In the modern “knowledge”-based economy, intangible resources play an ever more important role in nations’ economic growth and prosperity.[1] Increasingly, commodities’ value lies in their unique expressive content, inventiveness or brand rather than their physical possession per se. Many governments grant rights over such “intellectual property”, entitling right-holders to block access to their works or to secure compensation in exchange for their use. Generally speaking, these rights serve as powerful incentives to produce and disseminate creative works that ultimately benefit societies as a whole.[2] Yet there exist wide, global disparities in the extent and enforcement of these rights. As intellectual property has become a greater feature of international trade, these disparities have become significant sources of tension in international economic relations.[3] For that reason, in recent times, the more intellectual property-driven, generally Western[4] countries have sought to impose their relatively strict intellectual property laws onto other countries with more industrial-based economies, often by coercive legal transplant or indirect political pressure.[5]

Despite such efforts, Western-style intellectual property law has been slow to catch on in many of these countries. The People’s Republic of China (PRC) – hereafter, simply China – is a particularly interesting example because of its immense and increasing economic significance on the global stage.[6] Granted, such law is of relatively recent introduction to China. After decades of uninterrupted isolationism, the Chinese government finally opened the country’s large markets to foreign investment in 1978.[7] In the following decades, China signed a series of ambitious, if vague, international agreements to bolster its intellectual property regime, resulting in the enactment of a wide range of related Western-style laws and regulations.[8] Upon China’s accession to the World Trade Organization (WTO) in 2001, the country was once again forced to significantly upgrade its intellectual property laws.[9] Despite these significant, rapid advancements, however, enforcement of intellectual property rights in China remains woefully inadequate. Authorities agree that the country is a global hub of rights infringement, responsible for the bulk of infringing goods seized at borders worldwide and causing billions of dollars in losses to right-holder and government revenues annually.[10]

The explanations for why the enforcement of intellectual property law is such a problem in China are legion, but generally economic, political, legal or cultural in nature. In reality, as I shall explain over the course of this essay, there is likely some truth to each. Even so, many leading contemporary thinkers seem to have settled on the notion that China will embrace such laws once the welfare gains of doing so outweigh the welfare losses, which is simply not the case at present. That is, they seem to believe that the adoption and enforcement of Western-style intellectual property law is an economic and political inevitability.[11] Admittedly, this prediction is persuasive; the economic and political pressures on China are great[12] and the histories of other, now post-industrial countries have followed a similar trajectory.[13] Curiously, however, such arguments increasingly leave cultural forces out of consideration. Whereas it was once quite fashionable to attribute China’s shoddy record of enforcement to the country’s Confucian tradition,[14] such explanations have fallen out of scholarly vogue. The role of culture, in particular Confucianism, in China is now widely questioned or downplayed.[15]

In this essay, I intend to critically examine this academic resting place. In particular, I will argue that, in at least several key respects, Western-style intellectual property law conflicts with modern Chinese culture insofar as it is informed by the intermingling of its ancient Confucian tradition and past 64 years of unique socialist governance. To provide the necessary backdrop to this analysis, I begin in Part I by explaining what I consider to be three core determinants of a society’s acceptance of such law: resultant benefits outweighing the costs, in general terms; an inclination towards individualism; and the embrace of legalism and the rule of law. The rest of the essay is dedicated to the final two, culturally based premises. In Part II, I contrast the requirement of individualism with collectivism and explain how the latter’s uniqueÌęforms of expression in China are inimical to Western-style intellectual property law. In Part III, I do the same in consideration of the traditional and contemporary Chinese approach towards legalism and the rule of law. I wish to clarify at the outset that my analyses are not intended to be normative but seek to demonstrate how law is a product of context, flowing from countries’ unique cultures and traditions.[16] I also wish to make clear that, although this subject requires some amount of generalization, I do not intend to paint all of China with one brush.[17]

Daniel Whalen is a recent graduate of Osgoode HallÌęLaw School and isÌęcurrently articling at Smart & Biggar / Fetherstonhaugh in Ottawa.ÌęFeatured is the introduction to the article with which Daniel won the 2013 IP Writing Challenge. Click to read the rest of Daniel's article.

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centered on remedies for patent infringement. In the problem’s hypothetical scenario, the defendant had admittedly infringed the plaintiff’s valid patent. What remained to be determined was the appropriate quantum of damages and whether a permanent injunction ought to be granted for the remainder of the patent’s life. This simple premise was greatly complicated by a number of carefully worded situational factors that allowed for compelling arguments to be made on behalf of either party.

