countries don’t have nearly the resources that the U.S. government has. Also, most countries don’t have as many border crossing points as the United States.  e customs services in these countries A growing problem for governments and rights holders: have to decide how best to utilize the re- Massive infringement of IP through the Internet is growing. To check cybercrime, India is requiring identity proof from sources that they have. In technical assis- cybercafé customers. tance programs overseas, the Patent Offi ce uses that as a starting point to encourage compliance with a country’s obligations under the TRIPS agreement. TRIPS provides minimum standards, such as establishing a system so that rights holders can go and record and seek enforcement of their rights. Having said that, a country can be fully in compliance with the minimum obligations of the TRIPS agreement and still have a huge problem at its borders. For instance, the TRIPS agreement requires countries to provide for protection against imports of pirated copies of goods and goods bearing A steamroller crushes a pile of counterfeit trademarks. It does not require counterfeit Winnie- countries to provide protection at the border the-Pooh dolls with regard to exportations of such goods or during Thailand’s annual destruction movements of such goods within the country of seized that might be exported later. counterfeit items. So a primary concern of the U.S. government is the exportation of pirated and counterfeit goods that are produced in one under the TRIPS agreement and have had country to other countries, for instance, legislation in place for a while, they become within Europe or Asia. In that case, we would more receptive. advocate for “TRIPS-plus” provisions. We do Of particular importance to the U.S. this in bilateral negotiations as part of the government right now is regulating optical free trade agreements negotiation process. In disc (i.e., CDs, VCDs, DVDs, etc.) piracy in training, we would emphasize why, although countries where the production exceeds the these are not TRIPS requirements, they are amount of legitimate demand. Obviously, often needed in order to have an eff ective this overproduction of pirated material can’t enforcement system. be supported by the local economy, so the product is being exported. In these instanc- MODERATOR: Are countries receptive to es, we would advocate export controls at the this? border and optical disc regulations.

SMITH: Defi nitely now more than 10 years MODERATOR: How big a problem is cor- ago. I think that, as countries have become ruption as it relates to IPR? more comfortable with their obligations

66 67 GULL: Corruption is a significant problem On the government side, one barrier to in a number of countries around the world border enforcement is that it’s labor-inten- that are trying to enforce intellectual prop- sive. You need customs officials at the border erty rights. who are good consumers, familiar with the Part of this is related to just how much trademarks that have been recorded, and money is at stake. When there’s a lot of who have an interest in enforcing the rights money involved in an illicit activity, there is of trademark holders. Without knowledge- bound to be some corruption. able customs inspectors, you’re going to have Another aspect of intellectual property a problem with effective enforcement at the piracy and counterfeiting is organized crime. border. Criminal gangs, both within the United On the criminal side, another problem States and in many other parts of the world, is that countries initially might prosecute are involved in the production and distribu- numerous cases of vendors selling pirated tion of pirated and counterfeit goods at all or counterfeit goods on the street. Although different levels. Of course, corruption of this might get the infringers off the street, public officials is by no means unique to -in it’s not going to the source of the activ- tellectual property issues. But in those places ity. In many countries, the infringement of where corruption is widespread, it’s going to intellectual property rights has its base in affect intellectual property enforcement. organized crime. erefore, a more efficient use of a government’s time and money would SMITH: You asked, “What are the barriers be to use their organized crime statutes to to effective enforcement?” I think it depends prosecute these cases at the source of the on whether you are talking about civil, crimi- funding. nal, or border enforcement. Criminal enforcement and border en- GULL: Yes, it’s more effective to go after “big forcement can be grouped together in that fish” than small ones because you cut off the they are actions taken by the government. supply. Generally, the biggest effect of going On the civil side, it’s a private litigant going in after street vendors is that piracy gets pushed and redressing harm in a civil courts system. a little off the street. at is, instead of a table e problems on the civil side are similar full of pirated optical discs, you’ll have one in many countries around the world. e guy with a sign saying CDs and DVDs, and USPTO found that, although lots of coun- he’ll burn you a copy or get you a counterfeit tries have legislation and a civil procedure copy from a van or an apartment down the code that provides for a rights holder to go street. into court and get interim relief or a tem- Michael touched on the critical impor- porary restraining order, those laws are not tance of having effective civil remedies. In applied in practice. the United States, the vast majority of en- We’ve also found that the damage awards forcement is done by copyright holders or that many courts give are so low that they trademark owners who initiate actions. e are not actually a deterrent to those who United States has effective civil remedies: engage in piracy or counterfeiting and do not injunctions, seizures of counterfeit goods, adequately compensate rights holders for the and monetary damages. One has a realistic harm they have suffered. chance of actually obtaining those types of Finally, we’ve found that, in some coun- remedies here, and in many other countries tries, the infringing goods and the machin- with more established civil law mechanisms. ery used to produce those goods are not In some places, there isn’t as mature a actually destroyed. ey can enter back into civil enforcement system. In those areas, for the stream of commerce. at’s obviously not now at least, criminal and related border-en- in the best interest of the rights holders or forcement mechanisms are the only realistic the public. chance of making a dent in intellectual property infringement.

68 69 In some countries, a criminal prosecution MODERATOR: Do health authorities have or investigation cannot be initiated unless a role in telling consumers that counterfeit there is a complaint from a rights holder. products may be unsafe or dangerous?  is is a serious impediment because it’s not practical for the rights holder to make GULL: In the United States, a variety of a complaint in every instance. It means that, federal laws and agencies protect against the in some countries, police aren’t empowered kinds of counterfeit products that endanger to seize off ending goods that they recognize health and safety. Selling a counterfeit drug on the street or at a criminal enterprise. We on the Internet, like the fake Viagra adver- encourage countries to eliminate this kind of tised by “spammers” through e-mail, would requirement, whether it’s in their actual law likely be a violation of Food and Drug Ad- or merely a policy on the part of the police ministration laws regarding drug safety, as and prosecutors. well as a federal trademark violation. It might Also, some countries erect or maintain violate laws in the individual 50 U.S. states artifi cial barriers that make it more dif- as well. fi cult to show ownership of a trademark or When something is counterfeit, there’s no copyright. A court may require that there be way of tracing it to the true manufacturer. testimony from the actual copyright owner, For example, counterfeit liquor is prevalent rather than simply allowing a certifi cate from in a number of Eastern European countries. a copyright offi ce as “prima facie” (Ed. Note: When genuine liquor violates health and Latin for “on its face,” as it seems at fi rst sight) safety standards, the origin of the product evidence of copyright ownership.  is sort of can be traced.  e factory where it was made excessive formality can impede an eff ective can be inspected and forced to improve. But enforcement regime. Often it’s little things with counterfeit goods, that’s not possible be- like this that persist even after the large steps cause, by defi nition, the origin of the product of signing on to TRIPS, for example, have is unknown. been accomplished. SMITH:  is ties in with public awareness. MODERATOR: How important is partici-  e government can play a role in educat- pation on the part of the rights holder? ing the population that intellectual property protection is not only an economic issue, but HOWARD:  e U.S. Customs and Border also a health and safety issue. Counterfeit Protection Program relies heavily on the food products and counterfeit pharmaceuti- rights holder who has recorded something cals have resulted in deaths. Either they don’t with us to bring information about potential contain the components that they’re sup- problems to us. Often the rights holder can posed to or they contain components that pinpoint the date when infringing goods are are lethal to people, and people purchase going to arrive, the port or ship they’re going them unwittingly. to be on, or the mode of entry into the United Or consider airplane parts, where a pi- States.  at helps us to focus our eff orts and rated or counterfeit product is labeled as not waste our limited resources. meeting laboratory standards of safety, but Intellectual property rights holders also actually contains faulty components. might help themselves by educating the Health and safety issues can bring the consumer to understand that not all deci- discussion to a more personal level than the sions should be based merely on price alone. economic aspects of intellectual property A counterfeit product may be sold at a lower protection.  is is about people’s lives.  price, but may not have the same features as the actual product, or it may not be as safe or last as long. Equally or perhaps more important, you may not get the support that you would get from a legitimate manufacturer if the product is defective.

68 69 New Tools for Fighting Optical Disc Piracy

By Laura Lee with Bonnie J. K. Richardson

igital technology has turned into vulnerable to piracy. Unlike traditional pira- reality the promise of innova- cy involving analog technologies, the quality tive ways of distributing creative works on of a digital pirated disc is as high as the origi- a global scale. With digital technology, a nal, and a production facility can churn out film enthusiast anywhere in the world can a huge volume of illegal discs in a relatively view movies from India, Mexico, or Egypt, short time. In 2003, the U.S. motion picture and music lovers can download the unique industry, working with law enforcement sounds of Russian, Chinese, or Zairian music agencies around the world, seized more than at the click of a button. 52 million pirated optical discs.  ese same technological advances, how- In order to tackle this fast-growing cri- ever, have also given rise to serious forms of sis eff ectively, it is essential to develop and piracy. Every industry that depends on copy- implement innovative tools for controlling right protection, including the movie, music, piracy at the source of production. One and software industries, is facing tremen- useful way of doing so would be to adopt dous losses from optical disc piracy. Coun- optical disc regulations along the lines of the tries put their economic future in jeopardy “Eff ective Practices” adopted by government when they fail to adequately protect these leaders at the APEC (Asia-Pacifi c Economic industries’ intellectual property rights (IPR) Cooperation) conference in October 2003. from both optical disc and traditional forms  e “Eff ective Practices” are designed to of piracy. Piracy hinders the development of identify and control all facilities that repli- these industries in many countries and thus cate optical discs by requiring that authori- discourages potential investors, innovators, ties strictly license optical disc producers and and the creation of valuable new jobs. manufacturing equipment. A well-enforced Optical discs include formats such as digi- licensing scheme will provide legal grounds tal versatile discs (DVD), DVD-Recordables for the immediate closure of unlicensed (DVD-R), compact discs (CD), CD-ROM, facilities.  e regulations also require that compact discs with recording cores of dye licensed optical disc producers retain pro- instead of metal (CD-R), video compact discs duction records and add source identifi cation (VCD), and laser discs (LD). Optical discs are codes (SID) to each disc produced, measures inexpensive to manufacture and easy to dis- that will help ensure that licensed facilities tribute, two features that make them highly are producing only legal optical discs.

70 Fighting pirates: These DVD-Audio discs off er a higher sound quality than common music CDs, but also contain a digital watermark that prevents the owner from making perfect copies of the content.

An inventor in Israel, Amos Loewidt, believes he has found a solution to the worldwide problem of CD piracy by placing a slender, plastic- covered electronic card with an electronic chip, a unique serial number, Steamrollers crush confi scated pirated music and two optical detectors onto a CD. and movie CDs, VCDs, and DVDs in Manila, the Philippines. In 2003, the U.S. motion picture industry, working with law enforcement agencies around the world, seized more than 52 million pirated optical discs.

70 71 An offi cial from Thailand’s Commerce Ministry inspects a pirated DVD from a shelf showing pirated movies during a raid at a shopping mall in Bangkok.

A foreign tourist browses the selection of pirated CDs in a stall in Phnom Penh. Governments have to remain fl exible and develop new tools to deter pirates.

In Sofi a, Bulgaria, workers prepare movie, music, A peddler in Moscow, Russia, showing pirated and and software discs for destruction. The “Eff ective authentic copies of CDs, videos, and computer software to Practices” discussed in this article endorse a a prospective customer. The U.S. government is working government’s authority to conduct surprise with Russia to adopt vital optical disc regulations. inspections of optical disc producers’ facilities.

