Intellectual Property Lawyers Research Articles

University Extension Programs to Promote the Traditional Knowledge of Marginalised Rural Communities in the ASEAN Region

Many indigenous and marginalised communities, particularly those in tropical regions, traditionally use herbs and medicinal plants to treat various illnesses and disorders. This “traditional knowledge” requires protection. Unfortunately, the World Intellectual Property Organization members have been unable to agree on a definition. However, member states have acted in concert with other members or independently. Initially, the paper analyses the legal instruments utilised by each of the ten countries of ASEAN to protect and promote traditional knowledge. For instance, in 1999, Thailand legislated its Protection and Promotion of Traditional Thai Medicinal Intelligence Act and Plant Varieties Protection Act. The World Health Organization recognises the role of herbal medicines. Universities can play a pivotal role in working with the local communities for the common good and including the community in the rewards from any commercial production. Roles for universities require personnel with the ability to work with local communities and gain their confidence and trust. This knowledge obtained from the community will be held in high regard. Nevertheless, its pharmacology and efficacy must be tested. Universities can also play a role in every step of product development. Finally, examples of successful roles provided by universities and other research institutions are presented. Such projects require a comprehensive team of specialists with a variety of skills, such as scientists, agriculturalists, pharmacists, medical practitioners, intellectual property lawyers, and business development and marketing specialists. Finally, any research and development activities must acknowledge traditional knowledge holders.

Socio-Legal Inquiry of Intellectual Property Law and the Neocolonised Legal Profession in Freetown, Sierra Leone

The social task facing the Freetown, Sierra Leone legal profession requires that such a professional field should be made to metamorphose and expand in line with its growing demands and expectation. This makes Intellectual Property Law an essential relation of the Neocolonised Legal Profession in Freetown, Sierra Leone. An exploration of the socio-legal approach to the relationship between intellectual property law and the Neocolonised legal professional law in Freetown is, in plain terms, highly complex. This complexity is occasioned by the very absence, very weak theoretical construct, limited attention to creativity and novelty of Intellectual Property law as a discipline and Intellectual Property Lawyers as legal practitioners. This paper is based on the main objective of examining the sociological nature of Intellectual Property Law and the operation of the Neocolonised legal profession within the framework of society. In the methodology of this paper, respondents (163) were judgementally selected, examined the socio-legal inquiry strategically on the linkage between Intellectual Property Law and the Neocolonised legal professional law and assessed its relevance and contributions to Freetown municipal income and social growth. The data analysis draws into focus the sociological inquiry on the linkage between Intellectual Property Law and the Neocolonised legal professional law in Freetown, Sierra Leone and how both of them reinforce each other in the singular sociological mission of serving society and humanity. The findings distinguish Intellectual Property Law as both a distinct and independent field of socio-legal scholarship, filling the socio-legal lacuna in Freetown, Sierra Leone, and augment national economic growth. The paper concludes that there is a very weak linkage between Intellectual Property Law and the Neocolonised legal professional law in Freetown, Sierra Leone; The lack of a deeper understanding of Intellectual Property Law and the fact that very little attention is accorded to it by the national government and other key socio-legal actors. The researcher, therefore, recommends that there is a need for an effort to employ a comprehensive conception of law that will foster a pluralistic framework; legal pluralism should incorporate all shades of law, including Intellectual Property Law.

The Adoption of International Arbitration as the Preferred ADR Process in the Resolution of International Intellectual Property Disputes

Abstract This article, which is intended for arbitration practitioners, demonstrates that international arbitration as a subset of the field of alternative dispute resolution (ADR) offers a useful toolkit for the expeditious resolution of international intellectual property law disputes. The article demonstrates how the theory and practice of international arbitration is particularly well poised to address some of the specific considerations and requirements of paramount concern to the international intellectual property lawyers and their clients. The article will explain how the inherent features of the international arbitration legal landscape combine to indicate that it should be considered as the preferred method of ADR and explain how each of these features can provide both time and cost efficiencies. The article will identify the legal reasoning behind the benefits inherent to choosing international arbitration and will also address those circumstances when international arbitration may be precluded or otherwise considered unsuitable for intellectual property matters. The article examines several distinct benefits that international arbitration uniquely offers to international intellectual property law users and highlights some areas of the field that require additional caution.

