Australian Gov't Commission Also Wants To Fix Patent Laws Down Under

from the another-wow dept

So we already wrote about the Australian government's Productivity Commission's Draft Report on Intellectual Property Arrangements, talking about what was said about copyright law, but the report also goes into other areas of intellectual property as well, with some pretty good ideas on patent law as well (on this one I think they could go even further, but most of the recommendations in the report are a good start).

Once again, they offer up a nice infographic demonstrating the key points, which focuses on the serious problems of allowing patents on obvious ideas: The Productivity Commission clearly recognizes that too many patents stifle innovation. In fact, they note that the only time patents really should be issued are in cases where those inventions would not occur without that incentive. And thus, since so much public policy around innovation always seems to focus on figuring out ways to increase patent numbers, the authors of the report recognize that patent policy is probably harming, not helping innovation:

Indeed, it appears to have become accepted wisdom that because patenting plays some role in promoting innovation, more and stronger patents are always better. But research reveals that greater patenting activity is not always associated with more innovation and that a non-trivial number of patented inventions have low social value, or would have occurred anyway.

Low-value patents impede innovation by frustrating the efforts of follow-on innovators and researchers. In some cases, low-value patents can be used as a strategic tool for stalling or excluding market entry, and can contribute to ‘patent thickets’, which potential market entrants must ‘hack’ their way through in order to compete in a particular technology space.

And thus, they suggest that Australia's entire patent system should be rethought and refocused towards trying to encourage things that are socially beneficial. That is, the system should be set up not with the inventors as the sole focus, but rather what will lead to the greatest possible public benefit. And the failure to do so is creating "substantial costs" on the public.

While the incidence of some low–value patents does not come as a surprise, a multitude of such patents imposes substantial costs on the community. Low-value patents impede innovation by frustrating the efforts of follow–on innovators and researchers.

To fix this, they have a few suggestions -- all of which seem worthwhile. First, they say the bar is way too low for granting patents, so Australia should raise the bar for what's considered "inventive." They suggest the standard should be changed to if the invention or solution "would have been obvious for a person skilled in the art to try with a reasonable expectation of success." They even consider going beyond that, but recognize that some patent holders outside of Australia may freak out at such a suggestion and avoid the Australian market.

The second suggestion is giving an "overarching objective" to patent law, which examiners can use as a sort of guiding light or touchstone. Basically, allow Australia to reject patents by arguing that granting such patents would go against the public interest.

The objects clause should describe the purposes of the legislation as being to enhance the wellbeing of Australians by providing patent protection to socially valuable innovations that would not have otherwise occurred and by promoting the dissemination of technology. In doing so, the patent system should balance the interests of patent applicants and patent owners, the users of technology — including follow–on innovators and researchers — and Australian society as a whole.

The Australian Government should amend the Patents Act such that, when making a decision in relation to a patent application or an existing patent, the Commissioner of Patents and the Courts must have regard to the objects of the Patents Act.

That would be a big and wonderful change to the patent system.

Next up, they suggest increasing the fees associated with patents (both for applying and for renewals -- which would escalate), which acts as a mechanism to better ensure that a patent is valuable (i.e., making it less worthwhile if the patent holder isn't actually going to do something with it). It also encourages patent holders to stop renewing the patent and push the info into the public domain sooner if the patent itself is no longer making an economic return.

The report doesn't spend much time on patent trolls, noting that they're not a big problem down under, and suggests that the existing "loser pays" litigation structure probably helps keep patent trolling at a lower level there. At the very least, that seems like an important data point for folks here in the US looking to add a "loser pays" provision in patent reform.

How about business method and software (BM&S) patents -- which make up many of the most abused patents in the US? The Commission is not impressed by the arguments in favor of such patents and suggests making those things unpatentable. They point out that there's little evidence that such patents encourage innovation, and that most innovation associated with them almost certainly would have happened without the patents, because the focus was on building products (and that there would be first mover advantages for those who got there first, so the copycat issue isn't that big a deal). Furthermore, they point out that BM&S patents can often hold back important follow-on innovations. Quoting Nobel prize winning economist Eric Maskin, the report notes:

Specifically, in the software industry, progress is highly sequential: progress is typically made through a large number of small steps, each building on the previous ones. If one of those steps is patentable, then the patent holder can effectively block (or at least slow down) subsequent progress by setting high license fees. … Thus, in an industry with highly sequential innovation, it may be better for society to scrap patents altogether than try to tighten them.

