The tension between theright to free transit of goodsand the enforcement of IP

rights is high on the World TradeOrganization’s agenda, said panel-lists in a workshop yesterday. Theissue is exemplified by a WTO casebrought by India and Brazil againstthe EU and the Netherlands in Maythis year regarding generic drugsseized en route from India to Brazil.

A drug shipment of losartan –the generic name for Merck & Co’sblood pressure drug Cozaar, madeby the Indian company Dr Reddy’s

Laboratories – was seized by Dutchofficials, even though it was in tran-sit to Brazil and was not for use inthe EU. More than 20 consign-ments of drugs in transit were seizedin the EU in 2008 and 2009.

The WTO has held consulta-tions on the matter, but no disputehas yet been announced. Accordingto one of yesterday’s panellists,Alain Strowel of Covington &Burling, a settlement is likely to bereached. “I think an agreement willbe found, because the EU’s positionis quite strong,” said Strowel.

While India and Brazil argued thatthe actions of the EU and theNetherlands violated the DohaDeclaration’s guarantee of access toessential medicines and constitutedextraterritorial enforcement of nation-al patent rights, Strowel said that theEU’s position is legally sound. The EUcontends that it seized the shipmentsto avoid counterfeit drugs being sold.

Wolf Meier-Ewert (pictured), acounsellor in the IP division of theWTO, said that more than 50% of IPdisputes at the WTO are nowbrought by developing countrieswhile Rodrigo A de Ouro PretoSantos of Siquiera Castros in Braziladdressed the hot topic of cross-retal-iation – exemplified by Brazil’s caseagainst the US over cotton subsidies.

Meier-Ewert said that newrequirements for genetic resourcesand creating an international regis-ter for geographical indications areamong the most important IPissues on the horizon for theOrganization. ■

European trade mark special-ists yesterday called forgreater analysis of con-

sumer perceptions of three-dimen-sional marks. Chairing a workshopon trade marks in Europe, CharlesGielen of Nauta Dutilh noted thatthe Court of Justice of the EU hasindicated that consumers are notused to perceiving origin in three-dimensional products. But VincentO’Reilly, a director at OHIM, said itis “ironic” that the Court has saidthat all marks should be treatedequally, and yet there seems to be ahigher standard for 3D marks.

“I’m becoming more interestedin the notion of the perception ofconsumers,” said O’Reilly (pic-tured). “I’m increasingly scepticalabout how we know what that is.”

Gielen noted that the Court’scase law meant there is a high bur-den for applicants seeking three-

dimensional marks in Europe. ButO’Reilly said there is hope. “Peoplewill need to demonstrate case-by-case what the reality about percep-tion is,” he argued, saying that thiscould mean greater use of marketsurveys, as well as the use of sci-ences such as phonetics.

During the workshop, O’Reillyreviewed recent OHIM case law onprocedural issues, public

order/morality questions and three-dimensional marks. Dorte Wahl ofKromann Reumert reviewed all 11trade mark decisions from the Courtof Justice of the EU during the pasttwo years. She said three decisionsconcerned keyword advertising, twowere on well-known trade marks,two on genuine use, two on consentand one on bad faith.

Wahl said a few conclusionscould be drawn from the cases,despite their diversity: “The Courtseems to be happy about the globalappreciation test. But it still likesvery detailed decisions like in theIntel case.” She also welcomed theCourt’s practical approach. Forexample, in a later referral concern-ing keywords (Interflora v Marks &Spencer) the Court asked the refer-ring judge to slim down the ques-tions in the light of its earlier rulings,which he has done. ■

The five-year limit on sup-plementary protection cer-tificates in the EU needs to

be extended, said André Bourgouinof Ipsen Pharma at a workshop yes-terday.

The EU introduced SPCs in1992 to provide pharmaceuticalinventions with an extended periodof protection to compensate for thetime it takes to obtain marketingapproval. Under the present systemthe combined market exclusivity of apatent and SPC cannot generallyexceed 15 years.

Bourgouin said that since 1992“the requirements of registrationagencies have considerablyincreased” and first marketingapproval in the EU is sometimesonly obtained 10 or even 12 yearsafter the initial filing, which meansthat patent owners are not gettingthe exclusivity that was originallyintended. “SPCs are of tremendouscommercial interest to the pharma-ceutical industry,” said Bourgouin.“They provide protection whenblockbuster drugs are reaching theirsales peak.”

Bourgouin spoke after a series ofpresentations looking at different

aspects of the SPC system, includinghow to deal with a SPC applicationsfor combination products, whatconstitutes the first marketingauthorisation for a product and thescope of protection that an SPCgrants.