72 73  e “Eff ective Practices” also make the An eff ective means to sever this tie be- cross-border traffi c in manufacturing equip- tween criminal syndicates and optical disc ment and raw materials used to make optical piracy is the use of laws designed to combat discs, such as optical-grade polycarbonate, organized crime.  e welfare of the copy- subject to reporting requirements that facili- right industries depends upon the coordi- tate the tracking of these materials. Further- nated eff orts of all countries to dedicate the more, the “Practices” endorse a government’s same kinds of legal tools to fi ghting piracy authority to conduct surprise inspections that they bring to other kinds of organized and to seize and destroy machinery used to crime. Among others, these tools may in- produce pirated materials. clude money laundering statutes, surveil- We believe that every country whose opti- lance techniques, and revamped organized cal disc production facilities are producing crime laws. signifi cant quantities of pirated products Pirates aim to be always one step ahead of should create and enforce this type of spe- current regulatory regimes. In order to stem cialized regulatory framework for control- the tide of piracy in an eff ective manner, it is ling the production of optical discs. Pirate imperative that governments remain fl exible syndicates are constantly migrating optical and develop new legal tools on a continuing disc production from jurisdictions with anti- basis. It is only with a truly international ap- piracy regulatory regimes to countries still proach — one that adopts and enforces tai- lacking suffi cient protection. To date, China, lored optical disc regulations — that optical Bulgaria, Malaysia, the Philippines, and Tai- disc piracy rates can be signifi cantly dimin- wan employ optical disc regulatory regimes, ished on a local and global scale.  and Singapore is in the process of complet- ing a similar system.  e U.S. government is also working with the governments of Russia, Pakistan, and  ailand to adopt these vital Bonnie J. K. Richardson is vice president for Trade optical disc regulations. and Federal Aff airs at the Motion Picture Association of America (MPAA). Laura Lee is a student at the An increasingly troublesome facet of opti- University of Virginia School of Law and MPAA intern. cal disc piracy is its association with crimi- The MPAA is a nonprofi t trade association representing nal organizations. Organized crime has been seven of the largest producers and distributors of quick to realize that piracy, with its potential television programs, feature fi lms, and home video for high profi ts and minimal penalties in entertainment material. many countries, is one of the most lucrative and low-risk criminal businesses. Law-enforcement authorities, such as Interpol, have identifi ed counterfeiting of optical discs as a valuable source of funding to criminal syndicates and terrorist groups.

72 73 A Trade Association at Work By Patricia L. Judd

ooks are everywhere around us.  ese activities — often seen by many Popular titles, such as the Harry book consumers as harmless — hurt legiti- Potter® series or Nobel Prize winner V.S. mate creators, foreign and domestic produc- Naipaul’s A House for Mr. Biswas, can be ers and — ultimately — every national econ- found in bookstores all over the world. Books omy. Every country has students who may serve as tools for entertainment and educa- be primarily users of information now, but tion, as well as professional, personal, and who will be creators in the near future. Every societal development. country has writers and scholars, and most Unfortunately, legitimate authors, pub- also have publishing or printing industries lishers, printers, distributors, and retailers that are suff ering from the same type of pira- are often denied the opportunity to satisfy cy encountered by U.S. publishers. Creators the world’s appetite for books because ram- will more likely stay in their home countries pant print piracy, commercial photocopying, if they are able to produce an income from illegal translations, and digital piracy work to their talents there. Protecting their ability to destroy the market for legitimate materials. do that serves them and their countries as Symptoms of this phenomenon abound: well as their publishers.  In and around universities and schools,  e Association of American Publishers copyshops that make it easy to illegally (AAP), the principal trade association of photocopy works often have lines out the the U.S. book publishing industry, estimates door. that its members lose over $600 million  English-learning programs and other dollars a year because of global piracy.  is language courses advertise use of number, unfortunately, is a gross underesti-

SECTION III: ISSUES BY INDUSTRYhigh-quality materials and display mate, based on calculations of losses in just original products, but then use illegally a few countries and territories. Nevertheless, photocopied versions in their lessons. this fi gure alone underscores the need for  Medical book pirates conduct door-to- improved enforcement in many places, and door sales, without fear of reprisal. adherence to international copyright stan-  Pirates marketed fi fth, sixth, seventh, and dards by all countries, since copyright pirates eighth books, supposedly in J.K. Rowling’s prey on authors, businesses, and consumers Harry Potter® series, at a time when the around the globe. Proof of this is that AAP author had written only four! raids abroad almost always uncover illegal copies of local materials.

74 75 Winners of the U.S. National Book Awards Kevin Boyle, Lily Tuck, and Jean Valentine read from and sign their award-winning books at a New York City bookstore.

With today’s technologies, pirates fi nd it easy to copy whole books, robbing authors of their intellectual property and the right to make a living from their work.

74 75 A new device that works as a printer, scanner, and copier. The Association of American Publishers works within the United States and with other countries to spread the message about illegal commercial photocopying.

The millions of Harry Potter fans include this nine-year-old in Denmark. Pirates, however, marketed fi fth, sixth, seventh, and eighth books, supposedly in the series, even though at the time J.K. Rowling had written only four.

Because of IPR protection, authors in the United States and in the rest of the world can enjoy an income from the sale of their books and of subsidiary rights for translations, movies, and TV serials.

76 77 AAP supports the international fi ght In all of this, AAP works to educate the against copyright pirates by partnering with public about the ways in which copyright local counsel, investigation fi rms, member protection promotes creativity, which in company offi ces, and government offi cials to turn is essential to the development of mar- ensure that both the public and private sec- kets, not only for U.S. publishers, but for tors are doing everything possible to stamp each and every country’s creators and related out these crimes. AAP projects include legal industries. action, data collection, training, and media AAP members and staff are interested in eff orts to educate governments and consum- work that benefi ts creators and publishers in ers about the harms infl icted by piracy. all countries and territories, and would wel- AAP and its members also work, where come your input.  appropriate, with local publishers to identify projects for possible collaboration. Currently, For more information, please contact: AAP has active programs in Hong Kong, Malaysia, the People’s Republic of China, the Patricia L. Judd Philippines, Singapore, South Korea, Taiwan, Director, International Copyright and  ailand.  e association also works Enforcement closely with its international counterparts in 50 F Street, N.W., Suite 400 Pakistan, India, and several other countries. Washington, D.C. 20001 On the policy side, AAP cooperates (202) 220-4541 with U.S. and foreign government agen- [email protected] cies to promote passage and enforcement www.publishers.org of stringent intellectual property laws.  e association also monitors developments in legal or practical market access. AAP contributes signifi cantly to the annual “Special Patricia L. Judd is the director of international 301 Report on Global Copyright Protection copyright enforcement for the Association of American Publishers. and Enforcement,” submitted to the Offi ce of the U.S. Trade Representative (USTR) by the International Intellectual Property Alliance® (IIPA) every February. IIPA, of which AAP is a founding member, uses this report to update the status of copyright protection in 50 to 60 countries and territories worldwide. Finally, AAP regularly discusses intellectual property rights (IPR) issues at book fairs, seminars, and conferences in the United States and overseas.

76 77 Intellectual Property Rights and the Pharmaceutical Industry By Judith Kaufmann

any claim that more people do services to people in more than 40 least de- not have access to life-saving veloped countries. drugs because of high prices and that pat- Drug companies also are helping poorer ent rights both increase prices and stand in countries through a variety of innovative the way of getting treatment to those who public-private partnerships.  ese partner- need it. ships include the African Comprehensive Both of these claims are false. HIV/AIDS Partnership in Botswana, in Drugs that cure AIDS and many other dis- which the government of Botswana, the Bill eases are available precisely because of patent & Melinda Gates Foundation, and the Merck protection. Patent protections encourage re- Co. support prevention programs, health- search and development by offering the pos- care access, and treatment of HIV/AIDS, sibility that a pharmaceutical company’s in- with Merck donating two antiretroviral drugs vestment will be repaid, a powerful incentive for treatments.  e Onchocerciasis Control to companies to invest millions and millions Program, in turn, has greatly reduced trans- of dollars into risky research and develop- mission of “river blindness” throughout West ment of these medications. Without patent Africa by combining a spraying program protection, other manufacturers could copy and the donation of the drug Mectizan by new drugs immediately. Since their costs are Merck & Co. minimal, they can offer their versions at a  ese are but some examples of the ways reduced price, seriously hurting the ability in which the research-based drug industry of the company that developed the drug to has regularly lowered its prices to the poorest recoup its costs. nations of the world and has increased drug In addition, those years in which a compa- companies’ partnership with governments ny’s patented products are protected can help and with nongovernmental organizations to generate the funding that makes research ensure that drugs reach those in need. into the next generation of drugs possible. Generic medicines and copycat drugs are Drug companies are not only doing the not always the answer for those seeking an research that has helped so many, they are alternative to a patent-protected drug. Ge- ensuring that drugs reach those most in nerics, independently developed drugs that need through donations. In 2003 alone, contain the same active substance as the the U.S. pharmaceutical industry donated original brand-name drug, are marketed in more than $1.4 billion in medicines and accordance with patent law and identifi ed

78 Chinese Vice Health Minister Wang Longde (right) shakes hands with the executive vice president of Merck & Co. Inc., Judy Lewent, after announcing a comprehensive HIV/AIDS public-private partnership — with $30 million from the Merck Foundation — on May 11, 2005.

A worker on the assembly line of Laboratorio Cristalia, a maker of anti-retroviral generic drugs in Sao Paulo, Brazil. Makers of generic drugs normally have not invested the millions that research companies spend to fi nd new drugs.

Employees of Aspen Pharmaceutical Research Laboratories, producers of generic AIDS drugs, in Port Elizabeth, South Africa. GlaxoSmithKline has licensed Two bottles of a medicine for liver patients, three more South African companies, in addition to Epogen, one real (left) and one counterfeit. Aspen, to manufacture generic versions of its AIDS medicines.

78 79 either by their own brand name or by their treatments that may be less toxic and more internationally approved nonproprietary sci- eff ective. Rather, they reduce incentives to entifi c name. Copycat drugs usually simply research and thus discourage new products. copy the original drug manufacturer in the And make no mistake:  e manufacturers of countries with weak intellectual property generic or copycat drugs are not in business protection. to be generous; they, too, are reaping profi ts. Patented drugs often have passed much  eir profi ts, however, are not being used to more rigorous licensing requirements than further scientifi c knowledge and fi nd new so-called generics. Why “so-called”? Because cures. not all drugs that claim to be so are identi- Patents are not the problem that people cal and not all are subject to the stringent assume them to be, either. A recent study inspection process that guarantees that they published in Health Aff airs found that “in contain the same amount of active ingredi- 65 low- and middle-income countries, where ents and work in the same way. Manufac- four billion people live, patenting is rare for turers of some of these drugs have not had 319 products on the World Health Organi- to invest in the extensive testing required zation’s Model List of Essential Medicines. of the research-based industry even before Only 17 essential medicines are patentable, their drug can be marketed. Of course, there although usually not actually patented.” If are many reliable manufacturers of generic this large amount of life-saving drugs is ei- drugs.  e United States, for instance, has a ther off -patent (meaning that the company thriving generic drug industry, fully regulat- that originally invented them no longer has ed and inspected by the U.S. Food and Drug an exclusive claim because the patent has ex- Administration. pired) or not patented, then patents cannot Building on the enormous investment be the problem in getting drugs to people. already made by the research-based phar- Price is not always the issue, either. When maceutical industry, copycat drugs can lower people cite prices as a problem, they often drug prices, but they do nothing to guarantee are comparing apples and oranges. Prices in- that new drugs will be available when they are clude various factors: training of health care needed. Copycat drugs do nothing to ensure personnel in the use of the drug, explanatory that scientifi c innovation translates into new materials to make it safer for the consumer,

A technician in a pharmaceutical plant in Ahmadabad, India. Patenting is rare for 319 products on the World Health Organization’s Model List of Essential Medicines.