And they conclude:

On balance, the Commission considers it unlikely that granting patents in the area of BM&S increases the welfare of the community. BM&S patents likely compensate activity that would have occurred in any event (are nonadditional) and reward low– (or even no–) value innovations. BM&S patents can also frustrate would–be competitors and follow–on innovators. While broader changes to patents, particularly around the inventive step and dispensing with innovation patents (chapters 6 and 7), may ‘knock out’ a large share of BM&S patents, the Commission still considers that there is value in making clear that BM&S should not be considered patentable subject matter.

There's a separate section on pharmaceutical patents, recognizing that the market factors there are somewhat different. Obviously, the pharma industry relies more heavily on patents. But they also note that Australia has a public policy need to "improve the health of all Australians." They suggest that the government shouldn't be as willing to hand over "extensions of terms" on phama patents, and should only do so in specific cases.

On the related question around data protection and biologics (a key sticking point in the TPP negotiations), the report finds that the policy should be designed to encourage much more openness and information sharing, rather than locking up information and biologics for too long.

There should be no extension of the period of data protection, including that applicable to biologics.

Further, in the context of international negotiations, the Australian Government should work with other nations towards a system of eventual publication of clinical trial data in exchange for statutory data protection.

These all seem like decent suggestions, though I still think they could go further. For years I've pushed for an independent inventor defense and for independent invention being a sign of obviousness (such that it might invalidate a related patent from someone else). That concept doesn't seem to make it into the report.

Still, as with copyright, the report's authors do seem to understand the key problems of the patent system in working against innovation.

And, once again, this is fairly amazing. The stunning thing about this report is that it pushes back on a lot of the accepted -- but bogus -- wisdom around copyright and patents that just gets repeated without question in most government reports. Kudos to the authors of the report.

Filed Under: australia, business method patents, innovation, inventiveness, obviousness, patent trolls, patents, public benefit, software patents

Authors Guild Petulantly Whines About How Wrong It Is That The Public Will Benefit From Google Books

from the talk-about-sour-grapes dept

Yesterday we wrote about the fairly unsurprising, but still good, news that the Supreme Court had rejected an attempted appeal by the Authors Guild of the really excellent fair use decision by the 2nd Circuit appeals court over whether or not Google scanning books to build a giant, searchable index was fair use.

It's no surprise that the Authors Guild -- which has been tilting at this particular windmill for over a decade -- was upset about the refusal to hear the case, but I wasn't quite expecting the level of ridiculous sour grapes that were put on display:

“Blinded by the public benefit arguments, the Second Circuit’s ruling tells us that Google, not authors, deserves to profit from the digitization of their books,” said Mary Rasenberger, executive director of the Authors Guild.

Did you get that? The Authors Guild is so completely out of touch that it actually thinks that "public benefit arguments" have no place in copyright disputes, despite the very fact that the Constitutional underpinnings of copyright law is to maximize the public's benefit. And, of course, this all ignores the fact that the vast, vast majority of authors greatly benefit from such a searchable index in that it drives more sales of books.

But, on with the hyperbole:

“Today authors suffered a colossal loss,” said Authors Guild president Roxana Robinson. “We filed the class action lawsuit against Google in September 2005 because, as we stated then, ‘Google’s taking was a plain and brazen violation of copyright law.’ We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes.”

What you believe, and what the law says, are different. And that was the case back in 2005 when you filed the suit just like many of us said at the time.

“The price of this short-term public benefit may well be the future vitality of American culture,” continued Rasenberger. “Authors are already among the most poorly paid workers in America; if tomorrow’s authors cannot make a living from their work, only the independently wealthy or the subsidized will be able to pursue a career in writing, and America’s intellectual and artistic soul will be impoverished.”

