Showing posts with label Copyright. Show all posts
Showing posts with label Copyright. Show all posts

Saturday, May 26, 2018

Intellectual Property Markets


Patents, trademarks, and copyrights are hardly new. Trademarks came first, in the 1200s in England. Patents were next, in the 1400s in Italy. Copyrights emerged in the early 1700s in England. For the United States, laws passed in the 1790s protected patents and copyrights. Trademark laws arrived in the 1870s following legislative activity throughout Europe. These are the three primary types of intellectual property (IP) that can be “registered” with governments for protection. Each are made public, and available statistics for all countries make it possible to track global activity.

Registered IP Boom: What is happening is not a surprise. There are several factors, besides globalization and competitiveness, that fuel the growth. First is the ability to monetize IP. IP used to be part of the price of a product. It still is, but it can also be sold or licensed or bartered in an increasingly liquid marketplace. Transactable IP, which began in the early 2000s, increased the size of the available market. Providers of software and services could now create many more capabilities than simply IP inventory management systems for companies.

Open innovation came of age a few years later, spurred by giants such as Procter & Gamble that set a goal to in-source 50% of their innovations from other companies. As the internet increasingly enabled global connectivity, big data and algorithmic analytics came of age. All the pieces were now in place to take a company’s IP portfolio and compare it to any company or set of global statistics.

Finally, coming full circle, this easily comparative global information spurred further growth as analysts warned companies about not keeping up with the Joneses. Geometric growth has been going on for the past five to seven years.

IP Networks: Another important growth driver are IP organizations that are not the actual governmental registration bodies. Western economic zones have assembled neighboring countries into consortiums and/or empowered agencies that oversee activities and influence country policies and legislation, such as Europe, Eurasia, the Arab States, and Africa. Asian countries appear to be taking a more solo approach.

On a larger scale, the World Intellectual Property Organization has become an increasingly important player. It was established in 1967 by the United Nations as a self-funding agency. It is located in Geneva, Switzerland, and represents 191 of 195 countries. WIPO, as it is known, is the global forum for IP services, policy, information, and cooperation. It is a great source of information on all registered IP. Get on their e-mail list and you will have your finger on the pulse.

Patents & Trademarks: There will always be regional, vertical, and other types of segment competitors, but a look at several WIPO’s global services likely portends the future of IP. WIPO offers three global registration platforms: for utility patents (PCT), design patents (Hague), and trademarks (Madrid). Users file a single “international application” directly with WIPO, which then handles the various country filings. This is a great assist for emergent countries and regions, and is also increasingly used by industrialized nations which already have plenty of infrastructure for registration and enforcement.

Copyrights: Copyrights are also increasingly being monetized. After the “free thinking” period when the internet boom began, the realization that content has value started to return. Giant companies and organizations around the globe now compete to gather and charge for access to their content. The list is long. Copyrights have a couple interesting twists. First is the ability to digitally identify every single publication, a systems capability that has been evolving since 1998.

Does it sound to you like the future of registered IP is headed to be a transactable commodity?

Friday, January 6, 2017

Trump on Copyright: How the Trump Administration will approach copyright law and potential copyright reforms

This month the International Intellectual Property Alliance published its report on the contribution of copyright industries to the US economy. It demonstrated the major economic benefits to our society that are attributable to our traditional protection of intellectual property rights. At the issuance of this report, Congressman Doug Collins, House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet Vice Chair, stated, “Creativity undergirds the 21st century economy, and strong intellectual property rights ensure that our economy benefits from the innovation and pluck of American workers who bring many of our dreams to life…..Our nation’s founders, in their wisdom, placed intellectual property rights under the umbrella of our protected Constitutional rights. From the beginning, Congress has had the responsibility of upholding and strengthening those rights—which fuel American ingenuity….”

We know that not only are copyrights grounded in the constitution, but core copyright industries contribute approximately $1.2 trillion to the U.S. economy annually, and employ over 5.5 million American workers. At the same time, however, we are acutely aware that, unfortunately, copyright theft online is rampant, and the Digital Millennium Copyright Act (DMCA) has increasingly become ill equipped to address even flagrant, willful copyright infringement in the digital world.

What we don’t know, however, is how President-Elect Trump and the Trump Administration will view copyright issues, and whether pro-creator copyright reforms will be on the President’s agenda come January 20, 2017. We can, however, make some educated guesses based on Trump’s entertainment industry ties, his potential Supreme Court nominees, and those he is surrounding himself with on his Transition Team and in a Trump Administration that is increasingly taking shape.

Trump Entertainment Industry Ties

People have called Trump many things, but even his most vociferous critics must admit he is a media genius. As an entertainment personality, he first became known as an author, writing: Trump: The Art of the Deal, first published in 1987. Trump has written other books since, but he became most widely known for his starring role as the host of the reality TV series The Apprentice. Trump recently tweeted that he conceived of the idea of The Apprentice with producer Mark Burnett, and he will continue to receive Executive Producer credit on the show even after he is sworn in as President. Trump also owned the Miss Universe beauty pageant from 1996 until 2015. All in all, Trump has over 30 copyrights to his name, not including any owned by his companies.
Despite this background, we cannot be certain that the new Administration will side with copyright owners. To be sure, the President-elect has been for some time a larger than life media personality and talent within the industry, and thus might be inclined to support others in the creative industries Moreover, Trump has had on-again off-again rocky relationships with broadcast networks over the years (see here and here) and the Silicon Valley giants that find themselves at cross purposes with content creators in the digital era did nothing to endear themselves to Trump during the campaign. In fact, with the exception of Peter Thiel and to a lesser extent Mark Zuckerberg (who was largely defending Peter Thiel) the Silicon Valley elite snubbed, mocked and ridiculed Donald Trump and his supporters throughout the election cycle. With all that said, however, predicting the new Administration’s position on specific copyright issues is a fool’s errand at this time.

Potential Supreme Court Nominees

One of the first things President Trump will likely do is appoint a Supreme Court Justice to fill the vacancy left by the death of Justice Antonin Scalia. Trump has released a list of possible nominees for the Supreme Court. Only a few seem to have any copyright experience or familiarity in their professional past.
Florida Supreme Court Justice Charles Canady previously served in the House of Representatives from 1993 to 2000. While in Congress, Justice Canady served on the House Judiciary Committee and its Subcommittee on Courts, Intellectual Property, and the Internet. He co-sponsored during his time in Congress two bills related to copyrights: (1) The Copyright Term Extension Act; and (2) The Intellectual Property Antitrust Protection Act.