A woman inquires about a drug at a street-side shop in Lagos. Surveys indicate that more than 60 percent of medicines on sale in Nigeria are counterfeit, substandard, or expired.

80 even shipping and handling can be included Malaria Venture (MMV — see p. 84) and the or not. If one drug seems cheaper but ship- International AIDS Vaccine Initiative (IAVI) ping costs are not included, the eff ective cost are two good examples of such partnerships. may be identical to that of a patented drug. MMV, for instance, has 21 drug development Certainly, a government-sponsored drug projects to ensure that the next generation of company can provide lower prices to the citi- treatment is available when drug resistance zens of that country, since the government is overtakes current malaria treatment options. paying a large percentage of the actual cost. As an article in the Washington Post re-  ere are issues that need to be addressed, cently suggested, “ ese entities are in eff ect including how to encourage even more in- nonprofi t virtual drug companies confi gured novation, especially for drugs with limited to discover and develop drugs and vaccines markets or which treat diseases mostly prev- for neglected diseases.” alent in low- and middle-income countries. Cheap drugs are no bargain, if they do Developed countries can off er tax incentives not cure the disease and if they contribute to to encourage innovation in such areas, much drug resistance that may make the drug use- as the Orphan Drug Bill in the United States less for everyone. Violating or bypassing pat- does. ( is U.S. law, administered by the ent protections is a short-term solution that Food and Drug Administration, deals with threatens the long-term health of the world’s medications used to treat diseases and con- citizens by removing the incentives and dis- ditions that rarely occur. Since there is little couraging the innovation we need.  fi nancial incentive for the pharmaceutical industry to develop such medications, “orphan drug status” gives a manufacturer specifi c fi nancial incentives to develop and provide Judith Kaufmann is a retired foreign service offi cer, such medications.) Government research who served as the director of the U.S. State Department’s Offi ce of International Health Aff airs. dollars can be used to do basic research, as the National Institutes of Health does in the United States. Public-private partnerships are showing the way in innovation:  e Medicines for

A University of Chicago fi eld station foreman examines a Rauvolfi a serpentina plant. The university’s fi eld station in Downers Grove, Illinois, is part of a program to search for new plant-based medicines.

81 e Cost of Developing a New Drug By Neal Masia

any of us know a family mem- through 5,000 to 10,000 new chemical inven- ber or friend who has benefited tions that look promising, in order to identify from a new medicine: Advances in treating a pool of 250 compounds that then enter into cancer, HIV/AIDS, cardiovascular disease, preclinical laboratory and animal testing. Of and a broad host of other afflictions have been those 250 unique compounds, fewer than 10, nearly continuous in recent decades, thanks on average, will show enough potential to to — in many instances — new drug discov- qualify for Phase I human testing to establish eries. Economists estimate that almost half basic safety. of the increase in life expectancy achieved Phase 1 trials usually include a very small over the past 15 years in the industrialized group of healthy volunteers who are tested world can be attributed to new drugs. In the to determine whether the candidate drug is United States alone, the economic gains from both safe and effective. A compound or drug medical innovation are estimated at more candidate that makes it through Phase I then than $500 billion per year. enters small-scale Phase II trials in patients Finding new cures is an extremely ex- with a specific condition to test whether the pensive and risky proposition, however. compound has the intended effect on the Estimates about the cost of developing a disease. If it shows promise, it graduates to new drug vary widely, from a low of $800 Phase III trials, which are wide-scale tests million to nearly $2 billion per drug. Even involving thousands of patients in carefully the high end of those estimates may soon controlled clinical testing. Some drug candi- be considered a bargain. Recently, the Pfizer dates undergo several different types of Phase pharmaceutical company announced that III trials in order to test for different kinds of it is investing $800 million just for a set of effects. On average, for every five compounds Phase III trials for a single drug. that make it into human trials (of the original Where does all the money go? 5,000 to 10,000 studied), U.S. government In the United States and most other coun- authorities will grant the pharmaceutical tries with pharmaceutical industries, private company approval to market just one. industry undertakes or funds virtually all Overall, the discovery and development of discovery and development of new medi- a new medicine takes about 12 to 15 years. cines, often building on basic medical hy- Patents are granted along the way, and it potheses developed through university and usually takes at least a few years between the publicly funded research. Industry scientists granting of patents and marketing approval. searching for a new drug typically must sort is means that, despite the standard 20-year

82 83 A laboratory at the U.S. biotech company Avigen, where they are investigating new treatments for hemophilia B.

Two researchers at the Oklahoma Medical Research Foundation, testing an Alzheimer’s drug for a new pharmaceutical company.

patent life, the average eff ectivepatent life for a new drug — the amount of time where sarily notice the absence of new medicines the product is sold under patent protection for a decade or more, given the decade-long — is roughly 10 to12 years. In addition to the drug-development-cycle time. Smaller fi rms direct costs of development, fi rms must pay and biotechnology companies would cer- returns on the capital they invest on behalf tainly notice, however, since they would have of shareholders over the course of a decade more diffi culty raising investment capital if or more, a cost that increases as development expected returns were lower. Capital-starved times increase. companies would soon disappear, along with At current levels of reimbursement, the promise they hold for new treatments. economists estimate that only about 30 per- Continued investor confi dence has en- cent of new medicines actually earn enough abled large-scale research and development revenue during their patented product life- to continue in the pharmaceutical industry, cycle to cover the average upfront cost of in the United States and in other countries. development. If a fi rm incurred the average Pfi zer alone is investing over $8 billion cost of drug development and only invented this year and employing more than 12,000 “average” drugs, it would quickly go out of scientists in the search for new cures, with business. signifi cant investments in cardiovascular  e enthusiasm and support among in- disease, cancer, HIV/AIDS and other infec- vestors for pharmaceutical companies to fi nd tious diseases, central nervous system (CNS) new cures depends on the expected returns affl ictions, and a wide range of other chronic of a relative handful of products. A society and acute diseases. New discoveries in these that guarantees strong patent protection areas are dependent on both the ingenuity of helps give investors confi dence that their scientists and the confi dence of the investors high-risk investments might pay off down who fund their investigations. the road. Conversely, without confi dence  e support of the international commu- that discovery of a new cure can produce a nity for strong intellectual property rights potentially large payout, investors in phar- regimes is a key ingredient in bolstering that maceutical fi rms, as well as pharmaceutical confi dence.  fi rms looking to expand in other countries, will demand that their funds be returned or invest them elsewhere. If investors made the decision to pull out Dr. Neal Masia is director of economic policy at today and pharmaceutical research invest- Pfi zer, Inc. ments stopped, consumers would not neces-

82 83 MALARIA: Partnering to Find a Cure By Richard Wilder and P. V. Venugopal

very year, 300 to 500 million people After just five years of operation, MMV is around the world are infected with managing the largest-ever portfolio of malar- malaria, and more than one million people ia drug research, with 21 projects in various die of the disease. In Africa, the burden stages of development. Such a rapid advance of malaria is on the rise for the first time was made possible by MMV’s pioneering col- in 20 years, fueled by the rapid spread of laboration with nearly 40 public and private resistance to widely used malaria drugs institutions around the world. MMV, for ex- like chloroquine. As a result, malaria is the ample, looked to pharmaceutical companies leading cause of death for children in Africa, doing anticancer therapy research that has killing 3,000 every day. These statistics rep- led to the development of compounds that resent an international disaster and a public are highly active against the malaria parasite. health failure. ese companies share their knowledge with Despite the massive burden malaria rep- MMV project teams once they enter into resents for developing countries, only four agreements with MMV. of almost 1,400 new medicines developed An integral part of agreements negotiated worldwide between 1975 and 1999 were by MMV is its innovative management of the antimalarials. is is not enough to tackle intellectual property that its partners bring the problem, since new drugs are needed to to the table. MMV manages the ownership offset the malaria parasite’s pattern of devel- and licensing of intellectual property so that oping resistance to the ones in use. the partner’s interests — whether academic, In 1999, talks between the World Health commercial, or purely in the public interest Organization (WHO) and the International — are reflected in the terms of agreements. Federation of Pharmaceutical Manufacturers Depending on the circumstances, MMV may Associations (IFPMA), in collaboration with own the intellectual property outright, retain a number of institutions, such as the World licenses to the intellectual property, or have Bank and the Rockefeller Foundation, led to conditions in its agreements that, if not met, the creation of the Medicines for Malaria cause the intellectual property rights (IPR) to Venture (MMV). MMV is a nonprofit orga- be transferred back to MMV. nization that brings public, private, and phil- In many cases ownership of the intellec- anthropic sector partners together to fund tual property rights is not necessary, since and manage the discovery, development, and MMV is working with a company to both registration of new medicines for the treat- discover and develop a promising comment and prevention of malaria. pound as an antimalarial. In those cases, for

84 85 Artemisia annua plants, used to produce anti-malaria medications, on the outskirts of Arusha, Tanzania.

A 19th century bottle containing quinine. It was the primary drug In Africa, malaria is on the rise for the fi rst time in in the treatment of malaria until 20 years. It is now the leading cause of death for supplanted by synthetic drugs, children in that continent. such as chloroquine, which are becoming less eff ective against this disease.

example, the company may retain ownership One of MMV’s most promising drug of the intellectual property rights and use candidates is a synthetic peroxide, fi rst them while performing their obligations to discovered by scientists from the Univer- MMV to develop and bring an antimalarial sity of Nebraska Medical Center, Monash to market.  e agreement will specify cer- University in Australia, the Swiss Tropical tain conditions that have to be met, including Institute, and Roche Pharmaceuticals.  e price specifi cations and other conditions re- drug resembles plant-derived artemisinins, lating to access to the antimalarial by people today’s most eff ective antimalarials.  rough in poorer countries. It is only in cases where an agreement arranged by MMV, Roche the partner company cannot — or will not Pharmaceuticals has transferred more than — fulfi ll its obligations that MMV needs the three years of research results on synthetic rights to be returned to it, so as to go forward peroxides to the Indian pharmaceutical fi rm with the project with a diff erent partner. Ranbaxy, to speed the drug’s development at Regardless of the nature of the intellec- the lowest possible cost. tual property rights held by MMV, the de- Today, the drug is moving into clinical termining factor is its ability to carry out its development, and could become the most mission. Consequently, the focus is not on important new weapon against malaria in a the intellectual property rights per se, but generation.  is illustrates the result of inno- on the path that MMV must take to ensure vative management of intellectual property that the new antimalarials being developed rights by MMV to accomplish its goal — and under its supervision are brought to market that of its partners — of bringing modern and made aff ordable and accessible to those medicines to market to treat malaria.  who need them in the developing world.  e intellectual property rights, then, are a tool to bring the partners in a given project together for a common goal and to ensure that Richard Wilder is a partner in the Washington, the path that MMV must take to achieve its D.C., offi ce of Sidley Austin Brown & Wood. Dr. P.V. Venugopal is director of international operations for goals is clear. the Medicines for Malaria Venture.