This is ridiculous on so many levels. First, most authors cannot make a living today because most books don't sell. That's not the fault of Google Books. In fact, as noted time and time again, Google Books acts as a discovery mechanism for many books and increases sales (I've bought dozens of books thanks to finding them via Google Book Search). Second, the gloom and doom predictions of legacy industries over new technologies is time-worn and has never been even remotely correct.

What Rasenberger leaves out of her ignorant whine is the fact that in the time that Google Books has existed, the number of authors has increased massively. No, they're not all making a living, but the purpose of copyright law is to incentivize the creation of new works for the public, and the public is getting an astounding amount of new works -- a totally unprecedented amount of new works actually -- and it's got nothing to do with anything the Authors Guild has done.

And, of course, the Authors Guild still won't give up, promising to fight this issue in other courts, hoping to get a circuit split that the Supreme Court will review:

Following the Supreme Court’s order, the Guild vowed to remain vigilant to ensure that the Second Circuit’s ruling is not taken as carte blanche for unfettered digitization of books. “The Second Circuit decision took pains to highlight that fair use was found based on the strict display restrictions and security measures currently employed by Google,” said Authors Guild general counsel Jan Constantine. “We’ll continue to monitor Google and its library partners to ensure these standards are met, as we will take appropriate action to ensure that fair use isn’t abused.”

To ensure that fair use isn't abused? Lovely people at the Authors Guild who outright declare themselves against public benefit, and then worry about the "expansion" and "abuse" of fair use. Does no one at the Authors Guild recognize that their authors are protected by fair use as well and many of them rely on it all the time? Who would ever join such a backwards looking and thinking organization?

Filed Under: 2nd circuit, book scanning, copyright, fair use, google books, public benefit, supreme court
Companies: authors guild, google

President Obama Nominates New Librarian Of Congress Who Supports Open Access, Fights Against Surveillance

from the this-looks-good dept

So here's a pleasant surprise. President Obama has nominated Carla Hayden as the new Librarian of Congress, and at a first glance, she looks perfect for the job. The job is super important for a whole variety of reasons, including that the Librarian of Congress controls the Copyright Office (more on that in a bit...). The former Librarian of Congress, James Billington, was really bad. He apparently was mostly focused on hobnobbing with rich people in fancy places around the globe than doing anything useful. A report by the Government Accountability Office found a massive leadership vacuum with Billington when it came to technology issues, noting that he basically ignored technology entirely. When Billington announced he was retiring, the Washington Post reported that employees were absolutely elated:

The reaction inside the library was almost gleeful, as one employee joked that some workers were thinking of organizing a conga line down Pennsylvania Avenue. Another said it felt like someone opened a window.

“There is a general sense of relief, hope and renewal, all rolled into one feeling,” said one staffer who spoke on the condition of anonymity for fear of reprisal. “Like a great weight has been lifted from our shoulders.”

Maureen Moore, who retired in 2005 but volunteers at the library, said she and her friends were thrilled.

“It’s a great day for the library. The man has had 27 years to do good things, and he hasn’t,” she said.

That line is great: The man has had 27 years to do good things, and he hasn't. But, right after that, that same Maureen Moore noted what many people feared: what if the replacement was worse and didn't actually understand the key issues of the day: "But the ecstasy is tempered by worry that Obama will appoint someone else who isn’t a librarian, someone who doesn’t have management experience or another megalomaniac."

There had been a lot of speculation about who might be nominated, but it seemed tough to find people with the right qualifications. Someone who actually was a librarian, who had real management experience with a large organization and someone who actually understood the issues.

And at a first glance, Hayden seems perfect. For a while now, she's been CEO of the Enoch Pratt Free Library in Balitmore, and by all accounts has done an amazing job modernizing that system. It's also good to see that the President's announcement directly calls out her support of open access to information:

Her understanding of the pivotal role that emerging technologies play in libraries will be essential in leading the Library of Congress as it continues to modernize its infrastructure and promote open access and full participation in today's digital world.