Why Movie Studios Care About Right of Publicity

So why do movie studios care about the right of publicity? The answer is quite simple. Our studios make lots of movies and television programs about and inspired by real people and events. It is critical to our studios that they have the right to do that—whether or not the subjects of those movies and television shows want movies or television shows made about them. To illustrate how important this issue is to our studios in present day, let me say a couple things. The word “copyright” is included in my job title. I am mostly a copyright lawyer, and I think that is why I was hired at the Motion Picture Association. But over the last two to three years, I have spent the majority of my time on right of publicity, more so than on issues involving copyright. My counterparts—the intellectual property lawyers in-house at the movie studios— consider court decisions threatening their right to make movies and television shows about and inspired by real people and events, without obtaining the subjects’ permission, “existential threats.” One of the things that Professor Jennifer Rothman mentioned in her remarks is that we need to do a better job articulating what the nature of this threat is, or what it means as a practical matter. Let me take up the baton and try to give you a sense of just how fundamentally important this issue is in current years.

What Intellectual Property Lawyers can learn from Barbra Streisand, Sepp Blatter, and the "Coca-Cola Cry-Baby": Dealing with "Trademark Bullying" in South Africa

This article suggests some pause for reflection amongst intellectual property lawyers, and for serious consideration of the words of an internationally-renowned IP law expert: "Possessing a right does not mean that it is a good idea to enforce it always, and to the hilt. Discretion may be nine parts of possession". It provides some prominent, recent examples of trademark bullying or overly-aggressive enforcement in the IP law context. These examples are mainly from other jurisdictions but they are directly relevant to some of the IP law challenges present in South Africa at the moment. The article further examines why lawyers and rights' holders engage in trademark bullying (why it's done), and start to deal briefly with some of the legal implications. A future article is to examine the legal aspects of trademark bullying in much more detail and considers its legitimacy within the context of IP law, more generally, and some other areas of law, more specifically.
 

Editorial

The last issue of 2013 consists of fourteen contributions dealing with a potpourri of topics. The first two articles are both by the same author. In the first one, André Louw addresses the recent, sometimes deplorable conduct of intellectual property (or IP) lawyers, and in the second one, André Louw explores the proper role and meaning of good faith (or bona fides) in contract law, and the approach of our courts to the application of this principle in individual cases involving claims of unfairness and the like. The third article, by Rufaro Mavunga, critically assesses the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999. Nicholas Orago, in the fourth article, discusses socio-economic rights in Kenya and proposes that if the entrenched socio-economic rights are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of socio-economic rights disputes. The fifth article, by Oliver Fuo, explores and critically investigates the relevance and potential of integrated development planning in contributing towards the achievement of social justice in South Africa. Next, Michaela Young discusses the fate of informal fishers in the context of the Policy for the Small-Scale Fisheries Sector in South Africa. The second-last article, by Hermanus van der Merwe, provides a historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda, before he continues to examine it in contemporary South African law. The last article, by Chuma Himonga, Max Taylor and Anne Pope, explores the scope and content of the ever elusive concept of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape.
 

Less parochialism: intellectual property in the wider context of international law

We live in an age of globalization and the ideas of a global and polycentric law are widespread. It is a truism to state that intellectual property (IP) law is to a very great extent international law. In fact, IP law is probably one the most harmonized fields of domestic substantive law. Although there are numerous books approaching IP from an international and/or comparative perspective, the slant is usually on substantive rules. It is very seldom that the viewpoint of international law (with its specific methodology) is firmly used. The explanation is likely to be that most books on international IP law are written by (and for) IP lawyers rather than by international lawyers. Henning Grosse Ruse-Khan is a well-known IP scholar, but also has a thorough and deep knowledge of international law. This has allowed him to write a book with a clearly distinctive approach to the international law dimension of IP, and one that addresses the dynamics of international law from an IP perspective.

Does the Public Understand Intellectual Property Law? Do Lawyers?