84 85 Protecting Trademarks on the Internet By Angelo Mazza

ith the expansion of e-com- ity and culpability of the web site.) Since the merce through auction1 and laws and policies of each country and/or stand-alone2 Internet web sites that sell a auction site vary dramatically, the topic is wide range of products, trademark holders too complex for this short article. Currently, in every country face a daunting enforce- however, the preferred approach is to notify ment challenge. While legitimate businesses the off ending auction site and off er an op- can prosper on the Internet, their survival portunity to cure the violation by removing is threatened by unscrupulous rivals who the off ending off ers. If the violation contin- exploit loopholes to gain unfair advantages, ues, responsible site operators close repeated pass off counterfeit goods as legitimate, and violators’ auction accounts. evade enforcement. Many of these rogue  is article will limit itself to a general sites, though they appear to be unrelated to overview of the issues related to stand-alone each other or to be small operations, easily sites selling counterfeit products. Focusing can achieve gross revenues in the millions of on current practices in the United States, we dollars by exploiting weaknesses in current will examine the scope of the problem, out- laws and enforcement techniques. line the steps that need to be taken, review An international legal framework to the pitfalls that each type of action brings, protect legitimate trademark holders on and determine what methods may succeed. the Internet does not exist yet. As a result, enforcement by the private sector and sup- 1 Auction web sites allow users to bid for items portive governments requires persistence sold by independent sellers. The sites off er a and vigilance. Governments and rights hold- variety of goods that range from the mundane ers should be aware that they can take steps to the specialized. Examples of such sites include to protect their marks in an Internet world eBay, Yahoo!, Sell.com, and iOff er, to name only fi lled with round-the-clock sales by sellers a few. from many nations. 2 Stand-alone web sites are independent retail We can divide these enforcement strate- sites that off er goods for sale via the Internet. gies into two general areas, one to address While there are many legitimate merchants, there auctions sites and another for stand-alone are also many sites that off er only counterfeit sites. Auction sites present special challenges goods for sale. The sites off er clothing, medicines, to enforcement and raise site liability issues. luxury goods, and anything else that can be (Site liability refers to the legal responsibil- copied for sale.

86 Widespread use of the Internet has sparked a revolution for sellers and customers. With E-commerce sites, buying almost any product is just a few clicks away.

E-buyer beware: As of yet, there is no international legal framework to protect customers or legitimate trademark holders on the Internet.

The private sector must remain committed to pursuing Internet violators, in order to protect both trademarks and unsuspecting customers.

86 87  e process of dealing with web sites Once a site selling counterfeit goods has selling counterfeit goods can be very time- been identifi ed, however, the rights holder consuming and, unfortunately, deprives the prepares cease-and-desist letters and sends rights holder of immediate relief. Success them to the Internet Service Provider (ISP) requires persistence and expertise.  e In- and to the site itself. In most instances, the ternet presents special challenges for rights site will ignore the letter. However, the site is holders since, in many cases, the infringing now on notice of violation and can no longer web sites provide false or incomplete “Regis- claim ignorance as to its illegal activities. trant” information.  is lack of accurate in- Typically, ISPs are cooperative when con- formation presents a major obstacle to rights tacted, although, under the current system, holders trying to locate the site and to police they are not required to verify any of the the sale of goods on the Internet. information they collect. Law-abiding ISPs Many legitimate companies employ teams will remove infringing sites from their serv- of in-house personnel, specialized software, ers. However, this is not the case when the and outside service providers to locate and site selling counterfeit products becomes its track sites selling counterfeit goods. Once a own ISP and ignores all correspondence. In rights holder identifi es a site off ering coun- addition, there are instances of rogue ISPs terfeit goods for sale, the holder can begin that become safe harbors for infringing sites. to collect data, review databases, and gather  e unintentional side eff ect of cooperative Whois3 information, so as to identify those ISPs is that many infringing sites eventually responsible for the site. migrate to ISPs located outside the United In almost every instance, the site infor- States, where laws diff er and ISPs are often mation gathered from the Whois database less cooperative. is woefully inadequate or completely false. If contacting the site fails and the coun- Given the lack of any penalties in the United terfeiter engages in a game of moving to States for providing false or misleading infor- alternative ISPs, the rights holder may take mation to a database, counterfeiters fi ll their additional action.  e rights holder may do Whois information with periods, dashes, more research and, in some instances, hire names of dead personalities, and addresses outside investigators to make purchases that that have them living in Atlantis or other may lead to the source of the items or of improbable locations. Although there has the site.  ese investigations often reveal a been talk of amending the applicable U.S. variety of sources for the counterfeit goods. laws to require more accurate information when registering a domain name, those efforts have yet to bear fruit.

Home pages of some major auction web sites.

88 89 Although many sites are in English and con-  e enforcement problems outlined in duct business in U.S. currency, more often this article will be reduced only when gov- than not they operate outside the borders ernments create laws that level and harmo- of the United States. In other instances, they nize the Internet playing fi eld and support collect money in the United States, but ship private enforcement eff orts.  e private sec- counterfeit items to the purchasers from tor, in the meantime, must remain commit- overseas locations.  is creates additional ted to pursuing Internet violators.  enforcement problems for the rights holder, who must retain overseas counsel and investigators to advance the investigation. Now the rights holder faces mounting costs and Angelo Mazza is a partner in the New York City the peculiarities of enforcement in a foreign fi rm of Gibney, Anthony & Flaherty, LLP, where he specializes in and oversees day-to-day operations jurisdiction. in the Internet area. He is also the president of the  e rights holder may initiate legal action International AntiCounterfeiting Coalition once enough information is gathered.  e (IACC) Foundation, the educational and training legal action allows the rights holder to sub- arm of the IACC . poena ISP records related to the operation of the site in question. Often, the ISP records are outdated or no longer available. If the site is part of a larger series of sites under common ownership, it may merit a referral to law enforcement for criminal prosecution. However, given the lack of resources and specialized cybercrimes units, criminal actions represent a small percentage of enforcement actions.  e owners of replica sites4 are acutely aware of this lack of criminal enforcement as well.

3 The Whois database provides contact and registration information for domain names.

4 Replica sites openly sell copies of established or widely coveted goods.

Left, auction sites present special enforcement challenges. Right, the Whois database, which provides contact and registration information for domain names.

88 89 Glossary of Intellectual Property Terms

A AUTHOR [copyright]. Either the real APPELLATION OF ORIGIN [trademark- person who creates a copyrightable work unfair competition]. A term that refers to or the employer, corporate or individual, of both a product’s geographic origin and to its a person who creates a copyrightable work distinctive product characteristics caused within the scope of employment, or, in some by particular geographic conditions or circumstances, the commissioning party of methods of production. Some distinguish certain specifi ed types of works. “Author” an appellation of origin from an “Indication in copyright law includes not only writers of Source,” which refers solely to the of novels, plays, and treatises, but also those geographic origin of production. Roquefort who create computer programs, arrange cheese is an example of an appellation of data in reference books, choreograph origin because it designates both geographic dances, take photographs, sculpt stone, origin and product characteristics. “Paris” paint murals, write songs, record sounds, perfume is an indication of source, which and translate books from one language to refers only to geographic origin.  e term another. (See WORK MADE FOR HIRE, “Geographic Denomination” encompasses JOINT AUTHORS.) both categories. B ASSIGNMENT [patent-trademark- copyright]. A transfer of rights in BERNE CONVENTION [copyright- intellectual property. An assignment of a international].  e major multilateral patent, for example, is a transfer of suffi cient copyright treaty, signed in Berne, rights so that the recipient has title to the Switzerland, in 1886.  e Berne Convention, SOURCES patent.  e assignment can be a transfer of whose members form the Berne Union, is all rights of exclusivity in the patent, of an adhered to by nearly 150 nations, including undivided portion (for example, a 50 percent the United States.  e World Intellectual interest), or of all rights within a specifi ed Property Organization (WIPO) serves as the location (for example, a certain area of the administering agency for the activities of the United States). Transfer of anything less is Berne Union. considered to be a “license.” BEST MODE [patent]. A condition for the AUDIOVISUAL WORK [copyright]. grant of a valid patent. An inventor must A copyrightable work consisting of describe the best method he or she knows images that are related, presented in a for carrying out the invention. series, and intended to be shown by the use of a machine, as well as any sound C accompanying the work. A common example of an audiovisual work is a COMMUNITY TRADE MARK CTM slide show, such as that used in a sales [trademark-international]. A trademark presentation, a lecture, or an introduction to registration granted by the European a museum. Union’s Offi ce for Harmonization in the Internal Market and enforceable throughout EU member nations.

90 91 COMPILATION [copyright]. A COUNTERFEITING [trademark].  e act copyrightable work consisting of a collection of producing or selling a product containing and assembly of preexisting material.  e a sham mark that is an intentional and assembly must exhibit at least minimal calculated reproduction of the genuine originality in the selection, organization, mark. A “counterfeit mark” is identical to and arrangement of the material without or substantially indistinguishable from the making any internal changes in it. genuine mark. Often, counterfeit goods are made to imitate a popular product in all CONTRIBUTORY INFRINGEMENT details of construction and appearance, so [patent-trademark-copyright]. Indirect as to deceive customers into thinking they infringement of intellectual property are purchasing the genuine merchandise. rights in which one person contributes to the direct act of infringement of another. CYBERSQUATTING [trademark]. Contributory infringement of a trademark, “Cybersquatting” and “cyberpiracy” are for example, occurs when a manufacturer synonymous terms that refer to the same of goods aids or encourages its distributors type of unfair competition for web sites. to pass off its goods as those of another  e typical “cybersquatter” is one who manufacturer. knowingly reserves with a registrar a domain name consisting of the trademark COPIES [copyright]. As a noun, “copies” or name of a company for the purpose of means the material objects that store or selling the right to that domain name back fi x copyrightable information other than to the legitimate owner. sounds; as a verb, the act of copying. D COPYING [copyright-patent-trademark]. In copyright law, “copying” denotes two DEPENDENT claim [patent]. A claim in a separate but interrelated concepts. To patent that refers back to a previous claim constitute an infringement of copyright, and defi nes an invention that is narrower a work must be a “copy” in the sense that in scope than that in the previous claim. A it is substantially similar to a copyrighted dependent claim must be written so as to be work, it must have been “copied” from more restricted than the technology defi ned the copyrighted work as opposed to being in the previous claim. the result of coincidental, independent production or from being taken from the DERIVATIVE WORK [copyright]. same source as the copyrighted work. A work based on a preexisting work that is Legal standards for infringement of changed, condensed, recast, or embellished copyright diff er from those for patents and in some way. trademarks, neither of which require proof of copying. DESCRIPTIVE MARK [trademark]. A word, picture, or other symbol that COPYRIGHT [copyright]. An exclusive describes something about the goods or right granted or conferred by the services in connection with which it is government on the creator of a work used, such as purpose, their size or color, to exclude others from reproducing it, the class of users, or the end eff ect on users. adapting it, distributing it to the public, A descriptive term is not considered to be performing it in public, or displaying it inherently distinctive; to establish validity in public. Copyright does not protect an for registration or protection in court, it abstract idea; it protects only the concrete needs proof of acquired distinctiveness, form of expression in a work. To be valid, a known as “secondary meaning.” (See copyrighted work must have originality and SECONDARY MEANING, SUGGESTIVE possess a modicum of creativity. MARK).

