Tagged: #intellectual property

U.S. and Honduras Agree to Strengthen Coordinated IP Protection and Enforcement

Earlier this month, the Office of the U.S. Trade Representative (USTR) announced it had concluded a Work Plan with the Honduran Government to strengthen intellectual property (IP) protection and enforcement. Included in the Work Plan are commitments by the Honduran government to increase criminal IP prosecutions, improve IP enforcement coordination efforts with U.S. authorities, evaluate the adoption of trademark customs recordation procedures, and enhance and clarify the Honduran geographical indication (GI) protection registration process.

The adoption of the Work Plan is a positive step in U.S.-Honduran IP relations. Honduras was identified in the USTR’s 2015 Special 301 Report as being subject to an out-of-cycle review to determine whether Honduras should be included in the USTR’s Special 301 Report Watch List, namely countries considered by the USTR to have inadequate IP protections. While the 2016 Special 301 Report will not be released until April 2016, the conclusion of the Work Plan should assist Honduras in remaining off of the 2016 Special 301 Report Watch List.

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Some Patent Considerations When Entering into Relationships with Indian Businesses After Novartis AG v. Union of India

Co-Authored by Shreya Ley, Attorney and Owner of Lay Roots

You may have thought that this summer was all about capturing that certain bohemian-chic essence, but the true trendsetters are all talking about recent developments in Indian patent law. In April, the Indian Supreme Court ruled in Novartis AG v. Union of India & Others that Swiss pharmaceutical maker Novartis was not entitled to patent protections for their leukemia treatment drug Gleevec. The Indian Supreme Court’s rationale was heavily based on their efforts to stop pharmaceutical “evergreening” – a practice pharmaceutical companies use to extend the life of a patent by seeking patent protection of subsequent improvements to their drugs or alternative, novel uses for such drugs.

Novartis had been attempting to patent a new and improved version of Gleevec. It had been unable to patent the original version of the drug in India because India did not recognize or grant pharmaceutical patents prior to completing their implementation of their World Trade Organization obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 2005. Upon discovering an improved version of Gleevec, Novartis sought to gain patent protection in an effort to halt the rampant manufacturing of generic forms of the drug in India. However, the Indian Supreme Court found that Novartis had not created enough of an improvement in the new Gleevec to qualify the drug as a new invention. Since Novartis’ ruling, Indian courts have subsequently invalidated other similar patent applications as seen last Friday with the invalidation of the Glaxo Smith Kline’s cancer drug Tykerb.

The Novartis decision and other similar Indian court rulings that refused to grant patent protections to pharmaceutical improvements have become the major impetus for foreign businesses and governments to denounce the Indian patent system as being broken, unjust, or perhaps just biased against non-Indian inventors. Around the world, India’s stand against pharmaceutical evergreening has led such entities to decry the general state of innovation in India. Here in the U.S., the Pharmaceutical Research and Manufacturers of America commented that the Novartis ruling was a sign of India’s “deteriorating innovation environment” and the Office of the U.S. Trade Representative remarked that recent Indian patent developments have “raised serious questions about the innovation climate in India and risk hindering the country’s progress towards an innovation-focused economy.” Such rhetoric has inevitably led American and other non-Indian businesses to become weary of working with Indian resident companies and inventors, ”hear ye, hear ye, innovators around the world! Take heed of this warning tale!”

Well, “fear not!” Keep in mind that Novartis and the other related Indian court decisions only apply to pharmaceutical patents as such rulings have been based on a specific provision in the Indian Patent Act relating to incremental innovations in pharmaceuticals. So, given the limited applicability of Novartis and related cases, foreign businesses should simply forge ahead with their Indian business relationships, right?

Not quite so fast. Dealing with any foreign business, inventor, or entity comes with its own challenges and those looking to partner with Indian resident businesses should consider the following before getting too involved.

1.     Get a Comprehensive Agreement in Place Beforehand. Many partnering businesses have a difficult time putting a written agreement together prior to beginning their business relationship. THIS. IS. A. MISTAKE. Getting a clear agreement in place beforehand is important for foreign businesses and their Indian counterparts to prevent future misunderstandings that could potentially derail their objectives and result in substantial costs. Such an agreement should not only clearly outline the parties’ rights and obligations with respect to the Intellectual Property (IP) created in their relationship, it should additionally cover business aspects of the relationship. Although a large part of such relationships is based on the IP, the business side encompasses what happens once IP is created and it is equally important.