Eight teams from across Canada participated in the competition this year: Osgoode Hall Law School, Queen’s University, the University of Alberta, the University of Ottawa, the University of Toronto, the University of Victoria, the University of Windsor and Western University.

The competition began Friday midday with the Fox IP Lecture, this year delivered by Osgoode’s own Professor David Vaver. His speech, entitled “Intellectual Property: Is it Still a ‘Bargain’?”, evaluated the common view of intellectual property rights as a bargain struck between creators and the state viz the public. As always, Professor Vaver’s message was as thought-provoking as it was eloquently delivered. In the words of thanks delivered by Justice Cronk of the Ontario Court of Appeal, it was apparent to all in what high regard the legal community – both in Canada and internationally – holds Professor Vaver.

The first of two preliminary rounds began shortly after Professor Vaver’s lecture in the Federal Court’s courtrooms in downtown Toronto. Each preliminary round had threeÌęÌęfrom both the judiciary and the intellectual property bar. After the first day of competition, we enjoyed a reception – graciously hosted by Dimock Stratton LLP – where we got the chance to socialize with the other schools’ competitors as well as various members of academia, the judiciary and private practice. It was incredibly exciting to speak to so many of the judges whose decisions we had become familiar with over the course of our research and in law school more broadly. These were the true celebrities to us law students; it was fascinating to get a sense of the judges’ personalities and listen to their perspectives on various matters of law and life.

The second preliminary round began early Saturday morning and the semi-finalists were announced shortly after lunch. Our Respondent team, comprising Kyle Rees and Alex Chang, were among the fortunate few who progressed. Following an excellent performance in the semi-finals, they went on to the final round and were only narrowly beaten by the opposing team from Western University. The panel for the final round included Justice Marshall Rothstein of the Supreme Court of Canada (IP Osgoode Advisory Board Member), Chief Justice Randall Rader of the United States Court of Appeals for the Federal Circuit, Justice Eleanore Cronk of the Ontario Court of Appeal, Justice Edgar Sexton of the Federal Court of Appeal, and Justice Roger Hughes (IP Osgoode Advisory Board Member)Ìęof the Federal Court. To say it was an active panel would be a staggering understatement. Every mooter who stood before the panel was met with an overwhelming barrage of questions and comments, but each, to his credit, maintained his composure and offered thoughtful responses.

The were announced at the awards dinner on Saturday night at the University Club. The Harold G. Fox Cup for the best mooting team was awarded to Charles Pettypiece and Benjamin Reingold of Western University. The Donald F. Sim Award for the best oral advocate was given to Vanessa Ibe of the University of Windsor. Alex Wai and Christopher Langan of the University of Toronto earned the Gordon F. Henderson Award for the best factum. Charles Pettypiece of Western University was also awarded the Dimock Stratton LLP award for the best mooter in a non-graduating year. Following dinner and the presentation of awards, we enjoyed our second reception and had another chance to mingle with the other competitors and panellists. This experience itself was reason enough to have participated in the competition.

The team would like to offer profound thanks to the many people who made for such an engaging and successful competition. Thank you to all of the organizers, in particular co-chairs Professor Emir A.C. Mohammed from the University of Windsor and Angela Furlanetto of Dimock Stratton LLP, as well as their many assistants from both camps. Thank you to all of the many for their remarkable generosity. On a more personal note, sincerest thank you to our coaches Casey Chisick (IP Osgoode Advisory Board Member), Shane Hardy and Tim Pinos of Cassels Brock for their invaluable assistance and support in the months leading up to the competition.

(from left) Amanda Laren, Aaron Kucharczuk, Dan Whalen, Alex Chang and Kyle ReeseÌęcomprised the 2012 Harold G. Fox Moot team for Osgoode Hall Law School.

ÌęDaniel Whalen is a JD Candidate at Osgoode Hall Law School and a member of this year's Harold G. Fox Moot team for Osgoode Hall Law School.

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The patentability of business methods in Canada will soon come one step closer to final resolution, following the impending Federal Court of Appeal decision in the matter of Amazon.com’s “one-click checkout” patent application. Although I believe that Phelan J of the Federal Court was correct to allow for such patents, he was perhaps overly dismissive of policy concerns in his reasons.¹ The higher court(s) may not similarly restrict themselves. Indeed, the participation of interveners in the appeal will almost undoubtedly broaden the scope of the court’s decision.² It is thus timely to discuss several reasons why, as a matter of public policy, I believe that business methods should not be excluded from patentability.