90 91 DOMAIN NAME [trademark].  e names DESIGN PATENT [patent]. A government and words that companies designate for grant of exclusive rights in a novel, their registered Internet web site addresses, nonobvious, and ornamental industrial also referred to as a “URL.” For example: design. A design patent confers the right is a domain name to exclude others from making, using, identifying the site of  e Coca-Cola or selling designs that closely resemble Company. Technologically, each domain the patented design. A design patent name is unique and cannot be shared. covers ornamental aspects of a design; its Domain names are registered on a fi rst- functional aspects are covered by a utility come, fi rst-served basis. patent. A design patent and a utility patent can cover diff erent aspects of the same DURATION [patent-trademark-copyright- article, such as an automobile or a table trade secret-right of publicity].  e term or lamp. length of time that an intellectual property right lasts. As a result of the Uruguay Round DIGITAL MILLENNIUM COPYRIGHT Agreements Act, U.S. law was changed, ACT [copyright]. A major piece of U.S. eff ective June 8, 1995, to adopt a patent legislation adopted in 1998 that extensively term of 20 years from the date on which the amended the copyright laws, in part patent application was fi led. A trademark to conform U.S. law to various treaty continues in duration as long as there is no obligations, and in part to modernize the abandonment of rights by nonuse or by acts law to take into account various new digital that cause the term to lose its signifi cance technologies. as an indicator of origin and to become a generic name.  e basic duration of a DILUTION [trademark]. A type of copyright is the life of the author plus 70 violation of a strong trademark in which the years. Protection of information as a trade defendant’s use, while not causing likelihood secret lasts as long as the information of confusion, blurs the distinctiveness or remains secret. tarnishes the image of the plaintiff ’s mark. To possess the selling power and recognition E protected by the antidilution statutes, the mark must be relatively strong and famous. ECONOMIC ESPIONAGE ACT (EEA) [trade secret]. A U.S. statute, adopted in DISTRIBUTION RIGHT [copyright]. One 1996, which provides criminal penalties for of the six exclusive rights held by a copyright the theft of trade secrets.  e EEA makes owner, under which the copyright owner it illegal to steal or fraudulently obtain has the exclusive right to distribute copies trade secrets for the benefi t of a foreign or phonorecords of the work to the public government, instrumentality, or agent and by sale, lease, or rental. Unlike the other steal trade secrets that benefi t “anyone other rights of copyright, the distribution right than the owner.” is infringed merely by a transfer of copies of the work, whether those copies were EQUIVALENTS, DOCTRINE OF [patent]. unlawfully or lawfully made, except under A rule of claim interpretation under which the “First Sale Doctrine.” (See FIRST SALE a product or process, although not a literal DOCTRINE.) infringement, is still an infringement if it performs substantially the same way as the patented invention.

92 93 F the new intent-to-use system, an application for registration can be fi led prior to actual FAIR USE [copyright-trademark]. A defense use of mark. (See INTENT-TO-USE to a charge of copyright or trademark APPLICATION.) infringement. For copyrights, U.S. courts consider four factors in determining if a FIRST TO INVENT [patent]. A rule fair use defense exists: the purpose and under which patent priority is determined character of the disputed use; the nature by which inventor was the fi rst to actually of the copyrighted work; the importance invent, rather than who was the fi rst to fi le a of the portion used in relation to the work patent application. First to invent is the rule as a whole; and the eff ect of the use on followed in the United States. the potential market for or value of the copyrighted work. For trademarks, the FUNCTIONALITY [patent-trademark- secondary user must show that he or she copyright].  at aspect of design that makes is not using a descriptive, geographically a product work better for its intended descriptive, or personal name mark in a purpose, as opposed to making the product trademark sense but only to describe his or look better or to identifying its commercial her goods or services or their geographic source. origin, or to name the person running the business. G

FIELD OF USE RESTRICTION [general GENERIC NAME [trademark]. A word intellectual property-antitrust]. A provision used by most people to name a class or in an intellectual property license restricting category of product or service, such as the licensee to use of the licensed property “cellular phone.” No one person may have only in a defi ned product or service market. trademark rights to a generic name.

FIRST SALE DOCTRINE [copyright]. GOOD WILL [trademark].  e value of a An exception to the exclusive right of a business or of a line of goods or services that copyright owner to distribute copies or refl ects commercial reputation. A business phonorecords of the copyrighted work. with a well-established good will could see Under this principle, the copyright owner all of its tangible assets destroyed, yet still has the right to sell a copy of a book but not own its reputation, its good will. Trademark the right to control subsequent sales of that infringement is a form of theft of good copy. (See DISTRIBUTION RIGHT.) will, since a trademark or service mark is a symbol of a business’ good will. FIRST TO FILE [patent-trademark]. For patents, a rule under which patent I priority, and thus entitlement to a patent, is determined by which inventor was the fi rst IDEA-EXPRESSION DICHOTOMY to fi le a patent application, rather than who [copyright].  e fundamental rule of law was fi rst to actually invent.  is is the rule that copyright does not protect an idea; followed by almost every nation in the world copyright protects only specifi c expressions except the United States. For trademarks, of an idea. priority among confl icting applications to register trademarks is handled by publishing the application with the earliest fi ling date for possible opposition by the applicant with the later fi ling date. In the United States, ownership of a trademark is determined by who was fi rst to use it, not by who was fi rst to fi le an application for registration. Under

92 93 INFRINGEMENT [general intellectual J property]. An invasion of one of the exclusive rights of intellectual property. JOINT AUTHORS [copyright].  e Infringement of a utility patent involves collaborating creators of a single the making, using, selling, off ering to sell, copyrightable work who merge their or importing of a patented product or separate contributions to the work. Joint process without permission. Infringement authorship implies joint ownership of of a design patent involves fabrication of copyright in the work created. Co-owners a design that, to the ordinary person, is of a copyright are treated as “tenants in substantially the same as an existing design, common,” with each co-owner having an where the resemblance is intended to independent right to license the use of a induce an individual to purchase one thing work, subject to a duty of accounting to the supposing it to be another. Infringement of a co-owners for any profi ts. trademark consists of the unauthorized use or imitation of a mark that is the property JOINT INVENTORS [patent]. Two or of another in order to deceive, confuse, or more inventors of a single invention who mislead others. Infringement of a copyright collaborate in the inventive process. involves reproducing, adapting, distributing, performing in public, or displaying in public K the copyrighted work of someone else. KNOCK-OFF [patent-trademark- INTELLECTUAL PROPERTY [patent- copyright]. An identical copy of a work or trademark-unfair competition-copyright- product protected by patent, trademark, trade secret-moral rights]. Certain creations trade dress, or copyright. When used as a of the human mind that have commercial verb, the act of producing such a copy. value and are given the legal aspects of a property right. “Intellectual property” is an KNOW-HOW [trade secret]. Information all-encompassing term now widely used that enables a person to accomplish a to designate as a group all of the following particular task or to operate a particular fi elds of law: patent, trademark, unfair device or process. competition, copyright, trade secret, moral rights, and the right of publicity. L

INTENT-TO-USE APPLICATION LICENSE [patent-trademark-copyright]. A [trademark]. Since 1989 in the United States, permission to use an intellectual property an optional method of applying for federal right, under defi ned conditions – as to registration of a mark on the Principal time, context, market line, or territory. Register based upon a declared good-faith In intellectual property law, important intention to use a mark on defi ned goods distinctions exist between “exclusive or services. licenses” and “nonexclusive licenses.” An exclusive license does not necessarily mean INVENTION [patent].  e human creation that this is the one and only license granted of a new technical idea and the physical by the licensor. In giving an exclusive means to accomplish or embody the idea. license, the licensor promises that he or she will not grant other licenses of the same rights within the same scope or fi eld covered by the exclusive license. However, the owner of rights may grant any number of nonexclusive licenses of the same rights. In a nonexclusive license, title remains with the licensor. A patent license is a transfer of rights that does not amount to

94 95 an assignment of the patent. A trademark MUSICAL WORK [copyright]. A category or service mark can be validly licensed of copyrightable work expressed in notation only if the licensor controls the nature and or sounds. A musical work can be embodied quality of the goods or services sold by the and fi xed in physical objects that are licensee under the licensed mark. Under classifi ed as either “copies” (sheet music) copyright law, an exclusive licensee is the or “phonorecords” (e.g., compact discs or owner of a particular right of copyright, and tapes). A composer’s song is covered by a he or she may sue for infringement of the musical work copyright, but a recording of licensed right.  ere is never more than a the song is covered by a sound recording single copyright in a work regardless of the copyright. owner’s exclusive license of various rights to diff erent persons. N

LOGO [trademark]. A graphic NOTICE [patent-copyright-trademark]. representation or symbol of a company A formal sign or notifi cation attached to name or trademark, usually designed for physical objects that embody or reproduce ready recognition.  e term has no legal an intellectual property right — for signifi cance in the law of trademark. example, the use of the word “patent” or its abbreviation, “pat.,” together with the M patent number, on a patented article made by a patent holder or his/her licensees.  e MISAPPROPRIATION [unfair formal statutory notice of U.S. trademark competition]. A common-law form of unfair registration is the letter R in a circle symbol competition where the defendant has copied , “Reg. U.S. Pat. & Tm. Off .,” or “Registered or appropriated some item or creation of in® U.S. Patent and Trademark Offi ce.” Many the plaintiff that is not protected by either fi rms use informal trademark notices, such patent law, copyright law, trademark law, as “Brand,” “TM,” “Trademark,” “SM,” or or any other traditional theory of exclusive “Service Mark,” adjacent to words or other rights. symbols considered to be protectable marks. Notice of copyright consists of the letter C MORAL RIGHTS [copyright-author’s in a circle symbol © or the word “Copr.” or rights]. Some European and other nations’ “Copyright,” the copyright owner’s name, legal systems expressly recognize certain and the year of fi rst publication. rights of authors beyond those strictly recognized in copyright law. Moral rights NOVELTY [patent]. One of the three generally fall into three categories: the right conditions that an invention must meet in of an author to receive credit as the author order to be patentable. Novelty is present if of a work, to prevent others from falsely every element of the claimed invention is being named author, and to prevent use not disclosed in a single piece of prior art. of the author’s name in connection with works the author did not create; the right of O an author to prevent mutilation of a work; and the right to withdraw a work from OBVIOUSNESS [patent]. A condition of distribution if it no longer represents the non-patentability in which an invention views of the author. cannot receive a valid patent because a person with ordinary skill in that technology can readily deduce it from publicly available information (prior art).

94 95 ON SALE [patent]. An inventor cannot expires, the public is entitled to make and obtain a valid patent if he or she waits for use the invention and is entitled to a full and more than the one-year grace period to complete disclosure of how to do so. fi le a patent application after a product embodying the invention has been placed PERFORMANCE [copyright]. To recite, “on sale.” render, play, dance, or act a copyrighted work, including the broadcast by radio ORDINARY SKILL IN THE ART or television of a performance and [patent].  at level of technical knowledge, the reception of such a broadcast.  e experience, and expertise possessed by exclusive right to “perform the copyrighted the run-of-the-mill or ordinary engineer, work publicly” is granted to all types of scientist, or designer in the technology that copyrighted works, except for pictorial and is relevant to the invention. sculptural works and sound recordings.