Specifically, agreements should address the following:

What is being protected? The agreement should clarify for foreign businesses and their Indian counterparts the types of IP their relationship needs to protect. This can be as simple as designating that both patentable and trade secret innovations will be protected and as complicated as describing protections for each and every potential innovation arising out of the relationship, whether a part of the parties’ original intentions or not. This designation process will not only help to define the scope of the parties’ project, it will also help ensure that the parties seek appropriate protections and enforcement measure for their IP. Completing this exercise is especially important in a cross-border context as the enforcement of IP rights abroad may be more difficult than simply making sure everyone is on the same page from the beginning. India in particular has been notorious for lacking the necessary infrastructure to enforce IP rights efficiently.

Who gets ownership? Establishing ownership of resulting IP from an Indian business relationship is important in an initial agreement because countries vary in the rights they give to owners and inventors. For example, Section 2(p) of the Indian Patent Act uses the term “patentee” for patent owners that is defined as “the person for the time being entered on the register as the grantee or proprietor of the patent.” In contrast, the U.S. does not officially use the term “patentee” and most American inventors would probably assume that patentee refers specifically to inventors. As illustrated above however, “patentee” in India is not necessarily limited to inventors. Therefore, making sure that all parties are clear on who will be named inventors and who will own resulting IP is essential to ensuring a good business relationship with an Indian resident business or inventor.

Who gets paid? This, inevitably, is a difficult topic to discuss, and it is inextricably tied to IP ownership rights. When there is no money coming in, everyone wants to split things down the middle. However, once there is money or it looks like there will be no money, businesses start to quibble. In order to avoid costly, drawn out battles that could prevent businesses from furthering an otherwise fruitful relationship, it is important to outline how all parties are to be compensated for their hard work, time and ingenuity once their relationship has taken off as well as when it has reached its conclusion.

Outlining business plans in writing through an agreement not only forces the parties to talk about their innovation strategy, marketing plans, and production plans; it also enables them to have a clearer direction for their relationship.  If anyone is worried that creating a detailed, written plan will inhibit their creativity, then remember that a good agreement should leave some room for flexibility. Allowing such flexibility can lead to great innovation and profitability. Ultimately, however, having a clear outline of where the parties’ want to go, how they want to get there, and what they need to get to that point (the “what” usually being the IP) can lead to a more profitable and innovative business relationship and can prevent costly future litigation.

2.     Be Conscious of Indian Patent Filing Requirements and Tolling Restrictions. Understanding Indian patent application filing requirements and the interplay between them and other foreign patent filing requirements is essential for businesses to ensure the broadest global patent protections for their resulting innovations. The most important thing for non-Indian businesses to realize is that Section 39 of the Indian Patent Act requires that patent applications for any invention created with the help of Indian residents must first be filed in India. Yes, before filing an international application under the Patent Cooperation Treaty, before filing a U.S. patent application with the United States Patent and Trademark Office (USPTO), and before filing a patent application anywhere else, foreign businesses working with Indian inventors must file a patent application with India’s patent office (The Controller General of Patents, Designs, and Trademarks (Controller)).

Does that sound unreasonable? Foreign businesses may be able to apply for special permission from the Controller to initially file abroad, but don’t bet on the Controller bending the rules.  If no special permission is given, a foreign business must wait for approximately six weeks after filing in India to file elsewhere.

So, if a foreign business has applied with the Controller and waited six weeks, they can now submit applications anywhere else…right?  Sure!  Just make sure not to dilly-dally because filing in India limits the amount of time a business has to file their patent application with the USPTO and other national patent offices. Knowing the timelines from start to finish of the Indian patent application system and how filing dates in India affect the requirements for filing applications in other countries can greatly impact business decisions.

Parting Thoughts. Go forth and innovate with Indian resident compatriots! The considerations above and recent Indian pharmaceutical patent decisions should not stop foreign businesses from doing so. Collaboration enables people to create great innovations, but every business relationship, whether down the hallway or across the world, has its own challenges and limitations. It’s good for businesses to be honest about those challenges and to create a plan for overcoming them before they run into them. These general suggestions don’t apply to everyone and it’s always wise to consult with qualified local counsel and persons who can advise on the particulars of a specific business. In the end, it will save businesses a lot of time, headaches, and money to simply invest in the relationship by setting it up correctly.