I was given a speaker's dream brief: to talk about whatever I wanted so long as it had something to do with the theme of the conference - intellectual property (IP). A few suggestions were made in a nice, non-authoritarian way. These could, of course, have been treated the way IP lawyers usually proceed, i.e., by entirely ignoring them. That is called purposive construction, and Canadian and British courts do it all the time. So a British court has read a patent claim to say that vertical can also mean leaning, a decision that comforted builders everywhere. Not to be outdone, a Canadian court last year decided, in construing a claim, that wet could also mean dry. Inhabitants of the Sahara might be surprised; so might those from Vancouver or San Francisco. My subject will nonetheless be the IP system. I say the system is out of touch with both business and ordinary public sentiment, and that major rethinking and overhaul are necessary if it is to come into line. So nothing new there. But I shall not discuss particular rules as such. Instead I want to make a more basic point that lawyers tend to ignore. We test much of our legal system and rules by asking whether they fulfill people's legitimate or reasonable expectations. How does that apply to the IP system? How does it apply, in particular, to these questions: (1) Can reasonable folk understand the system? (2) Does the way the rules are expressed make sense to them? As my standard of the reasonable person, I shall vary (as suits) between the reasonable lawyer in her Bay Street office, the reasonable reader whose conduct the law is intending to regulate, and the reasonable judge sitting in his or her courtroom. These two questions - can reasonable people understand the IP system? does the way its rules are expressed make sense to them? - are important. For if the answer to either is no, the system is not doing its job well and risks losing its moral force. Not only will it not be observed, but it may also not deserve to be observed.

What Intellectual Property lawyers can Learn from Barbra Streisand, Sepp Blatter, and the "Coca-Cola Cry-Baby": Dealing with "Trademark Bullying" in South Africa

This article suggests some pause for reflection amongst intellectual property lawyers, and for serious consideration of the words of an internationally-renowned IP law expert: "Possessing a right does not mean that it is a good idea to enforce it always, and to the hilt. Discretion may be nine parts of possession". It provides some prominent, recent examples of trademark bullying or overly-aggressive enforcement in the IP law context. These examples are mainly from other jurisdictions but they are directly relevant to some of the IP law challenges present in South Africa at the moment. The article further examines why lawyers and rights' holders engage in trademark bullying (why it's done), and start to deal briefly with some of the legal implications. A future article is to examine the legal aspects of trademark bullying in much more detail and considers its legitimacy within the context of IP law, more generally, and some other areas of law, more specifically.Keywords: Trademarks; Trademark infringement; Intellectual property; IP rights; Overly-aggressive enforcement; Rights holder over-reach; Litigation strategy; Cease-and-desist letters; Strike suits; 'Trademark extortion'; 'Duty to police'; Streisand effect; Ambush marketing.

IP litigation or ADR: costing out the decision

It is currently appropriate to discuss alternative dispute resolution (‘ADR’), while the global economy continues to experience a deep and widespread recession. This is because businesses mired in IP disputes are increasingly reluctant to expend ever-dwindling resources on protection and enforcement of their IP rights. In a similar vein, international patent and trade mark filings in 2009 have fallen by nearly 5 and 17 per cent, respectively [WIPO Press Release PR/2010/632 (patents). Geneva, CH., 8 February 2010; WIPO Press Release PR/2010/634 (trade marks). Geneva, CH., 18 March 2010]. Meanwhile, the IP field has not fully embraced ADR: the percentage of arbitrations has rapidly increased in other areas but not in IP, where it has remained stagnant [H Wei and W Yaxi, Exploration and Development of Arbitration on IP Rights (Part I and II) (2009). The Ministry of Information Industry, Advisory Service Center for Electronic IP Rights, American IP Protection and Antidumping]. A conventional litigation is long and costly, whereas ADR is relatively inexpensive and very fast. In the USA, the average cost of patent litigation is $2M, trademark litigation is $600K, and other types of IP litigation average between $500K and $800K. This, of course, does not include the price of an appeal, which may add another $2M to patent litigation. The time involved is possibly more astonishing: the average IP litigation lasts 2 years. Add an additional year for an appeal [Report of Economic Survey. American Intellectual Property Lawyers Association [2003]]. ADR can take as little as 5 or 6 months. If the time difference would come at a significant cost to your client, then consider ADR, preferably in the original contract. ADR is cost-efficient due, in large measure, to the curtailed procedure. In the case of arbitration, an appeal is rare, only the most serious cases alleging fraud get a second-look. Furthermore, ADR is confidential. For public firms, litigation could affect their ability to raise capital or acquire lucrative contracts because of the requirement that all litigation be disclosed to shareholders or potential shareholders.