P PHONORECORDS [copyright].  e material objects that store or PASSING OFF [trademark]. (1)  e fi x copyrightable sounds, other than substitution of one brand of goods when soundtrack accompanying a motion picture. another brand is ordered. (2) Trademark Phonorecords can be audiotapes, compact infringement where the infringer discs, computer chips that store sounds, and intentionally meant to mislead or deceive the like. purchasers. (3) Trademark infringement where there is no proof of intent to deceive PIRACY [copyright-trademark].  e but likelihood of confusion is proven. (4) act of exact, unauthorized, and illegal In British-law countries, acts illegal under reproduction on a commercial scale of the common law, apart from registered a copyrighted work or of a trademarked “trademark” law, and consisting of the product. misrepresentation of one’s goods or services as those of a competitor, usually by using a PRIOR ART [patent].  e existing body of similar mark. technological information against which an invention is judged to determine if it can be PATENT [patent]. In the United States, patented as being a novel and nonobvious a grant by the federal government to an invention. inventor of the right to exclude others from making, using, or selling the invention. PROCESS CLAIM [patent]. A claim of a  ere are three very diff erent kinds of patent that covers the method by which an patents in the United States: a utility patent invention is performed by defi ning a series on the functional aspects of products and of steps to be followed.  is is in contrast to processes; a design patent on the ornamental a product claim or apparatus claim, which design of useful objects; and a plant patent cover the structure of a product. on a new variety of living plant. Patents do not protect “ideas,” only structures and PRODUCT-BY-PROCESS CLAIM methods that apply technological concepts. [patent]. A patent claim in which a product In return for receiving the right to exclude is claimed by defi ning the process by which others from a precisely defi ned scope of it is made.  e product-by-process form technology, industrial design, or plant of claim is most often used to defi ne new variety, which is the gist of a patent, the chemical compounds, since many new inventor must fully disclose the details of chemicals, pharmaceuticals, and drugs can the invention to the public.  is will enable only practicably be defi ned by the process of others to understand the invention and be making them. able to use it as a steppingstone to further develop the technology. Once the patent

96 97 PRODUCT CLAIM [patent]. A claim of a RIGHT OF PUBLICITY [general patent that covers a structure, apparatus, or intellectual property].  e inherent right composition.  is is in contrast to a “process of every human being to control the claim,” which covers a method or process. commercial use of his or her identity.

PUBLICATION [copyright].  e S distribution of copies or phonorecords of a work to the public. SECONDARY MEANING [trademark]. A meaning for a trademark or service mark PUBLIC DOMAIN [general intellectual that customers associate with a particular property].  e status of an invention, brand of products or services. For trade creative work, and commercial symbol that symbols that are not inherently distinctive, is not protected by any form of intellectual distinctiveness must be acquired in order to property law. Items in the public domain be protected by a trademark or service mark. are available for free copying and use by  is acquired distinctiveness is known as anyone.  e copying of items that are in “secondary meaning” because it is acquired the public domain is not only tolerated but second in time to the primary meaning of encouraged as a vital part of the competitive a word. For example, a word such as “best” process. (See COPYING, INTELLECTUAL for milk is regarded as descriptive and not PROPERTY.) inherently distinctive.  e primary meaning is that milk thus described is purported to R be the best. To achieve exclusive trademark rights for a product called “Best Milk,” a REDUCTION TO PRACTICE [patent]. seller using this word must use it so that it  e physical part of the inventive process achieves a secondary meaning denoting that that completes and ends the process of all milk marked “best” comes from a single invention. After a reduction to practice, commercial source. the invention is complete for patent law purposes. SERVICE MARK [trademark]. A word, slogan, design, picture, or any other symbol RENEWAL [trademark-copyright].  e used to identify and distinguish services extension of a registration of a trademark or (retail sales services, airlines services, the extension of a copyright. insurance, investment services, and the like) as opposed to a product. REVERSE ENGINEERING [trade secret- copyright]. A method of obtaining technical SKILL IN THE ART [patent]. An ordinary information by starting with a publicly level of profi ciency in the particular available product and determining what it technology in which an invention is made. is made of, what makes it work, or how it was produced.  e engineering eff ort goes SOUND RECORDING [copyright]. A in the reverse direction of usual engineering category of copyrightable work consisting eff orts, which start with technical data and of the sounds that are recorded in a use it to produce a product. If the product phonorecord. or other material that is the subject of the reverse engineering was properly obtained, the process of reverse engineering is not infringement of any trade secrets in the data embodied in a product and it is legitimate and legal competitive behavior.

96 97 SPECIAL 301 [international trade]. U.S. T statutory provisions requiring annual review of trade agreement rights and foreign trade TRADE DRESS [trademark]. e totality practices of U.S. trading partners that deny of elements in which a product or service benefits to the United States or unjustifiably is packaged or presented, such as the shape restrict or burden U.S. commerce. e Trade and appearance of a product or container, Act of 1974, as amended by the Special 301 or the cover of a book or magazine. ese provisions of the 1988 Omnibus Trade and elements combine to create a visual image Competitiveness Act, authorizes the U. S. presented to customers and are capable of Trade Representative (USTR) to identify acquiring exclusive legal rights as a type of and investigate potential violating countries, trademark or identifying symbol of origin. recommend the suspension of trade agreement concessions and the imposition TRADEMARK [trademark]. (1) A word, of duties and import restrictions, and enter slogan, design, picture, or any other symbol into agreements to eliminate the burdens or used to identify and distinguish goods. restrictions on U.S. trade. (2) Any identifying symbol, including a word, design, or shape of a product or SUBSTANTIAL SIMILARITY container, that qualifies for legal status as a [copyright]. e degree of resemblance trademark, service mark, collective mark, between a copyrighted work and a second certification mark, trade name, or trade work that is sufficient to constitute dress. Trademarks identify one seller’s goods copyright infringement by the second work. and distinguish them from goods sold by Exact word-for-word or line-for-line identity others. ey signify that all goods bearing does not define the limits of copyright the mark come from or are controlled by infringement. U.S. courts have chosen a single source and are of an equal level of the flexible phrase “substantial similarity” quality. A trademark is infringed by another to define that level of similarity that will, if the second use causes confusion of source, together with proof of validity and copying, affiliation, connection, or sponsorship. constitute copyright infringement. TRADE NAME [trademark]. A symbol SUGGESTIVE MARK [trademark]. A used to identify and distinguish companies, word, picture, or other symbol that suggests, partnerships, and businesses, as opposed but does not directly describe, something to marks used to identify and distinguish about the goods or services in connection goods or services. with which it is used as a mark. A suggestive term is considered to be inherently TRADE SECRET [trade secret]. Business distinctive and needs no proof of secondary information that is the subject of reasonable meaning for registration or protection in efforts to preserve confidentiality and has court. For example, a polar bear for parkas value because it is not generally known in and coats merely suggests the kind of the trade. Such confidential information protection that a polar bear has from the will be protected against those who obtain cold. (See DESCRIPTIVE MARK.) access through improper methods or by a breach of confidence. Infringement of a trade secret is a type of unfair competition.

98 99 U WORLD TRADE ORGANIZATION (WTO) [international]. WTO is the only UNFAIR COMPETITION [general global international organization dealing intellectual property]. Commercial conduct with the rules of trade between nations. that the law views as unjust. A person Located in Geneva, Switzerland, it was injured by an act of unfair competition is created at the end of the Uruguay Round of entitled to relief in a civil action against the General Agreement on Tariff s and Trade the perpetrator of the act. Trademark (GATT) negotiations in December 1993 to infringement has long been considered to be oversee the operation of GATT.  e WTO unfair competition. Other legal categories entered into force with respect to the United recognized as being types of unfair States on January 1, 1995.  e WTO often competition are false advertising, product plays much the same role in world fi nancial disparagement/trade libel, infringement of and economic aff airs as the United Nations a trade secret, infringement of the right of does in political aff airs. Activities of WTO publicity, and misappropriation. include: administering trade agreements; acting as a forum for trade negotiations; UTILITY [patent].  e usefulness of a settling trade disputes; reviewing national patented invention. To be patentable, an trade policies; assisting developing countries invention must operate and be capable of in trade policy issues through technical use, and it must perform some “useful” assistance and training programs; and function for society. cooperating with other international organizations. One hundred forty-eight W nations are members of the WTO (as of June 2005), accounting for over 97 percent WORLD INTELLECTUAL PROPERTY of world trade. ORGANIZATION (WIPO) [international]. One of the 16 “specialized agencies” of the United Nations system. WIPO, located in Geneva, Switzerland, was created in  e information that is presented here was 1967 and is responsible for the promotion adapted and excerpted with permission of the protection of intellectual property from McCarthy’s Desk Encyclopedia of throughout the world. WIPO fulfi lls this Intellectual Property,  ird Edition, by responsibility by promoting cooperation J.  omas McCarthy, Roger E. Schechter, among nations in intellectual property and David J. Franklyn. Copyright © 2004 matters, administering various “unions” by  e Bureau of National Aff airs, Inc., and other treaty organizations founded on Washington, D.C. 20037. To contact BNA multilateral treaties, and creating model Books, call toll free 1-800-960-1220 or visit laws for adoption by developing nations. www.bnabooks.com.

WORK MADE FOR HIRE [copyright]. A work prepared by an employee within the scope of his or her employment or a commissioned work that the parties agree in writing to treat as a work made for hire.  e real person, partnership, or corporation for whom the work was prepared is considered to be both the “author” and the owner of copyright from the moment of creation of the work.

98 99 Sources of Information on Intellectual Property

U.S. Government U.S. Department of Justice Computer Crime and Intellectual Property Offi ce of the U.S. Trade Representative Section (CCIPS) 600 17th Street, N.W. 10th & Constitution Ave., N.W. Washington, D.C. 20506 U.S.A. John C. Keeney Building, Suite 600 Tel: 1-888-473-8787 Washington, D.C. 20530 E-mail: [email protected] Tel: 202- 514-1026 Internet: http://www.ustr.gov Fax: 202- 514-6113 Internet site includes reports, speeches, Internet: http://www.cybercrime.gov/ press releases, and other documentation on ip.html a range of trade-related subjects, including Internet site off ers, among many topics, intellectual property (IP). an overview of IP policy and programs, guidance to law enforcement on the U.S. Department of Commerce investigation and prosecution of violations International Trade Administration of federal intellectual property laws, and a 14th Street and Constitution Avenue, N.W. comprehensive listing of federal criminal Washington, D.C. 20230 U.S.A. laws that pertain to the protection of IPR. Tel: 202-482-3809 E-mail: [email protected] U.S. Department of State Internet: http://www.ita.doc.gov/ Bureau of Economic and Business Aff airs Internet site includes periodically updated Trade Policy and Programs articles on U.S. intellectual property rights Offi ce of International Intellectual Property laws, "Special 301" enforcement activities, Enforcement and the TRIPS Agreement. 2201 C Street, N.W. Washington, D.C. 20520 U.S.A. U.S. Department of Commerce Tel: 202-647-3251 Strategy Targeting Organized Piracy (STOP) Internet: http://www.state.gov/e/eb/tpp/ Internet: http://www.export.gov/stop_fakes_ Internet site provides an overview of gov/index.asp economic and trade topics arranged by  is is the Internet site for a recent U.S. current issues; press statements; remarks, initiative that helps U.S. businesses protect testimony, and briefi ngs; topics; and regional their intellectual property at home information. and abroad. International Intellectual Property U.S. Department of Commerce Rights Training Database U.S. Patent and Trademark Offi ce http://www.training.ipr.gov/ P.O. Box 1450  is database, maintained by U.S. Alexandria, Virginia 22313-1450 U.S.A. government agencies and IP industry Tel: 703-308-4357 associations and sponsored by the U.S. Internet: http://www.uspto.gov Department of State, provides training Internet site provides access to information and technical assistance relating to on intellectual property as related to patents protecting IPR. and trademarks, including rules, advice, defi nitions, submission forms, fees, and more.

