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The Miracle at Marrakesh -Temple

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Danielle Conway

on 15 December 2014

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Transcript of The Miracle at Marrakesh -Temple

The Miracle at Marrakesh and Beyond: Reforming International Copyright Law
WIPO is the specialized United Nations agency that acts as the secretariat to the member states of
26 treaties relating to intellectual property.
ECOSOC has broad responsibility for some 70% of the human and financial resources of the entire UN system, including 14 specialized agencies, 9 “functional” commissions, and five regional commissions.
The WTO-TRIPS Agreement
The TRIPS Agreement establishes minimum substantive standards of intellectual property rights protection and enforcement.

Enforcement occurs through the DSU, under which Panels are appointed to decide cases and an Appellate Body is established to decide appeals of questions of law.

The possibility for enforcement of WTO dispute settlement decisions by withdrawal of trade concessions was one of the factors that motivated the United States, the European Union, and Japan to select the WTO as the alternative forum to WIPO.
ECOSOC's 14 Specialized Agencies
One of which is WIPO
IP Protection
The first general group of treaties defines internationally agreed basic standards of intellectual property (IP) protection in each country.

Beijing Treaty on Audiovisual Performances
Berne Convention
Brussels Convention
Madrid Agreement (Indications of Source)

Marrakesh VIP Treaty
Nairobi Treaty
Paris Convention
Patent Law Treaty
Phonograms Convention
Rome Convention
Singapore Treaty on the Law of Trademarks
Trademark Law Treaty
Washington Treaty
WCT
WPPT

Global Protection System
The second general group, known as the global protection system treaties, ensures that one international registration or filing will have effect in any of the relevant signatory States. The services provided by WIPO under these treaties simplify and reduce the cost of making individual applications or filings in all the countries in which protection is sought for a given IP right.

Budapest Treaty
Hague Agreement
Lisbon Agreement
Madrid Agreement (Marks)
Madrid Protocol
PCT

Classification
The third and final general group is the classification treaties, which create classification systems that organize information concerning inventions, trademarks and industrial designs into indexed, manageable structures for easy retrieval.

Locarno Agreement
Nice Agreement
Strasbourg Agreement
Vienna Agreement

promote protection of IP worldwide
ensure cooperation, greater technical standardization, and work sharing between IP Offices around the world
The World Trade Organization
The WTO is the primary multilateral institution regulating international trade. It provides a forum for its Members to negotiate the progressive liberalization of barriers to trade in goods & services, with the following objectives:



1. Increasing global productivity
2. Enhancing employment
3. Encouraging development
4. Accomplishing these objectives in a sustainable way

Regulation of trade occurs through the three Multilateral Trade Agreements (MTAs), which set forth the basic substantive rules governing international trade and the specific commitments of Members on trade liberalization
Two basic principles are the pillars of the entire WTO system




MFN
NT
One of the prominent features of the WTO system is its dispute settlement function. The WTO Agreement incorporates the Dispute Settlement Understanding applicable to all Members.
TRIPS & The WTO Legal System
Generally Applicable Legal Principles
National Treatment

Most Favored Nation Treatment

Sovereign development of exhaustion of rights policy and rules
Minimum Substantive Standards of IPR Protection
Incorporates WIPO Conventions

Prescribes WTO Norms

Recognizes sovereign custom and practices in implementation of standards

Mandates Adequate and Effective Enforcement Mechanisms
Make available administrative and judicial processes and remedies

Provide for due process protections for alleged violators/infringers, but

Provide for regulation of IPR by applying competition/antitrust laws
Account for Developing and Least Developed Country Implementation
Provide transitional arrangements that extend the time for compliance with various obligations
Incorporate Dispute Settlement
Intellectual Property Fundamental in the
Context of International Law
Intellectual Property protection relies on national, regional, and international law

Specific rights and obligations are primarily defined and implemented by national law

However, international law provides a unifying framework for interfacing national and regional regulatory systems in the governance of transnational aspects of IPRs

SOURCES OF INTERNATIONAL LAW: (1) Treaty Law, (2) Customary International Law (evidence of state practice and shared perceptions of law, (3) precedents (judicial decisions and WTO dispute settlement decisions), (4) doctrine (writings of highly qualified jurists), and (5) General Principles of Law (principles of law common to legal systems of the world-good faith)
Raison d'être

Responsible for
coordinating the economic, social and related work of the 14 UN specialized agencies
, their functional commissions and five regional commissions.

Serves as the central forum for discussing international economic and social issues

Formulates policy recommendations addressed to member states and the United Nations system
India, El Salvador,
UAE, and Uruguay
United States
To What End?
To truly inform the Berne Three-Step Test for permission-free reproduction
-in special cases
-that do not conflict with the normal exploitation of the work
-and do not unreasonably prejudice the legitimate interests of the author
Children of the Institut des Aveugles (Institute for the Blind, Abidjan, learn to read Braille and otherwise communicate with the support of government funds. (Photo: WIPO)
WIPO's Development-Oriented Legitimacy
Depends, in part, on ECOSOC's perception of the specialized organization

Depends, in part, on how it plays ball w/r/t the larger UN development agenda to accomplish Millennium Development Goals:
Why?
Even with this experience, our lack of adherence to a coherent application of the fair use doctrine unnerves and baffles lawmakers inside and outside of the United States
SECOND
FIRST
Over 300 years of experience with fair use
"In short, we must often . . . look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work."'

Justice Story 1841
How?
Step One
Step Two
Step Three
Step Four
User Rights
A more coherent theory of user rights

Formal recognition of fair use markets, unobstructed by copyright holder
Deriving the Theory
Judge Pierre Leval
Toward a Fair Use Standard
103 Harv. L. Rev. 1105 (1990)
+
Justice David Souter
whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message

=
TRANSFORMATIVE USE
Types of Transformativeness
Functional
v. Creative

Focus on functional because this is Authors' Guild v. Hathitrust Scenario

Line of Inquiry:
-Does copy serve a different purpose than original
-Has the market/audience been without access to the new use for a certain time period
-Is the new use complementary or substitutive
Support for Objective Approach to Transformativeness
Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000) (virtual game station modestly transformative because product created a new platform to play games designed for Sony PlayStation)

Bill Graham v. Dorling, 448 F.3d 605 (2d Cir. 2006) (use of smaller thumbnails of poster for historical timeline deemed transformative use

Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007) (visual search engine transformative use and public benefit served)
Full transcript