Richard Ebbink of Brinkhof saidthat the lack of harmonisation with-in the EU leads to inconsistent deci-sion making at a national level:“National patent offices havenational civil servants that are lack-ing in international experience.They are not interested in interna-tional decisions,” he said.

But Louise Jonshammar, a lawyerin the patent department of theSwedish Patent and RegistrationOffice, defended IP offices duringthe Q&A session. “Patent offices docommunicate with each other,” shesaid: “The CJ EU rules and we fol-low the decisions of the CJ.”

Ebbink said the most importantstep for pharmaceutical patent own-ers to take was to hire a good patentattorney and a good lawyer whenapplying for SPCs. “It’s very impor-tant that at the beginning you get theapplication in right and you use theright arguments,” he said. ■

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AIPPI CONGRESSNEWS

42 ND WORLD IP CONGRESS, PARIS, WEDNESDAY 6 OCTOBER 2010

INTERVIEW: FUTUREPRESIDENT YOON BAE KIM ON PLANS FOR THE 2012CONGRESS IN INCHEON,REPUBLIC OF KOREAPAGE 4

GUIDE:THE TOP FIVE EXHIBITIONS IN PARIS THIS WEEKPAGE 8

Matteo Orsingher of Orsingher - Avvocati Associati and Marie Manley of Bristows

Why SPCs should belonger than five years

NEWS

CONGRESS

NEWS

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NEWS

YESTERDAY’S

RESOLUTIONS

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PREVIEW

COPYRIGHT

EXCEPTIONS

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VOX POP

YOUR HOT

IP ISSUES

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SOCIAL

PRIVATE PARTY

PICTURES

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SCHEDULE

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TODAY’S WEATHER

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Consumer perception needs clarity

IP in the spotlight at WTO

The SPC workshop was one of five well-attended workshopsdevoted to IP and pharmaceuticals yesterday. Other sessions cov-ered patent and trade mark issues (including parallel imports), therecent EU sector enquiry and regulatory data protection.

“L icensing is like dancing with aporcupine – no matter how youdo it, there are risks.” That was

Victor Siber’s maxim for attendees of yes-terday’s session on licensing in the EU andUS, where panellists addressed the dosand don’ts of entering into licensingarrangements.

Whether licensing in or out, steps canbe taken to mitigate your chances of end-ing up in court – a particularly risky under-taking in the US, where juries are seldomsympathetic to large corporations.Kenneth Adamo of Jones Day (pictured)said that licensees should always negotiatean indemnification clause into a licenceagreement, to ensure any legal fees arecovered in the event of litigation, while atthe same time recognising that indemnifi-cation “is only as good as the licensor’seconomic viability”.

Parties to US licences can also stipulatethat they want a dispute resolution pro-ceeding in lieu of litigation, specify theirpreferred venue in the case of litigationand include jury trial waivers to avoid leav-ing their fate in the hands of US citizens.

“The terms you agree can affect yourability to enforce the licence and thelicensed technology,” said Adamo.

Unlike the US – where “there’s never apromise that the US government won’tcome after you”, according to Adamo –the EU Treaty includes block exemptionregulations, which ensure protectionagainst the government interfering inlicensing arrangements for licences thatfulfil the stipulated conditions.

But Klaus Langberger of Boehmert &Boehmert reminded the audience that thevalidity of an EU licence agreement canonly be determined by national courts, “sothink carefully about which law you wantto use”. ■

■■ CHINA China is on course to lead theworld in patent activity by 2011,according to a report issued by the IPSolutions business of ThomsonReuters. The survey, which includesfilings for utility model patents inChina, said that China experienced anannual growth rate of 26.1% in totalpatent volume between 2006 and2009, compared with 5.5% growth inthe US. China’s overseas patent fil-ings in Europe, Japan and the USgrew by 33.5%, 15.9% and 14.1%respectively between 2007 and2008.

■■ JAPAN The Tokyo round of negotia-tions for the Anti-CounterfeitingTrade Agreement, which concludedon October 2, was the final round,with the remaining disagreementsminor enough to be solved “by tele-phone and email” according to a USTrade official quoted by Dow Jonesnewswire. The official also explainedthe US and EU have managed toagree a compromise on the issue ofgeographical indications whichmeans that signatories should notdistinguish between IP rights in theirborder protection measures. Theborder measures section nowexcludes patents. A copy of the textis expected to be released today.

■■ UNITED STATES A patent licensingcompany founded by former Kirkland& Ellis litigator John Desmarais hassued HTC in a Delaware district court.Desmarais left Kirkland & Ellis at theend of last year, after 10 years as apartner. He subsequently formedRound Rock Research LLC, a patentholding company. The company ischarging HTC with infringement offive patents relating to technology

used in HTC’s Droid Eris and GoogleNexus One phones.

