AIPPI World Congress 2019: Latest IP developments around the world
A new Beijing Internet Court, an update to the US Music Modernization Act, and licencing in the life sciences sector were discussed by lawyers, yesterday, September 18 at the AIPPI World Congress 2019.
Ying Jiang, the chief justice of Beijing’s Internet Court, which was established in 2018 to deal with all disputes related to the internet, gave an update on the court’s progress.
One of the most recent developments is the implementation of online trials, Jiang explained.
“An online judicial model should be the future. Not only are we saving money, we are also protecting the environment,” she said, describing it as a “green litigation model”.
“We are saving a lot of paper as it reduces printing, and also reducing traffic as trials can be attended remotely. This reduces carbon emissions.”
Additionally, she said the online model has significantly improved the efficiency of litigations, and reduced the average hearing time to 37 minutes.
The court has also adopted blockchain technology to address the problems surrounding evidence in copyright cases.
“Electronic evidence can easily be deleted or tampered with. Our judicial blockchain system, Tian Ping Chain, ensures all materials submitted cannot be altered," she said.
Additionally, any evidence which is uploaded is automatically assessed for authenticity by an online programme, which then sends the evidence directly to the judges.
“This streamlines the process and greatly reduces the cost. Moreover it reduces disputes by sending the results of the evidence directly to judges," she added.
She said that so far, over 1,500 pieces of evidence have been submitted in this way but not a single party has disputed the authenticity of the blockchain evidence.
Lisa Margolis, senior vice president and chief music counsel at Warner Brothers, speaking on her own behalf, provided an overview of the US Music Modernization Act (MMA), which was signed into law in October 2018.
She explained the motivation behind the act using the example of a CD.
“Every track on the CD has two copyright registrations; there is copyright in the music publishing such as the words and music, and then there is copyright in the sound recording.
But those who did the sound recording haven’t always been compensated,” she said.
The act protects music copyright in three parts. The first is known as ‘the classics’, which is an update of the 2017 CLASSICS Act (Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society).
The update closed a loophole in US copyright law under which master recordings, recorded before 1972, were not entitled to performance rights, she said.
“When one of these master recordings was played on the radio, neither the recording artist or label gets paid. While in 1995, Congress did enact the digital performance right, the right was limited to master recordings only played on the radio, and made after 1972.
“So, when Aretha Franklin’s ‘RESPECT’ was played, she got nothing, but this will now change.”
The second part, the allocation for music producers, formalises a procedure to pay music producers and engineers directly.
As part of the MMA, SoundExchange, which oversees royalties from streaming recordings, will now pay royalties directly to producers
The third part, mechanical licencing, creates a blanket licence for digital music providers like Apple Music and Spotify.
“It covers all songs worldwide. This will help to limit the liability of providers as long as they comply with the requirements of a ‘blanket licence’.
Additionally, the act creates a cut-off date for copyright infringement claims.
“The MMA contains a provision that prevents publishers and songwriters for suing platforms like Spotify and Apple for damages unless litigation was instituted before December 21, 2013,” she said.
One of the main controversies surrounding this part of the act was how this will be administered. To do this, the government created a mechanical licencing collective made up of ten board members and four advisors, who will start operating as an agency in 2021.
The four advisory spots were given to trade organisations, but the ten board spots were fought over by major music publishers and a group of small publishers.
“The copyright tribunal had to pick one of these groups and thy picked major music publishers,” she said.
Also speaking on the panel, Pat Treacy, a partner at Bristows , discussed the licencing of patents in the pharma sector.
“As the pharma sector evolves, new IP issues come to the forefront. There are areas in the life sciences today, particularly in relation to gene editing, where we see quite significant litigation around those technologies,” she said.
Nowadays, it is very difficult for pharmaceutical companies to bring a product to market that is simply the product of its own development, as there is a lot of licencing among companies.
This brings with it a real problem of working out how to implement IP rights in an already complex market.
“One solution people have raised to dealing with these issues is patent pools. Now there is nothing new about patent pools. The point of them is to balance reward for innovation and enable people to access licences efficiently
“There have been some examples of this in the life sciences sector but patent pools are not traditionally seen as commercialisers in the pharma industry,” she said.
She also talked about the difficulties in setting up patent pools. “Getting critical mass is key, as the pool will only succeed if you can offer a whole package of what people need.
She also said there are antitrust and competition law issues when it comes to agreeing on terms of the pool.
“The elephant in the room is that you have a bunch of actual competitors getting together to set the terms, she said.
As IP litigation in life sciences grows, the sector has also seen a growth in non-practicing entities.
“In the life sciences sector, we are beginning to see a new kind of NPE; people who acquire patents from failing biotech companies and then build portfolios which they then seek to monetise.”
“While this may be new in the life sciences, it’s not a new phenomenon in the technology sector. It will be interesting to see how this plays out in the licensing of life sciences IP,” she said.
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