Commander une pizza chez Speed-Pizza en 2015
Passionné d'orgues, de cuisine, d'hélicoptère, de procédure civile d'exécution, de balades à vélo, de nombre d'or, de scoutisme, dépourvu d'afféterie, schtroumpfologue, né quatre jours après l'assassinat de John Fitzgerald Kennedy à Dallas
Ce terme désigne tout traitement injuste et cruel infligé avec acharnement à un groupe de personnes, en raison de leur foi, de leur appartenance sociale ou ethnique. Dans la tradition chrétienne, l’évocation des persécutions renvoie aux premiers siècles de l’Eglise. La première communauté, implantée à Jérusalem, fut très tôt aux prises avec les autorités juives, qui craignaient les réactions romaines face à un nouveau courant religieux. A partir de 64, les chrétiens ont été victimes de l’hostilité romaine : massacres, emprisonnements et embûches administratives. Déclenchant à Rome les premières fureurs contre les chrétiens, Néron avait choisi ceux-ci comme boucs émissaires parce que, plus nombreux et partant mieux identifiés, ils suscitaient déjà dans l’opinion de la capitale une vise aversion, résume l’historien Philippe LEVILLAIN (Dictionnaire historique de la papauté, Fayard. Les historiens distinguent une dizaine de vagues de persécutions jusqu’au Ive siècle, la plus sanglante étant celle de Dioclétien (284-305). Au cours de leur histoire, les Juifs furent eux aussi souvent persécutés, comme au XXe siècle, où la Shoah fit six millions de morts. Ces dernières années, des chrétiens sont à nouveau victimes de persécutions, notamment au Proche-Orient, cibles de groupes islamistes.
Seules quelques rares assauts bien spécifiques sur Internet peuvent causer des dégâts majeurs. Pour autant, différencier les menaces existantes, et s'y préparer, est incontournable.
Les cyber-attaques doivent désormais être considérées comme un facteur de risques systémiques, affirme l’OCDE dans un rapport. Tout en précisant que ce cas de figure reste limité, et que seules certaines attaques bien particulières peuvent engendrer des dégâts majeurs au sein d’une société. Une offensive réussie contre un protocole qui régit le réseau Internet, comme le "Border Gateway Protocol" - qui détermine le système de routage - pourrait par exemple causer des dommages importants. En revanche, les logiciels malveillants, les attaques par déni de service, ou les opérations d'espionnage, sont généralement localisés. Et ont surtout un impact sur le court terme. "Des cyber-attaques prolongées devraient combiner des vecteurs encore inconnus de la communauté de sécurité, une étude minutieuse des cibles choisies, et des méthodes de dissimulation pour préserver à la fois le procédé et les exécutants", notent les auteurs du rapport.
Par ailleurs, la grande majorité des attaques concerne expressément des réseaux d'ordinateurs connectés via Internet. "Par conséquent, les systèmes qui communiquent par des réseaux propriétaires sont protégés de ces offensives là. Même s’il faut préciser qu'ils demeurent vulnérables aux erreurs de management et aux menaces internes", indiquent les analystes. Qui ajoutent que des efforts restent à fournir pour mieux appréhender l’ensemble des risques, en commençant par définir plus spécifiquement les "attaques", eu égard aux "incidents", par exemple. Le langage utilisé étant souvent excessif, selon les consultants. "Un cyber-conflit en tant que tel est fort peu probable, par exemple", précisent-ils.
En effet, la plupart des ordinateurs sont sécurisés, les menaces sont généralement connues, et les effets réels d'une offensive difficiles à prédire. Cela étant, des opérations peuvent être entreprises sur la Toile, contre telle ou telle infrastructure civile ou militaire, dans le cadre plus large d'un affrontement. C’est-à-dire parmi d’autres actions. L’enjeu, pour les auteurs du rapport, est surtout de veiller à renforcer la sécurité des différents systèmes, et de se préparer à colmater les brèches éventuelles. Plutôt que de chercher à identifier l’auteur de l'attaque, pour mettre en place des contre-mesures. Et ce, parce qu'il est souvent difficile de remonter à la source d’une cyber-attaque, concluent les spécialistes.