Senator Mike Lee (R-UT) has had some involvement with copyright policy in the music industry as chairman of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, but he did not tip his hand about whether he places more value on copyright as a property right or on a consumer’s ability to access the copyright. As an example, he summarized his opening statement in a hearing last congress with the non-committal statement, “As we listen today, we must remember that we have both a responsibility to encourage creativity by recognizing the value of copyrights and a duty to ensure that prices for music remain competitive for consumers.” In 2012, Senator Lee opposed the Protect IP Act, legislation supported by the copyright industries to provide the US government and copyright holders additional tools to curb access to rogue websites dedicated to the sale of infringing or counterfeit goods. In a statement Senator Lee released on January 18, 2012, explaining his opposition to the Protect IP Act, he explained he was sympathetic to the objectives of the Act, but thought the bill “would threaten Internet security, stifle the free flow of online information, and unduly burden third parties.”

Senator Lee’s brother, Utah Supreme Court Associate Chief Justice Thomas Lee, previously specialized in intellectual property law while in private practice. Justice Lee also taught intellectual property law at Brigham Young University. However, Justice Lee seems to have primarily specialized in trademark law, not copyright matters. Only two articles relating to copyright law could be located that were authored by Justice Lee, both written while he was a Law Professor at BYU. They are: (1) Eldred V. Ashcroft and the (Hypothetical) Copyright Term Extension Act of 2020 (2003); and (2) “To Promote the Progress of Science”: The Copyright Clause and Congress’s Power to Extend Copyrights (2002) (co-authored with Senator Orrin Hatch R-UT). In the 2003 article, he argued that if the Supreme Court ruled in Eldred that a term of life plus seventy years was “limited” than they would be unlikely to rule differently in the case of life plus 100 years. A thirty year increase is still not a “perpetual copyright.” In the 2002 article, however, the authors argued in favor of the Copyright Term Extension Act (CETA). Specifically, they supported their argument using the scarcely referenced preambular purpose provision of the Copyright Clause, “promot[ing] the progress of science” and took issue with the then-existing scholarly literature that asserted “that copyright fulfills its constitutional purpose only if it increases the quantity or quality of the existing body of artistic works.” They argued that progress does not inherently equal “more” but rather the physical movement forward. “The Copyright Clause,” they wrote, “encompasses the broader notion of encouraging the dissemination and preservation of existing works. Since the CTEA can be understood to advance those objectives” it should be upheld as “constitutional.”

Trump, Trump Transition Officials and Trump Nominee Statements on IP

Perhaps the closest thing the President-elect has offered as an insight into how he will treat copyright as President came during an August 8th speech outlining his economic plan. He stated (with the following underlining added for emphasis):
“At the center of my plan is trade enforcement with China. This alone could return millions of jobs into our country. They break the rules in every way imaginable. China engages in illegal export subsidies, prohibited currency manipulation, and rampant theft of intellectual property. They also have no real environmental or labor protections, further undercutting American workers. Just enforcing intellectual property rules alone could save millions of American jobs. According to the U.S. International Trade Commission, improved protection of America’s intellectual property in China would produce more than 2 million more jobs right here in the United States.”

One of the transition team members, Congresswoman Marsha Blackburn (R-TN), House Energy and Commerce Committee Vice Chair recently stated, “Creativity unleashes endless possibilities as evidenced by the results of this study. The contributions made by the creative industry to the US economy are remarkable. It’s imperative that we continue pushing to protect intellectual property rights.”

Another of Trump’s transition team members, Congressman Tom Marino (R-PA), a member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, has been a long-time copyright supporter. He noted upon introducing the Copyright Office for the Digital Economy (CODE) Act, “Creativity is the essence that has made America the most prosperous nation in the world.” At an event for music publishers and songwriters, he said, “I know firsthand what it is like to work hard for a paycheck and stretch a buck into next week. I appreciate the painstaking hours you put into your craft. When I think of songwriters, I think of the extraordinary gifts songwriters create for society. Music provides the soundtrack to our lives… Call me crazy, but if you work for hours and hours on a hit that is played around the world, your paycheck ought to reflect that success and make a good living for you and your family… There are songwriters in each district in America… If each of these songwriters reaches out to their members of Congress, we can make a difference. Advocacy is of the utmost importance.”

The President-elect’s nominee for Secretary of Commerce, Wilbur Ross, wrote an op-ed in July 2016 saying WTO provides “little or no protection” against IP theft. Moreover, he stated that future trade deals should have “zero tolerance” for IP theft.

Conclusion

The creative works that are supported by America’s copyright laws – music, movies, TV, books, software, and video games – bind us together as a nation. Admittedly, there are far more questions than answers with respect to how the President-elect and his Administration will approach specific copyright law issues and potential copyright reforms, but there is reason to hope that they understand the critical importance of copyright to our economy, to good American jobs, and to our global competitiveness.



http://www.ipwatchdog.com/2016/12/18/trump-administration-copyright-law-copyright-reforms/id=75793/

Thursday, May 28, 2015

India’s IPR environment is maturing

Legal systems are in place, landmark judgements have been pronounced, and next-gen policies are being evolved


The establishment of the World Trade Organisation (WTO) at the conclusion of the Uruguay Round (UR) on negotiations in 1995 signalled a quantum leap in integrating developing countries with the global economies. Developing countries undertook greater commitments lured by additional market access in agriculture, textiles and the movement of people.

In a well researched report by RIS India , the gains from the UR proposals were estimated to be between $213-$510 billion a year, with developing countries benefiting to the tune of $86-$122 billion. Empirical evidence suggests that there has been a significant deviation of these income flows to the developing world in favour of the developed world.

Works in progress
The Indian intellectual property rights system represents one of the most mature IP systems amongst developing countries, although some of the studies rank it below China, which is often accused of thefts, counterfeiting, piracy and cyber attacks on IPRs. Successive Indian governments have put in efforts to improve IP legislation since 2000. Jurisprudence has consistently evolved, institutions like the Intellectual Property Appellate Board (IPAB) have been established, and landmark judgments by the judiciary have been given in the past few years. In recent times, key efforts have been made by the PMO to revisit the IP regime and a task force has been set up to evolve a next generation IP policy for our nation.

