ITU Treaty rejected by US and Western nations but ratified by majority

Earlier this Month, the U.S. and many Western nations rejected a proposed revision to the World Conference on International Telecommunications (WCIT) organized by the International Telecommunications Union of the United Nations. The White House issued a statement on Dec. 21st in which it explained the rejection of the proposed treaty amendments because the ITU regulation of Internet governance would lead to greater governmental regulation of access to the Internet and the content available online. As the statement explained, “the Internet’s social and economic benefits come from the free flow of information and ideas and that the technical innovation enabling this information flow comes from the full engagement of civil society, industry, and governments in the process.”

At the same time, however, it is important to recognize that the treaty was adopted, 89 states did sign onto the revised treaty, signaling a strong split among nations regarding the nature of Internet governance. Mohamed al-Ghanim, chairman of the WCIT commented “I hope that the 55 states that said do not want to sign the treaty, or need to hold consultations, to think again.” Ghanim is the chief of the UAE’s Telecommunications Regulatory Authority. The treaty is not binding on the non-signatory countries.

The tension over the ITU treaty amendments which had been focused on expanding broadband to greater parts of the globe highlight the growing tension over the role of Internet access as part of human rights protections. Countries such as Russia and China see control over Internet content within their borders as a fundamental issue of sovereignty while U.S., E.U. and other government coalitions view Internet content as a fundamental human right. In July of this year, for example, the U.N. Human Rights Council passed a resolution that “affirms that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.”

The ITU vote suggests a growing of the Cyber Cold War in which historical East/West divisions are reemerging behind firewalls rather than the physical walls of the twentieth century. As in the past, the various U.N. bodies and commissions are split as to their allegiance and ineffectual in their pronouncements.

While the constant threat of cyber-attacks against governmental computers has become a constant occurrence in almost every country, the ITU vote signals a more explicit acknowledgement of the regulatory rift among nations. For governments seeking to manage the information available to their citizens or control the publications by their citizens, the open nature and growing penetration of the Internet represents a fundamental challenge to governmental control. The ITU vote reflects this tension and provides a roll call for the nations seeking greater transparency and those seeking greater control. Transparency is behind in the vote – 55 to 89.

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Finding an Audience can cost Documentary Filmmaker’s their Reporter’s Privilege

In a recent New York Times business article about documentary film distribution, Tanzina Vega described how producers of the upcoming film Girl Rising have crafted a tailored marketing campaign.

To promote the new film, and demonstrate the impact that documentaries can have on audiences, they will rely on technologies often used by more traditional advertisers, including personalized ads for employees of companies viewing them online.

Girl Rising produced by 10×10, “journeys around the globe to witness the strength of the human spirit and the power of education to change the world.” 10×10 describes itself as a “global movement for girls’ education; a film and social action campaign. People working together to change girls’ lives.”

Funding documentary filmmaking requires collaboration and creativity. Financing and distribution partnerships, therefore, provide a useful approach. The distribution strategy is echoed by docuMentors, providing tips on how to distribute documentaries “in a changing world.” Among the good advice are themes consistent with the New York Times advertising coverage:

1. Design a Customized Distribution Strategy: Every film needs a customized distribution strategy. This strategy should be designed as early as possible, increasing funding options. To create this strategy, you must understand your goals & priorities, identify your core audience, identify / plan different versions of your film (theatrical, TV, DVD, foreign, educational), determine your distribution avenues and release sequence, identify potential partners, and determine on- and off-line positioning. Your strategy should be flexible and assessed and redefined.  …

9. Partner with Non-Profits and Online Communities: Non-profits can be indispensable distribution partners. They can build awareness among key core audiences by hosting screenings or promoting on their websites or in publications. Online communities can also increase buzz, audience, and sales.

Despite the sound advice this provides regarding the distribution of a documentary film, it may have a surprising and unintended consequence to the characterization of the documentary film as a work of journalism entitled to a qualified privilege from subpoena or civil discovery.

