information property qut20080616

8/14/2019 Information Property Qut20080616

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06/15/08 Prof. Fuping GAO, ECUPLSpeech at QUT

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Information Property:How Far will the Intellectual Property

Regime Expand?

Fuping GAOProfessor of LawEast China University of Political Science and Law


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1.Introduction

The scope of IP is always full of

uncertainty

Two facts make IP law perplexed or at

crossroad:

Globalization,

ICT or Internet.


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the globalization

the IP legal system

convergence of intellectual property

law and international trade policy

state sovereignty

harmonizing national treatment of

intellectual property rights

Make IP law as political issues

and as public policy


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ICT or the Internet

ICT: Digitalizing information andinformation distribution over the Internet

Two models:

Free accessible informationInformation Transaction

Information Transaction + InformationService =Digital Content Industry

information-based product:fully digital

copyrightable or non-copyrightable

Is transferable information property?


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2. How IP Law Treats

Information

Generally, intellectual property is relatedto information, but not all IP lawprotected information itself

CopyrightLimited Scope:Not all Information Work is Copyrightable

dichotomy of idea and express:the information is a public domain

Reason:the progress of culture and public interests

Balanced Arrangement


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Challenge From ICT or

Internet

Privatization or commodification of info.

DRM or TPM

to override original copyright regime.

to propertize the non-copyrightableinformation work

Information licensing: Information as

subject matter

copyrightable or non-copyrightable work

instead of copyright law defines users

rights


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Conclusion

two legal problems :

Information in copyrightable work isbeing privatized, the balanced

arrangement has been and is beingbroken.

Non-copyrightable information worksare being propertized and transacted

over the Internetnew balanced legal system isneeded


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3. Information Protection

Needs: Cases Study

Database-information product iseverywhere!

It is valuable for its owner as well

as society!Is it necessary to adapt traditionaldoctrine to changing forms of

authorship or create new forms ofintellectual property to protectionvaluable information product?


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Case Study 1 Protection of

Publisher ListMr. Wang Vs. Encyclopedia of ChinaPublishing House

Defendant the Encyclopedia published a bookVideo and Radio, Book, Newspaper PublisherList China, which used the part of a book 10Thousands Publisher List of China that Mr.Wang has copyright.

Judgment: Mr. Wang has no copyright on thelist of publisher for shortage of originality, butMr. Wang has right to harvest his seed for his

efforts and money investment. Base on thegeneral principle of civil law legal interest shallbe protect by law, the court made judgmentthat Encyclopedia should be liable.

sweat of the brow was accepted.


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Case Study 2 Project

Database ProtectionHuaXinJie Investment Consulting Company (theCompany) Vs. Mechanical Industry Research Institute (theInstitute)

The Company created a database that collect nationalconstruction projects; in 1998, the Company started to sell

the database. Defendant the Institute purchased thedatabase and published project information in itsMagazine. About 90 % of the information comes from thedatabase.

The Company filed a case against the Institute forinfringing copyright in the database.

Judgment: the Company has no copyright and no anyother right to the database although the Company hasinvested labor and money in it


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Case Study 3: How to

Protect Equity DataShanghai Stock Exchange (SSE) Vs. FTSE Xinhua

Index Limited (FXI)

FXI has signed the Equity Data Licensing Contract with

the SSE, which allows FXI to use the equity index to

launch derivative products. Based on the securitytrading data of Shanghai Stock Exchange and

Shenzhen, FXI creates the FTSE Xinhua China A50

index futures, which will be listed in Singapore Stock

Exchange

SSE brings a lawsuit against FXI for infringing on

intellectual property and breaching contracts

Judgment: the Contract should be terminated for the

FXI breaching and the FXI should compensate the SSE

USD 20,000.00 for breaching the Contract and


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4. Possible Resolutions

there are three possible resolutions:

copyright.

Sui generis right or database right

Anti-competition Protection or

Business Torts


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Which is Better?

Frustration of the WIPOs DraftDatabase Treatyof 1996

Not common understanding onnecessity for creation of a sui generis

system to protect databases out ofcopyright framework

The empirical evidence is not positive

divergent judgments and dubitable

result of the Directive.The ECJ in November 2004 significantlycurtailed the scope of sui generisprotection: making no use of database right


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5. Conclusion

Database industry or content industryneeds law protection againstmisappropriation

ease of information flow and freeaccessing of information is alsoimportant for our culture

Whether or not information can or

should be treated as property, we mustconstruct a basic legal order fordatabase industry or content industry


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Conclusion (contd.)

New balance arrangement is needed

the balance should be defined and

implemented by individual state, and if

any international measure need, wemust consider differentia and diversity of

each state. two balances:

first, between overprotecting and under

protecting

second, between developing countries and

developed countries


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Question and Comments

Thank You

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