TGIF: Vacuum Cleaner Inventor Says The Darndest Things

Thank goodness it is Friday

Sir James Dyson was quoted by Dan Milmo in the Guardian, here, saying:

"They are running the risk of being expelled from the WTO. They are creating an unlevel playing field by taking our technology and selling it all over the world." 

With "they" Mr Dyson means China. I understand Mr Dyson's frustration, but the quote is grotesque. China cannot be simply pulled out of the World Trade Organization (WTO) equation. China is one of its key players. The idea about the WTO is to resolve the issues via a binding dispute resolution system. When Mr Dyson would have said that a dispute resolution procedure could be started against China's lack of IP enforcement or non-compliance of the national treatment principle (treating foreign companies at least as good as domestic ones), it would have made more sense.  

Police in Shenzhen. Aren't we ... visible?
Photo: Danny Friedmann

In the piece Mr Dyson, who invented the bagless vacuum cleaner and the bladeless electronic fan, makes the following clueless allegations to China:

- "China benefits from strictly monitored IP regimes outside its own border, but has failed to crack down on domestic offenders as it pursues rapid economic growth." Does China benefit much from strictly monitored IP regimes, if their alleged infringed products cannot enter into other countries? Did China fail to crack down on domestic offenders? One can argue that China failed to crack down on domestic offenders inadequately or insufficiently. But to assert that China failed to crack down on domestic offenders is simply not true (think about all the campaigns with the fancy names, see here 2010 and here 2011).
Mr Dyson backs up his claim with anecdotal, evidence: a patent infringement case he won, but where the infringers did not pay the fine nor stop their infringing activities.
- "China's reputation among foreign investors is being diminished by the flouting of product copyrights and a two-speed patent system that appears to discriminate against non-Chinese applications."

With "product copyrights" probably intellectual property protection is meant, which includes invention-patents, utility-patents, design-patents, trademarks, copyrights and trade secrets. To make such sweeping statements is not useful unless they are backed up by research that gives the status on how the intellectual property rights of British industries or European industries are protected. Until now Chinese foreign direct investments did not correlate much with China's level of intellectual property enforcement level. It seems more to correspond to China's economic growth. And I have not come across evidence that foreign patents on average are examined slower. Very broadly speaking a utility and design patent takes about half a year and an invention patent can take up to two years time. 

Dyson, the company, is spending 10 million UK pounds per year on legal costs (according to an article by James Hurley in the Telegraph, see here) and is also inventive to bring the intellectual property in China challenges under the attention of people in British government, such as David Cameron (prime minister) and Baroness Wilcox (IP minister). 

Inconvenient truth about intellectual property infringement

A Dyson bagless vacuum cleaner costs about 4,000 Yuan in China. Factory workers in Shenzhen make about 1,200 Renminbi per month and middle class earnings are about 4,000 Renminbi per month. The inconvenient truth is that the more a company has spent on research and development (as is the case with Dyson) or marketing and advertising (as is the case with luxury brands) the bigger the incentive for infringers to ride on the coat tails of some other companies' economic activities.

continue reading ...

After 44 Years Chinese Lovers of Literature Can Legally Buy "One Hundred Years Of Solitude"

Photo Festival Internacional de Cine en Guadalajara 

Some rights reserved

TGIF

Zhang Lei wrote a nice article for the Global Times about Thinkingdomhouse, a publisher who achieved to get a copyright license for China from Nobel Prize for Literature laureate Gabriel García Márquez to publish his masterpiece 'One hundred years of solitude' (Cien años de soledad).

"Unauthorized editions were widely available in markets as early as the 1980s, which infuriated the author, who vowed that even 150 years after his death, his works would not be authorized in China, when he visited in 1990." Well if Márquez was quoted correctly, he might be able to abstain Chinese publishers from authorised versions, but his copyright will expire 50 years after the moment he will exchange the temporary with the eternal. Then again within magic-realism, a writing style Márquez brought to great fruition, 150 years starting in the 1980s is a possibility which can not be completely excluded. It is great news that this summer an authorised version of Márquez' masterwork will be on sale in China. On the one hand it is moral rights of the author to determine whether he makes his work public or not (le droit de divulgation). On the other hand you cannot blame Chinese literature lovers that they want to read Márquez' masterpiece of which Pulitzer Prize winner William Kennedy said "the first piece of literature since the Book of Genesis that should be required reading for the entire human race."

Zhang is mentioning China's membership of the Universal Copyright Convention in 1992, as the moment the publishing industry has gradually increased awareness of copyright. According to this convention an author had to put a © on their work, his name and the year of creation in order to be protected via copyright.