Also, no matter how overwhelming the planning process may seem, just remember, at least you’re not going up against Bollywood screenwriters who generously “borrow” from American film. In cases like those, it’s best to pop some popcorn, settle onto the couch, and enjoy the results – because the results ARE rather glorious, are they not?

Understanding International Copyright Protection Through The Grateful Dead

Understanding the complexities of international copyright law can be confusing. There are several factors for determining whether a work qualifies for copyright protection abroad, what countries a work qualifies for foreign protection in, and what foreign protections are afforded to qualifying works. To understand these complexities (and to show my readers, family, friends and co-workers that I am not an IP robot), I’ve decided to explain how international copyright protections can be understood in practice through the music of my favorite band, The Grateful Dead. The Dead were not only meticulous about recording their live concerts, they also allowed their fans to make concert recordings (FYI, a great examination of the Dead’s recording culture is available in Nick Paumgarten’s recent New Yorker article). Unparalleled in the music world, the Dead permitted their fans to non-commercially record and exchange recordings of their concerts despite such practices generally considered to be copyright infringement.

Beyond providing a lifetime of amazing improvisational music, the thousands of live concert recordings available highlight important issues to consider in determining a work’s copyright protection abroad. To examine these issues, I intend to share some of my favorite Dead recordings that are available from the Internet Archive and highlight several main issues to keep in mind when determining what copyright and related-legal protections a work qualifies for abroad. So here it goes…

Qualifying Works (Playing in the Band – May 17, 1974, P.N.E. Coliseum, Vancouver, B.C.): The two year period of 1973 and 1974 was a creative high-water mark for the Dead when some of their most inspirational and exploratory music was created. This 1974 version of Playing in the Band exemplifies this period with solid interplay between the band members that delves into space and jazz-themed improvisation before reprising after nearly 20 solid minutes of exploration.

This recording also highlights the complexity of determining whether a work qualifies for international copyright protection. In international copyright law, recordings such as this 1974 recording potentially provide international copyright protection to the song’s authors (aka songwriters) and/or composers under the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), and its performers (aka musicians) under the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) and World Intellectual Property Organization Performances and Phonograms Treaty (WPPT).

So not to confuse you too much, in this section I will focus on examining whether this 1974 recording of Playing in the Band qualifies its author and composer, The Grateful Dead’s longtime lyricist Robert Hunter and rhythm guitarist Bob Weir respectively, for international copyright protection under the Berne Convention. For this recording to qualify for potential international copyright protection under the Berne Convention, it must have what is known as “attached.” Attachment requires that either:

  • The author of the work is a national of a Berne Convention member state
  • The author of the work is a habitual resident of a Berne Convention member state
  • The work is first published in a Berne Convention member state or is published in a Berne Convention member state within 30 days after an initial publishing in a non-Berne Convention member state

A list of Berne Convention member states is available here.

Upon attachment and if a qualifying work qualifies for copyright protection under national copyright requirements, it is entitled to protections under that nation’s copyright laws.

Based on these Berne Convention attachment requirements, both Weir and Hunter would likely qualify for international copyright protections in this recording in two ways (*For the sake of analysis, we will assume this 1974 recording was the first publishing of Playing in the Band, although it had been played since 1971). Although this 1974 concert occurred prior to the U.S. becoming a signatory to the Berne Convention and was written/composed by two U.S. nationals, the fact the recording was made in Canada (a Berne Convention member state since 1928) likely means it was first published in a Berne Convention country, qualifying it for attachment under the Berne Convention immediately on May 17, 1974 and potential protections in Berne Convention member states subject to such states’ national copyright protection requirements.

Additionally, the Berne Convention applies retroactively to qualifying works from authors and composers from new member states upon such countries accession to the Convention, subject to national qualifications. This means that once the U.S. became a contracting member of the Berne Convention on March 1, 1989, this recording likely became attached as a qualifying work for protection under the Berne Convention on that date as protections under the Convention began to apply retroactivity to prior published works by U.S. nationals that remain protectable under U.S. copyright terms of protection (see Term of Protections section below for further details). Upon such qualification, Hunter and Weir’s work would then qualify for protection in Berne Convention member states, subject to such countries’ copyright qualifications.

Performers Rights (Fire on the Mountain – October 2, 1977, Paramount Theater, Portland, Oregon): I could have chosen any song to illustrate performers rights, but I chose this recording simply because Fire on The Mountain is one of my favorite Dead songs and this 1977 version from my home state is arguably one of the best ever. Beyond being a first-rate soundboard recording that highlights Keith Godchaux’s rare playing of electric keyboards, it possesses almost psychic interplay between the band members.

