Traffic Bumps?

The High Court's decision last week in Roadshow Films Pty Ltd &  Ors v iiNet Limited  [2012] HCA 16 is unfortunately likely to be a traffic bump rather than the end of the journey, with the film industry interests presumably getting ready to lobby Australia's national legislature for a statutory fix.

Gummow and Hayne JJ comment that

The history of the [Copyright] Act since 1968 shows that the Parliament is more responsive to pressures for change to accommodate new circumstances than in the past. Those pressures are best resolved by legislative processes rather than by any extreme exercise in statutory interpretation by judicial decisions.

The High Court dismissed an appeal by Roadshow and 33 other film and television companies from the decision of the Full Court of the Federal Court of Australia in Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285. The High Court held that iiNet, the respondent internet service provider (ISP), had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs.

The appellants own or exclusively license the copyright in several thousand commercially released films and television programs. iiNet provides connectivity and hosting services to individuals and organisations. Its customers are parties to agreements that require iiNet's services not be used to infringe others' rights or for illegal purposes.

The appellants alleged that users of iiNet's services infringed copyright in the appellants' films by making those available online using the BitTorrent peer-to-peer file sharing tool. The Australian Federation Against Copyright Theft (AFACT), acting for the appellants, accordingly served notices on iiNet alleging the infringement and requiring iiNet to take action to prevent continuation of the infringement. iiNet took no action in response to the notices. In media releases at that time it asserted that it was for law enforcement agencies rather than the ISP to respond to the appellants' complaints about copyright infringement. It also indicated that, in the absence of proof of the alleged infringements, iiNet was not prepared to discontinue service to any customer over the claimed infringements.

The appellants have brought no legal action against any individual iiNet customers for any primary infringements of copyright under s 86(a) or s 86(c) of the Copyright Act 1968 (Cth). As the High Court noted, "it did not appear to be in contention that it would be somewhat impractical to do so". The Court went on to comment that

The present proceedings do not cover those responsible for providing the BitTorrent system. No party doubted that the rationale for the separate tort of authorisation is economic – namely, cost-efficient enforcement of the rights of a copyright owner.

The appellants' complaint against iiNet is confined to alleging secondary infringement. The appellants contend that iiNet is liable for infringement of copyright in the appellants' films because it authorised users of its internet services to communicate those films to the public by making them available online to be downloaded by others through the use of the BitTorrent system, as prohibited by s 86(c).

In the Federal Court at first instance, Cowdroy J in Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 held - as discussed here - that iiNet had not authorised of copyright infringement by its customers. The appellants appealed to the Full Court, which by majority in Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285, dismissed the appeal.

Roadshow and the other appellants were granted special leave to appeal to the High Court. They argued that the majority of the Full Court had not correctly applied ss 101(1) and 101(1A) of the Copyright Act 1968 (Cth), ie provisions concerned with authorising an act comprised in a copyright (absent the licence of the copyright owner) and identifying matters that must be taken into account in determining whether a person has authorised such an act.

The film interests argued that iiNet had the power to prevent its customers from infringing copyright. That power involved issuing warnings and suspending or terminating customer accounts. The appellants argued that the AFACT notices provided credible information of past infringements by iiNet's customers sufficient to raise a reasonable suspicion that infringements were continuing. Once iiNet had received that information the ISP's failure to take action (eg suspend a customer's access) amounted to authorisation of its customers' infringements.

The High Court unanimously dismissed the appeal.

The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Instead, the extent of iiNet's power to prevent customers from infringing copyright was limited to an indirect power to terminate its contractual relationship with its customers.

Gummow and Hayne JJ stated [at 111-112] that -

The appellants' case, in essence, is that iiNet "authorised" the Scheduled Infringements, and it did so by "standing by" and "allowing [this] to happen without doing anything about it". As noted above, these primary infringements are the making available online of the appellants' films. So long as the films are retained online they are "[made] available online" within the meaning of the definition of "communicate" in s 10(1) of the Act.