From a policy standpoint, it may be argued that a given category of inventions ought to be eligible for patentability if it would further the purposes of the patent system. This inquiry is best approached as a cost-benefit analysis. The benefit analysis concerns whether such patentability is necessary to achieve the ends of the system. The cost analysis relates to whether such patentability hinders them. Consideration by this framework reveals that business method patents do not limit the patent system but in fact meaningfully further its goals.

Per the Supreme Court of Canada in Free World Trust v Électro Sante, the dual function of the patent system is “to advance research and development and to encourage broader economic activity”.³ While the first half of this formulation seems to have garnered most attention in subsequent literature and jurisprudence, it is perhaps the second half that is the system’s more realistic effect. Following an extensive empirical survey on the effects of patent law, professor Bronwyn Hall concluded that there is no broad evidence that it encourages innovation “always and everywhere”.⁴ Rather, her study’s “most interesting and not immediately obvious conclusion” is that a strong patent system tends to positively affect industry.⁵ It is thought to accomplish this by facilitating the market entry and growth of enterprises possessing intangible assets by offering security to potential investors and business partners.⁶ The merits of business method patents should thus be considered within this framing of the patent system.

Beginning with the cost analysis, it is often directly argued that business method patents limit innovation and restrict economic activity. Professor Rochelle Dreyfuss premises this argument, as it must be, on the view that business method patents are inherently “big ideas” as opposed to “specific applications”.⁷ Such big ideas, she argues, must remain in the public domain because they form a significant basis for further inventiveness. A monopoly of such ideas thus restricts innovation and traps other businesses in inefficient methods of resource allocation in order to avoid infringement, thereby also limiting competition and trade.

There are two serious faults with this argument. The first is the assumption that business methods are inherently “big ideas”. Phrased in the language of Canadian law, this is to say that business methods are naturally incapable of having “practical application” per Shell Oil Co v Canada (Commissioner of Patents).⁸ One need only consider the patent application at issue to realize that this assumption is untenable. Amazon.com’s claimed invention was for a process whereby a client identifier is stored in a customer’s computer and later recognized by company servers. While this may properly be called a business method, it cannot seriously be called an idea.

The argument’s second, broader flaw lies in its assessment of market forces. Patent monopolies are considered to foster business innovation and competition by driving businesses to develop new innovations outside the scope of competitors’ protected inventions. These improvements can then be patented and deployed, thus stimulating economic activity. Many are skeptical that properly granted business method patents should operate differently than other types of patents.⁹

Critics’ other primary argument in the cost analysis of business method patents is that they are of inherently low quality and thus undermine the integrity of the system. Note that “good” patents may generally be distinguished from “bad” by their extent of novelty, non-obviousness and utility.¹⁰ Concerns on these grounds are exaggerated. Regarding novelty, it must be acknowledged that there is a relative scarcity of prior art available, as even common methods of doing business are often not documented in materials available to patent examiners.¹¹ This is a self-correcting problem, however: as business method patents are granted and gain attention, the related prior art will naturally expand. This concern is further offset by the absolute novelty requirement in Canadian patent law, which does not limit anticipation to disclosure in prior art.¹² Other concerns regarding obviousness and utility are more indictments of the patent system in general than business methods in particular. Given the panoply of patentable inventions, it is difficult to see how methods of doing business would perplex our authorities more than any other technical subject matter or lead them to suddenly depart from these standards.

With the cost analysis thus dispensed with, it remains to be established that patent protection of business methods is necessary to further the goals of the patent system. Dreyfuss contends that business methods provide several inherent rewards to innovators that are both sufficient for their purposes and independent of patent protection.¹³ In particular, she argues that business methods naturally yield customer loyalty, which then becomes self-perpetuating such that copying of the business method is no longer a serious threat. The fatal error here is assuming that businesses would be able to become established and even gain some competitive advantage all without the assistance of patent protection.

A related argument that critics raise is that innovation in the business sector does not draw from the promise of patent protection. Indeed, this is the primary justification for barring business method patents in the U.K.¹⁴ Several U.S. and Canadian scholars have also adopted this view. For instance, Greg Fine suggests that it is not private, de novo research and development that drives business method innovations, but rather open, interactive emulation among competitors.¹⁵ Although there is some merit to this observation, it is neither surprising nor fatal given the proper phrasing of the patent system’s purpose, above. Thus to simply claim that business method patents are unnecessary because they do not drive innovation is to seize upon a misstatement of the true purpose of the patent system.

