[A2k] Message from Jeremy Malcom, CIROAP re excessive pricing

Manon Ress manon.ress at keionline.org
Thu Apr 21 05:33:48 PDT 2011

---------- Forwarded message ----------
From: Jeremy Malcolm <jeremy at ciroap.org>
To: a2k at lists.keionline.org
Date: Thu, 21 Apr 2011 11:20:56 +0800
Subject: Re: [A2k] Question on excesive pricing as abuse of copyright
On 18/04/11 02:34, corporacion innovarte wrote:
> To answer a question put forward by US, in a TRIPS  exam for a developing
> country,  do you have examples of US law or EU Law , where
> it would be possible to consider as an abuse of copyright the refusal to
> deal or excesive pricing, that might allow compulsory licensing by a judge?.
> Also resources to justify according to TRIPS such a provision, allowing a
> judge to grant compulsory licensing for publishing or translating a work
> when the rightholder refuses to grant a license  or the price is too high.

Related to this, Consumers International has a research project underway
to look at whether the TRIPS article on IP abuse could be used to
justify new legal limitations on the exercise of IP rights, not using
competition law (which is already common), but rather using consumer law.

For example, consumers no longer fully own the products that they
purchase because the content they carry (eg. a Playstation's firmware)
is licensed not sold, but this opens the door to abuse by the vendor
such as removing features that were present when the unit was purchased.

Could a country pass a law that prohibited the vendor from using its
licensing agreement over the firmware to take away features of the
product, in reliance on the TRIPS article on IP abuse?  That's part of
what we are going to answer in this research.

We are also urgently seeking contributions, from anyone, of local
examples of attempted IP abuse via contract, ie. where the vendor
purports to use licensing agreements or terms of use to take away
copyright flexibilities such as educational fair dealing, private
copying, fair use, etc.

Please send any such examples to me and you will be credited for your
contribution in our research report.  Thank you!

Dr Jeremy Malcolm
Project Coordinator
Consumers International
Kuala Lumpur Office for Asia-Pacific and the Middle East
Lot 5-1 Wisma WIM, 7 Jalan Abang Haji Openg, TTDI, 60000 Kuala Lumpur,
Tel: +60 3 7726 1599

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Manon Anne Ress
Knowledge Ecology International
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manon.ress at keionline.org

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