The appellants submit that these primary infringements are authorised by iiNet, notwithstanding that as the ISP: (i) iiNet had no power to modify the BitTorrent software; (ii) iiNet itself could not take down the infringing material because it was not acting as host; and (iii) there was no "common design" as was found with respect to the Kazaa file sharing system, and it followed from the findings of Cowdroy J that iiNet had no intention or desire to see any primary infringement of the appellants' copyrights. Further, s 112E of the Act states:

"A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright." (emphasis added)

They went on to conclude [at 135-139] that -

Section 101(1A) is so drawn as to take an act of primary infringement and ask whether or not a person has authorised that act of primary infringement. 

In answering that question there will be "matters" that must be taken into account. These include, but are not confined to, the matters identified in pars (a), (b) and (c). Was there any relationship that existed between the primary infringer and the (alleged) secondary infringer? If so, what was its nature (par (b))? Did the secondary infringer have power to prevent the primary infringement; if so, what was the extent of that power (par (a))? Other than the exercise of that power, did the secondary infringer take any reasonable steps to prevent the primary infringement, or to avoid the commission of that infringement (par (c))? In answering these questions an ISP is not to be taken to have authorised primary infringement of a cinematograph film "merely because" it has provided facilities for making it available online to a user who is the primary infringer (s 112E).

As indicated earlier in these reasons, the power of iiNet as an ISP with respect to the use of facilities provided to subscribers was limited by the nature of their commercial relationship; iiNet could not control the choice of its subscribers and other users to utilise the BitTorrent software, nor could iiNet modify the BitTorrent software or take down the appellants' films which were made available online.

At all material times iiNet had many thousands of account holders. Was it a reasonable step to require of iiNet that it monitor continually the activities of IP addresses to provide precise details of primary infringements that had been committed, and then take further steps to forestall further infringements? Warnings might or might not have that effect. Evidence was lacking of likely behaviour in that respect by users of ISP facilities. Further, with respect to the AFACT Notices, was it reasonable to expect iiNet to issue warnings or to suspend or terminate the contracts of customers when AFACT had not fully disclosed the methods used to obtain the information in the AFACT Notices? Those methods were disclosed only by the provision of expert evidence during the preparation of the case for trial.

In truth, the only indisputably practical course of action would be an exercise of contractual power to switch off and terminate further activity on suspect accounts. But this would not merely avoid further infringement; it would deny to the iiNet customers non-infringing uses of the iiNet facilities. And, in any event, in the absence of an effective protocol binding ISPs (and there is no such protocol) the iiNet subscribers whose agreements were cancelled by iiNet would be free to take their business to another ISP. The Court held that the information in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts.

The Court accordingly held that iiNet's inactivity after receiving the AFACT notices did not allow the Court to infer that the ISP had authorised any act of infringement by iiNet's customers of copyright in the appellants' films.

FOI

The Victorian Auditor-General has released a report that strongly criticises the operation of the state Freedom of Information regime, commenting that

The Victorian Ombudsman identified systemic problems in his 2006 review of FOI. These included a lack of timely responses, inconsistent application of the Act and lost or non‑existent documents. In his 2011 Annual Report the Ombudsman concluded that these problems still remained five years later.

The Auditor-General concurs with that conclusion, drawing on investigation of all 11 Victorian public sector departments and the Victoria Police. The report includes a detailed assessment of the effectiveness and efficiency of FOI processes in Victoria Police and the Department of Human Services, on the basis that they process 68% of the FOI requests received by the 12 bodies.

The report comments that

Victoria has gone from being at the forefront of FOI law and administration to one of the least progressive jurisdictions in Australia. Over time, apathy and resistance to scrutiny have adversely affected the operation of the Act, restricting the amount of information being released. As a result, agencies are not meeting the object of the Act, which is ‘to extend as far as possible the right of the community to access information’.

The public’s right to timely, comprehensive and accurate information is consequently being frustrated. The Victorian public sector’s systemic failure to support this right is a failure to deliver Parliament’s intent. The prevailing culture and lack of transparent processes allow principal officers—secretaries and chief executive officers of agencies—to avoid fulfilling their responsibilities.