Intellectual property rights and good research practice

Who owns the rights to health outcome-related items and instruments? There are various responses to this question, and varying interpretations of what is meant by intellectual property rights. Intellectual property lawyers would likely have a complicated and involved interpretation and it is our understanding that collections of items can be copyrighted as instruments, but the question is less clear for the individual items. Does this mean that any researcher can take any collection of items from one or more existing instruments and create a new instrument? Yes, we think so, but (and this is an important but) the new instrument cannot be labeled as any of the existing instrument(s) used to derive the new form. Recently, a group of researchers examined the factor structure and psychometric qualities of the standardized version of the Asthma Quality of Life Questionnaire [1] and found that several of the items may not be relevant for the Greek translation of the instrument [2]. While the psychometric results are useful for understanding the measurement qualities of the AQLQ, the authors implied that they developed a new version of the instrument, the AQLQ-18. This resulted in an interesting exchange of perspectives related to intellectual property and copyright issues related to health outcome measures [3, 4]. We thought that we would take this opportunity to express our views on copyright issues and good research practice related to the field of health-related quality of life research. The definition of copyright is the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work) (www.merriam-webster.com/dictionary accessed July 21, 2009). Basically, in the case of instrument developers, this represents the legal right to control the use and reproduction of the original instrument. The maintenance of the scientific integrity of the copyrighted instrument ensures researchers and readers of scientific journals that the study used the correct version of the instrument and that there is evidence supporting the psychometric qualities of the instrument. This also ensures a consistency in versions across multiple clinical trials and other studies. Good research practice indicates that the relevant permission to use an instrument should be followed when deciding to use a HRQL or symptom-assessment instrument in a research study. Different instrument developers have different systems for registering use of their instrument for research purposes. Some of these systems require users to pay fees either by study or by individual subject, but not all instrument developers require payment. For example, the Patient-Reported Outcome Measurement Information System (PROMIS), a US National Institutes of Health sponsored initiative, makes all the developed and evaluated item banks and short-form measures publicly available and requires only completion of a standardized registration form [5; www.nihpromis.com]. Regardless, the instrument user should obtain permission from the developer before including a measure in a study. The research should also respect the scientific integrity of the instrument and not make modifications of the measure, but still retain the original copyrighted name of the instrument. A D. A. Revicki (&) United Biosource Corporation, Bethesda, MD, USA e-mail: Dennis.Revicki@unitedbiosource.com

Preparing for (and avoiding) the courtroom

Intellectual property (IP) is often the most valued asset of biotech firms, especially startups. Two IP lawyers offer guidance on avoiding suits altogether, when to settle them and when to fight.

Virtual rights? Property in online game objects and characters

The new industry of Massively Multi-Player Online Role-Playing Games (MMORPGs) brings together two sets of fictions: the interactive stories of shared computer games and the legal devices of intellectual property. In these virtual worlds, scarcity need not exist, but players tend to prefer the competition it creates. This leads to the development of property rights within the game world and players trading real money for virtual objects, ‘land’ and characters. This new phenomenon brings with it familiar legal problems such as theft, fraud and ownership disputes. Game creators also challenge the right of the players to claim ownership outside the game world. The volume and value of the items traded make real money trading an important area of current interest for intellectual property lawyers. Something is being traded, but does it fit neatly into existing conceptions of property rights and who owns it? Analysing the novel problems that result from various theoretical perspectives (utilitarianism, labour-desert theory and personality theory) leads to the conclusion that with time, we will see the development of property rights for players in online games. This connects with a growing understanding that the traditional conception of copyright law dealing with creative work generated by the solitary author is becoming less appropriate in the new creative spaces that information and communications technology brings, where individuals are both consumer and producer. In virtual worlds, new forms of intellectual property, and perhaps even new rights, are taking shape.