■■ UNITED STATES Apple is challenginga $625.2 million damages award madeagainst it in a federal court in Texas.On October 1, a jury found that Applehad infringed three patents owned byMirror Worlds, which relate to display-ing documents on computer screens.Apple is disputing the validity of thepatents and the level of damages.

AGoogle employee called the searchengine’s new AdWords policy inEurope a “brave new world” during

a session yesterday morning.Google views its AdWords system as no

different to a supermarket, which “stackscereals together”, said Maria GonzalezOrdónez, Google’s IP counsel for Portugaland Spain. “It does not make sense to limitchoice online,” she added.

However, many do not share the view ofthe Google employee (who arrived slightlylate after battling the traffic and then theMetro system of Paris). Luis H deLarramendi, moderator of the session, gavethe brand owners’ perspective.

“There is a word that is a trade mark of athird party,” said Larramendi, expressingwhat he said was a personal opinion. “Thisword has value because of the trade mark.And only because it has a reputation, historyand guarantee of that trade mark. By allowingothers to use the word when there is no con-fusion seems to many third parties’ benefit.”

“The third party is somehow undefend-ed,” he added.

As both Larramendi and Ordónezexplained, Google’s change of policy inEurope is the result of a March decision bythe Court of Justice of the EU involvingGoogle. The decision essentially said thatadvertising platforms are not liable for trademark infringement, and that advertisers canlegitimately select keywords of a thirdparty, so long as no there is no user confu-sion as to the origin of the goods beingadvertised.

Ordónez said that before the decision,Europe “was a mess” with different rulings

across the continent. Now it is more har-monised. The decision by Europe’s topCourt has given Google the confidence tochange its European policy and bring it inline with its policy in most of the rest of theworld.

Now the search engine will no longermonitor keyword use in the continent. Thenew system came in on September 14 thisyear. “It is a new all-round process,” said

Ordónez, “which trade mark owners canuse.”

Using this process, brand owners can tryand have what they believe are infringing key-words taken down. “The removal system isstarting to work, it is being worked on,”explained Ordónez. “It should take an infring-ing ad down in less than 24 hours, or else wecan be liable.” That is if Google believes thatthe ad is infringing a trade mark. ■

News

2 AIPPI CONGRESS NEWS Wednesday 6 October 2010

Cut your risksin licensing Google’s brave new ad policy

IP news in brief

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USDo specify:• The obligations

of all parties• Who controls

the decision to sue

• Who shares inrecovery

EU R&D licencesDon’t:• Restrict R&D

in other areas• Prohibit a

challenge tothe IP rights

• Limit outputon sales

• Fix prices

Play it safe

Keywords are not just aform of advertising inChina, but a way of navi-gating too.

Lian Yunze spoke dur-ing the keyword sessionabout the unique key-word system in China,which allows companiesto register words thatallow users to directlytype the keyword intoan internet browser’snavigation bar. They willthen be brought straightto the website.

This means Chinesepeople can forego the‘www’ prefix and thetop-level domain suffix.The keywords compriseChinese characters orsymbols and numbers.

The Chinese InternetNetwork Information

Center (CNNIC) runs theregistration system andalso has a dispute reso-lution system, which issimilar to the UniformDomain Name DisputeResolution Procedure(UDRP) for domain dis-putes in generic top-level domains, such as.com.

Just like the domaindispute system, therespondent must befound to have registereda keyword that is identi-cal or confusingly similarto a mark; the respon-dent must have no rightsor legitimate interest init; and the keyword musthave been registered inbad faith.

The only difference isthat the dispute must bebrought within two yearsof the mark being regis-tered. “CNNIC want topush you to registeryour trade mark or nameas a keyword in China,”said Lian about the newtime limit, which wasbrought in last August.“That is the purpose ofthe change.”

Keywords in China: a different story

AIPPI CONGRESS NEWS Wednesday 6 October 2010 3

News

Delegates yesterday sent aclear signal to law mak-ers about the need to

provide enhanced protection tosuper-trade marks by passing a 10-point resolution on dilution.

The resolution provided that“certain trade marks” should be eli-gible for protection against dilu-tion irrespective of the identity,similarity or dissimilarity of goodsand services. However, it set outstrict criteria, including that the

trade marks should have “recogni-tion or fame” among a significantpart of the relevant public; that therelevant public would depend onthe goods and services in question;and that they should have inherentor acquired distinctiveness.

The Resolution recognisedboth dilution by blurring and bytarnishment. It said that use andregistration of the mark should notbe a requirement, and there shouldnot be a registry of eligible marks.

