Industrial Property Statistics

The 2011 World Intellectual Property Indicators report [PDF] from WIPO indicates that patent and trade mark filings grew by 7.2% and 11.8% respectively in 2010 compared to growth of 5.1% in global gross domestic product. China and the United States (US) accounted for the greatest percentage of the increased filings; IP filing growth by Germany, the UK and France exceeded the GDP growth rate of the those economies in 2010.

The global number of patent applications was 1.98 million, an historical high. the number of trade mark filings reached 3.66 million, up by 11.8% from 2009. The US patent office saw 7.5% growth in applications in 2010 (after two years of near zero growth), with 490,226 applications - ahead of China's patent office with 391,177 filings and its Japanese counterpart with 344,598 filings. WIPO comments that "this mirrored wider economic trends in a year in which China overtook Japan to become the second largest economy in the world, as measured by GDP". Patent applications were up by 24.3% in China, by 12.2% in the European Patent Office, 11.9% in Singapore and 10.2% in the Russian Federation. WIPO notes in the 212 page compilation that filings in China increased from 63,450 in 2001 to 391,177 in 2010.

A sense of the global intellectual property economy is provided by looking at WIPO's statistics on who filed where. Filing by Chinese residents (293,066 applications) overtook those by Japanese residents (290,081 applications), with residents of Japan (172,945 applications) and the US (178,355 applications) filing the largest number of patent applications outside their own country. Residents of Canada, the Netherlands, Israel and Switzerland filed more than 80% of their total applications abroad, in contrast to residents of China, who filed only 5% of applications abroad.

WIPO's breakdown of the figures by industry indicates that -

computer technology, electrical machinery, audio-visual technology and medical technology accounted for the largest shares of patent filings worldwide. However, the relative importance of different technology fields varied substantially across countries. Broadly defined information communications and technologies (ICTs) accounted for the largest share of filings in Finland and Sweden, with pharmaceuticals more prominent in Belgium, India and Switzerland.

WIPO estimates that the global number of “potentially pending” patent applications in 2010 was 5.17 million in 2010, down 3.3% on 2009, with Japan's patent office of Japan reporting a 20% decline in pending applications. It's unclear whether the decline's attributable to improved efficiency, additional resourcing in the office or other matters.

The report provides no meaningful measure of patent quality and the number of applications is a problematical indication of the validity of those applications, of national competitiveness or the effectiveness of nation innovation/education policies.

WIPO Director General Francis Gurry commented that the "upturn" in filings shows that enterprises have been continuing to innovate -

This can help to create new jobs and generate prosperity once macroeconomic stability is restored, [although] if economic conditions were to deteriorate sharply in the short term – as happened in 2009 – companies might be forced to curtail or abandon their investments in innovation, stifling an essential source of growth.

Ithe number of design applications - eg under the Designs Act 2003 (Cth) - is reported by WIPO as increasing by 13%, primarily due to "high growth in China which accounted for 83% of total growth". Globally there were 637,000 resident and 86,700 non-resident applications. The number of designs applications were up by 14% in Australia, 12.6% in the US, 20% in Canada and 20% in China.

Globally there were an estimated 3.66 million trade mark applications in 2010 (2.78 resident and 0.88 million non-resident applications), with China's trade mark registrar accounting for three-fifths of the 11.8% growth in applications. The number of applications for marks were up by 13% in France (13.1%), 11.5% in Brazil and 11.4% in Russia. WIPO comments that -

middle-income countries filed a higher number of trademark applications per GDP as compared to high-income countries. Chile filed 218 trademark applications per billion GDP in 2010. Bulgaria (166), Ecuador (157) and Viet Nam (128) also show high ratios of trademark filings per GDP, exceeding those for Germany (72), Japan (39) and the US (22).

The significance of that spread is unclear.

e-Books, Webscraping and Deposits

The national Attorney-General’s Department is seeking comments regarding Australia's statutory deposit (aka legal deposit) regime under the Copyright Act 1968 (Cth).