The report criticises leadership by the Department of Justice regarding FOI, commenting that the Department "has not adequately promoted and modelled the intent of the Act and accepted better practice, either in its own department or across the public sector". The Department has not -

 developed a proactive release framework for agencies addressed its own or other agencies’ processing delays complied with the reporting or timeliness requirements of the Act, nor encouraged other agencies to do so complied with the five-day ministerial noting time frame before documents are released. 

The report goes on to comment that -

tolerance of these longstanding substandard practices, particularly with regard to proactive release, reflects an apathetic and obstructive culture. DOJ has acknowledged that it could have taken a stronger approach with agencies, but stated that its ability to address substandard practices is limited because it does not have adequate powers to mandate good practices. This lack of powers is not sufficient justification for DOJ to not exercise leadership. Further, there is no evidence that DOJ sought to extend its powers to address its inability to achieve an acceptable level of practice, consistent with the object of the legislation.

It suggests that -

Proactively releasing information is an effective means of disseminating the maximum possible amount of information. It is recognised as better practice and, accordingly, is the approach adopted in other jurisdictions. Although Victorian agencies are publishing information, this does not necessarily constitute proactive release unless they have properly assessed the information to determine whether it is of significant public interest, appropriate, accurate, accessible and easy to use. This, combined with the continued reliance on formal FOI applications, means Victoria is less progressive than other jurisdictions.

Unsurprisingly, it also notes that -

The apathy with regard to FOI is also evident in the reporting regime. The minister responsible for the Act relies on DOJ to collect, check and prepare data for inclusion in the FOI Annual Report to Parliament. However, DOJ is not reporting to the minister aspects of agencies’ performance as the letter and spirit of the Act requires. DOJ does not report on measures that are explicitly specified in the Act, including disciplinary action taken against officers in respect to the administration of the Act, such as a breach of duty or misconduct. ...

Parliament and the public have the right to know if agencies’ performance is unsatisfactory. DOJ’s lack of comprehensive and transparent reporting in relation to the minister’s annual report does not satisfy the community’s expectations of a public sector agency.

The report offers several recommendations -

 1 The Department of Justice should provide stronger leadership in acquitting its statutory obligations to Parliament by:

• reviewing the Freedom of Information Act 1982 to improve its currency and to champion the proactive release of information 
• overhauling the content and frequency of current reporting requirements
• providing detailed guidance on proactive disclosure for agencies 
• providing more comprehensive and tailored training. 

2 Principal officers of agencies should diligently discharge their responsibilities under the Freedom of Information Act 1982 

• improving the transparency of their processes 

• maximising the information made available to the public through a proactive release framework. 

3 Principal officers should: promote the appropriate ‘tone at the top’ with regard to the object of the Freedom of Information Act 1982 Freedom of Information Act 1982, the Attorney‑General’s 2009 Guidelines on the Responsibilities and Obligations of Principal Officers and Agencies and related policies and procedures, identify areas of underperformance or non-compliance and remedy any shortcomings 

Agencies should:

• seek to continually improve their processes to comply with the 45-day statutory time limit for processing freedom of information requests 

• routinely release information on day six of the ministerial noting period. 

4 The Department of Justice should drive continuous improvement by, in the longer term, giving consideration to adjusting the statutory time frame in line with other Australian jurisdictions. 

5 The Department of Human Services should: 

• improve its record management practices to minimise loss of documents and enhance access to information 

• cease its practice of using section 22(6) for clients who have little or no money and are seeking their own records  

• include community service organisations’ records when processing freedom of information applications 

• improve its method of prioritising freedom of information requests. 

Agencies should review the findings relating to the Department of Human Services and apply lessons where necessary in their own organisation. 

6 Victoria Police should: 

• improve its record management practices to minimise loss of documents and enhance access to information 
• improve its responsiveness by reviewing its work practices in the first instance, and then, if necessary, considering the resources of its freedom of information unit appropriately scope freedom of information requests 
• inform freedom of information applicants of their review rights. 

Agencies should review the findings relating to Victoria Police and apply lessons where necessary in their own organisation.

 Those recommendations reflect a recognition that "timeliness of response is a good indicator of senior management’s attitude towards the importance of FOI".