The resolution rebuffed theCourt of Justice of the EU, as itspecifically rejected a requirementfor an actual or potential change inthe economic behaviour of the rel-evant public (as required by theCourt in the Intel case) saying thisshould be merely “among the fac-tors to consider”. However, theResolution said that a mental asso-ciation or link between the pro-tected mark and the challengedmark should be a requirement.

There was considerable discus-sion about what constitute eligibletrade marks and how the publicshould be defined, with tellingcontributions from representa-tives from Latin America.Reporter Thierry Calameacknowledged that the WorkingGroup had discussed using termssuch as famous, well-known andreputed but had found none ofthem satisfactory.

Towards the end of the dis-

cussion, there was a suggestionthat the Resolution shouldinclude a statement to theeffect that the more reputationa mark has, the broader orstronger the protection shouldbe. However, some delegatesfelt that despite its merits thispoint had not been sufficientlydiscussed and a proposal toinclude relevant wording wasdefeated 64%-32% with 4%abstaining. ■

D espite a challenging session withsome late proposals, delegatesyesterday supported a

Resolution on the protection of tradesecrets.

With 42 submissions from AIPPINational Groups, interest in Question 215was high, but as Working Committee ChairPierre Gendraud said, when “you get a goodquestion, you get a good group”.

The topic of trade secrets is not new toAIPPI, with a Resolution on unfair competi-tion including trade secrets passed at the

Copenhagen Executive CommitteeMeeting in 1994.

After the first part of the session sawlengthy debate over the first three parts ofthe Resolution, with arguments over refer-ences to the TRIPs Agreement to the fore,it appeared the coffee break gave impetusto debate over several amendments andproposals, which kept master of proceed-ings Marlies Allan of Allan & Ogunkeyebusy.

One quick change made was to movewhat was Resolution 4 to the end of the list,

as earlier changes meant this would improvethe flow of the overall Resolution.

The session then got particularly activewhen the Dutch National Group proposed achange to Resolution 6, which it described as“more in compliance with the text in the EU’senforcement directive”. The change wasdescribed as “more eloquent” than the originaldraft by a member of the Colombian NationalGroup, but it still took work to get through.

A compromise was found when theexemplary phrase “preserve evidence suchas by seizure” was added. The amended

Resolution from the Dutch Group finallywent through after some more slightamendments.

After this it was plain sailing, withResolution 7 barely raising an eyebrow eventhough Gendraud described it as a “treach-erous” issue. It regarded the use of protect-ing confidentiality of alleged trade secrets.There was a procedural quibble over thedrafting of an earlier resolution, but Allendecided that this was a question of draftingand so could be dealt with by the WorkingCommittee. ■

Resolution backs dilution standards

AIPPI takes stance on trade secrets

Q204 Protection against the dilution of a trademark Passed 93-7

Q215 Protection of trade secrets through IPR andunfair competition law Passed 88-12

Although this year’sCongress has seen arecord attendance of

2000 delegates and 500 guests,Yoon Bae Kim is hoping to attract4,000 delegates to the 2012Congress, which will be held inIncheon in the Republic of Korea.

Kim is President-Elect ofAIPPI and is proud to be helpingorganise the Congress in his coun-

try. It will be the first time theevent has been held in Asia sinceTokyo in 1992 and underlines theincreasing importance of thenorth-east Asian region for IPowners – 70% of the world’s IPcomes from Japan, Taiwan, Chinaand the Republic of Korea,according to Kim.

If and when he is elected AIPPIPresident, “my number one priori-

ty will be to provide good serviceto members,” says Kim. He is alsoaiming to focus on recruitingyoung and corporate membersand to increase cooperation withother IP organisations.

Increasing cooperation shouldnot be a problem for Kim, who, inaddition to working for AIPPI invarious positions since 1984, hasalso been chairman of the patent

and technology licensing commit-tee of LESI and President of LESKorea. Kim was patent counsel forthe Korean Chamber ofCommerce and Industry from1975 to 2000 and is now manag-ing partner of IP firm Kims andLees. Kim received the AIPPIorder of merit in 1997 as part ofthe Association’s centenary cele-brations. ■

AIPPI looks east for the future

Networking lunchAIPPI attendees enjoyed lunch in the Palais des Congrès yesterday whilenetworking and visiting the exhibitors, who include IP service providers,publishers, translation providers and law firms. The exhibit area is open on level 2of the Palais until 4 pm this afternoon.

Interview Yoon Bae Kim

4 AIPPI CONGRESS NEWS Wednesday 6 October 2010

Copyright was long considered the poor relation inthe IP family, with patents and trade marks consis-tently considered the more attractive siblings. Now

with the explosion of the internet and other digital technolo-gies offering myriad ways to offer to store, use and copy cre-ative works, copyright law has moved into the spotlight, put-ting it on par with its siblings in the IP family.