The Department indicates that it is concerned with -

a proposed model to extend the legal deposit obligation in section 201 of the Copyright Act 1968 in relation to material deposited with the National Library of Australia (the National Library). Existing obligations to deposit print-based library materials under section 201 are not under consideration.

In 2007, the Attorney-General’s Department and the then Department of Communications, Information Technology and the Arts released the 2007 Discussion Paper on the Extension of Legal Deposit. That paper sought views on extending legal deposit to electronic material, broadcasts and audiovisual material and on the National Film & Sound Archive of Australia (NFSA) also being made a repository institution for legal deposit.

This current paper is focussed solely on a proposal for an extended scheme in the Copyright Act for the National Library and is without prejudice to further consultation to be conducted by the Office for the Arts on legal deposit of audiovisual material to the NFSA.

The proposed scheme is similar to that in several countries and in practice would enshrine the NLA's PANDORA web publishing initiative (which has involved the Library gaining permission from copyright owners and thence archiving chunks of the web, including several hundred thousand words by the author of this blog).

The nine page consultation paper indicates that the proposed scheme

distinguishes between offline physical format electronic publications and online electronic publications. Essentially, the current mandatory deposit obligations would be extended to physical format electronic publications, while online electronic publications would be subject to a deposit on demand basis.

A reason for making a distinction between two classes of electronic publications is that this recognises the differences between material in a physical form and material in a virtual form and tailors the deposit requirements accordingly. It also implements a selective scheme for online material, recognising the large volume of material that is potentially eligible for inclusion in the legal deposit scheme.

Under the new regime the NLA would have authority for statutory deposit of "physical format electronic publications" (eg those on DVDs or CD-ROMs). Publishers would be required to provide the NLA with a free copy without a Technological Protection Measure (TPM).

The proposal encompasses selective but mandatory archiving and electronic provision by the NLA of "online electronic publications on a selective basis". The paper indicates that -

• On notification from the Director-General of the National Library, the publisher making the material available online would be required to deposit.
• Where the material is made available online, subject to access controls or a TPM, the publisher will be required to deposit the material unencumbered.
• In deciding categories of electronic material that will be subject to new deposit obligations, the Director-General will need to consider a range of factors including cultural importance and collecting priorities.

Material of this kind includes: scholarly e-journals, e-magazines, ephemeral publishing such as e zines, online newspapers, e-books, blogs, websites, and conference proceedings.

The paper sensibly notes that -

A reason for restricting deposit requirements to a deposit on demand basis is that it would be impractical to place a deposit obligation on all publishers on the internet. The current requirement in section 201 applies to ‘published’ library material. Under copyright law, ‘published’ means a work has been ‘supplied to the public’. In the context of the internet, most works made available online without restrictions may be considered ‘published’ for the purposes of the Copyright Act. As such, an unrestricted obligation to deposit electronic material would fall on nearly all users that place material online. This would result in the collection of an excessive amount of material and would raise significant compliance and administration issues.

Who would have access to the publications that the NLA has scraped? The paper succinctly indicates that "As with the current scheme, public access to material deposited through legal deposit would be subject to the relevant provisions of the Copyright Act". There;'s some vagueness about NLA plans to make the electronic publications available outside its Canberra premises, although the state libraries, university libraries and other venues are likely to argue for 'controlled' access through their premises. The paper notes that -

Public access to deposited material: In 2007, a number of submissions argued that in order to avoid potential conflict with the commercial interests of publishers, access to deposit material should be restricted. However, libraries and library associations argued that access should be in keeping with existing copyright provisions. It is proposed that the National Library will be able to be make deposited material available to the public within the existing copyright framework for libraries and archives.

Use of deposited material by the National Library: It is proposed that the National Library may use deposited material in accordance with relevant exceptions to copyright in the Copyright Act (such as preservation copying).