This song and its 1977 performance also represent the disparity of copyright protections between authors/composers and performers in a recording. The Berne Convention only extends copyright protections in a work to authors and composers, not performers. Fire on The Mountain was written by Robert Hunter and composed by Dead percussionist Mickey Hart. Despite the entire band’s inspirational playing in this 1977 recording, every band member with the exception of Hart would have little to no international copyright protections in this recording under the Berne Convention based on their non-author/composer status.

However, the Dead members may potentially qualify for international protections in this recording under the Rome Convention or the WPPT. The Rome Convention recognizes performers rights in qualifying performance recordings by providing rights to compensation for broadcasting and reproduction of such recordings, and exclusive rights to prevent unauthorized broadcasting, fixation and reproduction. However, similar to the Berne Convention, recordings must qualify for attachment under the Rome Convention. Such attachment only qualifies for protection for its performers if either:

  • The performance takes place in a Rome Convention member state
  • It is a qualifying recording (first published or recorded in a Rome Convention member state or the producer is a national of a Rome Convention member state)
  • It is a qualifying broadcast (the broadcaster or the transmission was from a Rome Convention member state).

A list of Rome Convention member states is available here.

Unfortunately, the Rome Convention would likely not provide international copyright protections for the band members in this 1977 recording. The U.S. is not a signatory to the Rome Convention (FYI, it is mainly because the U.S. does not recognize a performer’s copyright in a recording). As this 1977 performance was performed in the U.S., by U.S. performers and not broadcasted, it does not qualify as an attached work under the Rome Convention, thereby not requiring any Rome Convention member state to recognize its copyright protection.

It is important to note that even if this recording had qualified for Rome Convention protection, it would have provided less international protections than the Berne Convention. The Rome Convention’s exclusive rights for performers in a work are optional, not required. Additionally, the Rome Convention has fewer signatories than the Berne Convention (91 Rome signatories to 166 Berne signatories). These limitations mean that fewer countries will acknowledge a performer’s rights in a qualifying recording under the Rome Convention than an author’s rights in a qualifying recording under the Berne Convention, and even if countries are Rome Convention member states, they have the ability to limit their recognition of performers’ rights in foreign recordings.

The WPPT (A list of WPPT member states is available here) may provide the band members performance rights in the 1977 recording, yet these international protections are also less comprehensive than those provided under the Berne Convention. The WPPT requires its signatories to extend rights in a recording to performers of other WPPT member states. Provided rights to performers under the WPPT include the right to compensation and exclusive rights including reproduction, distribution and performance, among others. However, like the Rome Convention, the WPPT has a smaller number of signatories (currently 91 countries) than the Berne Convention and member states can withhold implementing the WPPT’s performer rights and protections. The U.S. in particular has elected such limitations. This means all Dead band members do likely qualify for WPPT rights in this 1977 recording as performers, but they only qualify for such protections in the 91 countries, and even in those countries, their rights may be subject to limitations or exclusion, as seen in the U.S.’ non-recognition of the WPPT’s performer rights.

As a result of analyzing protection qualifications in these three treaties, only Hunter and Hart, as an author and composer respectively, qualify for potentially effective international copyright protections in this recording based on their Berne Convention protections. Unfortunately, the other members may only potentially qualify for certain rights in a limited amount of countries under the WPPT.

Term of Protections (Not Fade Away – November 2, 1979, Nassau Coliseum, Uniondale, N.Y.): A staple at Dead concerts, Buddy Holly and Norman Petty’s Not Fade Away was a testament to the strength and size of love (“bigger than a Cadillac” for example) and an excellent springboard into some intense jams. Late 70’s versions of Not Fade Away, such as this 1979 recording, are particularly exceptional due to their extended improvisations.

Works such as Not Fade Away also highlight an important issue in international copyright law, namely the duration to which a work is granted copyright protection. Under the Berne Convention, member states must afford copyright protection to qualifying works for the life of the author and for 50 years after their death. Contrastingly, the WPPT grants protection for performers in recordings for 50 years from when the recording was made, while the Rome Convention only affords 20 years of protection for performers from when a recording is made.