In light of the foregoing cost-benefit analysis, it thus seems warranted to hold that reasons of public policy should not keep business methods from patentability. Now we wait with bated breath for the Federal Court of Appeal’s decision to see if the honourable justices agree.

¹ Amazon.com v Canada (Attorney General), 2010 FC 1011, 86 CPR (4th) 321, Phelan J.
² Amazon.com v Canada (Attorney General), 2011 FCA 127, [2011] FCJ No 555, Trudel JA.
³ World Trust v Électro Sante, 2000 SCC 66 at para 42, 9 CPR (4th) 168, Binnie J.
⁴ Bronwyn H Hall, “Business and Financial Method Patents, Innovation, and Policy” (2009) 56 Scottish Journal of Political Economy 443 at 18.
⁵ Ibid at 14.
⁶ Ibid.
⁷ Rochelle C Dreyfuss, “Are Business Method Patents Bad for Business?” (2000) 16 Santa Clara Computer & High Tech LJ 263 [Dreyfuss] at 276.
⁸ Shell Oil Co v Canada (Commissioner of Patents), [1982] 2 SCR 536, 67 CPR (2d) 1, Wilson J (“A disembodied idea is not per se patentable. But it will be patentable if it has a method of practical application.” at 14).
⁹ See e.g. Stephen J Ferance, “Debunking Canada’s Business Method Exclusion from Patentability” (2000) 17 CIPR 493 at 36.
¹⁰ See Patent Act, RSC 1985, c P-4 [Patent Act] ss 2, 28.3.
¹¹ See Greg S Fine, “To Issue or Not to Issue: Analysis of the Business Method Patent Controversy on the Internet” (2001) 42 BCL Rev 1195 [Fine] at 1205.
¹² Patent Act, supra note 10, s 28.2(1).
¹³ Dreyfuss, supra note 7, at 276.
¹⁴ CFPH LLC’s Patent Application, [2005] EWHC 1589 (Pat), Prescott QC.
¹⁵ Fine, supra note 11, at 1206.

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On August 17, 2011, Health Canada released to its Guidance Document: for stakeholder consultation. In a welcome effort to bring greater efficiency to the drug approval process, the proposed revisions exempt administrative drug submissions from compliance with the burdensome section 5 of the Regulations.

At present, any drug manufacturer seeking a Notice of Compliance (NOC) by filing a submission or supplement thereof referring to another, originating drug must comply with section 5. This provision requires such an application to address on specified grounds each patent registered in association with the originating drug before the applied-for drug can receive a NOC. Although the language of section 5 seems limited to abbreviated new drug submissions (ANDSs), it has been interpreted as including administrative drug submissions as well.

By its nature, an administrative drug submission is approved by comparison or reference to a new drug submission (NDS) or ANDS, which itself must have been approved on the basis of reference to an originating drug. As by , and of , administrative drug submissions are typically filed in the context of corporate restructuring and licensing arrangements. Thus a common practical effect of section 5 is that licensees seeking approval to sell an identical drug in Canada as that of the licensor under a different name must re-address patents already discussed by the licensor in its preceding submission.

This consequence of section 5 has created no small measure of redundancy. Not only must those filing administrative drug submissions repeat the very same work of their forebears, but the overseeing Office of Patent Medicines and Liaison must also re-analyze the same lists of patents with every new administrative submission. Owing to “growing concerns and challenges raised” on these grounds, Health Canada has now formally acknowledged this redundancy and tentatively labelled it unnecessary.

By the proposed revisions, only an originating NDS or ANDS would prompt the application of section 5. In the common example of the licensor-licensee, it is only the licensor that would have to address any patents listed on the Patent Register in association of the originating drug. Subsequently-filed administrative drug submissions by licensees that cross-reference the licensor’s drug submission would not reinitiate section 5. Accordingly, a licensee would be eligible to receive an NOC in respect of its administrative drug submission once the licensor’s drug submission receives its NOC.

Health Canada welcomes comments from interested parties for 60 days following the release of its proposals.

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Online file-sharing company Xunlei Limited that it has indefinitely postponed its initial public offering and NASDAQ listing due to unfavourable market conditions. Although some would claim the setback as a small victory against a leading copyright pirate, inspection of the company’s continued legal successes and financial support from the West lead this observer to wonder if the battle is already lost.