Article III (1.) Universal Copyright Convention: "Any Contracting 'State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol © accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright."

Interestingly, this is in contradiction to the "no formalities" requirement of article 5 (2) Berne Convention for the Protection of Literary and Artistic Works to which China acceded in the same year. UNESCO's Universal Copyright Convention has been rather dormant lately, but it could already make a useful distinction between works in the public domain without the © and those protected by copyright. It avoids also to some extent the copyright orphan problem, because the name must be included. Creative Commons has been "ported" to China and makes clear what kind of use is allowed online, see here. 

Read the Global Times article here.    

continue reading ...

Chinese Coffee Cats, Obscene Brand "Star Tuuuut" and the Difference Between B and F

Do you remember the Starbucks versus Xingbake case? See here. But there are many more coffee(copy)cats in China, see here. Confusion between the Starbucks and Star tuuuut might has a lot to do with culture or rather language. Confusion might not be so big in Western countries (although it was about the tort: passing-off and dealt with an unregistered trademark in a Common Law country, it reminded me of the Advocaat case), but for many Chinese the difference between a B and F in the second syllable might not have a big impact on the total picture of the word.
IP Dragon received this picture of a coffee shop in China. Not completely PC but then again it's Friday.

Thank you P.

TGIF, so have a good weekend!
IP Dragon

continue reading ...

TGIF: Intellectual Property Enforcement Coordinator Says The Darndest Things

Online copyright piracy is a serious problem. China has started a campaign of three months to blacklist websites with pirated content so that Chinese telecom operators can take them offline. Now one can question the effectiveness of this temporary measure, see here. But there are even worse solutions... Look at the idea of Brad Sherman, U.S. democratic representative, which goes.. let's say a bridge too far. Doug Palmer reported for Reuters that Sherman said the U.S. government should use cyber-combat techniques to take down internet sites in China, Russia and other countries that sell pirated U.S. music and movies. Of course the US could take Chinese websites offline if they are based on servers in the US, subject to US laws. But if the servers are in China, this would be obviously a violation of China's sovereignty and could be answered with similar cyber-combat strikes at US websites based on US servers.

Incredibly, Victoria Espinel, the US White House Intellectual Property Enforcement Coordinator responded allegedly, according to Palmer's Reuters article: "That is something we're actively investigating." And then Espinel allegedly continued: "But while it is technically possible, it does not take long for the sites to pop up in new locations." Was she seriously considering this or just like a thought experiment? Read more here.

The same article is a nice follow-up on the misguided use of hyperboles when one only wants to say that the level of IPR enforcement in China is unacceptably low. Sir Arthur Bamford called it "cancer", see here, and William Delahunt is taking the hyperbole one step further and calls China's low IPR enforcement "economic terrorism". These words are probably not conducive to solving the IPR enforcement challenge in China.

One might better use arguments for protection and enforcement of IPR in China (regardless whether these are in the hands of domestic or international companies/persons) that show China's advantages, based on David Ricardo's theory of comparative advantage, and disadvantage if it engages in mercantilistic policies. This is hard, now that China's economy is so successful and the importance of its domestic market is growing. Ms Espinel, and many international IPR holders are facing a daunting task to protect and enforce IPR in China.

continue reading ...

Consumers International Says UK Has Worse Copyright Regime Than China... Nonsense Says Sharkey

Thank goodness it is Friday. Consumers International did a survey on the intellectual property laws and enforcement practices of Argentina, Australia, Brazil, Chile, China, India, Indonesia, Israel, Malaysia, Pakistan, Philippines, South Korea, Spain, Thailand, the UK and the US, see here. 

According to BBC News Consumers International decided that "UK law was least effective in balancing the interests of rights holders against those of consumers." Read BBC News "UK 'has the worst copyright laws'", here. 

Feargal Sharkey, yes the great singer of 'A good heart' and CEO of UK Music strongly opposes this view: "In particular, claims that Chinese and Indian consumers (and media) have greater freedoms to access copyrighted works than UK citizens are as ludicrous as they are offensive."

Read more on MusicWeek, here.

The simple fact that China blocked the YouTube video of 'A Good Heart' below suggests Sharkey is right. This songs' lyrics are appropriate and include:

"I hear a lot of stories
I suppose they could be true
All about intellectual property and what it can do to you
Highest risk of striking out
The risk of getting hurt
And still, I have so much to learn"

Ok, ok, I changed a word or two; listen to the original lyrics below and enjoy your weekend. 

continue reading ...