Digital Economy Bill

I attended an interesting talk hosted by Queen Mary Intellectual Property Research Institute (QMIPRI) and the Institute of Computer and Communications Law on the Digital Economy Bill last night.

Speaking were Richard Mollet of British Phonographic Industry (BPI) and Jim Killock of Open Rights Group (ORG), with Graham Smith of Bird & Bird offering an introduction to the debate.

The Digital Economy Bill has just been through the House of Lords (in the UK) where a number of amendments were proposed. It is due to enter the House of Commons for debate with MPs shortly.

I have to admit I am not familiar with the details of the Bill  (a summary is provided at the above link). There are Notification Provisions which concern ISPs matching subscriber details to IP (internet protocol) addresses supplied in the form of Infringement Reports from the rights holders. ISPs may also have to notify rights holders of persistent infringers.  The more controversial measures of “suspension/disconnection” are set out in the Technical Measures section of the Bill. Many articles on the Net refer to a “three strikes” policy – interestingly this does not appear to be in the Bill (please correct me if I am wrong) but will be in the implementation details.

While not trying to excuse my own ignorance, a lack of clear information surrounding the provisions of the Bill may be a cause of some of the debate; Richard Mollet stated that at times it appeared the BPI and ORG were looking at different Bills: this could be explained by each party having a different intepretation of the Bill’s wording. Many of the implementational details of the Bill are designed to be implemented by secondary legislation (i.e. not defined in the wording of the law).The reasoning behind this is that technology moves faster than the law, so the law needs to be flexible enough to adapt. However, it does lead to ambiguity – both parties may be correct in their interpretation depending on how the Bill is implemented. My personal view is that secondary legislation is, unfortunately, one of the only practical ways to keep up with technology changes, but that safeguards have to be encoded in the Bill to prevent abuse. Richard Mollet referred in his presentation to “the aims of the Bill” and “what the Bill is designed to do”; however, he may underestimate the ability of a less benign government to exploit ambiguous legislation for their own ends.

To be fair to both parties, they each had valid points. Condensed:

  • BPI: Infringement (i.e. illegal copying of copyright material) is taking place and is harming sales. The industry (and I believe this is not necessarily appreciated by many in the opposite party) has tried hard to combat piracy through multiple “soft” initiatives such as discussions with ISPs. However, infringement (and the losses) are still occurring.
  • ORG: The Bill gives too much power to authorities to disconnect households and organisations from the Internet. It is also worried about the effect on “free” or municipal wifi. They also raised valid points that the Bill needed debate and/or revision.

However, both parties also disminished their case through their polemic:

  • BPI: At times Richard Mollet carried an air of indignant entitlement: the world is doing something wrong and stealing our material, they should stop and someone should stop them, and not necessarily considering the deeper issues. Psychologically and physically there is a difference between digital goods and real-world goods; the BPI tends to ignore this difference but for any law to be enforceable it needs to match how we see, produce and interact with goods. DRM has not been successful because it restricts people’s expectations of use (I had to pay Apple £100 to get DRM-free copies of my purchased music to play the music on a Linux PC). However, the Apple App Store and DRM-free digital singles have been successful and profitable. The law only be used as a last resort when a change in industry and business cannot work.
  • ORG: The argument that the Internet is a fundamental human right for me fell a little flat, a little indulgent and middle-class, like insisting that a Waitrose within 5 miles is a human right. While it is important, equating it with water stretches the argument thinly. Also I think ORG is maybe too commercially naive, money needs to be made from copyrighted content to support the creators and their entourage, hence something needs to be done to reduce illegal copying (or at least monetise it). However, the tortured tale of Napster shows us this is far from easy.

I do sympathise with the BPI a little, comment in the press and on the Internet and “blogosphere” has a distinct anti-commercial tone. This makes necessary balanced debate difficult. The former “comment” often has a hint of student or dinner-table debate, underestimating the compromises and Realpolitik necessary in successful commercial enterprise.

In summary, both parties are needed for successful and balanced legislation and a compromise does seem possible – encoding the three strikes policy in statute, replacing disconnection with fines, supplying safeguards for municipal wifi. However, whether there will be time for debate in parliment is another question. Is a poorly drafted Bill better than no law?

Some links:

Panorama

Guardian News Report (the most recent online news article – choice of paper is not intentional)

Four short links

Nominees for European Inventor Award 2010 : http://www.epo.org/topics/news/2010/20100308.html [No UK nominees with Germany having a presence in all categories apart from “Non European countries” – does this simply reflect a skew in the entries received or a real difference in innovation? Discuss.]

Sam Glover of Lawyerist reviews the Fujitsu Scansnap S1300: http://lawyerist.com/fujitsu-scansnap-s1300-portable-document-scanner/ [compare with his recommended S1500 – http://lawyerist.com/review-scansnap-s1500-document-scanner/].