There have been acrimonious noises made by US industry against Indian IP legislation and its interpretation by the government and judiciary. Criticism of certain provisions in the Patent Act that renders evergreening of patents ineligible for grant has generated considerable heat. Similarly, lack of IP enforcement, a non-responsive legal system, lack of awareness and compulsory licensing have all come under fire.

On the ground, it appears to be a lot of work in progress. Significant policy changes in recent years by successive governments have been responsible for the evolution of IP legislation in our country. Indian pharmaceutical companies have become globally competitive in the generics market.

Not only are Indian companies competitive, the drugs produced by these companies have pharmacologically better characteristics and quality. Some of these domestic companies are also entering into licensing agreements with global players such as Sanofi, Forest Laboratories, Bristol Myers Squibb, Merck, and Eli Lilly and AstraZeneca in the R&D space. Over 50 NCEs/NMEs from Indian companies are at different stages of development for new drugs. This marks the entrance of Indian pharma companies in drug discovery; an innovation cycle that may be fraught with difficulties but is equally rewarding of success.

On copyright

In the case of the entertainment and IT industry, the recent involvement of the HRD ministry with industry associations such as Ficci, BSA and MPA are providing copyright enforcement training to police officers and its governing officials. To deepen awareness on copyrights, the ministry is in the process of finalising the inclusion of IPR as a compulsory subject in K-12 education. These are likely to see much anticipated reduction in unlicensed software and piracy of music and films.

There have been pioneering judgments that decisively deal with digital TM violations, meta tagging and parallel imports, making our legal environment more responsive and intolerant towards IP abuse. The decision of grant of interim royalty payouts by the Delhi High Court in the Ericsson vs Micromax case is a turning point in the “no damage cover” regime prevalent in India.

In the engineering and manufacturing sectors, IP capability and process maturity appear to be the binding-glue that will allow OEMs (original equipment manufacturers) transfer critical IPRs to Indian companies without fear. These ingredients must find a place in training each skilled worker in this exercise of nation-building. It is recommended that each set of National Occupational Standards must aim to create workers who are knowledgeable, innovative, skilled and IP centric.

India’s openness to re-examine its IPR laws and policies, and establish a think-tank and an empowered group on IPR reflects serious intentions of her transforming attitude towards IPRs.

Curtesy: http://www.thehindubusinessline.com/opinion/indias-ipr-environment-is-maturing/article7236091.ece

Wednesday, February 11, 2015

Delhi High Court restrains distribution and exhibition of Badmashiyaan

Delhi High Court has issued an order restraining the distribution and exhibition of the film after a complaint of copyright infringement was filed against makers of the film VRG Motion Pictures.

MSM Motion Pictures and Kaleidoscope filed a plea stating that Badmashiyaanwas a blatant copy of the Korean film Couples, whose rights had been acquitted by them for their yet to release film Mango

"The Delhi High Court has restrained the distribution and exhibition of the trailer and the film titled Badmashiyaan, on the basis of a claim for copyright infringement by MSM and Kaleidoscope. The Plaintiffs claimed that Badmashiyaan is a copy of the Korean film Couples and their yet to be released film, Mango. The plaintiffs also claimed this relief based on an exclusive right that they obtained from the producer of Couples to make the Hindi language remake of Couples."

http://www.bollywoodhungama.com/news/4665685/Delhi-High-Court-restrains-distribution-and-exhibition-of-Badmashiyaan

Sunday, December 22, 2013

Intellectual Property – Copyright, Patent, Trademark, Industrial Design, Geographical Indications

Intellectual property refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual property is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the Intellectual property system aims to foster an environment in which creativity and innovation can flourish.

Intellectual property

Copyright
Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.

Patents
A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how - or whether - the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document.

Trademarks
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when craftsmen used to put their signature or "mark" on their products.

Industrial designs
An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.

Geographical indications
Geographical indications and appellations of origin are signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods.

