New perspective offers consumers relief from painful intellectual property abuse

  • Expert says national laws can and should be enacted to protect consumers from intellectual property abuse
  • Calls for further intellectual property protection for consumers through a stronger international instrument

A new interpretation of a major global intellectual property (IP) agreement could offer consumers relief from abusive practices such as unfair claims of copyright infringement according to Dr George Yijun Tiani, a leading expert in the field.

Dr Tian points out that TRIPS, a major international agreementii concerning IP, provides leeway that affords protection for consumers from IP abuse. This new interpretation will be delivered by Dr Tian in a paper entitled “Consumer Protection and Intellectual Property Abuse Prevention under the WTO Framework’ at a Consumers Internationaliii conference on 8 March in Kuala Lumpur, Malaysiaiv.

The leeway outlined by Dr Tian’s interpretation allows countries to pass consumer protection laws that restrict the abuse of IP rights – a fact that has not been well appreciated before now. This includes laws that protect consumers from unfair terms and abusive clauses in End User Licensing Agreements and that prohibit copyright holders from unilaterally revising terms and conditions under which copyright works are accessed.

An example of how copyright laws can be abused is a recent lawsuit in New York filed by Robert Lee against his dentistv. Lee was compelled to sign a privacy agreement before the dentist would treat a painful infected cavity in his tooth.

After filling the tooth, the dentist sent Lee a bill but refused to send him copies of his records for him to get reimbursed by his insurance company. Dissatisfied with the service provided, Lee voiced his frustration on a patient feedback website and an online urban city guide website.

In return, the dentist charged Lee USD100 a day for every day his review was online, wrote to the websites demanding they remove them, and threatened to sue him for breaching his agreement with her.

She had this right because the agreement Lee signed provided that he would not publish comments about her, and that the copyright in any such comments that he published would belong to her.

Lee filed the lawsuit against his dentist in December 2011 asking for the agreement he and other patients signed to be declared void and to prevent such agreements from being presented to future patients.

Dr Tian refers to a set of proposed amendments to update the United Nations Guidelines for Consumer Protection for the digital age, which could be used as a basis for countries to amend their national laws to prevent such abuses against consumers. This renowned scholar also calls for stronger protection for consumers through an international treaty.

Head of CI Office for Asia-Pacific and the Middle East, Indrani Thuraisingham said:

Copyright laws now have become so ridiculous that consumers are placed in untenable situations without them even knowing so. Thus, Dr Tian provides a very interesting interpretation as it provides a lifeline for consumers. We will be discussing this at length during our Regional Members Meeting on 5 to7 March that precedes theConsumers in the Information Society: Access, Fairness and Representationconference which will see the participation of more than 40 consumer organisations from Asia-Pacific and the Middle East.

Copyright law today is like pulling your teeth out as it can be very painful for consumers when the copyright holder abuses his right.”

Download Dr Tian's paper, Consumer Protection and IP Abuse Prevention Under the WTO Framework.

Notes:

i Dr George Tian is a Senior Lecturer at the University of Technology Sydney (UTS) Law School. He joined UTS in January 2008. His research is focusing on intellectual property, anti-trust law, international trade, and digital legislation. Prior to taking up the full-time position at UTS, he has taught sessionally postgraduate courses in intellectual property at UTS, and undergraduate courses in corporate law at the University of New South Wales (UNSW).

ii The Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) is best known among A2K activists for imposing inflexible copyright obligations on World Trade Organization Members. It is a controversial international intellectual property (IP) agreement of the World Trade Organization (WTO) that entered into force in 1994.

iii Consumers International (CI) is the world federation of consumer groups that, working together with its members, serves as the only independent and authoritative global voice for consumers. With over 220 member organisations in 115 countries, we are building a powerful international movement to help protect and empower consumers everywhere.

iv The conference, ‘Consumers in the Information Society: Access, Fairness and Representation’, is organised by CI and is part of its international A2K programme.

v http://www.reuters.com/article/2011/12/01/us-patient-sued-dentist-idUSTRE7B02LF20111201

 

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