Contributed by Kenyon & Kenyon LLP
On December 13 2010 the Supreme Court affirmed the Ninth Circuit's decision in Omega SA v Costco Wholesale Corp, upholding the Ninth Circuit's interpretation of the first sale doctrine as inapplicable to foreign-made goods covered by US copyrights.
Swiss luxury watch manufacturer Omega sold its products internationally through various authorised dealers in the United States and abroad. One such product, a watch that included a design protected by a US copyright, was made overseas and sold by Omega to one of its authorised foreign distributors. Following this sale, the copyrighted watches were imported into the United States by an unidentified third party without Omega's approval. The watches were then purchased by ENE Limited, a New York company, which in turn sold the watches to Costco, which began selling them in California.
Upon learning of Costco's sales, Omega filed a copyright infringement action in the Central District of California. In its defence Costco argued that the first sale doctrine under 17 USC § 109(a) barred Omega's ability to bring the action because the watches were the subject of an authorised sale to one of Omega's foreign distributors. Costco argued that this shielded it from liability despite the fact that the subsequent US sale was unauthorised. The district court agreed, ruling in favour of Costco on summary judgment. Omega appealed.
On appeal, Omega argued that Section 109(a) applies only to the sale of goods "lawfully made under [US copyright law]"; therefore, the first sale doctrine did not apply because the goods were made outside the United States. In response, Costco asserted that Omega's reliance on earlier Ninth Circuit case law(1) was misplaced because these cases had been overruled by the Supreme Court in Quality King Distribs, Inc v L'anza Res Int'l, Inc.(2)
In its opinion, the Ninth Circuit first restated that the owner of a copy "lawfully made under [Title 17]" who imports and sells that copy does not infringe under the first sale doctrine. After reviewing BMG Music, Drug Emporium and Denbicare, the court turned to the Supreme Court's Quality King decision. In Quality King the copyrighted goods had been 'round trip' imported: they were manufactured in the United States, exported through an authorised distributor, sold to an unidentified third party abroad and then shipped back to the United States, where they were sold without the copyright holder's permission. In Quality King the court ruled that the first sale doctrine provided a defence against copyright infringement in these circumstances. However, the court declined to address whether the same result would be warranted if the copyrighted products were first manufactured outside the United States.(3)
Picking up where Quality King left off, the Ninth Circuit concluded that the first sale doctrine provides a defence against copyright infringement "only insofar as the claims involve domestically made copies of U.S.-copyrighted works" (emphasis added).(4) Thus, under this decision the first sale doctrine is available as a defence only if the copies were legally made in the United States. Accordingly, the Ninth Circuit rejected Costco's position and reversed the district court, finding no inconsistency between Quality King and the rule of law established by BMG, Drug Emporium and Denbicare (for further details please see "First sale doctrine is no defence to liability for importing foreign-made goods").
Costco then sought certiorari to the Supreme Court.
In a per curium opinion released on December 13 2010, an equally divided Supreme Court affirmed the Ninth Circuit's decision.(5) Justice Kagan recused herself and took no part in the decision, most likely due to her role as solicitor general in preparing an amicus brief on behalf of the United States. In the brief the United States supported Omega's assertion that "lawfully made under this title", as used in Section 109(a), means made in accordance with US copyright law, which does not apply extraterritorially.