The paper concludes with a reference to penalties -

The current scheme imposes a penalty of $100 on any publisher that does not provide the National Library with their library material within one month. Under an extended scheme, a similar penalty provision, perhaps expressed in penalty units, would apply where a publisher does not deposit within a specified period.

Fatherhood and Theory

'Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law' (USC Legal Studies Research Papers Series No. 12-5) by Camille Rich comments that -

This Article explains why child molestation law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes increasingly are being used to regulate parents’ behavior as they engage in mundane childcare practices traditionally deemed the domain of civil law regulation. The article further shows how these child molestation statutes end up being interpreted and enforced in ways that reinstantiate traditional gender norms. This Article charts the problem by showing how the inquiry authorized by today’s broad, far reaching child molestation statutes invites and even requires judges, juries other legal decision-makers to rely on gendered notions of cultural “common sense” to resolve child molestation cases involving fathers providing seemingly mundane intimate care. The Article explains why child molestation statutes are interpreted in the intimate care cases in ways that enforce gendered parenting norms, showing that legal decision-makers turn to these stereotypes because the concepts of sexual injury at the heart of child molestation law are radically undertheorized. The Article considers the role feminist legal theory has played in this undertheorization problem, addresses the stumbling blocks to future feminist theorizing on this issue, and examines the material consequences of the current undertheorized concepts of sexual injury for the practice and experience of fatherhood.

Panpsychic

Posts in this blog have been dismissive of World Futures, the journal under the auspices of millenarian, education entrepreneur and communication-with-the-dead fan Ervin Laszlo.

The latest issue of that journal (Volume 68, Issue 2) - which in Australia's official scholarly rating system ranked higher than some credible law journals - features a change of name. World Futures was tagged The Journal of General Evolution; it's now The Journal of General Education.

The preceding issue of World Futures was largely devoted to "introducing" Laszlo's Giordano Bruno GlobalShift University, the much-renamed institution originally named WorldShift University.

Alas, it's still a journal of the bizarre. One article, by Jeff Jenkins, is titled 'Nature Awareness and Panpsychic Ritual Gratitude: Revitalizing Our Ancestral Heritage'. Oh dear.

What does "panpsychic ritual gratitude" involve?

This article suggests that nature awareness and panpsychic gratitude transform a wounded mechanistic reductionist worldview into creative regenerative participation with the more-than-human world. Four practical keys are shared that have proven to be helpful in resuscitating the indigenous heart and cultivating greater empathy, love, compassion, and insight into the metaphoric resonance and teachings of the natural world. This inquiry situates the human family as vital consciousness tendrils of the living planet in this critical time of shifting climate patterns, loss of biodiversity due to human presence, geopolitical conflicts, and other challenges as we step into the Ecozoic Era.

"Vital consciousness tendrils"? Not too surprising in an "academic" journal that's recurrently espoused reincarnation, dowsing, remote healing and other parapsychology along with a jurisprudence of 'quantum holism'.

Blagging

In commenting on the imprisonment of private detectives for blagging (after conviction under the Fraud Act rather the under the Data Protection Act) the UK Information Commissioner has stated that -

The scourge of data theft continues to threaten the privacy rights of the UK population. Whilst we welcome today’s sentencing of the private investigator, Graham Freeman, and his three accomplices, the outcome of the case underlines the need for a comprehensive approach to deterring information theft. If the Serious Organised Crime Agency had been restricted to pursuing this case solely using their powers under the Data Protection Act then these individuals would have been faced with a small fine and would have been able to continue their activities the very next day. This is not good enough.

Unscrupulous individuals will continue to try and obtain peoples’ information through deception until there are strong punishments to fit the crime. We must not delay in getting a custodial sentence in place for section 55 offences under the Data Protection Act.

Blagging - aka pretexting - has gained major attention in the UK and Australia in relation to abuses by/for journalists, highlighted for example in Various Claimants v News Group Newspapers Ltd & Anor [2012] EWHC 397 (Ch); Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) ; Coulson v Newsgroup Newspapers Ltd [2011] EWHC 3482 (QB), Coogan and Phillips v News Group Newspapers and Mulcaire [2012] EWCA Civ 48 and Andrew v News Group Newspapers Ltd & Anor [2011] EWHC 734 (Ch). Those abuses have led to calls for tighter media regulation, whether through some sort of industry body or through a government agency (as highlighted in the recently-noted Finkelstein report).

