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LES Asia Pacific is extremely
proud that LES International leadership will come from the Asia Pacific
region for the next two years.
The current President of LES International is Chikao Fukuda, a past
president of LES Japan. Fukuda-san has a plan to visit some
of the societies in the Asia Pacific region during his year and he will
hand over the role of President to Adam Liberman at the LES Pan
European Conference in Amsterdam
in September 2008. Adam, a past President of LESANZ, was elected
to the position of President Elect of LES International during the
delegates meeting in Vancouver.
We are glad Adam's significant contribution to LESI has been recognised
with this appointment.
Adam will officiate
as President during the LESI Conference in Manila,
Philippines to be
held in Makati
City from 7 to 10
June 2009.
AUSTRALIA
and KOREA
Mutual
designation as International Search Authorities
The Korean Intellectual Property Office
(KIPO) and IP Australia (IPA) have reached an agreement under which
each has designated the other as a PCT International Search Authority
and an International Preliminary Examination Authority.
CHINA
Proposed
amendments to patent laws
The National People’s
Congress is seeking comments on proposed amendments to China’s patent laws.
The proposed amendments are part of China’s National IP Strategy announced earlier this year,
and include increased damages for patent infringement and a requirement
of absolute novelty. The draft is available at the office website of
the National People’s Congress, in Chinese. The deadline for comments is October
10, and the amendments are expected to become law in 2009.
Anti-monopoly
law
China’s
new anti-monopoly legislation became effective on 1 August 2008. The
legislation prohibits monopoly agreements, abuse of a dominant position
in the market, and market concentration that eliminates or restricts
competition. Penalties include fines for both individuals and corporate
entities and, in some cases, criminal prosecution. There are some
exceptions relating to intellectual property rights.
HONG KONG
The Financial
Services and the Treasury Bureau launched a comprehensive rewrite of
the Companies Ordinance (“CO”) in mid-2006 and a
consultation paper (“Paper”)
was issued on 2 April 2008 seeking public views on inter alia the
proposed amendments to the CO to tackle the abuse of the company name
registration regime by shadow companies in Hong Kong. “Shadow Companies” are incorporated by overseas (principally
PRC) individuals who make use of the company registration system in
Hong Kong to confer on them a company name (incorporating another’s famous mark) and legal existence as a
vehicle to carry out counterfeit dealings across the border in the PRC
whilst they are devoid of business activities in Hong Kong.
INDIA
Government
assistance for patent filings
The Government of India has announced a
scheme to provide financial assistance to small to medium enterprises
by reimbursing 50% of the cost of any international patent filing in
the field of ICT/electronics.
The scheme is aimed at encouraging indigenous innovation.
JAPAN
Plan
for the Promotion of Intellectual Property - copyright
The Intellectual Property Strategy
Headquarters in Japan has adopted the Plan for the Promotion of
Intellectual Property 2008. The
plan involves a review of copyright legislation, including giving
consideration to introducing the concept of fair use.
Review
of Micro-organism deposit system
The Japanese Patent Office announced in June
that a review of the micro-organism deposit system had begun.
NEW
ZEALAND
Copyright
- Proposed resale rights for artists
Royalties may soon be payable on many
artworks resold on the secondary market in New Zealand. The Copyright (Artists’ Resale Right) Amendment Bill would amend the
Copyright Act 1994 by establishing a mandatory resale right for New
Zealand artists whose works are resold in New Zealand. The bill aims to address the
imbalance of monetary rewards between visual arts and other artistic
fields, such as music. Public submissions on the bill closed on 4 July
2008.
Copyright - Changes to the commissioning rule
The Copyright (Commissioning Rule) Amendment
Bill was introduced on 19 September 2008. The Bill proposes to
repeal the "commissioning rule" in section 21(3) of the
Copyright Act 1994, which is one of the exceptions to the general
principle that the author of a work is the first owner of any
copyright. The commissioning rule provides that a person who
commissions certain works (namely a sound recording, film,
computer program or specified artistic works) will be the first
owner of the work, unless there is any agreement to the contrary. The
Bill is unlikely to come into force this year.
By
Shona Foster and Simon Rowell, LESANZ
Asia Pacific candidates
compete for the role of WIPO DG
Fifteen candidates
have been nominated to succeed Kamil Idris as Director-General for
WIPO. They include Toufiq Ali,
permanent representative of the Permanent Mission of Bangladesh in
Geneva from Bangladesh; Francis Gurry, Deputy Director-General of WIPO,
from Australia; Enrique Manalo from the Philippines; and Yoshiyuki
Takagi from Japan. The WIPO Coordination Committee will makes its
nomination at the conclusion of its extraordinary general meeting on 13
and 14 May, and the successor will officially take over the role at the
General Assembly in September.