100 101 U.S. Immigration and Customs Internet: http://www.european-patent- Enforcement offi ce.org/index.en.php National Intellectual Property Rights Internet site includes general information Coordination Center about the European Patent Offi ce, offi cial 1300 Pennsylvania Avenue, N.W., Rm. 3.5A communications, a patent information Washington, D.C. 20229 U.S.A. center, a toolbox for applicants, and patent Phone: 202-344-2410 information products. Fax: 202-344-1920 Internet: http://www.ice.gov/graphics/ World Intellectual Property cornerstone/ipr Organization  e National Intellectual Property Rights P.O. Box 18 Coordination Center (IPR Center) is CH-1211 Geneva 20, Switzerland a multi-agency center responsible for Tel: +41-22 338 9111 coordinating a unifi ed U.S. government Fax: +41-22 733 54 28 response regarding IPR enforcement Internet: http://www.wipo.int issues. Investigative personnel provide core Internet site provides the history and staffi ng from Immigration and Customs objectives of this organization, as well as a Enforcement (ICE) and the Federal Bureau list of its members, the texts of treaties it of Investigation (FBI). Particular emphasis administers, and a list of contracting parties is given to investigating major criminal or signatories to these treaties. organizations and those using the Internet to facilitate IPR crime. World Trade Organization 154 Rue de Lausanne U.S. Customs and Border Protection CH-1211 Geneva 21, Switzerland 1300 Pennsylvania Avenue, N.W. Tel: 41-22-739-5111 Washington, D.C. 20229 U.S.A. Fax: 41-22-731-4206 Tel: 202-354-1000 E-mail: [email protected] Internet: http://www.cbp.gov/xp/cgov/ Internet: http://www.wto.org/english/ import/commercial_enforcement/ipr/ tratop_e/trips_e/trips_e.htm Internet site has information on all aspects Internet site, in addition to providing of IPR enforcement in the United States. general information about the WTO, includes special sections on topics such as U.S. Library of Congress goods, services, environment, development, U.S. Copyright Offi ce dispute settlement, and IP. 101 Independence Avenue, S.E. Washington, D.C. 20559-6000 Tel: 202-707-3000 Associations and Trade Organizations Internet: http://www.copyright.gov Internet site presents a publication titled American Intellectual Property Law Copyright Basics, as well as information Association on copyright, including frequently asked 2001 Jeff erson Davis Highway questions, and documents of the World Suite 203 Intellectual Property Organization. Arlington, Virginia 22202 U.S.A. Tel: 703-415-0780 International Organizations Fax: 703-415-0786 E-mail: [email protected] European Patent Offi ce Internet: http://www.aipla.org Erhardtstrasse 27 Internet site provides information aimed D-80331 Munich at improving laws relating to patents, Germany trademarks, copyrights, unfair competition, Tel: (+49 89) 23 99 -0 and other fi elds of IP. Fax: (+49 89) 23 99-44 65

100 101 American Society of Composers, U.S. copyright-based industries in bilateral Authors, and Publishers and multilateral efforts to improve the One Lincoln Plaza international protection of copyrighted New York, New York 10023 U.S.A. works), as well as reports on worldwide Tel: 212-621-6000 piracy by country and issue. Fax: 212-724-9064 E-mail: [email protected] Motion Picture Association of America Internet: http://www.ascap.com 1600 Eye Street, N.W. Internet site for this membership association Washington, D.C. 20006 U.S.A. of over 68,000 composers, songwriters, Tel: 202-293-1966 lyricists, and music publishers provides Internet: http://www.mpaa.org information aimed at protecting the rights Internet site for this organization and its in- of its members by licensing and paying ternational counterpart, the Motion Picture royalties for the public performance of their Association, which serve as a voice for the copyrighted works. motion picture, home video, and television industries. It includes information on MPAA Association of American Publishers, Inc. anti-piracy efforts and its positions on laws 50 F Street, N.W. and regulations governing the industries. Suite 400 Washington, D.C. 20001 U.S.A. Music Publishers Association Tel: 202-347-3375 243 Fifth Avenue, Suite 236 Fax: 202-347-3690 New York, New York 10016 U.S.A. Internet: http://www.publishers.org Tel/Fax: 212-327-4044 Internet site for the principal trade Internet: http://www.mpa.org association of the U.S. book publishing rough its copyright resource centers, industry contains information on copyright this association disseminates copyright and electronic publishing. information with the aim of increasing copyright responsibility; also includes links Business Software Alliance to music information resources on the 1150 18th Street, N.W. World Wide Web. Suite 700 Washington, D.C. 20036 U.S.A. National Music Publishers Association Tel: 202-872-5500 711 ird Avenue Fax: 202-872-5501 New York, New York 10017 U.S.A. Internet: http://www.bsa.org Tel: 212-834-0100 Internet site reports on the activities of Fax: 646- 487-6779 software-industry organization with piracy Internet: http://www.nmpa.org enforcement programs in 65 countries and Internet site for this association — which anti-piracy hotlines operating in nearly is concerned with legislative, legal, and all nations; includes a list of international educational matters related to copyright addresses of BSA offices. and new technology — includes extensive frequently asked questions about copyright International Intellectual Property and licensing. Alliance 1747 Pennsylvania Avenue, N.W. Software Publishers Association Suite 825 1730 M Street, N.W. Washington, D.C. 20006 U.S.A. Suite 700 Tel: 202-872-5500 Washington, D.C. 20036-4510 U.S.A. Fax: 202-872-5501 Tel: 202-452-1600 Internet: http://www.iipa.com Internet: http://www.siia.net Internet site includes general information Internet site provides information related to on the IIPA (a coalition that represents fighting software piracy.

102 103 Educational Institutions University of Iowa (Internet Sites) Copyright and Multimedia Law for Web Builders and Multimedia Authors Berkeley Digital Library SunSITE http://bailiwick.lib.uiowa.edu/webbuilder/ http://sunsite.berkeley.edu/Copyright/ copyright.html Sponsored by the Library at the University Includes IP law articles, primers, and useful of California at Berkeley and Sun links to other web sites, institutions, and Microsystems, Inc., this Internet site off ers core documents. articles; references; lists of initiatives and projects; and links on copyright, IPR, and University of Washington School of Law licensing issues. Center for Advanced Study and Research on Intellectual Property (CASRIP) Cornell University http://www.law.washington.edu/Casrip Legal Information Institute Includes information on the CASRIP http://www.law.cornell.edu/topics/topic2.ht program, as well as a newsletter issued ml#intellectual%20property three times a year that reports on CASRIP Includes brief summaries of IPR law topics research and other IP-related activities and with links to key primary source material, highlights IP developments around the other Internet resources, and useful off net world. references. Other Franklin Pierce Law Center  e IP Mall Copyright Clearance Center http://www.ipmall.fplc.edu/ 222 Rosewood Drive Provides information and links to IP Danvers, Massachusetts 01923 U.S.A. resources worldwide, including daily Tel: 978-750-8400 news, the Congressional Research Service, Fax: 978-646-8600 publications, and papers. E-mail: [email protected] http://www.copyright.com/ Stanford University Web site of an intermediary between Copyright and Fair Use copyright holders and content users. It http://fairuse.stanford.edu facilitates the exchange of reuse rights and Includes such primary materials as royalties through a wide range of licensing statutes, judicial opinions, and treaties and services that grant permission to reproduce conventions; current legislation; and an copyrighted materials. overview of copyright law. Digital Future Coalition Stanford University 1341 G Street, N.W. Copyright and Intellectual Property Suite 200 http://palimpsest.stanford.edu/bytopic/ Washington, D.C. 20005 U.S.A. intprop Tel: 202-628-9210 Includes a menu of source materials on U.S. E-mail: [email protected] copyright law. http://www.dfc.org  e Digital Future Coalition (DFC) is University of California, Los Angeles a collaboration among U.S. profi t and  e UCLA Online Institute for Cyberspace nonprofi t groups that deal with IPR. It Law and Policy is committed to striking an appropriate http://www.gseis.ucla.edu/iclp/hp.html balance in law and public policy between  is electronic archive off ers a cyperspace protecting IP and aff ording public access law bibliography, as well as information to it. going back 10 years, including cases involving cyberspace law.

102 103 Additional Readings on Intellectual Property

Alikhan, Shahid and Raghunath Mashelkar Glick, Mark A., Lara A. Reymann, and Intellectual Property and Competitive Richard Hoff mann Strategies in the 21st Century Intellectual Property Damages: Guidelines  e Hague; New York: Kluwer Law and Analysis International, 2004. Hoboken, New Jersey: John Wiley, 2003.

Anderson, Robert D. (ed) Goldstein, Paul Competition Policy and Intellectual Property Copyright's Highway: From Gutenberg to Rights in the Knowledge-Based Economy the Celestial Jukebox Calgary, Alberta, Canada: University of Stanford, California: Stanford University, Calgary Press, 1998. 2003.

Callan, Bénédicte Granstrand, Ove (ed) Pirates on the High Seas:  e United States Economics, Law, and Intellectual Property: and Global Intellectual Property Rights Seeking Strategies for Research and Teaching New York: Council on Foreign Relations, in a Developing Field Inc., 1998. Boston, Massachusetts : Kluwer Academic, 2003. Cook, Curtis W. Patents, Profi ts and Power: How Intellectual Halbert, Debora J. Property Rules the Global Economy Resisting Intellectual Property Law London: Kogan Page, 2002. New York: Routledge, 2005.

 e Digital Dilemma: Intellectual Property Harris, Lesley Ellen in the Information Age Digital Property Committee on Intellectual Property Ontario, Canada: McGraw-Hill Ryerson Rights and the Emerging Information Ltd., 1998. Infrastructure. Washington, D.C.: National Academy, 2000. Hawke, Constance S. Computer and Internet Use on Campus: Elias, Stephen and Richard Stim A Legal Guide to Issues of Intellectual Patent, Copyright, and Trademark Property, Free Speech, and Privacy Berkeley, California: Nolo Press, 2003. San Francisco, California: Jossey-Bass, 2001.

Field,  omas G. Herrington, Wayne W. and George W. Introduction to Intellectual Property: Cases  ompson and Materials Intellectual Property Rights and Durham, North Carolina: Carolina United States International Trade Laws Academic, 2003. Dobbs Ferry, New York: Oceana, 2002.