Monday, December 16, 2013

Delhi High court - pleadings in patent copyright infringement cases

In two interesting judgments, in two different cases, Justice Murlidhar of the Delhi High Court has ruled on the scope of pleadings in patent infringement lawsuits and the liability of Indian subsidiaries of global app-stores in copyright infringement lawsuits filed by a book publisher.
1. Telefonaktiebolaget LM Ericsson v. Mercury Electronics & Anr.
This is the famous Micromax case that we have blogged about previously on the blog overhere and here. Ericsson has sued Micromax for a sum of Rs. 100 crores for infringing 6 of its standard essential patents and even got an ex-parte interim injunction on the very first day.
This specific order of Justice Murlidhar, dated December 6, 2013 (available over here) was necessitated by an interlocutory application filed by Ericsson under S. 151 of the CPC requesting the Court to take on record certain affidavits by Ericsson’s executives and a claim-chart in a sealed envelope. The order is not very clear on why these affidavits were filed under S. 151 (which deals with the ‘inherent powers of the court and is supposed to be a provision of the last resort).
Micromax however did object to the attempt to bring on record the affidavits, with its counsel Akhil Sibal arguing as follows:
“Ericsson has failed to construe each of the suit patent claims in the body of the plaint itself. He submits that in a suit for infringement of patents, it was mandatory for the Plaintiff to set out, in detail, the claims under the patents as well as explain whether the patent covered a particular component/element/device/method etc. corresponding to a technical specification for a technology that forms a part of a standard. In other words, it was necessary for the Plaintiff to show that the suit patent was an essential patent for such standard. According to him, merely describing the function of each patent, as has been done in para 20 of the plaint, is insufficient. He stated that the plaint only described the net result that could be achieved by deploying the suit patents and not how that result was achieved.”
Sibal continued with the argument that “that the attempt to bring on record the affidavit of Mr. Olofsson ought not to be permitted. It would amount to indirectly permitting the plaint to be amended to make good an obvious defect. He submitted that Court should consider Ericsson’s prayer for interim injunction only on the basis of the existing pleadings without taking into account the affidavit of Mr. Olofsson.”
 Given the fact that Singh & Singh the law firm representing Ericsson, engaged three top-notch Senior Advocates to argue the matter, it was obviously a high-stakes issue for Ericsson.
Examining the precedents on the point, the High Court summarised the position of law as follows “In sum, the law explained in the above decisions is that the plaint itself must set out with sufficient clarity the specifications and the claims under the suit patent, the results they seek to achieve and in what manner the defendants have infringed the suit patents.”
After examining the affidavits, the Court concluded that the information disclosed in the affidavits was within the purview of the plaint & the documents filed along with the plaint and hence Ericsson was allowed by the High Court to bring on record the affidavits. Ericsson can therefore use these affidavits to argue even the interim injunction.
The decision could have been more nuanced. For example a plaint is supposed to contain only facts and the issue of claim construction, infringement etc. are mixed issues of law and fact. Indian courts should therefore give plaintiffs more leeway in drafting of their pleadings. Expecting plaintiffs to pack their plaints with the most intricate details of their patents is going to make matter very complicated.
2. Blueberry Books & Othrs v. Google India Pvt. Ltd. & Othrs
In this first of its kind lawsuit, Blueberry Books a publisher of children’s books had sued a web and mobile application developer for making available books on an app titled “Story Time for Kids”, whose copyright was owned by the Plaintiff, through various app-stores, without taking prior permission of the Plaintiff. The remaining defendants were Google Inc., Research in Motion, Apple and Amazon, along with their Indian subsidiaries (with the exception of Amazon), because the app in question was made available through these online stores.
The present judgment of Justice Murlidhar, issued on November 28, 2012 (available overhere) was with specific regard to Order 1 Rule 10 applications filed by the Indian subsidiaries of Google, RIM & Apple on the grounds that they had no control over the app-stores in question.
Blueberry, argued that the subsidiaries were necessary parties since they had assets within India unlike their parent companies. The Court declined to buy this argument concluding that “The mere fact that Defendant No.2 happens to be the subsidiary of Defendant No.1 and Defendant No.3 a subsidiary of Defendant No.4 would not be sufficient for making them parties to the suit, if they are not, in any way, involved in the infringing activities complained of.” As a result, the Court deleted the subsidiaries of Google Inc. and RIM.
Apple,  was not so lucky. The Court ruled that prima facie it appeared that the iTunes stores could be accessed through the website of Apple India Pvt. Ltd. thereby giving enough cause to retain Apple India as a party to the suit. The Court ruled that the issue of whether Apple India Pvt. Ltd. had control over iTunes, could be decided only after evidence was led during trial.
Amazon Inc.,  argued that it should be exempted on the grounds of lack of jurisdiction since the app in question could be downloaded only within the U.S. Hence Amazon argued that only the American Courts would have jurisdiction over the claims for copyright infringement. Justice Murlidhar agreed and deleted Amazon from the array of parties.
ttp://spicyip.com/2013/12/delhi-hc-rules-on-pleadings-in-patent-lawsuits-app-stores-in-copyright-infringement-cases.html

