Three new books: take a look!

Intellectual Property, Human Rights And Competition: Access to Essential Innovation and Technology is a very attractive offering by Abbe E.L. Brown, Senior Lecturer, University of Aberdeen, Scotland, and an early contributor to JIPLP with "Human Rights: in the real world" back in 2006 (abstract here). While this work owes much to the author's doctoral research, it is also coloured by her experiences as an IP litigator in three jurisdictions over a period of ten years. The IPKat welcomes all legal writing, whether black-letter or academic, which comes from authors who have benefited from real live law as well as the thoughts and writings of others, and this little book is no exception.

What do Edward Elgar Publishing have to say about this title?  According to the web-blurb:

"This detailed book explores the relationship between intellectual property, competition and human rights. It considers the extent to which they can and must be combined by decision makers, and how this approach can foster innovation in key areas for society – such as pharmaceutical drugs, communications software and technology to combat climate change.

The author argues that these three legal fields are strongly interrelated [They never used to be, notes the Kat. Most competition law and human rights law as we know it is post-World War II, so IP had very little with which to interrelate except classic contract and commercial law ...] and that they can be used to identify essential technologies. She demonstrates that in some cases, combining the fields can deliver new bases for wider access to be provided to technologies. The solutions developed are strongly based on existing laws, with a focus on the UK and the EU and the structures of existing forms of dispute resolution, including the European Court of Human Rights and the dispute settlement bodies of the World Trade Organization. The final chapters also suggest opportunities for further engagement at international policy and activist level, new approaches to IP and its treaties, and wider adoption of the proposals.

This timely book will appeal to academics and practitioners in IP [it might appeal to them a little more if endnotes were replaced by footnotes and if the tables of cases and legislation weren't set in a somewhat idiosyncratic two-column format], competition and human rights, as well as innovation-related industry groups and access to knowledge, health and environment activists".

The time to read this book is now since, while the reading and writing that went into it have occupied most of this century so far, it is a very contemporary discussion of the world in which we live: the IP, competition and human rights laws which the author rightly depicts as being intertwined are far from stationary; their tensions and dynamics are in  a constant state of flux -- so don't delay or you may have to await the sequel.

Bibliographic data: hardback, xxxvi + 236pp, ISBN 978 0 85793 496 3;ebook ISBN 978 0 85793 497 0.  Price £75 (hardback), £67.50 (online). Rupture factor: small, Web page here.

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False Advertising and the Lanham Act: Litigating Section 43(a)(1)(B) is the title of a slender paperback brought out by the New York desk of Oxford University Press.  The author, Thomas M. Williams, is a partner in the Chicago office of Winston & Strawn LLP, where he specializes in trade mark and unfair competition litigation, as well as trade mark prosecution and counselling. He is also a ferocious consumer of case law, as anyone perusing this slender text will discover: it's packed full of judicial decisions like raisins in a fruitcake: they give this book its distinctive flavour and its value.

According to the publishers:

"Section 43 of the Lanham Act is an invaluable tool for intellectual property and commercial litigators [Well, it's certainly not a great work of literature. This Kat wonders whether IP-based litigants who have to rely on its tortured prose feel as happy about it as their professional representatives do]. It includes causes of action for trademark infringement-type "passing off" claims, false advertising, trademark dilution, and domain-name cyberpiracy. It is the cornerstone for civil litigants seeking redress for competition-related torts in federal courts. However, Section 43(a) is not a general catch-all for commercial grievances, and is arguably the most misinterpreted and misapplied subsection in the Lanham Act, despite having an extensive body of case law delineating specific causes of action and proofs. Practitioners are well-advised to grasp its nuances before proceeding under the banner of "unfair competition".

In False Advertising and the Lanham Act: Litigating Section 43(a)(1)(B), Thomas Williams addresses false advertising claims under Section 43(a)(1)(B) of the Lanham Act. The book covers established precedent and Section 43(a) false advertising case law, including key decisions where courts have developed essential analytical tools to flesh out sparse statutory language [Sparse? That provision is 104 words long, though admittedly it pales into insignificance when measured against the 621 words of s.4, the infringement provision of the UK unlamented Trade Marks Act 1938, a provision of "fuliginous obscurity according to Lord Justice Mackinnon in Bismag Ltd v Amblins (Chemists) Ltd [1940] 1 Ch 667].

The book is organized by topic. Chapter One describes actionable claims under Section 43(a)(1)(B), and includes an analysis of the Supreme Court's Dastar opinion, which sets important boundaries for Section 43(a) claims. Chapter Two identifies various tests for Section 43(a)(1)(B) standing, including the circuit split on whether antitrust-based standing rules are applicable to false advertising claims. Chapter Three analyzes each of the requisite Skil factors for establishing a false advertising claim. Chapter Four addresses Section 43(a)(1)(B) pleadings, including the impact of the Supreme Court's Twombly and Iqbal decisions on notice pleading rules. Chapter Five examines defenses to false advertising claims. Chapter Six reviews injunctive relief requirements and Chapter Seven outlines monetary relief available to prevailing parties".

It seems to this Kat that one big problem with s 43 is that it has attracted a good deal of case law arising from facts which are almost too close to call. One feels that there is an almost never-ending set of tests, distinctions, relevant issues and principles which has been designed in a sincere attempt to provide a rational basis for resolving cases which may as well have been settled by tossing a coin since the arguments on each side are so finely balanced.  Thomas Williams' account is a valiant and fascinating one, but the subject matter is grim!

Bibliographic data: paperback, xi + 147 pages. ISBN 978-0-19-977258-2. Price: £115. Rupture factor: non-existent. Web page here.

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Nonprofit Organizations And The Intellectual Commons is a short, sharp tome authored by Jyh-An Lee, of the National Chengchi University, Taiwan. Not just the intellectual content but the readable prose bear the stamp of Stanford Law School, from which the author has derived help, encouragement and not a little inspiration.  This book is assisted by the fact that it covers a topic which is interesting, current, relevant and not already done to death like so many other modern topics (remember Law of the Internet" ..?)  Anyway, publishers Edward Elgar have this to say by way of introduction:

"Over the past twenty years, a number of nonprofit organizations (NPOs), such as Creative Commons, the Electronic Frontier Foundation, and the Free Software Foundation have laid essential building blocks for intellectual-commons as a social movement. Through a detailed description of these NPOs and a series of in-depth interviews with their officials, this book demonstrates that NPOs have provided the social structures that are necessary to support the production of intellectual commons.

By illustrating NPOs’ role in shaping the commons realm, this book provides a new lens through which to understand the intellectual-commons environment. Protecting intellectual commons has been one of the most important goals of recent innovation and information policies. This book focuses on the NPOs that occupy an increasingly critical and visible position in the intellectual-commons environment in recent years.

This detailed study will appeal to academics in intellectual property and internet law, nonprofit organizations, academics and professionals, and those involved in the Free Culture and Open Source Software Movement".

The sad thing about this book is that it reflects the notion that the dialogue over the intellectual commons is an exclusively United States affair, which is by and large true.  The US has been the incubator and the launchpad of not just the new technologies at the heart of the intellectual commons debate but also the terminology and the concepts through which debate and dialogue originated and evolved.  This Kat wonders whether the voices of Europe and Asia were too late, too quiet and too hesitant to participate in that debate -- or whether there might be yet some scope for their participation.

Bibliographic data: Hardback, x + 203 pages, ISBN 978 1 78100 157 8. ebook ISBN 978 1 78100 158 5. Price: £65 (hardback £65), £58.50 (online price). Rupture factor: none. Web page here.