Public Domains: Engaging Iraq Through Experimental Digitalities

Public Domains:Engaging Iraq Through Experimental Digitalities Patricia R. Zimmermann (bio) Public Domains Public domain, or PD, crosses through the new media ecology—works for which copyright has either expired or never existed. An archive with no doors and no rules, public domain presents the open text that can commingle with other texts. Public domain means works exempt from proprietary interests that form our common aesthetic, cultural and intellectual landscape.1 This category is not stable, of course: works change their passport status and migrate from proprietary to public domain continually, rapidly, and fluidly. Nor is this category universal, as public domain often implies countries of the global north that comply with the Berne Conventions. The word domain connotes the Internet, a virtual and often imaginary space where cyberactivity coagulates, convenes, coalesces. However, in this quest for free culture unfettered by capitalist exchange and intellectual property lawyers, hackers, remixers, copyright pirates, mash-uppers, clubbers, and found-footage artists—often white male cybercowboys hacking and whacking on their iMacs and iPods—focus on the image, fetishizing and eroticizing its acquisition and capture as though it were an illicit drug like crystal meth that can get you high and keep you high.2 In this time of war and empire, however, the term public domain needs a new definition, one that is more plural and beyond an exclusive focus on the fixity of the image and the artifact. It needs a definition that moves into transitional zones and provisional places that are created, then interrupt and rewire. A new conception of public domains must consider a new kind of media politics: it must create places where publics can emerge. Public [End Page 66] domains materialize new publics and actualize new spaces. Some forms of new media have circumvented the theatrical setting and instead adopted a strategy of infiltration into consumer-grade technologies to produce critiques of the war on terror and how it infiltrates everyday life. For example, an online satirical game called Airport Security asks the player to inspect airline passengers and luggage for forbidden items like toothpaste and hair gel, but the list changes every moment, making it difficult to detect contraband. Some of the items on the prohibited list include pants and hummus. The game was developed in response to the Fall 2006 U.S. Security Agency's change in policies regarding what could be brought on to flights, and is downloadable for cell phones (www.persuasivegames.com/games/game.aspx?game=airportinsecurity). Public domains activate new ways of thinking, acting, and connecting with others.3 Empire and war no longer exert power solely through force or embedded reporters or press restrictions. They enact and inscribe power through the production of panic: they replace the freedom of messy interaction implied in the inventive ideas and concrete practices of public domains with a systematic incarceration of imagination and mobility. Surveillance, border patrols, passports, data mining, packet sniffing, learning objectives, teaching outcomes, pay-per-view, news blackouts, silence. Empire and war no longer just provide a field of operations for achieving national objectives. They are now in the manufacturing business. They produce endless product lines of panic, amnesia, and anaesthesia4 and have migrated into the business of chaos and incomprehensibility. As a result, the classical construct of the public sphere—a place for the open discussion of ideas among equals to create and sustain civil society—has become a fantasy, a chimera, a collective hallucination concocted by theory to enforce the science fiction of democracy. It does not, in the age of empire and war, exist a priori, waiting like a bar at Club Med or a pool at a five-star hotel in Kuwait for us to dip into. Rather, this period of empire and war, combined with the current conditions of massive media mergers, produces blindness. This political economy of blindness renders the war in Iraq opaque, unclear, remote, phantasmatic. As a result, the representations and iterations of the war are trapped within a dangerous contradiction: the deliberate construction of invisibility and the pointed production of endless visibility in the form of images of soldiers and IEDs. Therefore, we must consider how to produce, together, public domains. Public...

The spy who came in from the cold

Some words occur to us in pairs, often to the extent that we find it difficult to hear the one without recalling the other. Thus ‘Romeo’ suggests ‘Juliet’; ‘Anthony’ invokes ‘Cleopatra’; ‘Heloise’ follows ‘Abelard’ and so on. Many further examples exist, particularly in the case of lovers. In intellectual property circles the concepts of ‘author’ and ‘royalties’ are also closely linked—but their relationship is strained. While the author’s love for royalties is sincere and undiminished by the vicissitudes of commerce, royalties are more fickle in their choice of destination. Some royalties remain an ideal, never to come to fruition. Other royalties remain imprisoned within the palace of the publisher, never to be handed over to their rightful suitor; some are claimed by the taxman as his due, whereas others again, secured in advance, must be surrendered following the failure of the author to comply with the terms of publication. A rare and unusual fate befell the royalties to which George Blake was contractually entitled for the publication in 1990 of his autobiography No Other Choice. At the time he wrote the book and entered into the contract that promised him the disputed royalties, Blake was a former member of the British Secret Intelligence Service; a strong selling factor for his book, no doubt, was his notoriety as a spy for the USSR and the circumstances under which his spymasters reputedly procured his escape from the secure jail in which he was serving a 42-year sentence. Blake clearly did not write his book in the course of the performance of his employment duties in the Secret Service. Nor could it be said that the circumstances of the book’s creation and publication were such as to impose upon him the duties of a trustee. Accordingly, there was no basis under copyright law upon which the British Government could claim ownership of the copyright or a beneficial entitlement to the royalties resulting from the book’s sale. Even if the author was disentitled to receive the royalties, there was no obvious ground of entitlement for the British Government either. The Attorney General (an officer of the Crown whose roles include the protection of public interest) commenced civil proceedings to recover the benefit of any royalties earned by Blake on the basis that the book disclosed information of a confidential nature. Although the information was no longer confidential when Blake disclosed it, because it was known to the public as well as to the Russians, the Attorney General’s argument was strengthened by the contention that, having acknowledged that he was bound by the terms of a criminal statute, the Official Secrets Act 1911, Blake was aware that any disclosure relating to his service duties was unlawful and should not have been made. The Attorney General’s claim was ultimately successful in that the decision of the Chancery Division of the High Court was upheld first by the Court of Appeal and later by the House of Lords. Blake was however distressed by two things. First, he had lost his royalties, through a complex web of legal reasoning that raised more than a small suspicion of judicial creativity. Second, it took him no less than nine years and two months to lose his royalties. This was a very long time to be kept in suspense, subjected to the stresses and anxieties that any individual litigant must suffer. Accordingly, Blake took his case to the European Court of Human Rights on a plea that the protracted litigation was incompatible with the requirement of Article 6(1) of the European Convention on Human Rights that legal proceedings take a reasonable length of time. Blake’s claim was upheld by the Court, which awarded him damages of e5000. Although this was only a small fraction of the very large sums to which he was entitled by way of advance royalties, Blake must have obtained some personal satisfaction from his belated victory. The Court articulated the criteria that must be taken into account when considering unreasonable duration: the complexity of the issues involved, the scale or importance of the issue in contention, and the conduct of the parties. This episode has many lessons for intellectual property lawyers and litigants. When choosing a jurisdiction in which to litigate, choose a country which has only one appellate tribunal. Consider arbitration or mediation, to which Article 6(1) does not apply. Keep your arguments simple and sue local corporations rather than individuals living abroad. Finally, do not underestimate the motivation of an author shorn of royalties. doi:10.1093/jiplp/jpl178 Advance Access Publication 27 October 2006 * Editor, Journal of Intellectual Property Law & Practice Journal of Intellectual Property Law & Practice, Vol. 1, No. 13 813