On its face, the case appears to strike a blow to one of the remaining openings in the grey market and may provide a powerful tool for international manufacturers which maintain separate marketing and pricing structures in separate international markets. A foreign DVD, camera or electronics manufacturer, for example, would be able to charge less for its goods in the Asian market than it does in the United States, and could enforce that marketing decision provided that the goods themselves were manufactured outside the territory of the United States. The Ninth Circuit's holding that foreign-made goods are excluded from the first sale doctrine, combined with the increasing trend of manufacturing luxury goods abroad, may result in higher prices due to a reduced grey market.(6)
However, this decision may be less of a victory for international vendors than it appears at first glance. After all, the four-four split merely earned Omega a win by default, not an express affirmation of its legal position. Indeed, the decision may also be viewed as a near miss on a Ninth Circuit reversal, rather than as an approval of that court's interpretation of Section 109(a). While one might assume that Kagan – in light of the position taken by her, as solicitor general, on behalf of the government – would have given Omega the final, precedent-setting vote it needed had she taken part, there is no guarantee of that. Nor can one assume that, had it come to a reasoned decision, the court would not have created its own, different interpretation of the disputed provision.
The decision leaves the Ninth Circuit(7) in support of a narrow interpretation of the first sale doctrine and market division programmes based on control of copyrights in products.
(1) Specifically, BMG Music v Perez 952 F 2d 318 (9th Cir 1991); Parfums Givenchy, Inc v Drug Emporium, Inc 38 F 3d 477 (9th Cir 1994); and Denbicare USA Inc v Toys R Us, Inc 84 F 3d 1143 (9th Cir 1996).
(6) Jorge Espinosa, "Supreme Court, by a 4-4 Vote, Affirms Ninth Circuit's Restrictive Reading of First Sale Doctrine", The Gray Blog (Dec 15 2010), http://espinosaiplaw.com/wordpress/?m=201012.
Contributed by Grau & Angulo
Article 5.2(b) of the EU Copyright Directive (2001/29/EC) allows member states to include in their legislation the concept of a private copy as an exception to the exclusive right of reproduction which belongs to every author, provided that the relevant rights holders receive fair compensation.
Thus, in all EU member states which have adopted this exception in their national legislation, it is perfectly legal for a private individual to copy a digital work (eg, a song on an MP3 player) and to play it at any time in private, with no consequences.
Spain has included this exception in its legislation – specifically, in Article 25 of the Intellectual Property Law (1/1996) – and has made use of the fair compensation payment established by EU law by imposing the private copying levy, which must be paid to the rights holders of works subject to private copying.
The private copying levy:
So far, the private copying levy has been imposed indiscriminately on all digital devices, regardless of whether the person who acquires the equipment is a private individual or a company.
In an October 21 2010 judgment, the European Court of Justice (ECJ) stated that the indiscriminate implementation in Spain of the private copying levy is incompatible with EU law as it does not fulfil the 'fair compensation' requirement.
The judgment was issued in response to questions referred to the ECJ in a preliminary ruling by the Barcelona Court of Appeal in litigation between SGAE and PADAWAN, which markets digital storage equipment. SGAE brought the action against PADAWAN in order to claim payment of the private copying levy for digital devices marketed between September 2002 and September 2004.
In order to clarify whether the Spanish rules that indiscriminately impose the private copying levy on digital reproduction equipment, devices and media accord with the Copyright Directive, the Barcelona Court of Appeal referred the following questions to the ECJ:
The ECJ responded as follows:
In light of the ECJ's comments, it can be concluded that the private copying levy is lawful, but that its indiscriminate application to all digital devices, without taking into account who acquires them and whether the presumed use will be for private copy, is not.
The Barcelona Court of Appeal must now determine whether the application of the private copying levy is consistent with the law.
For further information on this topic please contact Leticia Lloret or Jana Salvador at Grau & Angulo by telephone (+34 91 353 36 77) or by fax (+34 91 350 26 64) or by email (email@example.com or firstname.lastname@example.org).
Contributed by A J Park
The Ministry of Economic Development has prepared draft examination guidelines on the treatment of computer-related inventions in New Zealand. Submissions on the proposed guidelines are due by March 11 2011.
The Commerce Select Committee reported back on the Patents Bill on March 30 2010. The report included a suggested amendment that would exclude all computer programs from patent protection (for further details please see "Select committee report on Patents Bill: computer software not patentable").
