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Information Property:

How Far will the Intellectual Property


Regime Expand?

Fuping GAO
Professor of Law
East China University of Political Science and Law

06/15/08 Prof. Fuping GAO, ECUPL 1


Speech at QUT
1.Introduction

The scope of IP is always full of


uncertainty

Two facts make IP law perplexed or at


crossroad:
Globalization,

ICT or Internet.

06/15/08 Prof. Fuping GAO, ECUPL 2


Speech at QUT
the globalization
the IP legal system
convergence of intellectual property
law and international trade policy
state sovereignty
harmonizing national treatment of
intellectual property rights
Make IP law as political issues
and as public policy

06/15/08 Prof. Fuping GAO, ECUPL 3


Speech at QUT
ICT or the Internet
ICT: Digitalizing information and
information distribution over the Internet
Two models:
Free accessible information
Information Transaction
Information Transaction + Information
Service =Digital Content Industry
information-based product:
fully digital
copyrightable or non-copyrightable
Is transferable information property?
06/15/08 Prof. Fuping GAO, ECUPL 4
Speech at QUT
2. How IP Law Treats
Information
Generally, intellectual property is related
to information, but not all IP law
protected information itself
Copyright
Limited Scope:
Not all Information Work is Copyrightable
dichotomy of idea and express:
the information is a public domain
Reason:
the progress of culture and public interests
Balanced Arrangement

06/15/08 Prof. Fuping GAO, ECUPL 5


Speech at QUT
Challenge From ICT or
Internet
Privatization or commodification of info.
DRM or TPM
to override original copyright regime.
to propertize the non-copyrightable
information work
Information licensing: Information as
subject matter
copyrightable or non-copyrightable work
instead of copyright law defines user’s
rights
06/15/08 Prof. Fuping GAO, ECUPL 6
Speech at QUT
Conclusion
two legal problems :
Information in copyrightable work is
being privatized, the balanced
arrangement has been and is being
broken.
Non-copyrightable information works
are being propertized and transacted
over the Internet
new balanced legal system is
needed
06/15/08 Prof. Fuping GAO, ECUPL 7
Speech at QUT
3. Information Protection
Needs: Cases Study
Database-information product is
everywhere!
It is valuable for its owner as well
as society!
Is it necessary to adapt traditional
doctrine to changing forms of
authorship or create new forms of
intellectual property to protection
valuable information product?
06/15/08 Prof. Fuping GAO, ECUPL 8
Speech at QUT
Case Study 1 Protection of
Publisher List
Mr. Wang Vs. Encyclopedia of China
Publishing House
Defendant the Encyclopedia published a book
“Video and Radio, Book, Newspaper Publisher
List China”, which used the part of a book “10
Thousands Publisher List of China” that Mr.
Wang has copyright.
Judgment: Mr. Wang has no copyright on the
list of publisher for shortage of originality, but
Mr. Wang has right to harvest his “seed” for his
efforts and money investment. Base on the
general principle of civil law “legal interest shall
be protect by law”, the court made judgment
that Encyclopedia should be liable.
“sweat of the brow” was accepted.
06/15/08 Prof. Fuping GAO, ECUPL 9
Speech at QUT
Case Study 2 Project
Database Protection
HuaXinJie Investment Consulting Company (the
Company) Vs. Mechanical Industry Research Institute (the
Institute)
The Company created a database that collect national
construction projects; in 1998, the Company started to sell
the database. Defendant the Institute purchased the
database and published project information in its
Magazine. About 90 % of the information comes from the
database.
The Company filed a case against the Institute for
infringing copyright in the database.
Judgment: the Company has no copyright and no any
other right to the database although the Company has
invested labor and money in it

06/15/08 Prof. Fuping GAO, ECUPL 10


Speech at QUT
Case Study 3: How to
Protect Equity Data
Shanghai Stock Exchange (SSE) Vs. FTSE Xinhua
Index Limited (FXI)
FXI has signed the Equity Data Licensing Contract with
the SSE, which allows FXI to use the equity index to
launch derivative products. Based on the security
trading data of Shanghai Stock Exchange and
Shenzhen, FXI creates the FTSE Xinhua China A50
index futures, which will be listed in Singapore Stock
Exchange
SSE brings a lawsuit against FXI for infringing on
intellectual property and breaching contracts
Judgment: the Contract should be terminated for the
FXI’ breaching and the FXI should compensate the SSE
USD 20,000.00 for breaching the Contract and
06/15/08 Prof. Fuping GAO, ECUPL 11
Speech at QUT
4. Possible Resolutions

there are three possible resolutions:

copyright.

Sui generis right or database right

Anti-competition Protection or
Business Torts

06/15/08 Prof. Fuping GAO, ECUPL 12


Speech at QUT
Which is Better?
Frustration of the WIPO’s Draft
Database Treaty of 1996
Not common understanding on
necessity for creation of a sui generis
system to protect databases out of
copyright framework
The empirical evidence is not positive
divergent judgments and dubitable
result of the Directive.
The ECJ in November 2004 significantly
curtailed the scope of “sui generis”
protection: making no use of database right
06/15/08 Prof. Fuping GAO, ECUPL 13
Speech at QUT
5. Conclusion
Database industry or content industry
needs law protection against
misappropriation
ease of information flow and free
accessing of information is also
important for our culture
Whether or not information can or
should be treated as property, we must
construct a basic legal order for
database industry or content industry

06/15/08 Prof. Fuping GAO, ECUPL 14


Speech at QUT
Conclusion (contd.)
New balance arrangement is needed
the balance should be defined and
implemented by individual state, and if
any international measure need, we
must consider differentia and diversity of
each state. two balances:
first, between overprotecting and under
protecting
second, between developing countries and
developed countries

06/15/08 Prof. Fuping GAO, ECUPL 15


Speech at QUT
Question and Comments

Thank You

06/15/08 Prof. Fuping GAO, ECUPL 16


Speech at QUT