104 105 Hurley, Deborah and Hal Varian (eds) Matsuura, Jeff rey H. Internet Publishing and Beyond:  e Managing Intellectual Assets in Economics of Digital Information and the Digital Age Intellectual Property Boston, Massachusettts: Artech House, (publication of the Harvard Information 2003. Infrastructure Project) Cambridge, Massachusetts: MIT Press, Matthews, Duncan 1998. Globalising Intellectual Property Rights:  e TRIPs Agreement Idris, Kamil London and New York: Routledge, 2002. Intellectual Property: A Power Tool for Economic Growth McCarthy, J.  omas, Roger E. Schechter, Geneva, Switzerland: World Intellectual and David J. Franklyn Property Organization, 2002. McCarthy’s Desk Encyclopedia of Intellectual Property King, J. Ralph, Andrew D. Dorisio, and 3rd ed. Washington, D.C.:  e Bureau of Michael S. Hargis National Aff airs, 2004. Intellectual Property 3rd ed. Lexington, Kentucky: University McManis, Charles R. of Kentucky, College of Law, Offi ce of Intellectual Property and Unfair Continuing Legal Education, 2002. Competition in a Nutshell 5th ed. St. Paul, Minnesota:  omson/West, Koepsell, David R. 2004.  e Ontology of Cyberspace: Philosophy, Law, and the Future of Intellectual Property Merges, Robert P., Peter S. Menell, Chicago, Illinois: One Court, 2000. and Mark A. Lemley Intellectual Property in the New Landes, William M. and Richard A. Posner Technological Age  e Economic Structure of Intellectual 3rd ed. New York: Aspen, 2003. Property Law Cambridge, Massachusetts: Belknap Press of Moore, Adam D. Harvard University, 2003. Intellectual Property and Information Control: Philosophic Foundations and Lessig, Lawrence Contemporary Issues Free Culture: How Big Media Uses New Brunswick, New Jersey: Transaction, Technology and the Law to Lock Down 2004. Culture and Control Creativity New York: Penguin, 2004. Nimmer, Melville B. et al. Cases and Materials on Copyright Letterman, G. Gregory 5th ed. New York: Matthew Bender & Basics of International Intellectual Property Company, 1998. Ardsley, New York: Transnational, 2001. O'Connor, Edward F. Lindsey, Marc Intellectual Property Law and Litigation Copyright Law on Campus 2nd ed. Chicago, IL: Tort Trial and Pullman, Washington: Washington State Insurance Practice Section, American Bar University, 2003. Association, 2003.

Marlin-Bennett, Renee Knowledge Power: Intellectual Property, Information, and Privacy Boulder, Colorado: Lynne Rienner, 2004.

104 105 Peloso, Jennifer (ed) Sell, Susan K. Intellectual Property Private Power, Public Law: e Globalization New York: H.W. Wilson, 2003. of Intellectual Property Rights Cambridge, United Kingdom; New York: Perelman, Michael Cambridge University, 2003. Steal is Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity ierer, Adam and Wayne Crews (eds) New York: Palgrave, 2002. Copy Fights: e Future of Intellectual Property in the Information Age Poltorak, Alexander and Paul Lerner Washington, D.C.: Cato Institute, 2002. Essentials of Intellectual Property New York: John Wiley and Sons, 2002. United Nations Educational, Scientific, and Cultural Organization Poynder, Richard (ed) Copyright Laws and Treaties of the World Caught in a Web: Intellectual Property Looseleaf volume with supplements. in Cyberspace Washington, D.C.: Bureau of National London; Washington, D.C.: Denwent/ Affairs, 1956- . omson Scientific, 2001. U.S. General Accounting Office Rahnasto, Ilkka Intellectual Property: Deposits of Biological Intellectual Property Rights, External Effects, Materials in Support of Certain Patent and Anti-Trust Law: Leveraging IPRs in the Applications Communications Industry Washington, D.C.: GAO, 2000. Oxford; New York: Oxford University, 2003. Wilson, Lee Razgaitis, Richard e Trademark Guide Valuation and Pricing of Technology-Based New York: Allworth Press, 1998. Intellectual Property New York: John Wiley and Sons, 2003. Winner, Ellen P. and Aaron W. Denberg (eds) Ryan, Michael P. International Trademark Treaties With Knowledge Diplomacy: Global Competition Commentary and the Politics of Intellectual Property Dobbs Ferry, New York: Oceana, 2004. Washington, D.C.: e Brookings Institution, 1998.

Saint-Amour, Paul K. e Copyrights: Intellectual Property and the Literary Imagination Ithaca, New York: Cornell, 2003.

Schechter, Roger E. and John R. omas Intellectual Property: e Law of Copyrights, Patents and Trademarks St. Paul, Minnesota: omson/West, 2003.

106 107 KIDS’ CORNER: Educational Materials for Children and Young Adults

Cybercitizenship.org: Just for Kids FA©E http://www.cybercitizenship.org/index.html http://www.copyrightkids.org http://www.cybercitizenship.org/4kids/ Friends of Active Copyright Education 4kids.html (FA©E) is a new initiative of the Copyright The Cybercitizen Partnership Awareness Society of the U.S.A. designed to provide Campaign offers approaches for teaching a broad range of resources to foster and children about cyberethics, cybercrime support copyright education. information, and links to adult and A FA©E subcommittee developed the youth resources. copyrightkids.org web site to teach school- age children the basics of copyright law. Cyberethics for Kids http://www.cybercrime.gov/rules/ Learn From the Past, Create the Future: kidinternet.htm Inventions and Patents U.S. Department of Justice offers teachers a http://wipo.int/freepublications/en/patents/ lesson plan outline and exercises for K-8. 925/wipo_pub_925.pdf  is new on-line publication on intellectual CyberPilot’s License property is the fi rst of a new series of free http://etec.hawaii.edu/cpl/home.html off erings by WIPO aimed at schoolchildren The CyberPilot’s License is dedicated (ages 8-14) as the creators of the future. to the study of web ethics and the development of healthy on-line learning MENC/ASCAP Foundation environments. Students, teachers, parents, http://www.musicunited.org/10_ and policymakers are welcome to join education.html the discussion forums, examine on-line MENC: The National Association for resources, and help create an archive of Music Education, with support from the educational materials. ASCAP Foundation, has developed a school curriculum that teaches students at all CyberSpacers levels about the creative community and http://www.cyberspacers.com/ copyright. The program is offered not only This site provides activities for kids: by grade level but also by teacher’s class the CyberSpacers’ oath; join the Super subject specialty, i.e. History, Government Cyber Team; and learn about cybercrime Affairs, English, etc. through on-line quizzes, comics, games and contests. Netmonkey http://www.netmonkey.info/ Convicted copyright pirate Mike Nguyen has created a site to educate young people about the risks of on-line piracy. This site contains a downloadable copy of “Net Monkey Weekly,” an entertaining and informative newsletter directed at children, which addresses the ills of piracy.

106 107 Parade Classroom Pro Music http://www.paradeclassroom.com/tg_ http://www.pro-music.org/ folders/2003/1026/1026_info.html Pro Music is an international web site that Parade Classroom, a web site for professional supports legitimate on-line services. educators, offers a Teacher’s Guide titled It provides information about copyright “The Music Swapping Crackdown.” The laws and presents artists speaking out guide encourages students to research the against piracy. issue and decide what’s right and wrong. What’s e Download? Play It Cybersafe http://www.whatsthedownload.com/ http://www.playitcybersafe.com/ A comprehensive public education This web site provides children, parents, campaign created by the Recording and teachers the opportunity to prevent Academy that strives to empower cybercrime through knowledge of the law, consumers to make informed ethical knowledge of their rights, and the ability to and legal decisions when getting their avoid misuse on the Internet. The Business music through digital technology, while Software Alliance and the Hamilton understanding the part they play in the Fish Institute at the George Washington future of music. University created this site. It is a Cyber Crime and Intellectual Property Theft Prevention and Education Project funded by the U.S. Department of Justice to educate the public on cybercrime and intellectual property theft.

The U.S. Department of State assumes no responsibility for the content and availability of the resources from other agencies and organizations listed above, in “Sources of Information on Intellectual Property,” and in “Additional Readings on Intellectual Property.” All Internet links were active as of Fall 2005.

108 U. S. DEPARTMENT OF STATE Bureau of International Information Programs 2006 http://usinfo.state.gov/

CREDITS:

(Credits from left to right are separated by semicolons, from top to bottom by dashes.) Cover Montage: Counter clockwise from Simon Kwong/Reuters. 41: AP/Wide World Photo top: National Museum of American History, – Getty Images (RF). 43-47: AP/Wide World Transportation Archives, Smithsonian Institution – Photo (8). 51: © Monika Graff /The Image Works AP/Wide World Photo; PhotoSpin – PictureQuest – David McNew/Getty Images. 52- 61: AP/Wide (RF) – AP/Wide World Photo (2) – PhotoSpin World Photo (8). 63: AP/Wide World Photo; David – AP/Wide World Photo (2). McNew/Getty Images (2). 65: top left Frederic Page 3: University of Missouri-Kansas City, Miller J. Brown/AFP/Getty Images; AP/Wide World Nichols Library, Special Collections, Popular Photo (4). 67: AP/Wide World Photo – Pornchai American Sheet Music; Geoff Brightling/Getty Kittywongsakul/Getty Images. 71: AP/Wide Images. 5: AP/Wide World Photo (4) except World Photo – AFP/AFP/Getty Images; David bottom left Milos Bicanski/Getty Images. Silverman/Getty Images. 72: AP/Wide World 6: AP/Wide World Photo (2). 7,8: AP/Wide World Photo (3), bottom left Sergei Guneyev/Time Life Photo (3). 11: Library of Congress (2) – AP/Wide Pictures/Getty Images. 75: AP/Wide World Photo World Photo. 13: © SSPL/The Image Works; AP/ (2). 76: AP/Wide World Photo (2); top right Francis Wide World Photo – © Science Museum/SSPL/ Dean/The Image Works. 79: Reuters – AP/Wide The Image Works; AP/Wide World Photo. World Photo (3). 80-83: AP/Wide World Photo (5). 14: AP/Wide World Photo (3) – Creatas Images 85: Anna Wang/MMV.org; AP/Wide World Photo (RF)/PictureQuest; © Peter Hvizdak/The Image – © SSPL/The Image Works. 87: Tannen Maurey/ Works. 17: Courtesy WIPO.int. 19: NRM/SSPL/The The Image Works – AP/Wide World Photo; © Image Works; © Science Museum, London/ Francis Dean/The Image Works. 88: Courtesies Topham/The Image Works – © SSPL/The Image ebay.com; yahoo.com; sell.com. 89: Courtesies Works. 21: © Topham/The Image Works – AP/ ioff er.com; whois.com. Wide World Photo. 22: AP/Wide World Photo – Alessia Pierdomenico/Reuters – © 2002 Richard Lord /The Image Works; AP/Wide World Photo. 24: AP/Wide World Photo (3). 27: AP/Wide World Photo – Courtesy www.training.ipr.gov. 29: Reuters. 33: Reuben Sprich/Reuters – Finbarr Executive Editor: George Clack O’Reilly/Reuters; AP/Wide World Photo. Managing Editor: Mildred Solá Neely 34: AP/Wide World Photo (3). 37: Reuters; Art Director/Design: Min-Chih Yao AP/Wide World Photo. 38: Kenny Wu/Reuters; Photo Research: Maggie Johnson Sliker

108 U. S. DEPARTMENT OF STATE Bureau of International Information Programs http://usinfo.state.gov/ book spine (PLease adjust size according to the width of the spine)

FOCUS ON: INTELLECTUAL PROPERTY RIGHTS