It is not just illegal downloading of copyright-infringingworks such as music or movies on the internet that is challeng-ing copyright law, but high-tech and digital technologies thatmean we can store, look and use information, music, booksand many other creative and non-creative works in differentways. The Google Book Search project is one prime example.

In short, Question 216A is dealing with “cutting edgeissues”, says Nicola Dagg of Allen & Overy, the reporter whoworked on this question. As Dagg explains, the initial ques-tion proved so big that it was decided to split it into two, withthe first half being dealt with at the Paris Congress. The sec-ond part, Question 216B, will be dealt with at the meetingnext year in Hyderabad, India.

Chair of the working committee Jan Bernd Nordemann ofBoehmert & Boehmert explains to the AIPPI Congress Newswhat section A is about: “It asks what exceptions to copyright

protection are allowed by the digital age business models wesee.” Interest in Question 216A is reflected by 37 Group Reportssent from AIPPI National Groups on the topic. Nordemannreckons that the subject has “political interest”, with many juris-dictions conducting parallel debates on similar topics.

Internet service providersUnlike some of the more specific questions at AIPPI,Question 216A looks at several different subjects or sub-top-

ics, which are sometimes different but related by the difficultquestions digital platforms pose for traditional copyright law.

The liability of internet service providers (ISPs) for copy-right-infringing material on their networks is a subject thathas been debated in many countries. This year the UnitedKingdom, thanks to its Digital Economy Act, had an activedebate on ISP liability, as did France when it introduced itsown Hadopi Law in May 2009. It is also a debating point inthe Anti-Counterfeiting Trade Agreement talks, whichinvolve representatives from 37 states, including the 27 EUmembers.

The problem with asking about ISP liability is the differingservices that sites offer. Is a website such as YouTube reallyjust a service provider and not a content provider? Whatabout hosting websites such as the high-profileThePirateBay.org, which often facilitate the infringement ofcopyright; should it be put in a similar group as networkproviders?

The phenomenon of user-generated content, fuelled bywebsites such as YouTube, is another difficult subject to tack-le. Should an ISP that hosts such content have a more activerole policing the content it hosts? You Tube claims that 24hours of content is uploaded on to its site every minute glob-ally, making it impossible to police every post.

The United States in its submission noted that wilfulblindness remains a contentious issue. A court decision is duein Viacom v YouTube, which might clarify the matter in thatcountry.

Internet service provider also describes a company that isessentially a network provider that provides ways to connectwith the world wide web or over which content is carried.What is their responsibility for behaviour that infringes copy-right carried on their networks? And if they are liable whatactions might they be forced to take? Some suggest blockingsites or sending out warning notices, but often this attractshostile reactions from the public. ISP advocacy groups arguethat making them liable for copyright-infringing materialpassing through their networks would have a serious effect oncommunications providers and affect their ability to maintainan open internet.

The reports from the National Groups show thatbroadly speaking two schools of thought prevail on gov-

erning the activities of ISPs. Some jurisdictions haveadded exceptions or uses, while in the other school ISPscan rely on more general exceptions or uses prescribed bynational law.

This shows how conflict is created between the globalnature of the internet and individual regimes of each country.What is permissible in one country might be illegal in anoth-er. The idea of an international set or list of limitations thatcould be contained in a treaty is generally viewed as necessaryand one the Congress will try and come to agreement ontoday. “AIPPI want to look at how to harmonise limitationsespecially, and how to best do this,” explains Nordemann.

Format shiftingThe challenge to copyright law is not limited to illegal down-loading of copyrighted works. Format shifting, when contentis shifted from one medium to another, presents more chal-lenges. Shifting analogue content to digital is the most preva-lent and controversial form of format shifting.

What makes the question so difficult are the obvious ben-efits moving analogue content to digital can create. Examplesinclude the preservation of rare or older works and creatingeasier access to content for huge numbers of people. TheGoogle Book Search project is the best-known and most con-troversial example of this type of service. Google is negotiat-ing a deal with copyright owners in the US that would allowit to scan-in copyright books to add to its electronic databaseof books. If the deal is backed by a US court, Google BookSearch will be able to make commercial use of the material. Itis the commercial aspect that makes it so controversialamong rights owners.

In contrast, many countries in their National Reports indi-cated that format shifting is only allowed for non-commercialuse. However, if Google Books is only available in the US,other countries’ populations are disadvantaged by not havingsimilar access to such information.

