Universal Copyright Convention – the forsaken understudy

The Universal Copyright Convention (UCC) is often considered a mini-me version of the Berne Convention. With the large number of signatories to the Berne Convention and the wholesale inclusion of the substantive provisions of the Berne Convention in the TRIPS Agreement, it seems that the UCC will remain largely irrelevant to the future development of the international IP regime. I liken the UCC to an understudy who will probably never have a chance to play the role of the lead actor. While it is more than possible for the UNESCO to be a forum for regime shifting for IP issues, based potentially on the aspects of culture, freedom of expression and development, I do not think the UCC will play any significant role. The UCC is mainly a diluted version of the Berne Convention and it is primarily concerned with substantive standards of copyright, which the Berne Convention more than adequately covers. The UCC would have been more useful for regime shifting if it included subject matter such as human rights.

This post was originally written for a class in International Intellectual Property Law when I was an LLM student at the University of Edinburgh.

The problem with electronic money regulation and why ‘no regulation’ is not a wise option

EMI Directive

The problem with the EMI Directive was that it did not follow a technology-neutral approach to law and policy formulation. By limiting itself to technologies that existed at the time of its negotiation and drafting (i.e., smartcard technology), the Directive is not future-proof and it appears to be applicable only to electronic transfers of value that involve smartcard technology or technologies of a similar vein, which is a technology that has not proven to be popular. With other methods of transferring value electronically, like account-based systems such as PayPal, gaining popularity and wide use, the EMI Directive seems outdated and ill-equipped to respond to current e-commerce practices and transactions.

In is interesting to note that, in a sense, the lack of flexibility of the EMI Directive is traceable to the drafters’ inability to break free from the concept of money as physical bills and coins (clearly they saw electronic money merely as money in electronic form) as opposed to seeing money within the context of, or as a system for, exchanging values. Instead of legislating about money in electronic form, their efforts would have been more fruitful if they had promulgated laws or rules on electronic systems and processes for transferring or exchanging values. With inherent characteristics of the network environment (connected systems, verifiable transactions, instantaneous exchanges), the concept of dealing with symbols representing values (e.g., electronic money and wallets) appear primitive and unremarkable when one considers that the values themselves can be exchanged without need of or reliance on such symbols, whether they be physical or electronic. Why persist in exchanging ’symbols backed by values’ when values themselves can be exchanged in a connected world?

The EMI Directive is limited in its current incarnation because it is not forward-looking enough. However, the Directive should not be used as a reason to support the position that ‘no regulation’ is the best approach to electronic money. There are benefits to electronic money regulations (even with a limited one like the EMI Directive) such as providing stability to and assurance for electronic payment systems, encouraging consumers to participate, providing the foundation for market development, rationalising and harmonising electronic money transactions with banking and financial laws, leveling the market place for new entrants, etc. The lack of effectiveness of the EMI Directive should not discourage resort to regulation. The proper response is to re-examine and amend the law with a view to making it better and more effective. Failures in regulatory experiments do not mean laissez faire is the only remaining option. Other, more useful alternatives abound.

The relationship of money to value

Money is a means for exchanging values. The key then is to see money in relation to values. The only difference between paper money and electronic money is their form – the first is embodied in a physical material, while the other is in digital format. However, with respect to values that they represent, they are identical. Try replacing the term ‘money’ with the more appropriate term ‘value’. With respect to enabling the transfer of values, is there any difference between ‘paper value’ and ‘electronic value’. They both represent and relate to the same thing.

This post was originally written for a class in Information Technology Law when I was an LLM student at the University of Edinburgh.

Morality and patent law

Determining what is moral generally requires a reference to the prevailing social norms and values with a particular group or community. However, in the context of a modern society, where there are heterogeneous, competing values, attitudes and norms, morality is such a complex and elusive concept that even national courts have a difficult time determining the definitive moral standards of people within the state. Realistically, any attempt at defining moral standards on an international level for all communities and states in the world seems to be quixotic – to the point of being delusional. But, from a purely legal theory point of view, it may be possible to argue that the general principles and policies contained in international conventions concerning patents like the TRIPS Agreement and the Paris Convention and those principles embodied in the Universal Declaration of Human Rights and other international human rights laws are manifestations of the prevailing morality and social values of the international community of nations. Thus, by equating morality with the underlying principles and policies of a particular international law, interpreting and constructing the intent and the black letter of the relevant international convention (i.e., through legal construction) is akin to determining the existing moral values of states who are signatories to the said treaty. For example, the WIPO, as the international body tasked to administer the Paris Convention, can ask the assistance of the United Nations Commission of Human Rights and other appropriate international agencies and bodies to help it determine whether a specific patent is in accordance with the principles and policies of the Paris Convention and international human rights law. As is seen in the relatively successful coordination efforts between the WIPO and the WTO with respect to international intellectual property matters, it is possible for different international bodies to deal with complex, multi-state issues on an international level by leveraging their respective expertise and openly consulting and coordinating with each other.

This post was originally written for a class in International Intellectual Property Law when I was an LLM student at the University of Edinburgh.

Notes on the Philippine FOSS Act of 2007

This is a presentation that I gave at the “Roundtable Discussion on the Free/Open Source Software (FOSS) Act of 2007″ organized by the UP Law Internet & Society Program on September 26, 2007 at the UP College of Law.

A copy of the presentation with speaker’s notes is available here.

This was originally posted on 19 October 2007 at http://lawnormscode.sync.ph/?p=47

Dealing with Free and Open Source Software in the Era of GPLv3

The Free Software Foundation (FSF) released version 3 of the GNU General Public License (GPLv3) on June 29, 2007 after a year and a half of consultation with members of the free and open source software (FOSS) community and other stakeholders. Because GPLv3 serves a number of significant purposes — as a worldwide software license for FOSS, as a Code of Conduct for free software developers, as a Constitution of the free software movement, and as a creative work of Richard Stallman and the FSF — its revision affects FOSS and even the larger software industry. Over the years, the FOSS philosophy and programming ethic (as embodied in the GPL) has become a major force in determining how software is created, characterized and distributed throughout the world. GPLv3 will undoubtedly continue to redefine the very essence of what it means to run, use, copy, modify and convey software for years to come.

This presentation (with speaker’s notes) focuses on the effects of the new GPLv3 on FOSS and IT contracts is available here.

This was originally posted on 15 July 2007 at http://lawnormscode.sync.ph/?p=44