Only two of the audited agencies met both the 45-day time limit and the five-day ministerial noting period; only four (Department of Education & Early Childhood Development, Department of Transport, Department of Primary Industries and Department of Treasury & Finance) had average request processing times that met the 45-day statutory limit in 2010­–11.

Victoria’s underperformance against its legislative target is even more concerning when compared with other states. Other states have better processing completion rates against shorter or similar standard time limits. Extensions to these time limits may be granted, in certain circumstances. ...  

When agencies do not respect the FOI Guidelines, this not only compounds the delays in processing FOI requests but also contributes to the public perception that there is political interference in the FOI process, particularly when there is repeated consultation between an agency and a minister’s office on requests. ...  DHS and Victoria Police, the two agencies reviewed in more detail, have significant deficiencies in these areas. As a consequence, the public is being denied access to information. 

 In condemning "unacceptable practice" the report comments that

DHS and Victoria Police need to address deficiencies in their record keeping practices as a priority. Records are being lost, disposed of incorrectly or rendered inaccessible.

Body Parts

'Intellectual Property Rights and Detached Human Body Parts' by Justine Pila in (2012)  Journal of Medical Ethics considers -

 whether the IP regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognized by European and international law in respect of authorial works. In the argument made, both of these species of IP right suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to accommodate the relevant public and private interests in respect of the same.

She notes that -

Detached human body parts have substantial commercial value and will therefore be exploited, whether legally or not. For this reason alone one might argue that there exists a need to regulate their exploitation, and that statutory rights of property such as those conferred by the intellectual property (IP) regime are a mechanism well suited to that end because of their ability to accommodate a range of private and public interests. The question which then arises is whether any aspect of the IP regime in particular suggests an appropriate model for protection. 

The European IP regime covers a diversity of rights, each with its own juridical and theoretical basis, making it preferable to focus on specific IP rights rather than the IP regime in general when answering this question. The relevance of such rights can then be determined having regard to the specific interests which it is sought to protect, and to the aim of legal protection in general. 

The IP rights of most obvious relevance are those conferred by the patent system, which already protects detached human body parts in most developed jurisdictions. In this paper I start by considering the extent of that protection in Europe, and the relevant strengths and weaknesses of the European patent system. I then consider two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic United Kingdom law in respect of employee inventions, and the second are the economic and moral rights recognised by European and international law in respect of authorial works. In the argument made, both of these species of IP right suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to facilitate the law’s recognition and accommodation of the different public and private interests in respect of the same. This is consistent with my suggestion elsewhere that while patents ought to be available for subject matter involving elements of the human body, they are not appropriate for the protection of such elements as products per se.

Comparative Family Law

The Rise and Decline of Legal Families' by Mariana Pargendler in 60(3) American Journal of Comparative Law (2012) comments that -

The effort to group jurisdictions around the world into a handful of legal families based on common characteristics of their laws has traditionally occupied a central role in the comparative law literature. This Article revisits the intellectual history of comparative law and surveys the evolution of legal family taxonomies from the first efforts at classification in the late-nineteenth century to the influential categorizations advanced by René David and Zweigert and Kötz in the 1960s. The early taxonomies differed from their modern counterparts in important ways. Although the nineteenth century is usually viewed as the apex of the common-civil law dichotomy, this distinction was conspicuously absent from legal family classifications until the twentieth century. A number of economic and political factors – ranging from economic liberalism to anti-colonialist sentiment – likely played a role in minimizing the salience of legal traditions in nineteenth-century legal thought. 

 Pargendler concludes that

The relatively recent vintage of legal family classifications as we know them today raises several questions. Why did prevailing conceptions about the origins and affiliations of legal systems undergo such a major transformation over time? To what extent did shifting taxonomies track changes in legal developments on the ground? Were early comparativists simply less sophisticated and knowledgeable about foreign legal systems, and did they thus fail to grasp the true nature of their object of study? Or could it be that the variation in taxonomies over time was attributable to corresponding differences in underlying legal phenomena? While this study cannot provide definitive answers to these questions, it offers some tentative thoughts that underscore the importance of pursuing this line of inquiry. Clearly, one cannot take legal family classifications – present or historical – as precise assessments of an underlying reality. Yet, it would also be wrong to dismiss the early authors’ groupings of legal systems as hopelessly flawed and lacking any instructive value about the then-contemporary legal systems that they sought to describe. While the first comparativists of the nineteenth century did not enjoy the benefit of subsequent theoretical advances, they had the comparative advantage of greater proximity to the legal systems and worldviews that their classifications sought to capture compared to twentieth-century observers.