The ministry was reported to be considering a wording amendment to allow the patenting of some computer programs. The amendment was expected to bring the wording of the exclusion closer to the restriction contained in the European Patent Convention. However, in July 2010 Commerce Minister Simon Power announced that he considered a further amendment to be neither necessary nor desirable. He instructed officials to develop guidelines to allow the patenting of some computer programs.
Guidelines and regulations would normally have been expected after the bill's enactment. However, the minister has asked for draft guidelines to be prepared before enactment in order to seek comments from interested parties. The consultation is intended to ensure that the Intellectual Property Office of New Zealand gives proper effect to the legislative exclusion in a manner that is likely to find support from a New Zealand court. The guidelines set out the proposed approach to be taken by examiners when examining patent applications that contain claims involving computer programs. The guidelines formulate an adaptation of the Aerotel test applied by the English Court of Appeal.
The proposed approach encourages examiners to:
The claimed invention will be assessed against the prior art base to determine what contribution - if any - is made to the stock of human knowledge. The claimed subject matter must produce an end result which is an artificially created state of affairs in the field of economic endeavour, and must produce a physical effect. Where the performance of a method causes physical changes in an apparatus, the physical changes must be consequential - that is, they must be essential to the contribution of the invention and not peripheral. A normal interaction between a computer and a computer program is not considered to be an invention unless a physical effect is produced.
The guidelines propose the following questions to determine whether the contribution falls solely within excluded subject matter:
The Aerotel test contains a fourth step of checking whether the actual or alleged contribution is technical in nature. The proposed guidelines do not suggest checking for a technical contribution. It is expected that the existence of a technical contribution will be assessed in determining whether a physical effect exists.
Contributed by Singh & Associates
The Department of Industrial Policy and Promotion recently published its discussion paper on the compulsory licensing of patents. The paper mainly deals with the compulsory licensing provisions of the patent laws. The department has also invited views and suggestions on the same. The paper's objective is to develop a predictable environment for the use of measures related to compulsory licensing. It is also a tool for government discussion on the subject, allowing for an appropriate policy decision to be made at an appropriate time.
According to the compulsory licensing system, the government is empowered to allow third parties to produce and market a patented product or process with or without the patent owner's consent. This mechanism has been developed to maintain a balance between rewarding patentees and the need to make inventions available to the public. Under the Patents Act, the objective is to balance patentees' rights and monopolies, but at the same time to ensure the working of patents in India, the availability of patented products at a reasonable price, the promotion and dissemination of technological inventions and the protection of public health.
Compulsory licensing is an integral part of the patent regime. Article 5(2) of the Paris Convention provides as follows:
"Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work."
The concept of compulsory licensing has already been successfully applied in many developed countries, and after the Doha Declaration on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and Public Health, many developing and less-developed countries have also adopted the concept. The Indian regime incorporates a provision for the mandatory working of patents and, in case of 'non-working' patents, compulsory licences can be granted to an interested party on request. However, while the procedure and tests are detailed under the law, no compulsory licences have been issued in India to date.
Articles 30 and 31 of TRIPs provide for the issuance of compulsory licences to third parties. Article 30 states that limited exceptions are to be provided to the rights conferred by patents, provided that they do not "unreasonably prejudice the legitimate interests of the patent owner, taking into account the legitimate interests of third parties". Article 31 contains conditions for qualification for use without the rights holder's authorisation. According to this article, the local requirement conditions for public non-commercial use or circumstances of national emergency or extreme urgency are not required where such licensing is aimed at anti-competitive prices. Furthermore, Section XIV of TRIPs stipulates the adequate remuneration to be paid to the right holder.
According to the paper, the National Pharmaceutical Policy 2002 was aimed at ensuring the adequate supply of good-quality essential pharmaceuticals of mass consumption at affordable prices. The draft National Pharmaceutical Policy 2006, while acknowledging the satisfactory growth of pharmaceutical products, proposed to enact a new law to exercise a more effective price control mechanism of drugs, creating a National List of Essential Medicines consisting of 354 drugs and thus strengthening the drug regulatory system, limiting trade margins and negotiating prices for patented drugs.