The EU has responded to Google’s plan by trying to set upits own digital library so Europeans would not be disadvan-taged. Viviane Reding, who was in charge of the InformationSociety and Media at the Commission in 2009 when it wasannounced, said at the time that Europe has most to offer andmost to win from books digitisation: “If we act swiftly, pro-competitive European solutions on books digitisation maywell be sooner operational than the solutions presently envis-aged under the Google Books Settlement in the UnitedStates.”

Orphan worksA subject that has been revived in many ways thanks to theinternet, and projects such as Google Book Search in partic-ular, is the issue of so-called orphan works – works whoseowners are unknown or cannot be located. While this is aproblem fuelled by the internet, it is viewed as an issue for thecopyright system in general. The issue is a complicated one asthe reports from the National Groups show.

The majority of jurisdictions have no exceptions or usesthat apply to orphan works. This is in contrast to the United

Digital world raises questions overcopyright exemptionsFionn O’Raghallaigh previews today’s Question 216A, which will examinewhat exceptions to copyright protection are permitted in the digital age

Preview Copyright exemptions

6 AIPPI CONGRESS NEWS Wednesday 6 October 2010

Google Book Search was announced by the MountainView company in late 2004. Google agreed with vari-ous American libraries to digitise books in their collec-tions. The deal proved controversial with some rightsowners and in September 2005 the Authors Guildfiled a claim against the company for copyrightinfringement.

In October 2008 Google reached an unofficialsettlement with a group of authors. This includedthe creation of a registry, which would distributeprofits from the scheme to authors. The USDepartment of Justice filed an amicus brief in oppo-sition to the deal. The deal has been tweaked, andwill now only include books that were either regis-tered with the US Copyright Office or published inthe UK, Australia or Canada. The Departmentremains sceptical about the deal.

The Google Book Search story in the US

The difficulty of harmonising questions of liability washighlighted by two differing decisions by courts of EUmember states Germany and Spain duringSeptember. In Germany the Hamburg Regional Courtruled that You Tube must compensate copyright own-ers whose work appears on the platform. The casewas brought by a music producer, who was unhappy

about three songs uploaded to the site.However, in Spain a Madrid court dismissed claims of

copyright infringement brought by the Spanish broadcast-er Telecinco against YouTube. The court ruled that it is theresponsibility of the content owners to verify that contenthosted on a site such as YouTube is infringing copyright.

YouTube is planning on appealing the case inGermany, but the different decisions by courts fromwithin the EU illustrate how difficult harmonisingexceptions on liability are.

Contrasting decisions on ISP liability

Continued on page 8

“AIPPI want to lookat how to harmoniselimitations especially,and how to best dothis” Jan Bernd Nordemann

“Pro-competitiveEuropean solutionson books digitisationmay well be sooneroperational than the

solutions presently envisagedunder the Google BooksSettlement” Viviane Reding

The Incas’ Gold

Pinacothèque de Paris, 28 place de la MadeleineNearest station: Madeleine (Metro)Information: www.pinacotheque.com, Tel 01 42 68 02 01Tickets: €10 (€8 concessions)

This major exhibition features some never-before-seentreasures from the Incas, who dominated the Andesfrom 1400 to 1553. It includes 253 works from Peruvianmuseums presented thematically, and covering the spir-itual, funerary, economic, military and political aspectsof society. The exhibition highlights the role of gold(which was regarded as the sun’s sweat) and silver inInca life.

Murakami Versailles

Château de VersaillesNearest station: Versailles Rive Gauche (RER); VersaillesChantier/Rive Droite (SNCF)Information: www.chateauversailles.fr, Tel 01 30 83 78 00Tickets €15 (€13 concessions)

The Grand Apartment and Hall of Mirrors is the ornatesetting for this colourful exhibition of sculptures byJapanese artist Takashi Murakami. “I am the Cheshirecat that welcomes Alice in Wonderland with its diabolicsmile, and chatters away as she wanders around theChâteau,” he says.

Claude Monet 1840-1926

Grand Palais, 3 avenue du Général EisenhowerNearest station: Champs Elysées Clemenceau (Metro)Information: www.grandpalais.fr, Tel 01 44 13 17 17Tickets: €11 (€8 concessions)

This once-in-a-lifetime exhibition of work by one of thegiants of Impressionism features almost 200 paintings froma career that lasted 60 years, including pieces borrowedfrom collections worldwide. It is a unique opportunity todiscover more about one of the founders of modern art.