There are reasons to believe that there is a mutually reinforcing relationship between legal family classifications and surrounding legal developments. On the one hand, one can expect classificatory schemes to reflect, even if only partially and imperfectly, the character of legal systems around the world as contemporary observers perceived them. On the other hand, because law is a social and cultural phenomenon, existing understandings about legal systems and traditions may in turn impinge on subsequent legal developments. In this view, the nineteenth-century comparativists’ lesser degree of attention to the civil-common law dichotomy was in part a product of the more cosmopolitan orientation of law and culture in that period. In turn, by de- emphasizing the importance of deep-rooted legal traditions, the existing theoretical framework likely facilitated legal borrowings from a broader array of jurisdictions, thus reinforcing the reigning belief in the desirability and feasibility of legal convergence.

A variety of factors may have contributed to a lesser degree of deference to, or consciousness of, legal traditions in the nineteenth century compared to the twentieth century. First, and most obviously, there was significant theoretical confusion in the nineteenth century about the meaning and origins of different legal systems – as exemplified by the existing diversity of classificatory schemes, as well as the frequent statements by prominent English and U.S. authors that English law stemmed from Roman law. An excellent study by Michele Graziadei examines the “change in the image” in the nineteenth century from the early understanding of English law as originating from Roman law to a later conception of the common law as the source of a distinct legal tradition. In his words, theoretical developments in nineteenth-century England (which were, paradoxically, inspired by contemporary doctrinal developments in Germany) “transformed the perception of the historical background of the law and eventually produced a new awareness of the distinctive character of the common law tradition.”

Second, conceptions about legal tradition and the appropriate sources for one country’s law were intimately intertwined with the search for identity – including legal identity – by the various nations that had then recently acquired independence. New countries were reluctant copycats, and wholesale legal transplants from one legal system seemed more dangerous to one’s identity and autonomy than a combination of numerous foreign sources. Relatedly, anti-colonialist sentiment was very much alive in many newly independent nations, which made them despise the notion of legal continuity from colonial times and thus view the idea of legal tradition rather unfavorably. For instance, in the United States, Chancellor Kent famously resorted to continental sources to legitimize certain common-law concepts in light of the “unpopularity of things English.” In his words, “[t]he judges were Republicans and very kindly disposed to everything that was French, and this enabled me, without exciting any alarm or jealousy, to make free use of such authorities and thereby enrich our commercial law.” That is, the argument that rendered English law an acceptable source was not that it was part of the U.S. particular legal tradition, but quite the opposite: English law was more legitimate to the extent that its precepts were the same as those of French and Roman law.

Third, the nineteenth century was the heyday of economic liberalism and the free trade of goods, persons, and ideas. Just like the globalization movement of the late- twentieth century, the late nineteenth century’s own (arguably just as profound) period of globalization generated significant pressures for cross-border legal convergence and integration. Such an intense degree of international trade and economic integration, in turn, created demand for legal harmonization and lessened the importance of local peculiarities. For instance, a 1862 free trade agreement between England and France pushed France to relax authorization requirements to incorporations along the lines of the English Companies Act in order to avoid putting French firms at a competitive disadvantage. In Brazil, the economic connections to Britain arguably generated more reliance on Anglo-Saxon legal institutions in the nineteenth than in the twentieth century. Yet each of these factors that downplayed the salience of legal traditions in the nineteenth century lost significance in the twentieth. The rise of comparative law as a discipline and the greater sophistication of comparative and historical studies cleaned up some of the existing confusion about the origins of legal systems in the Middle Ages. Roman and common law were then increasingly understood as not only lacking a common root but also as largely impervious to mutual influence, despite what were seen as sparse and isolated instances of legal borrowings. In addition, as memory of colonial times receded, legal traditions came increasingly to be viewed in a more favorable light.