The Commissioner's site indicates that his Office

worked with the Serious Organised Crime Agency (SOCA) to secure today’s convictions under the Fraud Act. The ICO advised SOCA on the data protection issues connected to the case and will now be provided with additional material from the SOCA for further investigation. The ICO does not rule out taking further action against the organisations that received this information, if it becomes clear that they failed to comply with the requirements of the Data Protection Act.

In September last year, in calling for custodial sentences for blagging and commenting that blagging on behalf of debt collection services was as bad as that for News of the World the Commissioner stated that -

There has been a lot of coverage in the media about the section 55 offence – or ‘blagging’ personal information, as it is known. But this offence is not just about private investigators finding out about celebrities’ hospital appointments. This crime has the potential to devastate ordinary people’s lives. The existing paltry fines are not enough to deter. The government must show they take this problem seriously by commencing the legislation Parliament put in place in 2008. If courts were able to impose the full range of sentences from fines to jail terms, including other sanctions such as community service where appropriate, we would at last have an effective deterrent to stop people engaging in this criminal activity.

Blagging isn’t hacking, but the issue has got caught up in the controversy over press behaviour. Unfounded concerns about press freedom were a distraction in 2008 and they should never have halted the introduction of stronger sanctions. They should not delay any further the commencement of the powers needed to combat this modern scourge.”

Section 55 of the Data Protection Act makes it an offence to “knowingly or recklessly, without the consent of the data controller, obtain or disclose personal data." The current penalty for committing the offence is a maximum £5,000 fine if the case is heard in a Magistrates Court and an unlimited fine in a Crown Court.

SOCA indicates that

Four private investigators have pleaded guilty to stealing confidential information and selling it to paying clients.

Philip Campbell Smith, Adam Spears and Graham Freeman used the services of Daniel Summers, an expert in a technique known as blagging, to acquire personal and financial information on behalf of corporate clients and private individuals.

Searches during SOCA's investigation found quotes for Summers' services including £200 for obtaining a monthly bank statement. On his arrest Summers said "I know why you are here, this is massive," and "I'm in the biggest s**t imaginable."

Blagging is the art of bypassing security measures through skilled persuasion and impersonating someone else. Summers targeted banks, financial institutions, mortgage providers, government agencies and law enforcement databases. Evidence showed the men warning each other from time to time when their activity risked being noticed.

SOCA's investigation into the four men began when it received intelligence that Summers' computer may have had information about criminal activity stored on it. When Summers put his computer up for sale, an undercover SOCA officer succeeded in buying it from him for £590 cash. Despite Summers' attempts to erase the hard drive, SOCA's forensic analysts were able to retrieve a number of files showing Smith, Spears and Freeman tasking Summers to obtain confidential information in exchange for payment. Investigators collected further documentary and computer evidence from the other three men when they were arrested in May 2009.

SOCA's focus during the investigation was criminal conspiracy. However in recognition of the fact that the operation might also uncover information relevant to other authorities, SOCA worked in partnership with a number of bodies including the Information Commissioner's Office. SOCA will now hand over any such information to its partners to determine whether further action is appropriate.

Too Much Sharing?

In the UK the Observer reports on claims that "the police or security services supplied information to a blacklist funded by the country's major construction firms that has kept thousands of people out of work over the past three decades".

The Information Commissioner's Office (ICO) has revealed that records that could only have come from the police or MI5 have been discovered in a vast database of files held on 3,200 victims who were deemed leftwing or troublesome.

The files were collected by the Consulting Association, a clandestine organisation funded by major names in the construction industry.