The video that comes with the announcement also focuses quite a bit on free and open access to information and the role of the Library of Congress in encouraging that:

Today, I'm nominating Dr. Carla Hayden to be our 14th Librarian of Congress. Michelle and I have known Carla since her days working at the Chicago Public Library, and her dedication to learning and education is unparalleled. More recently, she's been hard at work revitalizing Baltimore’s struggling library system as the CEO of Enoch Pratt Free Library. Last year, during the unrest in Baltimore, Dr. Hayden kept the doors of the Pratt open as a beacon for the community. Her understanding of the pivotal role that emerging technologies play in libraries will be essential in leading the Library of Congress as it continues to modernize its infrastructure and promote open access and full participation in today's digital world. Finally, Dr. Hayden will be the first woman and the first African-American to hold this position in its 214 year history – both of which are long overdue.I hope you'll take a couple minutes to watch this video and meet Carla for yourself. I have no doubt she'll make a fantastic Librarian of Congress.

Posted by President Obama on Wednesday, February 24, 2016

Beyond that, Hayden was one of the leading voices speaking out against surveillance. As President of the American Library Association at the time when the PATRIOT Act was being debated, she was vocal in opposition, especially to Section 215, which was used to create the phone metadata program that Ed Snowden revealed. What many people forget is that it was the librarians who were most vocal about Section 215 when it was first proposed, as many people thought it would be used to demand things like library records to see what was being checked out -- and librarians are big supporters of privacy.

She's also spoken out for years about the value of free access to information. Here's a 2003 profile of Hayden in Ms. Magazine (where she was named Woman of the Year) in which she notes:

“Libraries are a cornerstone of democracy—where information is free and equally available to everyone. People tend to take that for granted,” says Hayden. “And they don’t realize what is at stake when that is put at risk.”

From that same profile:

Hayden’s stance against the PATRIOT Act is part and parcel of her vision of the library as an integral element of democracy. “We serve the underserved,” Hayden says. “When libraries fight against the PATRIOT Act, or against [mandatory Internet filters], we’re fighting for the public. Most of the people who use public libraries don’t have the opportunity to buy books at a bookstore or on Amazon.com. What the library does is protect the rights of all people to fully and freely access information and to pursue knowledge, without fear of repercussion.”

Of course, the best recommendation may be the fear already coming out of the RIAA, who put out a fairly ridiculous statement in response:

“It is worth noting that the Library of Congress and the U.S. Copyright Office have been mutually respectful of each other’s areas of expertise. We would hope that the new Librarian would continue to demonstrate that respect for the Copyright Office’s expertise in copyright policy and recommendations to Congress.”

In other words "don't mess with the Copyright Office." Of course, what this really is about is the current and ongoing fight over what to do to "modernize" the Copyright Office. There's a big push from the MPAA and the RIAA to move the Copyright Office out of the Library of Congress and either merge it into the US Patent and Trademark Office, or make it a stand alone agency. That's all part of the decades-long whitewashing of the history of copyright, to pretend that it's not about benefiting the public with more access to information, but rather about protecting a particular industry. That fight will only take on more prominence as a result of this nomination.

Of course, there's also the question of whether or not the Senate will approve the nomination. Obviously, there are different stakes involved, but everyone lately has been talking about whether or not the Senate will even hold hearings on President Obama's expected Supreme Court nomination. And the (totally bullshit) argument against it is "well, this is an election year, and we should let the public decide who the President will be, and then let that President choose a nominee." That's silly for a whole bunch of reasons, and without the SCOTUS backdrop no one would think twice about considering the LOC nominee. However, given all the statements being made, I could see some in the Senate argue that they can't consider any nominees for anything, just to appear to remain consistent.

And, of course, some are actually wondering if her vocal opposition to the PATRIOT Act will somehow get in the way of her appointment. I guess that's possible, but if so, it would be crazy, because she was absolutely right, and Congress itself has now updated Section 215 after Ed Snowden revealed how it was being abused.