Intellectual Property

India is a member of the World Trade Organisation (WTO) and a signatory to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). In the last few years India has modified its IP laws to ensure adequate protection for IP owners. Both the legislature and the judiciary are active in enacting and enforcing IP rights.
Patents
Pursuant to the TRIPs Agreement, India has amended its patent legislation on three occasions. The Patents Amendment Act 2005 and the Patent Rules 2005 have incorporated several changes to the patent legislation to fulfil India’s WTO obligations to allow, for example, product patents. Some of the key changes introduced by the act are outlined below.
Introduction of product patents
The act introduced product patents for inventions relating to food, drugs and chemicals by replacing the process patent regime which existed under the old Patents Act.
Restrictions on new use
The act provides that the mere discovery of a new form of a known substance that does not enhance the known efficacy of the substance cannot be patented. It must involve one or more inventive steps resulting in a new product or one new reactant to fit the criteria of patentability.
Software patenting
The act does not provide for the patenting of a computer program which is an algorithm per se, or mathematical methods or business methods.
Exclusive marketing rights
The act repealed the provisions concerning exclusive marketing rights and mailbox applications as a result of the introduction of the product patent regime. However, there are transitional provisions in this regard.
Pre-grant and post-grant opposition
The act provides for both pre-grant and post-grant oppositions. Furthermore, it specifies a time period for both – one year from the date of publication in the case of post-grant opposition and six months in the case of pre-grant opposition.
Compulsory licensing
Previously, compulsory licensing was confined to India. However, the act now provides for compulsory licensing for the export of pharmaceutical products to countries that do not have the requisite manufacturing facilities. For this, the recipient countries should also provide for compulsory licensing or should issue a notification to that effect.
Patent infringement
The new act provides that an applicant enjoys the same rights and privileges as a patent holder in the period between publication of the application and grant of the patent. However, infringement proceedings can be initiated only after the grant of a patent.
Request for examination
Under the act, when an application is published, a request for examination must be filed within 36 months of the date of priority of the application or of the date of filing of the application, whichever is earlier (as specified under the Patent Rules 2005). In the case of WTO or mailbox applications, the deadline to file the request for examination is 36 months from the date of application or date of priority, or 12 months from January 1 2005.
Publication of applications
Eighteen months after the date of application or the date of priority, whichever is earlier, all patent applications are published as per the provisions of the act and the rules. The act provides for expediting publication upon request.
Assignment
Under the old act, it was mandatory to register with the patents office all transactions concerning a patent (eg, assignments, mortgages, licences, shares in the patent, creation of any interest in patent) within six months of the date of execution of the document concerning the transaction. The new act requires only that such transactions be executed in writing, and sets out no registration requirements.
Approval for foreign filing
The act requires an Indian resident to obtain written permission from the controller of patents six weeks prior to filing a foreign patent application, unless a corresponding application is filed in India.
Implications
The new act clarified various ambiguities that existed under the earlier patent law and simplified some of the procedural requirements.
In cases of patent infringement, an infringement suit can be filed. A court may grant an injunction, award damages, direct an account of profits to be produced or order seizure, forfeiture or destruction of the infringing goods, materials and tools used to create the infringing goods.
Trademarks
India enacted the Trademarks Act 1999 and the Trademarks Rules 2002 (effective September 15 2003) to ensure adequate protection for domestic and international brand owners, in compliance with the TRIPs Agreement. Pursuant to the Trademarks Act, service marks can be registered. The act states that a trademark includes the shape of goods, their packaging and colour combinations. Further, the Trademarks Act gives protection to well-known trademarks and provides for the registration of convention applications, for which the priority deadline is six months. The term of a trademark has been increased to 10 years, renewable upon expiration.
As a measure to protect international proprietors, the Trademarks Act has defined a ‘well-known mark’ as a mark well known to a substantial segment of the public using such goods or receiving such services. Further, the Trademarks Act has increased the grounds on which trademark infringement can be claimed, such as likelihood of confusion, likelihood of dilution or disparagement of a registered trademark, comparative advertising and spoken use. The term ‘use’ has been expanded for the purpose of ascertaining infringement. If a trademark is not registered in India, a foreign trademark owner can initiate a passing-off action against the potential infringer.
The Trademarks Act provides statutory protection to well-known trademarks, which were protected under the common law.
The Trademarks Act defines a ‘well-known trademark’ as follows: “‘Well-known trademark’, in relation to any goods or services, means a mark which has become so well known to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services.” (Section 2(1) of the Trademarks Act.)
Furthermore, this definition should be read in conjunction with Sections 11(6) to 11(10) of the Trademarks Act, which specify the relevant factors to be considered by the registrar of trademarks when determining whether a particular mark is well known.
Relevant factors to be considered
While determining whether a trademark is well known, the registrar should consider any relevant facts, including the following:
•   the knowledge or recognition of the alleged well-known mark in the relevant section of the public, including knowledge obtained as a result of promotion of the trademark;
•   the duration, extent and geographical area of any use of that trademark;
•   the duration, extent and geographical area of any promotion of the trademark, including advertising or publicity and presentation at fairs or exhibition;
•   the duration and geographical area of any registration or any publication for registration of that trademark, to the extent that it reflects the use or recognition of the trademark; and
•   the record of successful enforcement and the extent to which any court or registrar has recognised the trademark as well known (Section 11(6) of the Trademarks Act).
These criteria are not exhaustive, but are indicative and illustrative guidelines to assist the registrar in determining cases. The decision will depend upon the facts and circumstances of each case.
Based on the foregoing, it will be the responsibility of a trademark owner to prove that the mark is well known. One way to prove this would be by demonstrating the degree of knowledge or recognition of the mark in the relevant section of the public using consumer surveys or opinion polls. In addition, awareness of a trademark in India can be proved by promotion of the mark through advertising in print and electronic media.