Its database was seized nearly three years ago, but the extraordinary nature of the information held has only now emerged, following an employment tribunal for one of the victims, Dave Smith, a 46-year-old engineer who had a 36-page file against his name and was victimised repeatedly for highlighting safety hazards on sites, including the presence of asbestos.

David Clancy, investigations manager at the ICO, told the central London tribunal adjudicating on Smith's claims against construction giant Carillion that "there is information on the Consulting Association files that I believe could only be supplied by the police or the security services".

Speaking to the Observer, Clancy added: "The information was so specific and it contained in effect operational information that wouldn't have formed anything other than a police record."

The article goes on to comment that -

The scandal will be thrown open to further public exposure in the coming months as a class action by 100 victims against at least 39 companies is set to be pursued in the high court by Hugh Tomlinson QC, currently counsel for several of the phone-hacking claimants. The revelations will inevitably raise fresh questions about the probity of the police in a week in which its relationship with major news corporations, and News International in particular, has come under sharp focus. Last week the Leveson inquiry heard that the police were investigating a "network of corrupt officials" as part of their inquiries into phone hacking and police corruption.

Clancy said he was unable further to trace the specific sources of the information held in the Consulting Association files because it touched on individuals living across the country and stretched over three decades.

He added that the relationship between the Consulting Association and the police and security services appeared to have been nurtured when the organisation went under an earlier guise as the Economic League, at a time when the state was keen to liaise with major building firms to discover as much as it could about Irish construction workers amid the threat of IRA terrorism.

John McDonnell MP, who first raised the issue of blacklisting a decade ago, said he would demand a debate in parliament on what he described as collusion. "I am outraged at the systematic abuse of people's rights. This has destroyed people's lives, broken up families, ensured that people have not been able to earn a living. It has devastated people year after year, and nobody has listened to us. No one has been willing to believe the extent to which there has been collusion between police, security services and companies. It is all about the ability of companies to exploit workers and destroy anybody who stands up against them."

The existence of the secret blacklist was first exposed in 2009, when ICO investigators from the Information Commissioner's Office raided an unassuming office in Droitwich, Worcestershire.

The investigators uncovered an extensive database that was used by construction firms to vet workers they deemed to be trade unionists and troublesome – usually trade unionists. More than 40 construction firms, including Balfour Beatty and Sir Robert McAlpine, had been funding the confidential database, which recorded workers' trade union activities and conduct at work.

The Consulting Association was closed down and a 66-year-old private investigator, Ian Kerr, was fined £5,000 for administering the database, although the construction firms escaped prosecution. At Smith's tribunal, Carillion admitted that two of its subsidiaries covertly supplied information to the database to "penalise" Smith for being a trade unionist, even though he had "reasonably brought health and safety concerns to their attention".

In Australia there have been sporadic expressions of concern over formal and informal sharing of information by police and infrastructure groups. One example is that of the relationship between the Victoria Police and AquaSure (the international consortium building the Wonthaggi desalination plant). The 2010 report by the state's Commissioner for Law Enforcement Data Security on the Review of Victoria Police Major Development MOUs suggested that there are substantive grounds for concern.

Biometrics

Last month Australia's national Privacy Commissioner received a letter [PDF] from the Biometrics Institute (ie the biometrics industry advocacy body) proposing revocation of the 2006 Biometrics Institute Privacy Code.

That Code was developed by the Institute under Part IIIAA of the Privacy Act 1988 (Cth), which as part of the co-regulatory regime embodied in that Act provides for organisations and industries to have - and enforce - their own privacy codes. The private codes supersede the National Privacy Principles (NPPs) that would otherwise bind the organisations subscribing to the particular codes. Code development involves a representative organisation applying under s18BA of the Act to the Privacy Commissioner (now part of the national Information Commissioner's office) for formal approval of a privacy code. Under s 18BE(1)(a) the Commissioner may revoke approval of a privacy code on his/her own initiative. Under s18BE(1)(b) the code may also be revoked on the basis of an application by an organisation bound by the code.

