Comments on: IP Pop Quiz

By: Ken Cavalier

Ken Cavalier — Thu, 09 Jun 2005 16:26:32 +0000

Dave Shukan makes an important point. When we are talking about "practising" an IP right are we talking about economically exploiting it through legal remedy or are we talking about protecting it through equitable remedy? In the case of moral rights (integrity and attribution) the author has certain inalienable personal rights, the infringement of which give rise to equitable remedies (i.e. injunctions, restitution for proven damages and exemplary fines for egregious behaviour on the part of the infringer) that are a response to the personhood connection of the author to the creative expression. In the case of the exclusive right to exploit the economic return of IP rights, the author is granted (as part of the "incentive" bargain) alienable, time or conduct (in the case of trademark)-limited rights of protection against infringement that are of a strict liability nature. Therefore, is practicing an IP right a legal or equitable activity?

By: Dave Shukan

Dave Shukan — Mon, 06 Jun 2005 21:17:04 +0000

How about the integrity right of moral rights, which allows an artist to prevent certain alterations of a work? (See, e.g., Copyright Act 106A(a)(3).) The owner can *enforce* that right — just like the certification mark owner can *enforce* rights in a certification mark — but it would not seem to be the case that the artist “practices” the moral right of integrity in the sense that “practice” is used in the question. (Alternatively, if an artist is considered to “practice” such moral right of integrity by enforcing it, seems to me that a certification mark owner can similarly be said to “practice” rights in a certification mark by enforcing them.)

By: IP Nerd

IP Nerd — Mon, 06 Jun 2005 16:04:50 +0000

Ian Ayres has that question at Balkinization but, again, he is wrong. Patents are exclusionary rights.

By: David Woycechowsky

David Woycechowsky — Mon, 06 Jun 2005 15:37:48 +0000

Another alternative answer:

http://icnewcastle.icnetwork.co.uk/0100news/thejournal/tm_objectid=15502963&method=full&siteid=50081&headline=message-in-bottle-to-the-eurocrats-name_page.html

article cited at Reason.com site.

By: rodander

rodander — Mon, 06 Jun 2005 11:41:53 +0000

Not a picky comment. The inability to practice one's own IP was a lead rationale for the point made in the article. And of course a patent is the leading example of an exclusionary-only right, as noted.

So Prof. Ayres didn't think to set up a separate corporation that owns the certification mark and carries out the licensing? And one would think that such a corporation wouldn't necessarily need to certify itself, since the consumers of the certification license wouldn't be shopping around among certifiers based on whether the certifier is certified. Or maybe if there were competing certifiers, they could certify one another and then be certified.

Then the two profs could hire "fairly" for other purposes and themselves be certified by the certifying corporation.

By: William Klancnik

William Klancnik — Mon, 06 Jun 2005 10:07:24 +0000

Yes, Patents only grant exclusionary rights. So, holding a patent doesn't mean that you can practice it, only that you can prevent others from doing so.

By: IP nerd

IP nerd — Mon, 06 Jun 2005 03:04:05 +0000

OK, maybe this is a picky comment, but isn't it true that a patent owner doesn't necessarily have the right to practice the patent? When, for example, the patent is an addition to someone else's patented invention. So a patent, strictly speaking, is only a negative right, right?

By: Nathan Jones

Nathan Jones — Mon, 06 Jun 2005 02:05:24 +0000

I don't find that to be a convincing argument for not using your own licence. Just as http://creativecommons.org/ is licenced under a Creative Commons licence, I see no problem with you "leading by example" and using the Fair Employment licence.

By: YeHudit Bat-Shalom

YeHudit Bat-Shalom — Mon, 06 Jun 2005 01:10:09 +0000

Hi, I would like to know how to offer my ‘Hygieneology’ for profit in the form a ‘blog’ – any pointers there? and what’s involved – costs, et al… Thanks
Hygieneologist