In a recent case in which a foreign trademark owner that had filed a trademark application initiated action against an Indian party whose trademark application was pending registration for the same mark, the Supreme Court observed that the mere fact that the foreign mark owner had not been using its trademark in India would be irrelevant if it were the first in the world market. In deciding the case, the court also observed that the intention of the foreign proprietor to use the trademark in India will be a decisive factor in such situations (Milmet Oftho Industries v Allergan Inc, MANU/SC/0512/2004).
In a suit alleging trademark infringement or passing off, a court may grant an injunction, award damages, direct an account of profits to be produced or issue an order requiring delivery of the infringing labels and marks for destruction or erasure. In addition, in respect of an infringement or passing-off action, a court can grant an ex parte injunction along with an interim order for discovery of documents, preservation of infringing goods or other evidence. Furthermore, the court can restrain the defendant from disposing of or dealing with assets in a manner that may adversely affect the plaintiff’s ability to recover damages or avail of any other pecuniary remedies that may be finally awarded to the plaintiff in the suit.
The Trademarks Act has implemented criminal remedies over and above the civil remedies that were previously available. It has also given more powers to the courts. As a result, applying false trademarks or trade descriptions and selling goods or providing services with such descriptions is an offence under the Trademarks Act. Any police officer (not below the rank of deputy superintendent of police or equivalent) can search and seize articles bearing infringing trademarks or labels without a warrant. Further, the Trademarks Act has increased the punishment for these offences to a term of not less than six months up to a maximum of three years. Moreover, offenders may be subject to a fine of between Rs50,000 (US$1,087) and Rs200,000 (US$4,348).
In India, if a trademark owner does not use a trademark in respect of the goods or services for which the mark has been registered, it may lose its rights over the trademark. This is even more significant since the introduction of service marks registration. The Trademarks Act provides for removal of a registered trademark for continuous non-use for a period of five years and one month in respect of the goods or services for which it was registered.
As a result of these new grounds for infringement, in a recent case the Delhi High Court prohibited Colgate Palmolive India Ltd from broadcasting an advertisement that disparaged a similar product sold by Dabur India Limited. The court held that an advertisement which was contrary to honest practices in industrial or commercial matters, and which also challenged the reputation of the registered trademark of the plaintiff, amounted to infringement of the plaintiff’s registered trademark under the provisions of the Trademarks Act. The court also held that even an indirect reference to another proprietor’s trademark in a disparaging advertisement would constitute infringement of that trademark.
Domain names
As a result of the Internet’s popularity, the Indian courts have dealt with a large number of domain name disputes in the last few years and the courts have consistently applied the law relating to passing off to domain name disputes.
In a recent case the Supreme Court of India held that domain names are subject to the legal norms applicable to other intellectual property. While restraining a subsequent proprietor from using another proprietor’s registered domain name, the Supreme Court considered various definitions under the Trademarks Act and held that a ‘domain name’ is a word or name that is capable of distinguishing the subject of trade or service made available to potential users of the Internet. Satyam Infoway Ltd, a leading IT services company and one of India’s largest internet service providers, has been the registered proprietor of several domain names, including ‘sify.net’, ‘sifymall.com’ and ‘sifyrealestate.com’, since June 1999. It claimed that the word ‘sify’ was a word invented by using elements of its corporate name. Another company, Sifynet, which started an internet marketing business using the domain names siffynet.net and siffynet.com in June 2001, was restrained from using these domain names (Satyam Infoway Ltd v Sifynet Solutions Pvt Ltd, 2004 53 SCL 26 (SC)).
Copyright
In India, copyright exists only in the form or expression of a work and not in the idea. The term of copyright is the lifetime of the author plus 60 years from the calendar year following the year of the author’s death.
India is a signatory to both the Berne Convention and the Universal Copyright Convention. Therefore, in the event of copyright infringement of a work that is not copyrighted in India, authors in member states of the aforesaid conventions will benefit from protection on a reciprocal basis in India.
A copyright holder is entitled to the remedies of injunction, damages and account of profits against an infringer. A sub-inspector of police who suspects the infringement or possible infringement of copyright can seize all copies of a work and the materials used to make infringing copies without a warrant, and produce them before a magistrate.
If a person knowingly and for gain or in the course of trade or business infringes or abets in the infringement of the copyright in any work or other right conferred by the copyright law, he is liable to be imprisoned for a term of between six months and three years, and to pay a fine of between Rs50,000 (US$1,037) and Rs200,000 (US$4,150). Where an offender uses an infringing copy of a computer program, he is liable to be punished with imprisonment of between seven days and three years and a fine of between Rs50,000 (US$1,037) and Rs200,000 (US$4,150). If the offender proves that the infringement was not for gain or in the course of trade or business, the court may not impose imprisonment but can order a fine of up to Rs50,000 (US$1,037).
If a person knowingly makes or possesses plates to make infringing copies, or publishes a sound recording or video film without the required particulars, he or she can be fined and imprisoned for up to two years.
Most multinational companies actively pursue these criminal options. As a result, software piracy in India has fallen from 90 per cent to 60 per cent, and music piracy has also been reduced.
Copyright comes into existence together with the work, and registration of a copyright is the only clear evidence of acceptance of a copyright.
Although the Indian courts do not usually award very high damages, the Delhi High Court recently awarded damages of about Rs2 million (US$46,500) to the Microsoft Corporation in a software piracy case, which is one of the highest damages awards in this type of case. In addition, the court permanently stopped the defendants from carrying out any infringement or passing-off activities of Microsoft products, copyrights or trademarks. The court also ordered the defendants to deliver up all pirate copies of Microsoft software, including the equipment used to copy the software and all other infringing materials in the defendant’s possession.
Furthermore, in awarding damages the court observed that it would be futile to direct the defendants to render accounts because they were carrying on this business surreptitiously. This is a new trend in the Indian judiciary, as opposed to the usual practice of issuing directions to render accounts, which are generally ineffective as the infringers do not maintain proper accounts. This case is a landmark in India’s software piracy case law, not just because of the very high damages awarded, but also because the court decided the case very quickly and based on evidence adduced by affidavits; this is unusual as litigation proceedings are generally lengthy in India.
Although India does not have specialised IP courts, Indian civil courts are pro-IP rights owners and have handed down landmark rulings in trademark and patent cases. Further, on September 15 2003 India set up the Intellectual Property Appellate in Chennai, which decides registration-related matters involving IP rights.