Amazon One Click Shopping Patent survives re-examination – http://www.patentlyo.com/patent/2010/03/amazon-one-click-patent-slides-through-reexamination.html .

“Top” 25 US Patent Firms 2010 according to Intellectual Property Today: http://iptoday.com/issues/2010/03/top-patent-firms.asp .

Wired Wiki Post

Here is some text I prepared for the Wired.com “Patent an Invention” Wiki :

Unfortunately, the patent system, both in the US and worldwide, is quite complex and it is surprisingly easy to accidentally invalidate an otherwise valuable patent portfolio. Bearing this in mind here are some initial tips:

1. Do not disclose your idea to the public before consulting with a patent expert. “Disclosing” may involve detailing your idea on a blog, sending a design to 3rd party manufacturers or selling a product. Most patent experts or attorneys offer free initial consultations. While there are certain safety nets under US patent law, these do not apply worldwide – if you wish to sell your product or idea in London, Delhi or Shanghai its best to err on the side of caution.

2. The patent system has several built in time-limits which must be observed. For example, from an initial patent filing you have 12 months in which to file related applications in different countries worldwide. If you miss these time limits you may be stuck with a US or Estonian patent when actually your service has really taken off in Mexico. Again, this requires you to do some research or obtain an expert/attorney opinion.

3. Obtaining your own patent and potentially infringing someone else’s patent are the two different sides to the patent game. Each will need to be considered when releasing a new product or service. In most cases they can be considered independently.

4. Infringing someone else’s patent is not the end of the world. You can ask for consent to use the claimed technology (for free or for a licensing fee). Many companies bundle licenses and technical help together as one service, implementing someone else’s technology as part of a bigger (and in its own right patentable) solution can be cheaper and easier than recreating the technology from scratch (why reinvent the wheel when designing an electric car?).

EPO finally decides on President!

The Administrative Council of the European Patent Organisation, meeting in Munich on 1 March 2010 under the chairmanship of Jesper Kongstad (DK), has elected Benoît Battistelli (FR) to succeed Alison Brimelow (GB) as President of the European Patent Office (EPO). Currently Mr Battistelli is Director General of the French National Institute of Industrial Property. His five-year term as President of the EPO will begin on 1 July 2010.

http://www.epo.org/topics/news/2010/20100301.html

Google “location-based” advertising patent

Another day, another fluster online about a US patent granted to a well-known company.

This time the company is Google and the patent (7,668,832) is directed towards “controlling serving of an ad using its relevancy to a request” using “geolocation information“.

How NOT to interpret a recently granted patent (as demonstrated by most web-related news sites):

  1. Don’t refer to the claims of the patent in the news article, even though these define the scope of legal protection.
  2. Perhaps instead quote a section from the “Field of Invention” or “Background of Invention” sections (these sections respectively locating the patent subject-matter in a technology field and broadly describing what has been before – neither section gets to the heart of the invention).  Quoting from the “Background of Invention” is particularly favoured as this section is typically drafted broadly and typically is of the least relevance to the claimed invention.
  3. If you do locate the claims of the patent, summarise their subject-matter in a single sentence (even though they may in practice comprise several paragraphs of essential features), e.g. “patent on location-based ads” – wherein the independent claims actually require at least: –
  4. A computer-implemented method for controlling serving of an ad using its relevancy to a request, the method comprising: a) accepting, by a computer system including at least one computer, geolocation information associated with the request; b) comparing, by the computer system, the accepted geolocation information associated with the request with geolocation targeting information associated with the ad to generate a comparison result; c) determining, by the computer system, the relevancy of the ad using at least the comparison result; d) controlling, by the computer system, the serving of the ad, for rendering on a client device, using the determined relevancy of the ad; e) determining, by the computer system, whether the ad has geolocation price information corresponding to the geolocation information accepted; and f) if it is determined that the ad has geolocation price information corresponding to the geolocation information accepted, then determining, by the computer system, a score using at least the geolocation price information, otherwise determining, by the computer system, the score using at least general price information of the ad, wherein the act of controlling the serving of the ad further uses the score of the ad, and wherein the geolocation targeting information associated with the ad corresponds to an area defined by at least one geographic reference point.
  5. (In the present case, the latter features concerning a “score” appear to restrict the scope of the patent. This presents the possibility of a design-around.  However, the claims are sufficiently broad to require careful consideration if working in this area.)
  6. Gain lots of comments from Internet users about how “patents destroy creativity” and allow “big corporations to shut-out hard-working all-[insert country] inventors / start-ups” (even though it is nigh-on impossible to obtain a granted patent with a scope as broad as that insinuated in the article and you can equally argue patents allow “hard-working all-[insert country] inventors / start-ups” to compete on an equal footing with “big corporations ).
  7. Ignore all possibility of licensing; even if company X did obtain a broad patent to Y, if you were a small start-up you could still request a reasonable licence from X. Whether they would be willing to grant such a licence is another issue but several countries allow compulsory licensing where a reasonable licence is unobtainable.