Asian region shows continued
growth in PCT filings
Statistics released
by WIPO in February show that, for the fourth year running, the most
notable growth in PCT filings comes from countries in North-East
Asia. Japanese electronics
manufacturer Matsushita topped the list of the biggest PCT filers,
ousting Philips Electronics from first place.
Japan and China first and
third in patent filings
WIPO’s 2007 World
Patent Report, which was published in August 2007 and provides figures
from 2005, shows that Japan remains the country in which the most
patent applications were filed. China leapt into 3rd place
with growth of 32.9%.
Record industry wins
copyright case against Yahoo!China
A Beijing appeal
court recently upheld a decision against Yahoo! China in favour of the
International Federation of the Phonographic Industry (IFPI). Yahoo! China had offered mp3 search
services that allowed users to search for and download unlicensed music
by a process known as “deep-linking”. Yahoo! China was ordered to remove
all links to unlicensed music, not just to those provided by the music
companies. On the same day, the
Court dismissed IFPI’s appeal against a decision in favour of Baidu.com
in relation to a similar matter.
AUSTRALIA:
On 1 March 2008, the
Australian Trade Practices (Industry Codes – Franchising) Amendment
Regulations 2007 (No. 1) will come into force. The Regulations
enact several changes to the Franchising Code of Conduct in Australia
including:
- Increasing transparency
through revisions to the franchisor disclosure requirements
- Making the code apply
to single franchisor appointments, such as in a master franchise
situation
- Prohibiting a
franchisor from obtaining a waiver of any verbal or written
representation made by the franchisor to the franchisee
- Franchisors must give
full information about previous franchisees in a particular
territory in a separate document to be provided with the
disclosure documents
- A change in the scope
of the franchise agreement will trigger the renewal/extension
provisions of the code, and the disclosure requirements.
Agreements currently in place will be
unaffected. However any new franchise agreement entered into, or
disclosure documents issued, after 1 March 2008 must comply with the
revised code.
CHINA:
Release of IP Strategy Outline
On 5
June the State Intellectual Property Office of China introduced the National
Intellectual Property Strategy Outline. The document outlines strategic
goals for completing the revision of China’s copyright, trade mark and
patent laws by 2020, and recommends exploring the possibility of
establishing a specialised IP court.
Rewards offered for reporting
Olympic infringements
The
Beijing Municipal Bureau of Industry and Commerce and the Committee for
the Olympic Games are offering rewards to citizens who report instances
of Olympic logo infringement.
Rewards are calculated at 5% of any subsequent fine, up to
RMB100,000.
Beijing Olympics first to sell new media broadcast rights
For the
first time in Olympic history, rights will be sold to broadcast the
Beijing Olympics on internet and mobile phone broadcasts. Broadcasters
from a number of countries have already purchased these new media
broadcast rights.
HONG KONG:
Proposals to reform
arbitration law in Hong Kong
The Hong Kong
government has published a consultation paper proposing to reform
arbitration law in the territory.
The proposal is to adopt the UN’s Model Law on International Commercial Arbitration as the
basis for the new regime.
Copyright
(Amendment) Ordinance 2007 of Hong Kong
The Copyright
(Amendment) Ordinance 2007 came into effect in July
2007. Although the original
Copyright Ordinance has been substantially amended, here's some of the
more important changes that business end users might be interested to
know about.
(a)
Directors
/ Partners Liability
Not yet effective, but already included in the new legislation
is the introduction of a new criminal offence for directors
and partners of corporations and partnerships which have
committed an infringing act (for instance, by using pirated
software).
Those directors and partners “responsible for the internal management” of the body
corporate or partnership will be presumed to have authorized the
infringing acts and thus may be criminally liable for copyright
infringement unless he can raise an issue by providing evidence to the
contrary. In this respect, the courts
will consider all factors, in particular whether the relevant
individual (i) has set aside
funds and directed someone in his corporation /partnership to acquire
licensed copies or (ii) incurred actual expenditures in acquiring a
sufficient number of licensed copies.
Alternatively, the
individual may show that he has introduced policies to guard against
use of pirated works or taken action to prevent the use of infringing
copies of copyright works by the corporation or partnership.
(b)
Employee
Defense
The good news
for employees is that
they will have a specific defense against criminal liability
where they have been supplied with infringing copyright works
for use during the course of their employment. However,
those that can influence the acquisition of infringing
works will not be able to reply on this defense, nor will employees who
have the authority or influence to affect the use or removal of the
infringing works.
(c)
Parallel
Importation
The
restrictions on the importation of parallel-imported copies of
copyright works by business end-users have been removed.
However, such restrictions still apply where (i)
the parallel-imported work is used for commercial dealing purposes or
(ii) in the case of parallel-imported copies of movies, TV dramas,
musical sound or visual recordings that are used for broadcasting
in public.