Monday, November 25, 2013

Ending the Monopoly of Ideas: Compulsory Licensing in Intellectual Property

The term ‘intellectual property’ seems innocuous. If property just is ‘intellectual,’ how important could it be? The truth is that intellectual property law is easily one of the most destructive forces in our economy. Nearly one-fourth of scientists responding to a survey by the American Association for the Advancement of Science, the largest general scientific body in the world, reported that patents were hampering their research.[1] In the European Union, over €60 billion are wasted every year on research and development of products that are already protected by patent law.[2] An experiment using a virtual world to simulate the effects of the US patent system found that the “participants were more likely to innovate when there was no intellectual property system at all, or when they could open-source their innovations and share them with people.”[3]
Virtually every business that holds a dominant position in its field has gotten there not simply through good business practices, but also through the advantages afforded to them by intellectual property law. In 1998, Google filed patent number 6,285,999 on the “PageRank” system, laying the foundation for them to become the dominant force in internet search.[4] Monsanto has used its patents to control 95% of the soy and 80% of the corn markets, respectively. It used this power to increase the price of each by 28% and 25%, respectively, from 2008 to 2009.[5] “Patent pools” led to monopolies that had to be broken up using antitrust laws in the airplane [6], computer, and motion picture industries.[7]
Our society has not always been like this. In 1790, the year the US Patent Office first came into being, only three patents were granted.[8] Patents had to be deemed “sufficiently useful and important” by the three-person Patent Board, comprised of the Secretary of State, the Secretary of War, and the Attorney General. By July of 1836, only ten thousand patents had been granted.[9] In 2009 alone, 167,350 utility patents, the most common type of patent, were granted. IBM was granted 4,914 of these, a 17% increase over the previous year. Microsoft was granted 2,906, a 43% increase over the previous year and a 400% increase over 2003. Fifty companies received 29% of all patents granted in 2009.[10]
Patent and copyright terms have also expanded dramatically. The original US patent term was for fourteen years, should the Patent Board approve it. The patent term is now twenty years. “Under certain circumstances, patent term extensions or adjustments may be available.”[11] The original US copyright term was for fourteen years with an option to renew the copyright for another fourteen years if the author was still alive. The current copyright term is now for the life of the author plus another seventy years. For works of corporate authorship, the copyright term is now one hundred and twenty years after creation or ninety five years after publication, whichever endpoint is earlier. This means most works will be copyrighted for over a hundred years. Trademarks, which didn’t even exist in federal statute until 1905, are in force as long as they are in use.[12]
This isn’t even to mention all the costs associated with the intellectual property bureaucracy. The US Patent Office has approximately six years of patent applications, over one million filings, waiting to be evaluated.[13] Approximately, seven out of ten patents were approved at the start of the 2000’s. Today, the number is less than half.[14] The average patent lawsuit will cost between $3 million and $10 million to litigate, and take between two to three years.[15] This amounts to a litigation cost of, at the minimum, $15.6 billion a year.[16] Merely getting a patent approved can cost $10,000 for a domestic filing and $100,000 for an international filing.[17] This amounted to a cost of $25.8 billion in 2009.[18] This isn’t even to mention that, according to Barack Obama, the paper-based tracking system of the Patent Office is woefully “outdated.”[19] As far as I know, nothing has been done to correct the situation.
Clearly, there is a problem. Our system is bogged down in waste and innovation is stifled. How do we correct it? Is the solution simply to eliminate intellectual property rights? I don’t believe so. Piracy during the 1800’s was a profound source of frustration for many authors [20] and inventors.[21] It also doesn’t make sense that people shouldn’t be rewarded for their creative work. Rewarding creators helps encourage more creation, something most people want.
The solution is to eliminate the ability of one person or entity to have the sole right to use a piece of intellectual property, while still rewarding the original creator of the intellectual property. The system that does this is compulsory licensing. In this system, every piece of intellectual property can be used in a derivative work, yet the original creator of the work is still compensated. The rate of compensation is either determined by the parties privately, or if an agreement cannot be reached, by a court.
The government sometimes uses compulsory licensing in antitrust cases, but only when it considers a firm’s dominance to be a problem.[22] Moreover, when the government does use compulsory licensing, they do not use the market to determine rates. They simply determine the licensing rate themselves. In 1953, a district court used this power to order General Electric to license its light bulb patent for “free,” a price General Electric surely was not happy with.[23] There have also been times when the government only allows a small handful of companies to license a piece of intellectual property. It is not open to the market at large.[24]
The next step to solving our intellectual property crisis is to eliminate the Patent Office and to replace it with a single repository for intellectual property that people want protection for. This idea was actually put forth by Jefferson in a 1791 bill, but unfortunately, it did not pass.[25] Without the government deciding what ideas are able to be protected, private firms spring up to search the registered intellectual property and inform individuals if they believe an idea or invention infringes upon something already registered. This eliminates long wait times, as people could presumably pay for faster searches. Plus, if a company does not perform well, it will presumably go out of business.
The elimination of the Patent Office may not even affect the number of intellectual property infringement law suits. Even with the Patent Office, there are still over 5,000 patent, copyright, and trademark suits every year.[26] The Patent Office also does not ensure that only “sufficiently important” creations receive protection, as was in its original mandate. Well, unless you consider “the bird diaper,” “the pat on the back apparatus,” and the “initiation apparatus,” a “harmless” way to initiate a candidate into a fraternity by shocking him with electrodes, to be “sufficiently important.”[27]
These solutions are simple, but achieving them is difficult, because they would mean the government doing less. The government, and the powerful parties who benefit from government intervention into the economy, typically do not like the government to do less. Intellectual property law has also historically been a very important tool for government-sponsored censorship, an important tool of the state. This side of intellectual property law has started raising its ugly head again in recent years. Laws and treaties such as the ACTA treaty,[28] Britain’s Digital Millennium Copyright Act,[29] and Canada’s Copyright Modernization Act [30] all threaten to bring millions people across the world under the heel of a digital dictatorship. Clearly, our intellectual property system must be reformed before any more damage is done.
A commonly cited beginning to modern intellectual property is when Fillipo Brunelleschi was granted a three year patent for a barge with hoisting gear that carried marble along Italy’s Arno river in 1421.[31] This patent was given not only for technological innovation, but also because Brunelleschi was working on one of the most important projects of the day: building the dome on the Santa Maria del Fiore. This was like the Super Bowl to the people of Florence. People would gather to watch the dome being built. Santa Maria del Fiore was “the great spiritual center of the city,” and it “served as the venue for diplomatic visits, housed important political events, and welcomed within its walls many of the cultural, spiritual and intellectual leaders of the time.”[32] It had remained without a dome for over 100 years. Thus, the granting of the first patent had a decidedly political aspect to it.
The first patent in England was given by Henry VI in 1449 to John of Utynam for a technique on manufacturing stained glass.[33] This was the start of a long tradition whereby the Crown issued monopolies to “favoured persons,” or to people willing to pay. The granting of monopolies became a key source of revenue for the Crown. Soon, monopolies covered a whole range of known goods, such as salt,[34] and the right to provide services, such as the use of inns, ale houses and gold and silver thread.[35] The Statute of Monopolies of 1623 curtailed some of these abuses by stating that the Crown could only issue letters patent (a.k.a. monopolies) to the inventors or introducers of original inventions for a fixed number of years,[36] but the system was still far from without its flaws.
The most significant monopoly granted by the Crown from an intellectual property standpoint was the one given to the Stationers Company. In 1557, the Stationers were given a monopoly over printing in all of England. The Stationers Company was not a “company” so much as a guild. There was no stock to be owned. There were only positions of power to be attained within the guild. The guild was comprised primarily of bookbinders, booksellers, and printers,[37] although text writers and lymners (or illustrators) also played a role.[38]
At the head of the Stationers Company was the master, the principal officer. Below him were the upper and under warden. The master and wardens were given plenary powers of search at any time “in any place, shop, house, chamber, or building of any printer, binder or bookseller whatever […] for any books or things printed, or to be printed, and to seize, take, hold, burn, or turn to the proper use of the foresaid community.”[39] The master and upper and lower wardens were elected from the “Court of Assistants” and held their positions for a year.
The Court of Assistants was the real seat of power. They arbitrated disputes, collected dues, and decided admittance into the Company. They were supposed to be elected from the general body of the Company, which included apprentices and yeomanry, for a limited term, but in 1557, the year the Stationers were granted their monopoly, nine of the most senior members of the Company formed a court of eighteen assistants. They took control and membership in the court became for life unless the member was formally dismissed or retired.[40]
