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Posts Tagged ‘intellectual property’

Brazil to retaliate against US in trade war – may go after US IP

The Government of Brazil moved on Monday to raise tariffs on a wide range of American goods, potentially igniting a trade war with the US over cotton subsidies after eight years of litigation at the World Trade Organisation.

The decision takes effect next month, starting a 30-day period during which US and Brazilian officials will attempt to negotiate a solution to the dispute.

Under the Brazilian plan, duties would rise most steeply on cotton products. Many that are currently taxed at between 6 per cent and 35 per cent would be taxed at 100 per cent. The tariffs on beauty products would double, from 18 per cent to 36 per cent. Duties on household goods such as cookers, refrigerators, TVs and video cameras would also double, from 20 per cent to 40 per cent. Duties on cars would rise from 35 per cent to 50 per cent.

Brazil is allowed to impose the tariff increases – worth $560m – after winning a case at the WTO last year. Brazil challenged the legality of direct subsidies to US cotton farmers to protect them against fluctuations in global prices and a loan guarantee programme for international buyers of US cotton.

Brazil could also impose further penalties – known as “cross-retaliation” – on US intellectual property rights, potentially breaking patents in the pharmaceuticals, technology and media industries. It is unclear at the moment how the Brazilians will attack US IP. More information will be posted on IPTango.com.

What use is “fair” under the law of copyright?

January 6, 2010 2 comments

Fair Use is one of those terms that can raise a lot of passion among people. Some people today say that all use should be more or less “fair” and it is unfair for big media companies to try and hassle people. The traditionalists in the crowd say that fair use is merely a small limitation on the rights of copyright owners so that others may use portions of their works for certain purposes.

This is truly one of the fascinating discussions of our times in IP law – but I am not going there today. Later on we will discuss these issues in some depth. Today, since I don’t want you to be charged with copyright infringement when you think your use is fair, I am going to give you the black letter traditionalist view of the law of fair use. Fair enough?

Some uses of a copyrighted work, let’s say a novel, are so useful to society, that copyright law as always recognized the concept of fair use. For example, it would be very difficult to review our novel if the reviewer could not copy, or site for the reader in the review, portions of the copyrighted work. Accordingly, a reviewer under the fair use doctrine has that right.

The idea is that what otherwise would be infringement is excused or privileged because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. It is important to remember that fair use is an affirmative defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file and lawsuit. Then, it’s up to you as the defendant to say that your use fits into one of the categories that the law will recognize.

When thinking about whether an alleged infringement should be excused on the basis of fair use, a court will use several factors, including the purpose of the use, the character of the use, the amount and substantially of the portion of the work used, and the effect of the use on the market for the copyrighted work.

In our novel example, it will be fair use for me to take portions of the work and refer to them in my review. We want books to be reviewed and my review (even if it is a bad one) will not damage the market for the book in a copyright sense. If I take the entire file of an ebook version of the novel and upload it for thousands of people to read – well, you know, that’s probably not “fair use.”

When blogging, it’s perfectly cool to take some paragraphs from some one’s blog if you are commenting on them and if you attribute the source. Just to copy the blog, or substantial portions of the blog and palm it off as your own may get you into trouble.

(originally published in The Blogger’s Bulletin)