The Reporters Committee for Freedom of the Press provides an excellent summary of the Reporter’s Privilege. In forty states, journalists are protected by statutes that limit the ability of courts to issue subpoenas or civil discovery orders. These protect the confidential sources and journalist’s work product. These protections are highly qualified, however, often basing the protection on the professional journalistic role of the individual seeking the privilege. They also vary considerably from state to state – and even differ between federal and state rules within the same state.

Oversimplifying the mosaic of state laws and constitutional protections – the core basis of protection is the obligations of the journalist’s neutrality and the ongoing professional need to obtain the news-gathering information. As a result, these rules may extend to documentary filmmakers, bloggers, book authors and others, but the extension beyond traditional journalism is inconsistent and easily lost. In addition, the reporter’s privilege does not extend to eye witness evidence, so footage captured that includes commission of a crime is unlikely to receive any privilege.

When the documentary filmmaker becomes an advocate, the privilege is likely to be forfeit. An example of this came from Joe Berlinger’s documentary Crude. A cut of the documentary had been shown to the plaintiffs in the lawsuit which was the subject of the documentary. The plaintiff’s lawyers asked that one scene be deleted from the movie. Even though the decision to remove it was the filmmaker’s, the court found the relationship was no longer that of an independent journalist and the shield laws no longer applied. Despite support from the documentary film community, the New York Federal Courts found that a relationship between the plaintiffs in the litigation and the filmmaker which made the filmmaker an advocate rather than journalist. Berlinger had to turn over his 600 hours of unused footage as well as all documents and correspondence.

More recently, New York City attorneys have demanded Ken Burns provide footage related to interviews conducted in association with The Central Park Five, his documentary film focusing on the conviction and exoneration of five African American teens who had been convicted of raping a women in New York’s Central Park. The film documents the wrongful conviction. Despite confessions from four of the men, DNA evidence proved that a different person had committed the crime. City officials have taken the position that Burns is an advocate for the exonerees and their families, which negates the neutrality and the privilege. The city is fighting civil liability for the wrongfully convicted men. The demand is still pending.

For filmmakers seeking financial or distribution support from nonprofits and social action organizations, the filmmaker should understand that one cost of that support is the elimination of independence in the eyes of the courts. Even if the filmmaker is not under any contractual or actual control by the social action organization, the agreement may be enough to void any claim of neutrality, making the filmmaker’s footage and files open to the courts and the attorneys.

While documentary filmmakers must be creative in funding their work, care must be given to balance support with independence. The alternative can be very costly.

Supreme Court to answer whether human genes are patentable

The Supreme Court recently granted certiorari to the highly contentious patent case focusing on the patentability of human genes. The case, Ass’n for Molecular Pathology v. Myriad Genetics, Inc., combines challenges regarding a patent originally developed at the University of Utah. The Supreme Court unanimously disallowed a patent for evaluating a patient’s response to a drug in March 2012 in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1794 (2012). The Supreme Court has asked the Federal Circuit to review Myriad in light of Prometheus, but the Federal Circuit re-affirmed its decision upholding the patentability of the genes in dispute.

In 2009, WIPO Magazine provided this very helpful explanation of the patents under review:

BRCA-1 and BRCA-2 are two genes linked to susceptibility for breast and ovarian cancer (hence their acronyms). The risk of falling ill increases if these genes show certain mutations. Identifying the mutations is therefore important for diagnosis and for monitoring higher-risk women. Myriad Genetics Inc., in collaboration with the University of Utah, were the first to sequence the BRCA-1 gene, and applied for patent protection in 1994. Together with the University of Utah Research Foundation and the United States of America, Myriad holds U.S. patents 5747282 and 5710001 on the isolated DNA coding for a BRCA-1 polypeptide and on a screening method. In 1997, together with the Centre de Recherche du Chul in Canada and the Cancer Institute of Japan, they received patent protection on an isolated DNA sequence, asserting rights over a number of mutations in the gene (U.S. Patent 5693473). Further patent applications were filed on the second gene, BRCA-2, in the U.S. and in other countries (US Patents 5837492 and 6033857).