In , Xunlei provides digital media content downloading and online video streaming services. Upon downloading the company’s free proprietary software, users can search for and download any of the 3.7 billion digital media files via Xunlei’s network of over one million third-party servers and another 3,600 Xunlei servers. It has become the most popular service of its kind in China, holding 78.7% market share in February 2011. Globally, the service boasts 291 million users. On an average day in 2010, Xunlei facilitated 138 million downloads.

Like the many similar online services, however, most of Xunlei’s downloadable content is pirated. The company is frequently accused of as much on the Internet and nearly as often in court. Xunlei faced 234 lawsuits for copyright infringement in 2009 and 2010 combined and reported 32 outstanding suits earlier this year. In the Risk Factor section of its , the company candidly discusses its copyright infringement liability exposure, including litigation warnings from the Motion Picture Association of America and complaints from the Recording Industry Association of America.

Amazingly, 87% of lawsuits to date have been resolved in favour of Xunlei. According to , Internet-based copyright infringement lawsuits must be heard at the location of the infringement or of the defendant. Conveniently, Chinese law is not clear as to whether software or websites are responsible for policing pirated content that is downloaded via peer-to-peer technology. Such laws are much clearer in many Western jurisdictions, such as the US, where similar pirate ventures like Napster and Grokster were long ago shut down.

As a brief aside, it is interesting to note that even the 13% of lawsuits to date that Xunlei has lost have had on the company’s operations. The court-mandated payouts for damages to date sum to US$200,000 – a pittance when compared to the company’s , which were US$40-million in 2010 and US$14.3-million in Q1 2011 alone.

It must be conceded that Xunlei has made some improvements in preparation for its initial public offering. In December, 2010, the company its rights and assets in Gougou, a search engine for downloadable media files. Yet not only does Gougou remain Xunlei’s featured search tool, but users remain free to download pirated material from other third-party sites. Xunlei has also to remove any infringing content upon receiving notice from rights-holders. However, this team comprises a scant 15 individuals spread across a workload of 3.7 billion files. Upon reflection, these improvements thus seem more like drops in the proverbial bucket.

So, all things considered, where does an enterprise like Xunlei get the moxie to take its business public? It seems that the company has been emboldened not only by its success in the courtroom but by the continued support of . Beyond its ample revenues drawn from advertising and subscription services, Xunlei has also received significant private investment. In 2007, Google invested US$5-million in the company and currently holds 2.8% ownership interest. In April 2011, beleaguered press baron Rupert Murdoch and wife Wendi followed suit, making a US$29.4-million investment.

Google’s investment is perhaps the most shocking revelation. In other areas of its business, the Internet titan has demonstrated a fierce sensitivity to intellectual property rights. It has even itself, having applied to its Google Instant feature “a narrow set of removal policies for
 terms that are frequently used to find content that infringes copyrights.” This is no idle policy; Google has disabled auto-completions for websites such as BitTorrent, RapidShare and MegaUpload – services often associated with pirated content – but left their competitor Xunlei untouched. Google denies any ulterior motive.

While the postponement of Xunlei’s listing on NASDAQ has prevented the US entitiesÌęfrom funding Internet piracy for at least a little while longer, one cannot help but feel discouraged by the pre-existing and continued support from powerful Western institutions. This observer wonders if the battle was over before it even started.

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Disgraced UK tabloid News of the World has under the mounting weight of the . As investigations heat up and criminal charges seem imminent, it is worthwhile to examine the law that prosecutors will seek to uphold and once again wonder why such little action has been taken until now.

The UK’s (RIPA) is what transforms phone-hacking from a mere moral wrong to a bona fide legal offence. Specifically, s. 1 of the Act criminalizes the interception of phone calls unless performed by a member of the police or intelligence agencies acting with a warrant from the Secretary of State. Per s. 5(3), such warrants can only be granted in order to protect national security, prevent or detect serious crime, or safeguard the economic well-being of the UK. Notably, there is no exception for journalists or otherwise private citizens – even those purportedly acting in the public interest.

If a recent law, RIPA is hardly a novel concept. The Act was a concerted effort by the Blair government to align the activities of the state and its citizens with the . Article 8 of the Convention holds that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”

Given both the law’s phrasing and clear appeal, there has been regarding the interpretation of RIPA in the context of phone-hacking. Even News of the World editor Clive Goodman and private investigator Glenn Mulcaire – the only two individuals yet charged in the scandal – during their trial in 2006. Rather, they went so far as to submit unreserved apologies along with their pleas of guilty. The voluntary shutdown of the paper by parent company News Corp also seems to be a tacit agreement with the application of RIPA to phone-hacking. Although it is impossible to know how future defendants in this scandal will plea, it thus seems doubtful that any would try to mount a serious challenge to the law.