Moreover, changes in world’s balance of power facilitated the solidification of legal traditions. Following decolonization, declining powers such as France and Great Britain viewed legal imperialism and the export of legal culture as a substitute for de facto occupation. From the perspective of the periphery, the return to legal traditions in the twentieth century often had the effect of strengthening a country’s sense of independence and identity in the face of American and Soviet economic and political hegemony. Finally, the turn towards autarkic policies and economic nationalism after World War I put an end to the earlier age of globalization and, in decreasing international trade, created an environment more favorable to legal nationalism (and to the ingrained and persistent differences across legal systems that legal families implied) and less conducive to legal convergence. ...

Comparativists have insistently debated the extent of the decline of legal family distinctions, but little attention has been paid to the rise of now-conventional understandings about legal families and traditions. By offering a brief intellectual history of the taxonomic efforts in the comparative law literature, this Article suggests that legal family categories followed a parabolic, rather than linear, path. Contrary to conventional understandings, the reification of a strong common-civil law dichotomy may have peaked in the twentieth century – after the end of the first globalization in 1914 but before the second globalization of the latter half of that century. In this light, the recent call by comparative law scholars for the abandonment of legal family classifications is a far less radical move than it may seem.

The view of the nineteenth century as a period dominated by a particularly strong and conscious dichotomy between civil law and common law is wrong. A variety of factors – ranging from theoretical underdevelopment to anti-colonialism and free trade – circumscribed the role of legal tradition in that period. Perhaps more important, many critical choices that would eventually shape legal family affiliations had not yet been made in the nineteenth century. Take, for example, Germany and Brazil which are today solidly in the civil law tradition but which had then not yet adopted one of the very hallmarks of that tradition, i.e., a civil code. Germany’s Bürgerliches Gesetzbuch came into force in 1900, while Brazil’s first Código Civil was not enacted until 1916. In both cases, the delay was not accidental, but rather the result of genuine disagreement about the desirability of a code and the suitability of existing models.

Ultimately, the development of legal family categories cannot, as is usually assumed, be explained by long-standing historical traditions alone; it was also profoundly shaped by trends in politics and economics. As the bulk of the comparative law literature has focused on the extent to which legal families are still relevant, the inquiry into the causes and consequences of strong conceptions of legal traditions provides interesting avenues for future research.

Lights and IP Statistics

'Illuminating Innovation' (Hofstra University Legal Studies Research Paper No. 12-08) by Lea Shaver comments that

The central justification offered for patent protection is the need to incentivize technological innovation. Yet to date there is little empirical evidence that this aim is achieved. This Article argues that historical case studies, exploring the impact of patent law on particular fields of technological innovation, can be especially helpful in providing an empirical foundation for patent scholarship. The Article then proceeds to offer one such case study, focused on one of the most important technological revolutions of the past two centuries: electrification. Although Thomas Edison and “the incandescent lamp” have been extensively studied, so far no one has asked what light this lamp can shed on patent law and innovation policy. 

This Article develops two primary lessons of this case study. First, the lightbulb is used to test and refine recently articulated theories of “patent racing” as a justification for patent protection. I conclude the racing metaphor captures an important dynamic, but insufficiently accounts for the incremental nature of innovation and the subjectivity involved in judging patent disputes. Edison’s experience suggests the better analogy is the board game Risk! Second, the case illuminates a neglected dimension of patent law: the close relationship between patents and public relations. Edison masterfully manipulated the publicity value of his patents, and leveraged an intensive public relations campaign to influence the interpretation of his patent rights. 

In the end, the untold legal history of the lightbulb is a cautionary tale about relying on patents to promote technological innovation. In contrast to the conventional account of patent law as an objective, market-based system for rewarding investments in innovation, this empirical case study reveals a legal system that is messy, manipulable, and fundamentally shaped by myth. Further research on this and other technologies will be necessary to determine whether the case of the lightbulb is a representative or exceptional case and to draw more general conclusions about patent law’s impact of technological innovation. This Article, however, lays out a model for how such research might be approached.