The Institute's letter requested that the Commissioner exercise his power to revoke the Biometrics Institute Privacy Code on his own initiative. That mechanism is interesting and may reflect past practice where the Office of the Privacy Commissioner appears to have solicited requests by particular stakeholders, a closeness that for some observers raises questions about potential conflicts involving a government agency that has both a policymaking and deliberative function.

In response to the letter the Privacy Commissioner has invited public comment on the proposed revocation of the Code, issuing a consultation paper to assist comments. Unfortunately the consultation paper, consistent with similar Privacy Commission documents, is very thin ... so thin as to have little value to most readers.

The Code aims to -

• facilitate the protection of personal information provided by, or held in relation to, biometric systems;
• facilitate the process of identity authentication in a manner consistent with the Privacy Act and the NPPs; and
• promote biometrics as privacy enhancing technologies (PETs)

The Institute seeks revocation of the Code on the basis that -

• The subscription rate from Institute members has been low (a mere four of the Institute's members are subscribed to the Code)
• The Code has become less relevant in the context of other privacy awareness raising activities and materials developed by the Institute
• The Code has become less relevant in the context of the changing environment of privacy threats in relation to biometric technology
• The Institute wishes to pursue a more flexible targeting of privacy awareness programs and policies
• The Institute is seeking to build a privacy promotion strategy that better reflects the diversity of its members
• The Institute seeks to move away from promoting a culture of privacy protection in terms of basic compliance, towards promoting it as leading practitioners.

Comments on the proposed revocation should be submitted by 5pm 21 March 2012.

The consultation raises questions about the efficacy of the various privacy codes. Do we indeed need discrete industry-specific codes, rather than a more coherent statement of principles (supplemented by operational guidance) and meaningful enforcement on the part of the Information Commissioner's office?

The Institute's site indicates that -

The Biometrics Institute Privacy Code was designed for the protection of Institute members and their clients. It has been approved by the Australian Privacy Commissioner in 2006 and is part of the Australian Privacy Act. It enables you to guarantee that you protect your clients’ privacy in a professional manner. It is your benchmark and your evidence that you have in place systems and procedures that comply with Australia’s Privacy Act.

Due to the delays in finalising the new privacy legislation in Australia and the more international outreach of the Biometrics Institute, we have decided to be proactive and upgrade our suite of privacy protection and awareness measures through a Privacy Charter and other related information. The Biometrics Institute has therefore requested a review of the Code and the potential need to de-register it.

The same site indicates that the Institute has developed a Biometrics Privacy Charter and a Privacy Awareness Checklist, as follows -

Biometrics Privacy Charter

The Biometrics Institute has launched a Biometrics Privacy Charter in November 2011. It has been designed by the Biometrics Institute to provide a universal guide for suppliers, end users, managers and purchasers of biometric systems. It is the public’s assurance that the biometric managers have followed best practice privacy principles when designing, implementing and managing biometric based projects.

Members of the Biometrics Institute can access this Privacy Charter and become Supporters who demonstrate a commitment to privacy protection.

Biometrics Institute Privacy Checklist (PAC)

The Biometrics Institute launched its Privacy Awareness Checklist (PAC) for members of the Biometrics Institute in May 2010 to assist members in a quick an easy way to assess privacy impacts when using biometrics. It provides a snapshot in time of where the organisation sits in regards to privacy.

Members can access this PAC.

On a quick examination the Institute's commitment to transparency does not appear to be truly heartfelt, as neither the Charter nor the Checklist appear to be readily available to non-members. (Membership starts at $704 as of this year). The value to the public of a somewhat inaccessible document - "the public's assurance" - is unclear.

And the Code? Given that the Institute's moved on the Code is not readily discernible on that organisation's site (although it can be found via a link on the Privacy Commissioner's increasingly moribund site). It is most easily found as the Schedule in the Approval of the Biometrics Institute Privacy Code (F2006L02406) in the Commonwealth Register of Legislative Instruments, accessible through a link in the consultation paper.