All this begs the question: Given the increasingly “” spanning all echelons of the news world and the mostly undisputed consequences that RIPA bears for such evidence, how has such intrusive journalism escape punishment for so long? Even if the scandal only erupted in 2006, phone-hacking by British reporters has been a known phenomenon since . As noted, RIPA was passed in 2000. That leaves a nine year overlap in which only two individuals were charged. As I mentioned in , it seems that, as this scandal unfolds further, journalists will not be the only ones left with some explaining to do.

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As of June 1, 2011, the UK has become the latest franchise state for , the online system that allows interested observers to contribute to the patent examination process. The pilot program will follow the same process as it has in other countries, though the unique laws surrounding software patentability in the UK may make for a shaky adjustment.

Judith Wilcox, Baroness in the House of Lords and UK Minister of Intellectual Property, the launch of the program. “Patent applications granted after using the Peer to Patent website review will be potentially stronger, giving businesses better protection to grow their innovative ideas,” asserted the Baroness. “This will give the [U.K. Intellectual Property Office (IPO)] access to a wider body of knowledge when deciding whether a patent should be granted.”

Essentially, the – discussed in an – functions by inviting members of the public to find prior art to be considered in the evaluation of patent applications. Once an application is uploaded for assessment, registered contributors have 90 days to review it and submit their comments. Anyone with a name and an e-mail address can to contribute. The most relevant information, as rated by the reviewers, is then compiled and sent to the patent examiner responsible for the case. Patent applicants must voluntarily submit to the pilot program for their applications to be so reviewed.

Peer to Patent was conceived in the US by Professor Beth Noveck of New 91ŃÇÉ« Law School (NYLS). As the program heads , the program has been a largely student-driven project. Beginning in NYLS’s , the US initiative has also engaged students from Albany School of Law, University of California Berkeley Law, and Duke Law. Students work to recruit peer reviewers of the program’s available patent applications, as well as reviewing applications and suggesting prior art themselves. This interesting approach seems to engage the most knowledgeable of possible contributors, thereby maximizing the benefits that the program’s inventors undoubtedly envisioned.

Peer to Patent made its official debut in June, 2007 as a pilot program undertaken with the United States Patent and Trademark Office (USPTO). Following that program’s success, it was in late 2010 that it would be renewed through to September, 2011. In addition to shortened timeframes and a greater volume of applications to be considered, the renewed program has also expanded in scope to consider applications relating to biotechnology, bioinformatics, telecommunications and speech recognition.

The UK pilot program will start as the US did, however; it will focus solely on computer-related technologies. UK IPO spokesperson Matthew Navarra that it was a “natural” choice given that Peer to Patent is an online system. Further, he claimed, “there has been a call from the computing community that they want to have input into the [patent application] process.”

Not everyone is so thrilled by this focus, particularly the many opposed to software patents in principle. At least argues that we ought not to “legitimize” software patents with programs such as Peer to Patent, “to [which] the issue is the quality of patents, not software patents in general.” This debate may prove especially problematic in adapting the original US model to European states, like the UK. of the European Patent Convention (EPC) excludes “programs for computers” as patentable subject matter.Ìę UK law on the subject is confusing, to say the least; recent jurisprudence that computer programs making a “technical contribution” are patentable – though exactly what this entails is unclear.

Such details aside, the fact remains that there is perhaps naturally greater resistance to software patents in the UK than elsewhere in the world. While the UK program’s backers undoubtedly seek to expand it into other subject areas as the US program has, it may thus face a greater barrier in doing so by way of expert participation or more active forms of protests.

Another interesting difference from the US program is that the UK initiative has not employed law students or other groups to attract reviewers. Rather, contributors are sought primarily through general publicity, direct e-mails, and use of social media. It is too early to evaluate a difference in the results of the two approaches, and intuition seems split on the matter. Comparisons and adjustments are sure to ensue when the UK pilot program releases its first review report.

Whether or not Peer to Patent evolves into the comprehensive system that its inventors might have imagined, the program’s momentum shows no sign of dissipating as it charges into its fourth continent in as many years. They have already spread to and , and the World Intellectual Property Organization (WIPO) has interest in joining the fun.