INDIA:
Proposed legislation similar
to Bayh-Dole Act
There
are a number of reports that Central Government in India has introduced
a Public Funded R&D Bill, which draws heavily on the US Bayh-Dole
Act and is apparently being circulated privately amongst various
ministries.
Possible mandatory patents for
biosimilar drugs
India
is considering making patenting a mandatory prerequisite to marketing
biosimilar drugs.
JAPAN:
Ministry of Economy, Trade and Industry is to pass a new bill regarding
“Registration for Comprehensive License".
New competition laws
In late 2007 the Japanese Fair Trade
Commission introduced new IP guidelines which set out which types of
licensing might fall foul of competition laws in Japan. Problematic
activities include restrictions on restrictions on research and
development; grant-back requirements for exclusive licences;
post-expiration limitations; acts to coerce a license on the basis of a
platform technology; and discriminatory licensing.
New registration system for patent
licences
In May 2007 the new system was
established under the Act on Special Measures for Industrial
Revitalization, but it will be enforced in the middle of 2008 after the
details of the rules are provided.
JJPO
announces new filing fees
The
Japanese Patent Office has announced revised filing fees for patent and
trade mark applications, effective from 1 June 2008.
KOREA:
Proposed changes to patent system
The Korea Patent
Office has announced plans to change its patent system so that
applicants can choose from one of three tracks: fast track, normal, or
a more flexible deferred examination.
Legislative amendments will be required before the changes can
be introduced.
NEW
ZEALAND:
Digital
Technology discussion paper
On 27 July
2007 the Commerce Committee released a report recommending the
Copyright (New Technologies & Performer’s Rights) Amendment Bill be
passed with a number of amendments. The amendments include
changing the Bill’s name to “Copyright (New Technologies) Amendment
Bill, the insertion of a new section to clarify that a lawful user of a
computer programme may observe, study or test the functioning of the
programme under certain circumstances without infringing copyright, and
amendments to the “format shifting” recommendation to clarify that the
copy must be solely for the personal use of the person who made it (or
a member of his or her household) and that person must retain possession
of the original recording. A further recommendation would allow
copyright owners to contract out of the format shifting sections.
Minor amendments are also recommended for the sections dealing with ISP
liability and TPMs. Finally, the paper signals the following
issues as requiring further review: off-air recordings of television
programmes to educational establishments, directors’ rights, orphaned
works and access to works for print-disabled persons.
The
Commissioning Rule, Contracts and the Copyright Act 1994
Following the first
round of submissions, the New Zealand Ministry of Economic Development
released a further discussion paper proposing to abolish the
commissioning rule and seeking further submissions on same. This
second round of submissions closed on 28 August 2007. On the
issue of copyright and contract, the same paper announced that no
further action would be taken.
Resale
royalty rights for visual artists
The New Zealand
Government has been examining international developments relating to a
resale royalty right for visual artists and a possible application of
such right in New
Zealand. The right allows visual
artists to receive a royalty payment each time their original artwork
is resold. In April 2007 the Ministry for Culture and Heritage
prepared a discussion paper entitled “A resale royalty right for visual
artists: options for its possible application to New
Zealand”. Submissions on the
discussion paper closed on 22 June 2007. Of the submissions made,
most were either in favour of, or neutral toward, the establishment of
the right in New
Zealand. The Ministry is
currently finalising its analysis of the submissions.
Historic Free Trade Agreement between China and New Zealand
An historic free trade
agreement (FTA) between New Zealand and China was signed in Beijing on
April 7 2008, after fifteen rounds of negotiations over three years.
New Zealand is the first developed country to negotiate a free trade
agreement with China. The agreement is expected to come into force in
October 2008.
PHILIPPINES:
The Department of Science and Technology, a Department of the National
Government, has been holding consultations with various stakeholders,
including LES Philippines, regarding the adoption of a national
technology transfer policy.
New IP enforcement strategy
An
intellectual property enforcement strategy has been launched by the
Department of Trade and Industry and the Intellectual Property Office
of the Philippines. The
strategy aims to:
·
Establish
a permanent IP enforcement unit in the Bureau of Customs;
·
Create
IP courts;
·
Encourage
local governments to take a more active role in IP enforcement;
·
Amend
legislation to strengthen IP rights; and
·
Create
an IP research and training unit.
THAILAND:
Compulsory licences
The
Thai government has cancelled the compulsory licence for Novartis’ cancer drug
Glivec after Novartis agreed to supply it free to hundreds of cancer
patients in Thailand. However, it will continue compulsory licences for
three other cancer treatments: Novartis’ Femara, Sanofi-Aventis’ Taxotere
and Genentech’s
Tarceva.
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