On August 4 2010 the Parliamentary Standing Committee on Health and Family Welfare presented its 45th report on "Issues Relating to the Availability of Generic, Generic Branded and Branded Medicines, their Formulations and Therapeutic Efficacy and Effectiveness". This report addressed the following issues:
The paper went on to state that India is recognised as a leading global player in the manufacture of medicines. It ranks third in terms of volume of production and 14th in terms of value. Despite this fact, India has a large unmet demand for critical medicines. According to the World Health Organisation's World Medicine Situation 2004, 65% of the Indian population still lacks access to essential medicines.(1) This situation has arisen due to the export-orientated production of medicines by pharmaceutical companies. The takeover of Indian companies and strategic alliances by multinationals will further worsen the situation. Given this background, the need for affordable and high-quality medicines is critical for the sustainable growth of the Indian economy.
The sales of India's top 10 pharmaceutical companies represent nearly 39% of the total industry sales. Compared to 1998 to 1999, after recent takeovers, there are now three multinationals in the top 10. If this trend continues, an oligopolistic market will develop, which will result in a small number of companies dictating the prices of drugs that are critical for addressing public health concerns, including fighting front-line diseases such as HIV, AIDS and hepatitis C. Furthermore, if large Indian generic pharmaceutical companies are taken over themselves, there will be no one to manufacture drugs based on the compulsory licences issued to them, and thus the cheap and effective generic drugs industry may be threatened. The paper suggests the following reasons for this predicted situation:
The paper also proposes the following options that are available to the government to counter these ensuing problems:
While dealing with legal provisions for the grant of compulsory licences, the paper divides compulsory licences into two categories.
Category I CL
Category I CL includes compulsory licences issued by the government by way of notification (Section 92 of the Patents Act) on the following grounds:
Compulsory licences issued under Section 92A of the act for the export of pharmaceutical products and compulsory licences issued under Section 100 for government use also come under this category.
Category II CL
Category II CL includes compulsory licences issued under Section 84 of the Patents Act. The essential element for issuance of compulsory licences is the ability of the applicant to prove that:
Finally, the paper lists the issues for resolution, which are as follows:
"1. Are guidelines necessary or required for the issue of compulsory licences?
2. Do the requirements for issue of a notification by the Central Government (national emergency; extreme urgency; public non-commercial use) under Section 92 require amplification through issue of guidelines?
3. How should recourse to issue of a compulsory licence under Section 92 and recourse to use by the Central Government of an invention under Section 100 be differentiated in the matter of use? Under what circumstances should each be invoked?
4. Can products manufactured under a Category I licence be effectively distributed solely through government channels? Does issue of Category I CL envisage sale of the compulsory licensed goods outside the ambit of government and in the market?
5. Should CLs be issued on the basis of anti-competition law - if it is determined that companies have abused their dominant position in the market or engaged in unfair competition?
6. Should working of a patent in the territory of India be interpreted to mean that it should be manufactured within the territory of India?
7. How should the essential elements of a Category II CL outlined in Para 54 and 55 above be proved by the applicant to the satisfaction of the Controller?
8. What should be the basis for royalty payments to compensate for CLs? Should a uniform stance be taken for Category I CLs; Category II CLs and Central Government use of inventions? Or should a differential approach be adopted?
9. Should the Controller be obligated to examine and take a final view on all CL applications within a specified time period? What should this time period be?"
Through publication of its paper on invoking compulsory licensing, the Department of Industrial Policy and Promotion seeks to invite views and suggestions on these issues for resolution. Based on expert advice and suggestions, the government will take the necessary steps to address the issue of the availability of essential medicines to the general public at affordable prices, either by issuing new guidelines or by enacting a new law.