The Supreme Court accepted certiorari on one question: Are human genes patentable?

In framing the question, the Petitioners seeking to overturn the Federal Circuit decision introduced the issue as follows:

Many patients seek genetic testing to see if they have mutations in their genes that are associated with a significantly increased risk of breast or ovarian cancer. Respondent Myriad Genetics obtained patents on two human genes that correlate to this risk, known as BRCA1 and BRCA2. These patents claim every naturally-occurring version of those genes, including mutations, on the theory that Myriad invented something patent eligible simply by removing (“isolating”) the genes from the body. Petitioners are primarily medical professionals who regularly use routine, conventional genetic testing methods to examine genes, but are prohibited from examining the human genes that Myriad claims to own.

The medical professionals pressing the case have been supported by public advocacy organizations. Among them, the ACLU has been a leader among the parties fighting the validity of the BRCA gene patents. Petitioners argue that human genes cannot be eligible for patentability because genes are ‘products of nature’ and therefore can’t be patented.” This question represents a traditional patent challenge to any gene which is merely isolated, when the patent provides no use for that isolation.

At the same time, however, many of the objections to the patent have been triggered by public frustration at the cost and restrictions on testing labs. To the extent that women are seeking to identify these markers, the Federal Circuit concluded that there is a therapeutic value in the information, which can be used for preventive surgery.

At the trial court level, the ACLU also made a First Amendment claim on the basis that genetic patents prevent research and discussion of the patented subject matter. This claim has not received support in any of the lengthy judicial proceedings.

The Supreme Court petition does not necessarily invite a discussion of the appropriateness of a patent’s role in limiting treatment resources and it is highly unlikely to delve into any First Amendment discussion. But the question whether the isolation of a human gene represents a legitimate invention rather than the identification of a product of nature will have significant implications for the pharmaceutical and bio-tech industries.

The ACLU reports that the PTO “has granted thousands of patents on human genes – in fact, about 20 percent of our genes are patented.” The Supreme Court could set significant limits on patent eligibility for human genomes or it could invite Congress to set those limits.

Congress has already taken some action. As reflected in the PTO Manual of Examining Procedure, the recent amendments to the Patent Act limit the scope of human patentability somewhat:

The Leahy-Smith America Invents Act (AIA), Public Law 112-29, sec. 33(a), 125 Stat. 284, states:

Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.

The legislative history of the AIA includes the following statement, which sheds light on the meaning of this provision:

[T]he U.S. Patent Office has already issued patents on genes, stems cells, animals with human genes, and a host of non-biologic products used by humans, but it has not issued patents on claims directed to human organisms, including human embryos and fetuses. My amendment would not affect the former, but would simply affirm the latter.[1]

The legislative history both suggests that Congress was aware of the scope of patent eligibility and expressed a desire to draw a line regarding the expansion of patent eligibility rather than to restrict that eligibility. If the Supreme Courts accepts this view, then the case will be focused squarely on the transformation of the gene from something found in nature to an invention made by the inventor.

As the Supreme Court explained, “[t]he laws of nature, physical phenomena, and abstract ideas have been held not patentable. Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter.” So perhaps the simpler question could have been whether an isolated gene is closer to a newly discovered species than a newly created species. But the Supreme Court accepted the question regarding patentability of Human genes not isolated genes. So the seminal decision of Diamond v. Chakrabarty, 447 U.S. 303 (1980) which set out the current test may soon receive a new judicial gloss.

At a time when the scope of intellectual property protection is facing great political pressure, the Supreme Court action to revisit this question could have profound effects – even beyond patents to the role and scope of intellectual property more generally.


[1] 157 Cong. Rec. E1177-04 (testimony of Representative Dave Weldon previously presented in connection with the Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, ‘ 634, 118 Stat. 3, 101, and later resubmitted with regard to the AIA; see 149 Cong. Rec. E2417-01). Thus, section 33(a) of the AIA codifies existing Office policy that human organisms are not patent-eligible subject matter. [Text in original MPEP Section.]