Although censorship may not have benefited the printing industry as a whole, it was clearly a motivation for Queen Mary in issuing the Stationers a monopoly. According to Lyman Patterson, “The charter itself, however, is dominated by the idea of suppressing prohibited books, and Mary’s motive in granting it, whatever the source of the initiative involved, was to obtain an effective agency for censorship.”[41] The Stationers became a de facto police squad.
The penalties for violating censorship rules were harsh. If someone was found importing a book from overseas, they could lose all their possessions and be put in prison. No book could be printed without examination by the Privy Council. No book of scripture could be printed without examination by the King, one member of the Privy Council, or a bishop. “If a person other than an allowed printer set up or worked at any press, he was to be set in the pillory, whipped through London, and suffer any other punishment deemed proper.”[42]
Despite all this, there was still a sizeable black market for books. “Only between sixty and seventy percent of London-printed books were regularly entered in the registers, and the proportion of printed books entered fluctuated violently from year to year.”[43] Even with the threat of public whipping, imprisonment, and the taking all of one’s possessions, a black market still arose to meet a demand. Some things never change.
As a British colony, America abided by the same intellectual property laws as Britain. There was no Stationers Company, but books did have to be licensed. There also was an “informal cartel” of publishers who colluded “to keep prices artificially high.”[44]
After the revolution, America continued to follow British intellectual property law closely. America copied much of Britain’s intellectual property law verbatim, and even used the same time limits for intellectual property protection. (Luckily, Britain didn’t sue for copyright infringement.) In fact, America followed British intellectual property law so closely that a misreading of British law led America to legalize the pirating of foreign books. The original British law had forbid “the importation, vending, or selling” of books in a foreign language printed beyond the sea; it didn’t legalize piracy.[45] America’s law was a constant thorn in the side of British authors, such as Dickens, who thought they were losing a fortune in America through piracy.[46]
As time went on, intellectual property law began to grow in importance in America. From 1860 to 1890, over 500,000 patents were issued for new inventions, ten times the number in the previous seventy years.[47] By 1904, more than two hundred copyright bills had been introduced into Congress.[48] Yet even with this growth, a popular movement never gathered enough steam to move intellectual property law from its foundation. Despite some minor disturbances, intellectual property law continued to grow into the monstrosity it is today.
Like with any good story (one that is not a tragedy anyway), there have been a few glimmers of hope. The first came in the rulings of Judge Learned Hand when he defined the concept the “web of expression.” The second came when Congress amended the Copyright Act in 1909 to allow for compulsory licenses in the music industry. When these two concepts are combined, I believe they lay the groundwork for where intellectual property law needs to go.
As Siva Vaidhyanathan writes, “No jurist or legal scholar has had a greater effect on the business and content of American culture than Judge Learned Hand. For most of his career, Hand served on the US Second Circuit Court of Appeals in New York City. A student of William James and George Santayana at Harvard, Hand was passionate about matters of freedom, creativity, and intellectual progress. […] Hand played a part in most of the major copyright decisions of the day.”[49]
Hand thought that the plot of a story itself could not be copyrighted, but that the “value added” to it could. Hand’s central point was that when judging the extent of infringement between works that tell similar stories, one must distill the “very web of the author’s dramatic expression.” This “web” he defines as “the sequence of the confluents of all these means (plot, character, means of revelation, setting, themes), bound together in an inseparable unity.”[50]
Hand broke down the whole down to its parts to help see what was original and what was not. This is exactly what needs to be done in all intellectual property cases. As Mark Twain said, “As if there was much of anything in any human utterance, oral or written except plagiarism. […] [S]ubstantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources.”[51] We all are dependent upon past ideas for present ones. The question is how much. Hand’s framework helps guide us for making those decisions.
It’s been shown that Steamboat Mickey, the first Mickey Mouse film, relied heavily on Steamboat Bill, Jr., a film by Buster Keaton, who was enormously popular at the time.[52] Did Walt Disney rely exclusively on Keaton’s material? No. Should we barred from seeing Walt Disney’s film because he relied on Keaton’s material? No. But we could have been. That is the situation we are currently in. We are in an “all or nothing” scenario: a judgment of guilty means a work that is “too” derivative and cannot be seen or profited from. A judgment of not guilty means it can. We need to move to a system where both the original creator and “second user” are compensated according to what they each contribute to a derivative work.
The second glimmer of hope was Congress’s amendment to the Copyright Act in 1909 to allow for compulsory licenses in the music industry. This was strictly to allow greater freedom of expression in the music industry. As Lawrence Lessig writes, “Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of rights holders, and that that power would stifle follow-on creativity.”[53] It has worked. The music industry allows far greater rights to “second comers” than any other artistic field.
If a person wants to create a derivative work from a book, he or she must get permission from the original author. The original author may allow for derivative works to be created, but may require the “second comer” to sign over any profits, as is the case with the Star Wars franchise.[54] The only problem with the compulsory licensing in the music industry is that is that Congress determines the rate instead of letting individuals try to determine it first.[55] The author of a song may want to license a song to a celebrity at a lower rate, because the author might feel the celebrity may make them more money in the long run than the typical recording artist. The original author simply does not have the freedom to do that.
Why should compulsory licensing be good for the music industry and not good for every other field? Clearly, it shouldn’t. All genres of art and all scientific creations would benefit from compulsory licensing. An active “second user” culture can also lead to an even greater appreciation of the original product. In Japan, there is something called doujinshi, which is “second user” manga. There are over 33,000 “circles” of doujinshi creators across Japan. Two times a year more than 450,000 Japanese gather to exchange and sell doujinshi. According to Lessig, “[I]n the view of many, it is precisely because [doujinshi] exists that Japanese manga flourishes.”[56]
Some people may see a problem with compulsory licensing. They may ask, “If a person is able to use intellectual property at will, what is to keep that person from modifying an original creation just a slight bit and selling at a severely reduced price, thereby undercutting the competition?”
There is a solution to this. The “second user” is able to change the price only in accordance with how much they contributed to the derivative product. Let’s say either the originator and “second user” agree, or a judge decides, that a “second user” contributed 10% to the derivative product. Let’s say the “second user” contributed a new drum track to a song. If the original song was being sold for $5, then the “second user” would have the right to sell the derivative version for anywhere between $5 plus or minus 10% (i.e. $4.50 to $5.50.) 90% of the revenue generated from the derivative product would still have to go to whoever owned the rights to the original product.
Another objection someone may bring up is, “What if it is not in a company’s interest to release a piece of technology? Like let’s say something crazy happened, like Chevron owned the patent on the battery for the electric car.[57] What is to keep them from pricing a product so high it effectively removes the product from market?”
The government may be forced to have them re-price it. This can be done within limits. In the scenario painted, the intellectual property owner is pricing their product so high that if they decrease the price, they would actually make more. Because at a lower price, the owner would sell a higher quantity. The government could mandate the owner lower the price until the point when he or she stopped making more money through increased quantity sold. That is point is where the company is making the maximum amount of profit for that product.
I do not see a better scenario than this. We are being forced to either allow the domination of society by one individual, or the domination of the right to price this product by society. The rights of society must be respected too. This is not historically unprecedented. Before the ratification of the US Constitution, five of the original thirteen states, Connecticut, South Carolina, North Carolina, Georgia, and New York, all contained intellectual property-related price-control provisions in their state constitutions.[58] If the original party loses money by lowering the price, the party who initiated the suit could be liable for the losses.
Once this price is set, individuals or companies could license the intellectual property in its entirety. This would allow for competition based on production quality and customer service. If a company is able to charge more for an product based on superior brand recognition and/or customer service, that company should be able to keep whatever they earn beyond the price set by the original company.
I believe these provisions eliminate the need for time limits on copyright and patent protection. Time limits seem to be built upon the belief that intellectual property law causes prices to be higher and for there to be less competition than there should be. My suggestions, however, eliminate these concerns. Why, after all, after a certain point should a publishing house profit from an author’s work rather than the author’s estate, or to whomever the author ascribed the rights of his or her work?
We need to change to a compulsory licensing system and eliminate the Patent Office. Current intellectual property law and bureaucracy leaves us as peasants, looking up at the one dome being built in the city. Intellectual property law that has been reformed under the guidelines I have outlined will unleash the creativity of human spirit, and help fill the skyline with as many domes as we desire.

Source:http://www.globalresearch.ca/ending-the-monopoly-of-ideas-compulsory-licensing-in-intellectual-property/19959