Reporters without borders: 100 photos by Pierre &Alexandra Boulat

Petit Palais, Musée des Beaux Arts de la ville de Paris, AvWinston ChurchillNearest stations: Champs Elysées Clemenceau (Metro) andCharles de Gaulle – Etoile (RER)Information: www.petitpalais.paris.fr, Tel 01 53 43 40 00Tickets free

A tribute to two of the great French photojournalists,this exhibition ranges from images of the shanty townsof Nanterre in the 1950s and the daily life of Americanwomen to modern-day Gaza and Afghanistan. It isorganised by Reporters sans Frontiéres, which fights forpress freedom around the world.

Everyone is a Collector! Editions of Carpeaux and Dalousculptures by the Maison Susse

Musée d’Orsay, 1 rue de la Légion d’HonneurNearest stations: Assemblée Nationale and Solférino (both Metro)Information: www.musee-orsay.fr, Tel 01 40 49 48 14Tickets: general admission €8 (concessions €5.50)

The mass production of editions of bronze sculptures innineteenth-century France brought masterpieces to themiddle classes. The Maison Susse was one of the lead-ing foundries and this exhibition features its mastermodels, including works by Jean-Baptiste Carpeaux andJules Dalou. The exhibition was conceived by 16 stu-dents from the Ecole du Louvre as part of their masterscourse.

Kingdom, which has exceptions for the use of literary, dra-matic, musical, artistic work or film work where it is not pos-sible to reveal the author’s identity. In Turkey an orphanwork can be copied, published and reproduced.

Other Groups, such as the US and Belgium, reported per-mitted uses for certain purposes or by a specific body. Thekey in those countries is that works are not used for commer-cial purposes. In Brazil, the government is obliged to defendworks released to the public, which includes works ofunknown authorship. This will be dealt with in Brazil’supcoming revision of its copyright statute.

“The question is how to deal with orphan works used digi-tally,” says Nordemann. “We need harmonised internationalrules, to find an international solution.” He adds: “It would alsobe desirable to find a solution to protecting rights owners whomay come forward.” His personal view is that allowing institu-tions such as libraries and museums to have access to orphanworks is the right way forward, but it will be up to the Congressvote to determine what the AIPPI position becomes.

Defining fair Finally, National Groups were asked to provide input on fairuse or fair dealings provisions in their legislation. Fair dealingexceptions allow the use of the whole or part of a copyright-ed work for a limited purpose. They are most familiar in com-mon law countries.

Fair use on the other hand is a wider exception that oper-ates in the US, notably. Fair use exceptions provide impor-tant defences in high-technology and digital industries,which would otherwise not have them.

The National Reports flagged up the difficulty indefining what constitutes fair. Others asked for clarifica-tion on how fair dealing or fair use provisions should beapplied, and whether the exceptions would act as a mereguideline.

A harmonised worldAt the end of the Plenary Session V, which takes place in theConcorde on level 4 today, the Congress will try and workout a position on a question that Nordemann describes as

“demanding”. “It has very different, very detailed sub-topics,”he adds.

The vast majority of submissions from the NationalGroups all indicated support for some level of harmonisa-tion, but agreeing how to do this is far from easy. A pre-scribed list of exceptions enacted through a treaty is onepossible solution many countries suggested. Given theconstantly evolving digital world, most countries in sup-port of a prescribed list were in favour of adding flexibleelements so future questions technology throws at copy-right could be dealt with. How to make such a list is farfrom certain.

However, a majority of countries believed that a pre-scribed list is inadequate to deal with the digital age. Franceand the Netherlands, for example, believe that agreeing sucha list is almost impossible.

So participants in Question 216A have a difficultjob in agreeing an AIPPI position, but once they dothey are only half way there. Then work will start onsection B. ■

What’s on in Paris this weekAre you extending your stay in Paris? Here are five of the top exhibitions inone of the world’s greatest cities for art lovers

Question 216A - Copyright exceptions

For more details of things to do and see visit the Paris

Convention and Visitors Bureau:

http://en.parisinfo.com

Highlights Paris

8 AIPPI CONGRESS NEWS Wednesday 6 October 2010

Continued from page 6

Vox Pop

10 AIPPI CONGRESS NEWS Wednesday 6 October 2010

The most important thing for mepersonally is protecting the rights of myclients. That is more important for meover the next year. Russia is getting IPquickly.Olga Zapara, Vakhnina & Partners,Russia

We need a resolution to the dichotomybetween the EPO software patent andthe UK approach to software. The ECJrestricts the function that copyrightconfers on software to literal copyright.It leaves UK companies exposed. Harry Hutchinson, Harrison GoddardFoote, United Kingdom

I think that people need to startprotecting patents, trade marks anddesigns again, which they stoppeddoing during the downturn. We have tobreak that.Constantin Kiliaridis, Bugnion,Switzerland

