Testimony of Vergil Bushnell (firstname.lastname@example.org)
Student, University of Maryland, Baltimore County (UMBC)
Before the U.S. Patent and Trademark Office
September 11, 2001
My name is Vergil Bushnell. I am an undergraduate student at the University of Maryland Baltimore County (UMBC). I am testifying today as a computer science major and a student journalist.
I would like to thank the United States Patent and Trademark Office for soliciting public comments concerning the proposed Hague Convention on Jurisdiction and the Recognition of Foreign Judgements. I wish to use this occasion to speak on behalf of students such as myself regarding the intellectual property aspects of the Hague Convention.
The Internet has redefined the landscape of academia - allowing student coders and researchers in far-flung nations to work collaboratively, efficiently obtain informational resources and distribute their work to an extent not previously possible in the pre-wired world. Such Internet-based intellectual cross-pollination has broadened and redefined the concept of the academic "marketplace of ideas."
I fear that Hague Convention will reduce the Internet's utility to students by giving corporate intellectual property holders free reign to restrict the flow of information over the Internet through fear of liability, chisel away at traditional checks on intellectual property (such as fair use rights) by using outlying jurisdictions and adhesion contracts, and greatly expand the scope of what may be claimed as intellectual property.
The work of student programmers is highly dependent on open standards and a vigorous and thriving public domain. In recent years, there has been an explosion in the amount of broad patents granted covering basic and well-known software operations such as graphical user interfaces (GUIs), data transmission over the Internet, even hypertext linking and file formats. Such patents encroach on features fundamental to software developers.
The Hague Convention's conception of exclusive jurisdiction for patent infringement suits will not only allow intellectual property holders to obtain patents in jurisdictions with the most liberal or permissive standards of patentability, but enable them to enforce such patents in countries where such "inventions" may not merit patent status.
COPYRIGHT/ SUI GENERIS
Exceptions to copyright such as the American doctrines of fair use and first sale are crucial to everyday academic activities. A student programmer may need to reverse engineer copywritten code to ensure the interoperability of his software. Student journalists need the ability to freely quote, criticize and reference copywritten works. And all students benefit from the sale of used educational materials.
I consider the aforementioned activities as ordinary, permissible and necessary in today's educational environment here in the United States. The Hague Convention will likely upset the delicate balance achieved by the fair use/first sale doctrines between the protection of corporate intellectual property rights and a meaningful public domain fundamental to academic achievement.
Additionally, the enforcement of foreign sui generis intellectual property regimes such as European-style protections on databases are another foreseeable consequence of the Hague Convention that could stymie student research.
I believe that the Hague Convention exposes vulnerable students to unprecedented liabilities. Students - who, in my experience can barely afford campus parking tickets - can hardly be expected to have the financial resources to defend themselves against foreign intellectual property infringement suits, hire lawyers and pay for translation services. By its nature of establishing a framework facilitating the recognition of judgements across national borders, the Hague Convention will disproportionately impact small defendants (such as students) by rendering their ability to mount an effective defense highly improbable.
Additionally, by granting intellectual property holders an unprecedented opportunity to engage in jurisdictional forum shopping, the Hague Convention will disproportionately disadvantage student programmers and writers who are unfamiliar with the laws of 50-plus nations. Students will refrain from making the fruits of their labor freely accessible to others through the Internet, while their universities may be hesitant to host student programs, research and writing in a Hague Convention world.
In its present form, the Hague Convention will cause a "chain of liability" phenomenon as universities, Internet Service Providers and web hosting services are forced to censor content according to the lowest common denominator acceptable to the laws of every Hague Convention signatory nation - resulting in a net dearth of information accessible to students online.
I am very concerned about effect the intellectual property aspects of Hague Convention will have on typical academic practices. For the previously stated reasons, I believe the Convention will have a chilling effect on the development and distribution of works and research produced by students, ultimately constricting the free flow of information that is the lifeblood of academia. Ultimately, students would be best served if intellectual property was struck from the Hague Convention. Instead of blindly trusting the much-touted "public policy exception" provision of the Convention to serve as a catch-all safeguard of the public interest, excising the more problematic aspects of the treaty - such as intellectual property - would better serve the interests of students and the Internet-using public.