As with rights in the Fire on the Mountain recording above, the protection terms given to the authors/composers and performers in this 1979 recording are disproportionate. As widely known, Buddy Holly died in a horrific plane crash in 1959 (which also killed Richie Vallens and J. P. “The Big Bopper” Richardson). Petty died in 1984. Based on the date of their deaths, Holly’s copyright protections as an author of Not Fade Away under the Berne Convention expired in 2009, while Petty’s rights will continue to remain active until 2034. For all of the Dead band members, their protections under the Rome Convention as performers expired in 1999 (FYI, they would not have had any rights under the Rome Convention anyway – see Performers Rights section above) and their rights in this recording under the WPPT are set to expire in 2029.

However, it is important to note that some Berne Convention member states may provide extended copyright protection terms for authors. For example, the U.S. and Australia extend copyright protection rights for the life of the author plus 70 years after their death. If qualifying as protectable works under the Berne Convention and both U.S. and Australian copyright law, Holly and Petty’s copyright protections in Not Fade Away will remain active in the U.S. and Australia until 2029 and 2054 respectively.

Conclusion: Besides providing some spectacular recordings, I hope this short analysis helps to understand some main issues in international copyright law that can assist in determining the extent of foreign protections in a particular work.

What are your favorite Dead shows? What international copyright issues are you facing?

**Important Note**: The legal issues highlighted herein are hypothetical. Additionally, this article is neither approved nor endorsed by The Grateful Dead, Nick Paumgarten, the New Yorker magazine, the Internet Achieve or any related parties.

U.S. IP Priorities Identified in Upcoming U.S.-E.U. Free Trade Agreement Negotiations

U.S. President Barack Obama, European Council President Herman Van Rompuy and European Commission President José Manuel Barroso announced last Tuesday that the U.S. and the European Union (E.U.) would be entering into free trade agreement (FTA) negotiations following nearly two years of consultative talks and evaluation. Identified as the Transatlantic Trade and Investment Partnership (TTIP), the potential FTA will a have a substantial impact on the world economy as it would liberalize nearly a third of the world’s trade. It may also have substantial intellectual property (IP) implications for IP owners if the U.S. and E.U. can overcome ongoing disagreements over international IP protection reforms.

Initially, there were low expectations that any substantial international IP reforms would result from the agreement. The U.S. and the E.U.’s High-Level Working Group on the TTIP stated in their final report last year (available here) that both parties should “address a limited number of significant IPR issues of interest to either side, without prejudice to the outcome” in their FTA negotiations. Further, news outlets reported that there were no plans for the U.S. and E.U. to harmonize their IP systems.

However, just before the February 12th TTIP announcement, U.S. congressional representatives sent a letter to U.S. Trade Representative Ron Kirk identifying priorities the U.S. Congress wants the TTIP to address, including strong IP rights protection for U.S. industries. Sent by Senate Finance Committee Chairman Max Baucus (D-Mont.) and Ranking Senate Member Orrin Hatch (R-Utah), the letter identified certain E.U. policies towards foreign IP as being substantial barriers to trade that should be improved. Particularly, the letter demanded that the TTIP establish measures to address EU policies that undermine the value of foreign IP protection—including pricing, reimbursement and regulatory transparency. Additionally, the senators identified geographical indications, trademark-like protections given to certain goods from specific regions such as CHAMPAGNE for sparkling wine and ROQUEFORT for cheese, as impeding the ability for U.S. agricultural businesses to compete in the E.U. market.

Lastly, the letter demanded that the TTIP should not undermine the U.S.’ ability to achieve high levels of IP protection in other U.S. FTA negotiations. In enacted and proposed FTAs such as the U.S.-Australia FTA and the Trans Pacific Partnership respectively, the U.S. established IP protections beyond minimum international standards established under World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)—known as TRIPS Plus standards, pertaining to a wide range of IP rights and enforcement.

Despite U.S. calls to address international IP reforms, it is unclear to what degree the U.S. and E.U. can find common ground to enhance international IP protections in their respective countries/blocs. This does not even mention the ability for the U.S. to establish TRIPS Plus IP standards with the E.U. as in other U.S. FTAs. Positive signs towards the potential of meaningful international IP protection reforms between the U.S. and E.U. can be seen in recent cooperative efforts including joint U.S.-E.U. online IP enforcement initiatives, and the establishment of the Cooperative Patent Classification system for harmonized patent document classifications that will be operational this year.  Further, the German government, the E.U.’s largest economy, has called for the TTIP to be a fully comprehensive agreement. However, the E.U. Parliament’s rejection of the U.S.-backed Anti-Counterfeiting Trade Agreement last July showed that the E.U. is potentially wary of considering enhanced international IP protections that would likely result from a comprehensive FTA with the U.S. Time will tell whether the U.S. and E.U. can established enhanced international IP protections.