The Community trade mark will not be apriority for me, but maybe for myclients. One thing in Sweden is theBitTorrent case. That is something that isin the appeal court right now – it will beinteresting to see the level of damagesin that case.Christina Berggren, MAQS Law Firm,Sweden

The next 12 months means hard workon the issues for our clients. They needto come up out of the crisis with us, aswe all live in the same network. Weshould be providing them withinformation on how to get out of thecrisis and to get out with protection inpatents, trade marks or designs. Andreas Vogel, Bals & Vogel, Germany

I majored in chemistry, so I aminterested in pharma issues. I have justbeen at a workshop with such aninteresting topic: SPC data. I think whatis interesting is we have a similarproblem in my country – how to protectpatents and patent extensions. Fiona Yin, Saint Island InternationalPatent & Law Offices, Chinese Taipei

In India the issue of allowance of newuse as part of pharma use is a big issue– the new use of common compoundsand any kind of use claims. Section 3(d)of the Patent Act of India refers to newuses of known substances. Indira Banerjee, LS Davar & Co, India

I’ve got three important issues. The firstis anti-counterfeiting, the second is thereview of Community trade mark systemand the last is the protection of trademarks on the internet, especiallyregarding ICANN’s new generic top-level domain plan.Milesh Gordhandas, INTA, Belgium

In India IP has increased and there are alot of opportunities for corporations toseek protection of technologicaldevelopments. Companies need tobecome more IP aware and protect theirtechnology in India and across theworld.Harita Achanta, SciTech Patent ArtServices, India

VVOOXXPOPQUESTION: WHAT WILL BE THE MOST IMPORTANT ISSUE IN IP FOR YOU OVER THE NEXT 12 MONTHS?

Social

AIPPI CONGRESS NEWS Wednesday 6 October 2010 11

13th Fl., 27 Sec. 3, Chung San N. Rd., Taipei 104, Taiwan, R.O.C.Tel: 886-2-25856688 Fax: 886-2-25989900/25978989Email: email@deepnfar.com.tw www.deepnfar.com.tw

ProsecutionInfringementLitigationIP

Yesterday’s receptionsAt the Natural HistoryMuseum, those attending

the Véron & Associés recep-tion mingled against a back-drop of prehistoric giants.

Gevers hosted an ele-gant reception at the

Belgian embassy. Guests sam-pled the fine food, includingBelgian chocolate, with viewsof the Arc de Triomphe.

33 floors above Paris atthe Novagraaf reception,

guests enjoyed hors d’oeuvresand champagne at thePanaromic bar of the hotelConcorde La Fayette.

Bird & Bird hostedguests at Palace Elysée

with sushi and a variety ofcheeses.

Bardehle hosted an ele-gant reception at Maison

Blanche restaurant filled withsmooth jazz music and anamazing view of the EiffelTower.

Office Freylinger held ahappy hour at the Etoile

jazz club where guests relaxedwith champagne and receiveda bottle of cremant each.

Guests of Cabinet Oresenjoyed views of Paris,

cocktails and canapés at theGustave Eiffel room in theEiffel Tower.

At the Musée des ArtsForains, attendees

indulged in sweets, cocktailsand a carousel. Marks &Clerk hosted the evening’sfestivities.

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Competition winnerCongratulations to Bob Sacoff of Pattishall McAuliffe Newbury Hilliard & Geraldson LLP on winning two tickets to the Monet exhibition in the AIPPI Congress News competition.

The answer to the question “In which village west of Paris did Monet live and work?” is Giverny.

Thanks and commiserations to all those who entered.

09:00 – 10:30 Plenary Session V WQ216 - Exceptions to copyright protection and the permitted uses of Concorde, Level 4

copyright works in the hi-tech and digital sectors

09:00 – 10:30 Workshop XII: IP litigation throughout Europe - a comparison of selected aspects Blue Amphitheatre, Level 2

09:00 – 10:30 Workshop XIII: E-books and authors’ copyrights Maillot room, Level 2

10:30 – 11:00 Coffee break

11:00 – 12:00 Plenary Session V WQ216 (continued) Concorde, Level 4

11:00 – 12:00 Workshop XII: (continued) IP litigation throughout Europe - a comparison of selected aspects Blue Amphitheatre, Level 2

12:00 – 13:00 General Assembly Blue Amphitheatre, Level 2

13:00 – 14:00 Working Lunch

14:00 – 15:30 ExCo Session II Concorde, Level 4

15:30 – 16:00 Coffee break

16:00 – 18:00 ExCo Session II (continued) Concorde, Level 4

20:00 – 02:00 Gala Dinner at the Orangery & Gallery of Battles of the Château de Versailles

TODAY’SSCHEDULE:

WEDNESDAY 6 OCTOBER 2010