Either way, this appears to be a fantastic nomination and I hope it does go smoothly, and that it leads to not just a modernized Library of Congress, but a modernized Copyright Office as well --and by that I mean one that doesn't just focus on doing the bidding of a few legacy industry players, but actually on serving the public interest.

Filed Under: carla hayden, copyright, copyright office, librarian of congress, librarians, open access, patriot act, privacy, public benefit, section 215, surveillance

Public Well-Being Must Be 'Primary Measurement' Of US-EU Trade Agreement

from the does-it-have-to-be-said? dept

Now that the US and EU have officially announced the start of talks on a new bilateral free trade agreement -- sorry, a "trade and investment partnership" -- groups in both regions are trying to work out what this will mean for them and their constituents. Arguably the most important constituency of all is the public, and yet it is also the one that until now has been systematically shut out of previous negotiations for things like ACTA or TPP. One representative of that huge group -- though not, obviously, the only one -- is the Transatlantic Consumer Dialogue (TACD), which describes itself as follows:

a forum of US and EU consumer organisations which develops and agrees on joint consumer policy recommendations to the US government and European Union to promote the consumer interest in EU and US policy making.

With commendable speed, it has submitted an open letter on the proposed agreement, addressed to Ron Kirk and Karel de Gucht, who are leading their respective delegations (pdf). Early on, it states the TACD's basic position:

We believe that advancement of consumer well-being must be the primary measurement of whether such a trade pact should be adopted or not. We are very sceptical that a trade partnership built around regulatory convergence will serve consumer interests, and we will vigorously oppose a deal that dismantles existing EU and US consumer protection.

The concern here is that the trade pact will have the effect of levelling consumer protection downwards, to the lower of the two standards found in the US and EU. That might be convenient for industries looking to cut costs and boost profits, but as TACD points out, consumer interests are unlikely to be served. It then goes on to address several particular areas of concern, including copyright and patents:

Provisions on intellectual property (IP) rights should ensure governments may enact robust limitations and exceptions to rights, and limitations on remedies. IP enforcement should be proportionate and respect the right to a judicial remedy. In some areas, mandatory minimum exceptions should be addressed, such as robust cross-border exceptions for disabilities or distance education. Access to medical technologies and knowledge should not be undermined.

It also has strong views on the increasingly-problematic area of investor-state disputes:

Investors should not be empowered to sue governments to enforce the agreement in secretive private tribunals, and to skirt the well-functioning domestic court systems and robust property rights protections in the United States and European Union. Experience elsewhere shows how powerful interests from tobacco companies to corporate polluters have used investor-state dispute resolution provisions to challenge and undermine consumer and environmental protections. Investors must not be empowered to sue governments directly for compensation before foreign investor tribunals over regulatory policy (including "indirect" expropriation), contract disputes, nor guarantee a Minimum Standard of Treatment for foreign investors.

It concludes by raising the key issue mentioned at the start of this post: the fact that the public has been comprehensively excluded from previous trade negotiations, even though the latter are supposedly conducted in its name.

With talks now slated for a fully-fledged Transatlantic trade agreement, it is vital that governmental negotiators reform their engagement with consumer organisations and civil society. We must have a fully open process. Citizens in Europe and the United States will not accept a closed, secret process, with the results revealed only when negotiations are concluded for an up or down vote.

Nothing is more important to an open process than publication of negotiating texts as they are developed.

That last point is important. Once texts have been discussed during the negotiations, there is no reason not to publish them: after all, there are no "secrets" that might be revealed to the other side -- the usual excuse for not allowing the public to see texts as negotiations are being conducted. Industry insiders already have access, so the only people that would be kept in the dark by not publishing them are the 800 million citizens of the US and EU.

Just as the advancement of consumer well-being should be the "primary measurement" of whether the trade agreement should be signed or not, so the public must be recognized as the primary stakeholder that has a right to see all texts once they have been discussed. If they don't, then those negotiations simply forfeit any claim to real legitimacy in a world where basic transparency can be achieved instantly, and for almost zero cost, by publishing materials on the Web.

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Filed Under: acta, public benefit, tpp, trade agreements
Companies: tacd