The US Commerce Department’s Economics and Statistics Administration and the Us Patent and Trademark Office have meanwhile released Intellectual Property and the U.S. Economy: Industries in Focus, which claims that intellectual property intensive industries support at least 40 million jobs in the US and contribute more than US$5 trillion (34.8%) to the U.S. gross domestic product (GDP).

The 63 page report [PDF] is promoted as the "first of its kind" and showing

that IP-intensive industries have a direct and significant impact on our nation’s economy and the creation of American jobs. When Americans know that their ideas will be protected, they have greater incentive to pursue advances and technologies that help keep us competitive, and our businesses have the confidence they need to hire more workers. ...  While IP is used in virtually every segment of the U.S. economy, the report identifies the 75 industries that use patent, copyright, or trademark protections most extensively. These “IP-intensive industries” are the source – directly or indirectly – of 40 million jobs. That’s more than a quarter of all the jobs in this country. Some of the most IP-intensive industries include: Computer and peripheral equipment, audio and video equipment manufacturing, newspaper and book publishers, Pharmaceutical and medicines, Semiconductor and other electronic components, and the Medical equipment space.

Findings include -

• IP-intensive industries contributed $5.06 trillion to the U.S. economy or 34.8% of GDP in 2010
• a substantial share of IP-intensive employment was in the 60 trademark-intensive industries, with 22.6 million jobs in 2010. The 26 patent-intensive industries accounted for 3.9 million jobs in 2010, while the 13 copyright-intensive industries provided 5.1 million jobs.
• 40 million jobs, or 27.7% of all jobs, were directly or indirectly attributable to the most IP-intensive industries in 2010
• Due primarily to historic losses in manufacturing jobs, overall employment in IP-intensive industries lagged other industries during the past two decades. While employment in non-IP-intensive industries was 21.7% higher in 2011 than in 1990, overall IP-intensive industry employment grew 2.3% over this same period. Because patent-intensive industries are all in the manufacturing sector, they experienced relatively more employment losses over this period, especially during the past decade. While trademark-intensive industry employment had edged down 2.3% by the end of this period, copyright-intensive industries provided a sizeable employment boost, growing by 46.3% between 1990 and 2011
• Between 2010 and 2011, the economic recovery led to a 1.6% increase in direct employment in IP-intensive industries, faster than the 1.0% growth in non-IP-intensive industries.
• Merchandise exports of IP-intensive industries totaled $775 billion in 2010, accounting for 60.7% of total U.S. merchandise exports.

Equality

Robert Leckey in 'Must Equal Mean Identical' questions -

the assumption from formal equality that the best way to remedy law's neglect of same-sex couples was to extend to them access to marriage with its existing economic framework. The greater sharing of housework and finances and lesser frequency of child rearing signal the potential unsuitability, in the same-sex context, of rules designed for male-female couples with intense specialization of labour. The paper also flags methodological difficulties with the enterprise of looking to research in order to assess marriage law’s fitness for gay and lesbian couples. The existing social-science research focuses on recognition of same-sex couples by third parties more than on the rightful duties as between partners, particularly on a relationship’s winding down. A better approach might unbundle third parties’ recognition of same-sex spouses from the partners’ duties one to another. Yet given the sway of formal equality, is it even thinkable that the equal status of marriage should presumptively lead, for same-sex couples, to a less onerous property regime?

Leckey comments that -

Formal equality holds that the way to treat gay men and lesbians with dignity and equal respect is to give them access to marriage (or something almost identical under a different label). For legal, political, and social reasons that vary by jurisdiction, this claim for recognizing same-sex relationships has emerged as the champion. Where judicial or legislative efforts carry out formal equality‘s prescription, critique arises from conservative perspectives. It also emerges from feminist, queer or other left viewpoints. One such objection is that same-sex marriage would exacerbate the inequality between more and less privileged members of sexual-orientation minorities. But remarkably little scholarship has studied how well the financial frameworks which govern marriage and divorce, henceforth available to same-sex couples, serve their catchment group. The question of fit should not, however, be taken for granted. An obvious reason is that marriage traditionally bore women‘s economic dependency on men 'embedded deep within' and it is possible that reforms implementing gender neutrality have not extirpated all gendered assumptions. Nor has much attention been paid, methodologically, to the difficulties entailed by examining the matter. This paper advances work on those neglected matters. ... 