What are your thoughts on TTIP and its potential for international IP reforms?  How will it impact you or your business?

Public Hearing on U.S.-China Relations Expected to Highlight Chinese IP Protection Concerns

The U.S.-China Economic and Security Review Commission (USCC) announced in the Federal Register today that it will host its first public hearing this year on February 7, 2013 in Washington D.C. on national security concerns in the U.S.-China economic and security relationship, which will likely include intellectual property (IP) protection issues. Titled “China’s New Leadership and Implications for the United States,” the hearing is intended to collect input from businesses, academics, and government officials on the current status of the U.S.-China relationship for the USCC’s 2013 Annual Report to Congress. The USCC’s last annual report (2012 Annual Report available here) highlighted multiple Chinese IP concerns including inadequate enforcement of IP rights for foreign goods, inconsistent Chinese IP legislation, the theft and loss of foreign businesses’ IP  for such businesses operating in China and in joint-ventures with Chinese businesses, IP cyber espionage, and other related issues. Such annual reports are intended to provide recommendations to the U.S. Congress for legislative and administrative action.

The USCC is expected to hold other public hearings through 2013 as it compiles its annual report. Interested parties may attend hearings or submit comments. Further information on the February 7th hearing as well as attendance and comment submission procedures are available here.

The Unexpected Victims: U.S. Copyright Owners and The U.S.-Antigua Internet Gambling Trade Dispute

The ongoing trade dispute between the U.S. and the Caribbean island nation of Antigua and Barbuda has produced unexpected and potentially harmful consequences for U.S. copyright owners. Antigua announced last week its plans to establish a website selling media and software protected under U.S. copyright law—and will do so without obtaining permission of its copyright owners or paying any form of royalties.

Surprisingly, Antigua has the right to establish this pirating website under international law. It won a 2007 World Trade Organization (WTO) dispute settlement against the U.S. (Dispute Settlement 25 – DS 25), where the U.S.’ blocking of Antiguan online gambling sites from U.S. customers was found to be a violation of the U.S.’ General Agreement on Tariffs and Trade (GATT) commitments. Consequently, Antigua was granted the right to suspend its WTO obligations to the U.S. under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This has allowed Antigua to legally sell pirated U.S. copyright content in amounts not exceeding $21 million annually until the U.S. removes its blockade of Antiguan gambling websites or pays compensation. As of yet, the U.S. has done neither.

To Antigua’s credit, it has yet to enforce its entitled remedies in the six years since DS 25’s ruling. According to reports, Antigua’s main goal is not to become a copyright pirate—it simply wants the U.S. to comply with DS 25. Yet, the U.S.’ continued failure to do so has made Antigua feel that it has no other choice but to open the pirating website to pressure the U.S. into compliance.

Ultimately, U.S. copyright owners will pay the price for the U.S. government’s failure to comply with DS 25. Reports are that the U.S. government will compensate U.S. copyright owners for lost royalties who are infringed from Antigua’s pirate website. However, international copyright law gives U.S. copyright owners legal protections beyond mere royalties. Qualifying U.S. copyright owners have the right under both U.S. copyright law (17 U.S.C. § 602(a)(2)) and Antiguan copyright law (2003 Copyright Act) to restrict movements of their works across borders for commercial use, namely to prevent the unauthorized trade in protected works known as parallel importation or grey goods. As controlling the availability and flow of protected content is crucial to capitalizing on foreign markets opportunities, U.S. copyright owners whose works are infringed through the Antiguan pirate website will be harmed by their inability to control the flow or distribution of their works, with no apparent recourse or compensation under international, U.S., or Antiguan law.

As any business who has foreign IP protection concerns know, protecting IP rights abroad is hard enough even with protections under international law. The developments in the U.S.-Antiguan trade dispute are harmful beyond mere infringement as they act to undermine what minimum protections U.S. copyrighted works enjoy abroad under international law, and according to commentators, they help to establish a negative precedent that could lead to similar outcomes in larger trade disputes with potentially more severe damages for U.S. copyright owners. Time will tell whether this will come true.

What do you think of the U.S.-Antiguan trade dispute? Will you be affected by it and how?