Subject: RE: International law [Re: IETF and an RF Patent Policy]

From: "Gream, Matthew" <[email-masked]>
Date: Thu, 20 Feb 2003 06:36:01 -0600

Slightly off-topic, but perhaps tangentially useful as a mini-tutorial.

In the EC, IPRs are national rights but have been subject to increasing
harmonisation. Some IPRs (community patents, community designs, community
trademarks) are established at the community level, others have been subject
to annoying levels of incremental harmonisation (copyright) due to wide
differences in national nature (cf. civil/common law systems and primacy of
either economic or moral rights for copyright). So there are various
differing national IPR and antitrust laws, either in statute or as common
law, and varying explicit (regulations) or implicit (directives) levels of
harmonisation across the community.

Community level IPRs (and harmonisation directives/regulations) and
antitrust law are typically concerned with issues relating to free movement
of goods within the internal market, or harmonisation in order to achieve
the latter, and abuse of dominant positions or concerted practices (articles
81/82 + 28/30 of the EC Treaty). These have direct relevance to IPR
licensing issues (failure to license, ancillary terms in contracts,
concerted practices [including standards bodies], territoriality agreements,
exhaustion of rights, etc) - but scope should only apply when issue has
community impact, not when it is internal national issue, for which national
law applies. I suspect the US would have similar law to deal with these
concerns.

As an established doctrine of direct effect, community law always prevails
over national law. As the above would suggest, there is some degree of
complexity in the entire arrangement. Furthermore, national courts can make
leave to community level to resolve various issues, and community directives
and regulations will override national law where in conflict. There are
overlaps between community and national protection - as you'd expect,
bringing so many countries to a common position is not always a pretty
sight.

Various IPRs are internationally harmonised under WTO TRIPs (some 140? odd
countries), which requires compliance to terms of various previous treaties
(Berne for copyright, Paris for designs, etc). Someone more informed than me
should know whether WTO has dispute resolution procedures, I would suspect
that it does (various trade disputes between EC and US), but I'm completely
unaware of the nature of such drp.

I'm not familiar with public international law, but I do know that various
EC case law on IPR has been concerned with extra-territorial issues (e.g.
importation of infringing material) and there are established concepts of
exhaustion of rights and so on. 

I have been following wg-ipr with detached interest as an IPR student, and
so far I have not seen anything in particular that strikes me as being in
conflict with my understanding of EC/UK IPR.

Disclaimer: Speaking for myself, not for my employer. No warranties offered.

Matthew Gream
BEng (Computer Systems)
Cert Higher Ed (Art History)
MSc (Intellectual Property Law)

-----Original Message-----
From: Brian E Carpenter [mailto:[email-masked]]
Sent: 20 February 2003 11:09
To: [email-masked]
Subject: International law [Re: IETF and an RF Patent Policy]

European Union law often preempts national law in EU countries.

EU anti-trust law would certainly apply to many IETF
participants, for example.

   Brian

Bruce Perens wrote:
> 
> From: "Reb Thomas" <[email-masked]>
> > First I am not sure that there is anything that actually is
"International
> > law" other than treaties and given the way treaties are negotiated, they
> > certainly don't constitute a body of law (the adage about sausage comes
to
> > mind).
> 
> NAFTA comes to mind. It has its own court, with jurisdiction over the
> U.S.
> 
>         Bruce
> _______________________________________________
> Ipr-wg mailing list
> [email-masked]
> https://www1.ietf.org/mailman/listinfo/ipr-wg

-- 
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Brian E Carpenter 
Distinguished Engineer, Internet Standards & Technology, IBM 
On assignment at the IBM Zurich Laboratory, Switzerland
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---

From: Randy Bush <[email-masked]>
Date: Fri, 21 Feb 2003 08:01:24 +0900

could someone set up a new mailing list, either for these off-topic
religious zealots to go, or for the actual chartered topic of this
mailing list to continue to get its work done.

or, as the DoS attack means we can not further gain understanding
of the consensus of the documents under discussion, and there have
been no objections of substance to them (though there have been
rantings by folk who seem not to have read them), we declare that
consensus on them has been reached, and those of us who need to get
work done can unsubscribe and get to work.

either path is fine with me.

thanks.

randy

---

From: Russell Nelson <[email-masked]>
Date: Thu, 20 Feb 2003 20:36:49 -0500

Randy Bush writes:
 > religious zealots 
 > or, as the DoS attack 

Y'know, Randy, up until yesterday, I used to think that Dan Bernstein
was pure fruitcake in his complaints about IETF process.  I couldn't
see how real, honest-to-god, taken-seriously IETF participants could
behave that badly.  I see now that you contributed some nuts to his
cake.

 > either path is fine with me.

A third path: improve the s/n radio by refraining from ad-hominem
attacks.  Thank goodness the IETF has adult supervision!

-- 
-russ nelson              http://russnelson.com | A government does enough
Crynwr sells support for free software  | PGPok | wrong to offset what it
521 Pleasant Valley Rd. | +1 315 268 1925 voice | does right.  Better that
Potsdam, NY 13676-3213  | +1 315 268 9201 FAX   | it should do less.
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