Lawrence Lessig's ‘Bleak House’: A Critique of “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity” or “How I learned to stop worrying and love internet law”1

The single most significant issue that intellectual property lawyers have had to deal with in recent years has been the impact of the Internet on copyright. It has raised more than mere legal queries, obliging society as a whole to reconsider the fundamental bargain of capitalism – private gain versus the public good. However, the authors progressed beyond this specific social bargain to consider the role played by commercial giants that either own or have a shared interest in the works of their creative artists, which in turn requires us to scrutinize the true purpose of copyright law – the guarantee of a social bargain or a tool for pure economic protection. In an attempt to chart a suitable path for the future development of copyright law, as applicable to commercial giants and the Internet, the authors have chosen to critique Professor Lessig's theory, namely that the Internet and intellectual property law are being used by powerful media forces as a tool for suppressing creativity in the pursuit of pure economic benefit. The bleak view adopted by Lessig of the Internet and related intellectual property law, which he perceived as impeding progress, frustrating creativity and detracting from the positive social impact the Internet can have on society, is examined and ultimately regarded as being the equivalent of Dickens' ghost of Christmas yet to come and grounded in the Chancery lawyers of Victorian England depicted in Dickens' Bleak House.3 The authors conclude that the fundamental bargain that must be honoured, no matter what the social or commercial marketplace may be, is that a creator must be afforded such legal protection as to induce him or her to create. Whilst this may eventually amount to an updated and slightly more pragmatic version of current intellectual property law, it should certainly amount to more than the Creative Commons licences that were championed by Lessig. The authors welcome comment and discussion.

Trade Mark Infringement as a Criminal Offence

Intellectual property lawyers are aware of, but not normally much concerned about, the criminal liability which may result from the infringement of a registered trade mark. This issue is usually only briefly discussed.' That may partly be due to the fact that this area of the law sits uneasily between the established, and quite different, disciplines of intellectual property law and criminal law, and lawyers of either type may find themselves somewhat uncomfortable giving too much thought to the respective unfamiliar component. However, in the light of the severe penalty for criminal infringement of registered trade marks up to ten years' imprisonment2 and in the light of recent court cases, particularly the House of Lords decision of RvJohnstone of 22 May 2003,3 it has become important to look at this neglected aspect of intellectual property law more closely.

The interdependency of fair use and the first amendment

The rights of free speech, to search for truth, to strive for self-realization, and to participate in the processes of self-government, are guaranteed in the first amendment; but these rights would not be possible without the grant of public access to information provided by the doctrine of fair use in the copyright clause. Because quick and complete copy and dissemination of information is made simple through digitization and electronic transfer, many corporate intellectual property lawyers and political lobbyists are pressuring for tightening the public access provided in fair use; thus, it is of heightened importance that educators and other members of the public understand the interdependent nature of fair use and the first amendment and that the existence of fair use is necessary lifeblood to free speech.