Marking the June 1 launch, the first batch of 20 applications has been uploaded to the Peer to Patent UK website for review, with approximately 10 to be added every week going forward. The pilot program will end in December, 2011.

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Stock in , the social networking website for professionals, went public recently, inspiring many to speculate about a coming wave of social networking IPOs. Concerns have been raised in all quarters about the website’s lofty valuation, but a quiet few have also wondered what impact the market debut may have on user privacy.

Shareholders and non-shareholders alike are keen to see how LinkedIn fares in the open market. that the stock’s reception will bear on whether other social networking websites – such as Facebook, Twitter, Groupon and Zynga – follow suit and go public in the coming months and years. “,” says Bill Buhr, IPO strategist for investment research firm Morningstar Inc. All of the above sites, , have discussed going public, with Facebook to make its debut in 2012. Buhr speculates that, if LinkedIn proves successful, such schedules could accelerate.

Sold at an IPO of US$45 per share, LinkedIn stock nearly doubled overnight to its at just under US$90, raising the company’s market capitalization to over US$8-billion. Many investors are justifiably cautious about this valuation. “For the most recent year, revenue was [US]$243 million and profit was [US]$3.4 million,” points out , an industry professor at the DeGroote School of Business at McMaster University. Carnegie wonders: “[W]here’s the value?”

Eyebrows are further raised when one considers that LinkedIn shares at approximately 17-times sales and 260-times earnings. As these multiples skyrocket with stock inflation, they become increasingly out of sync with other high-tech powerhouses, like trading at six-times sales and 21-times earnings and at 16-times earnings. Success of what thus might seem like an unnecessary investment risk also speaks to the confidence (or hope) that investors have in the future of social networking.

Of further concern to social networkers, IP enthusiasts and privacy watchdogs is how the public debut of LinkedIn might affect members’ privacy. To date, the website has done at protecting its users from data miners. LinkedIn allows third parties to access user data, but limits what sort they can extract and what users of those third-party applications can view. LinkedIn also affords its members exceptionally clear control over what data can be viewed by users outside of their professional connections on the website.

However, as at least speculates, what remains to be seen – beyond LinkedIn’s stabilized valuation – is how the website will respond to the demands that public companies face in demonstrating growth and profitability every quarter. The siren call of revenues from targeted advertisements and sales of enriched user data will surely be tempting if the website fails to meet analyst predictions, as stocks are wont to do from time to time.

All of these concerns apply just as well to the other social networking websites that ultimately decide to go public. In the months and years to come, LinkedIn will signal to social networking investors what valuation is sustainable and to users what level of privacy they can expect.

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Despite public calls driven by morbid curiosity and a yen for closure, the White House has decided not to release the post-mortem photos of Osama bin Laden. According to , the decision was motivated in part by concern that the images would be digitally altered and used in a way that could inflame terrorist reactions and thereby put innocent lives at risk.

Although reasonable even at face value, this argument is further supported by the state of US law on copyright of government works. Gates admits that his fears about releasing the bin Laden photos were stoked by the recent caused by conservative Yiddish newspaper Der Tzeitung. The paper published the now-iconic photograph of President Obama and his national security team in the White House’s Situation Room monitoring a live video feed of the operation in which Navy SEALs ultimately killed bin Laden. In the photo, Secretary of State Hillary Clinton and another female staffer have been digitally taken out, leaving only emptyÌęspaces behind.

Beyond the bounds of print media, photoshopping is a widespread Internet trope that provides regular entertainment for many. Famous photographs and scenes have been customary targets, such as and various takes on the . Naturally, the US government is concerned about such efforts being directed at the bin Laden photos – partly due to the sensitivity surrounding the ongoing War On Terror, but perhaps also because of the relatively weak legal protection of such photos.

According to the US government’s , government works are “not subject to copyright in the United States and [thus] there are no copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.” Accordingly, “[a]nyone may, without restriction under U.S. copyright laws... create derivative works.” This broad permission is accompanied by a few narrow exceptions but otherwise seems to leave untouched the public’s right to manipulation for parody or political purposes.

Contrast this policy with the disclaimer accompanying each photograph of the White House’s on the popular image-hosting website Flickr: “[These photographs] may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.”

The latter half of this statement echoes one of the aforementioned exceptions of the USA.gov page: “[One] cannot use a U.S. government work in a way that implies endorsement by a U.S. government agency, official, or employee.” Yet the statement’s separate restriction – that the photographs “may not be manipulated in any way” – exists without counterpart and independently asserts what seems to encroach on copyright protection.