This paper presses back against the rhetoric of formal-equality-as-sameness by exploring whether the economic lives of same-sex couples differ from those of different-sex married spouses in potentially relevant ways. By underscoring the distinction between the claim for recognition by third parties and the call for automatic application of existing property rules, it posits that same-sex couples may be situated similarly to heterosexual couples so as 'to deserve the right to marry' without that similarity determining their appropriate patrimonial relations. 

 A timid reading of the argument might observe that the economic consequences of marriage and civil union can be onerous and that partners should inform themselves in advance. If the regimes on offer are uncongenial, they should conclude a marriage contract within allowable limits! A bolder reading might express regret if the push for gay and lesbian relationship recognition has intensified marital status‘ significance for family law, deflecting policy makers‘ attention from potentially more reliable proxies for intense interdependence such as the presence of children. Has the discourse of formal equality—fused with the unitary view of marriage—forestalled a rethinking of law‘s regulation of the economic dimensions of intimate relations more generally, in a way that would reach beyond same-sex couples to different-sex couples and other kinship configurations? If so, that bodes badly, not only for those for whom the marriage model offered is a poor fit, but also for those whose kinship claims are neither subsumable under formal equality nor articulable as a bid for marriage.

Asian IP Values?

'Intellectual Property and Asian Values' by Peter Yu in 16(2) Marquette Intellectual Property Law Review (2012) 101-171  comments that

From Niall Ferguson to Fareed Zakaria, commentators have paid growing attention to the rise of Asia and its implications for the West. Recent years have also seen the emergence of a growing volume of literature on intellectual property developments in Asia, in particular China and India. Few commentators, however, have explored whether Asian countries will take unified positions on international intellectual property law and policy. 

Commissioned for the Inaugural International Intellectual Property Scholars Series, this article fills the void by examining intellectual property developments in relation to the decades-old 'Asian values' debate. Drawing on the region's diversity in economic and technological developments and the continuous rivalry among the different regional powers, the article contends that one can neither locate any distinct values, approaches, or practices on intellectual property law and policy nor identify any established pan-Asian positions in the area.

The article further explores the role Asian countries will play if these emerging countries exert more influence on the development of the international intellectual property system. It points out that, although Japan and South Korea are unlikely to join others to form a united front for the Asian developing world, China, India, and ASEAN members may be willing to work together to form a normative community. This article concludes with a discussion of ten key items that will find their way to the community's common policy agenda if such a community indeed exists.

Those items are

1. Enforcement

2. Traditional Knowledge and Cultural Expressions 

3. Geographical Indications 

4. Access to Essential Medicines 

5. Internet and Other New Technologies 

6. Climate Change 

7. Alternative Innovation Models 

8. Special and Differential Treatment 

9. Uneven Economic and Technological Developments 

10. Abuse of Rights and Restraint on Trade  

Yu suggests that -

in the area of intellectual property law and policy, one can neither locate any underlying distinct values, approaches, or practices nor identify established pan-Asian positions. Nevertheless, the middle- and low-income Asian countries may be able to work together to foster regional positions to influence future international intellectual property negotiations. While Japan and, to some extent, South Korea are unlikely to join other Asian countries in taking a strong pro-development stand for Asia, China, India, and ASEAN could team up to maximize their leverage and voice in the international intellectual property arena. They could help shape the development of a powerful regional normative community. 

Although the positions and interests of the twelve members of Chindiasean continue to differ, developing a united front for these countries most certainly will help ensure a more desirable bargaining outcome in areas that range from the reshaping of global intellectual property enforcement norms to the protection of traditional knowledge and cultural expressions to the promotion of access to essential medicines. Having unified positions among these countries may also set alternative paths for other less developed countries outside Asia. Thus, from the standpoint of international intellectual property policymaking, the growing intellectual property developments in Asia deserve our greater scholarly attention, even if this century does not end up becoming an Asian century.