Perhaps capitalizing on the turbid legal waters surrounding such photos and despite these warnings, there is an ongoing history of the very commercial manipulations warned against. Recent examples include President Obama’s of a winter coat and the first lady’s by PETA for an anti-fur ad. Each incident was met with disapproval from the White House – but neither by legal action.

Given the government’s seeming inability to enforce its clear instructions regarding commercial manipulations against such brazen violations, its luck seems even more hard-pressed in discouraging the intrinsically more diffuse efforts at parody – which also seem to be implicitly allowed by the government’s official policy. One can easily imagine that, even if the government could copyright its works, it still would not provide much protection of images gone viral. On the seemingly lawless playground that is the Internet, national boundaries and legal jurisdictions are confusing, most of all to users who might do the photoshopping. Whether the White House followed this chain of thinking through to conclusion or not, in my opinion, it has ultimately made the right choice.

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As the volume of litigants and evidence stacks up against amid the ongoing British , onlookers have increasingly begun to wonder how it had gotten so far without any serious repercussions. New investigations not only give concerning accounts of privacy breaches by many newspapers, but also cast suspicion on the relationship of the British press with the region’s police and politicians.

Heather Mills, English model and former Mrs. Paul McCartney, is a lawsuit against News Group, the subsidiary of News International that publishes the News of the World, for allegedly hacking her mobile phone. She now numbers among a who have either undertaken or are considering legal action against the media conglomerate; others include actress Sienna Miller, soccer star Wayne Rooney, a Labour Party MP and an aide to a former deputy prime minister. To date, 24 such figures have filed suits against News Group while lawyers of other alleged victims claim that “” will soon follow. Indeed, some sources estimate that have had their phone calls or messages intercepted by agents of News of the World.

News Group has only recently admitted to any wrongdoing, following years of to keep matters quiet. On April 8, 2011, News International broke from this tradition and issued a public statement making “” towards eight litigants facing the company. Interviewed for a stirring , one executive close to the scandal explained the company’s worry of “death by a thousand cuts” as more damaging disclosures emerge day after day.

The most intriguing element of this story is undoubtedly the fact that only recently, in April, 2011, has News Group begun issuing such apologies. News of the scandal , in 2006, when a single News Group reporter and the private investigator he had hired were found guilty of illegally listening to voicemail messages of the royal household and were sentenced to short prison terms. News Group was eager to blame this “rogue reporter,” but that cover story under the weight of multiple lawsuits and a serious police investigation.

What makes this gap so shocking is the revelation that, during its initial investigation in 2006, Scotland Yard seized a “” that included electronic and hand-written records containing nearly 3,000 mobile phone numbers, 91 voicemail access codes, and 30 tapes that appeared to contain recordings of voicemail messages. Despite this trove, Scotland Yard notified only five people and seemed to just sit on the rest until earlier this year. A preliminary judicial review of Scotland Yard’s handling of the case began in early May, 2011, during which the agency has already admitted to some “.”

Many journalists and lawyers close to the case that police officials have been reluctant to probe the matter so as to avoid the merciless wrath of the tabloids that they would be investigating. It might be more than mere coincidence, for instance, that two police officers in charge of the investigation at separate times have been targeted by the tabloids for alleged indiscretions. More generally, the mutual reliance between the police and the press is a historical truth; newspapers want good stories and the police want good coverage.

British newspapers have seemed to be equally hesitant to report on the phone-hacking scandal. Reportedly frustrated by this lack of coverage, an editor of The Guardian suggested to a counterpart with The New 91ŃÇÉ« Times that his paper investigate the story from overseas. The uncovered allegations that the former editor of News of the World had expressly encouraged phone-hacking.

Indeed, as the Vanity Fair article reports, some speculate that phone-hacking has become so common among British newspapers that they hesitate to draw attention to it. A undertaken by the Information Commissioner’s Office, the British agency tasked with enforcing data privacy, bolster such claims. In examining another known phone-hacker’s activities, the agency has discovered that he has rendered his services to no less than five British newspapers, including The Daily Mail, The Observer, and the News of the World.

The legal outcome of this scandal is yet unknown, but for now it serves as a cautionary tale encouraging practitioners to investigate the underlying societal intricacies and motivations that may complicate proceedings and make murky what might otherwise seem clear.

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