The Protection Of Intellectual Property In A Changing World

Tuesday, June 1, 2004 - 00:00

Editor: By way of background, can you tell us how your communications and intellectual property practice began?

When I graduated from law school I knew that I wanted to be a trial lawyer and that I wanted to be knowledgeable in the intellectual property field. I saw it as an area that was bound to grow. For three years I worked for a lawyer named Emile Zola Berman - he had a brother called Alfred Dreyfus Berman - and gained great trial experience. I then worked for Ephraim London, an appellate attorney who represented Simon & Schuster and had an intellectual property practice. That was the origin of my intellectual property practice.

Editor: Please tell us how you came to Davis & Gilbert.

Garbus: I joined D&G about 18 months ago. I was aware of its excellent IP practice, having run up against D&G attorneys at my former firm. D&G's practice is notable in that it represents the IP interests of clients on a worldwide basis and it applies a global business view that is relevant to what's going on in the marketplace; whether it is the growing value of artists as brands, brand extension in games, structuring new revenue streams for content creators, or any of the issues subsumed in relationships among brands, creators, suppliers, distributors, and consumers.

Editor: You have represented the publishers of a number of controversial writers, including Salman Rushdie. How did that practice develop?

I have known people in the literary and publishing world for some time. I did not know Salman Rushdie, but I was a good friend of Peter Mayer, the head of Penguin Books, Rushdie's publishers. At the time The Satanic Verses was published, the Iranian religious authorities issued a fatwah that constituted a death sentence for Rushdie. People at Penguin found themselves in harm's way, and, indeed, there were bombings at a number of Penguin outlets. I took out a full-page ad in The New York Times urging the public to buy the book. This was neither a defense of intellectual property nor an attempt to sell the book. Rather, it was a statement promoting freedom of speech.

Editor: And some very prominent actors: Spike Lee, Al Pacino. Any common denominators here?

I saw Al Pacino in a play in Provincetown many years ago, the first play he had ever done. I went backstage to congratulate him, and we have had a professional relationship ever since.
Spike Lee has had to deal with a number of copyright issues over the years. A lawsuit was brought to stop the release of his Malcolm X, which was to have shown some of the footage of the Rodney King beating. That, you may recall, had been taken by a private person. He argued that Spike Lee's use of that footage - which, of course, had been on national television - constituted copyright infringement. Our argument was that certain materials, even though protected by copyright, are so essential to, say, the history of a particular period that their use is not an infringement. We lost two to one in the Ninth Circuit and, because the distributor of Malcolm X could not afford to be hit with an injunction, the case was then settled.

Editor: Your connections with some of the most important political figures of recent times - Vaclav Havel, Pierre Elliott Trudeau and Andrei Sakharov - are also of great interest. How is it that such a varied group of very prominent but very different people - dissident intellectuals, performing artists and writers, political figures - would seek you out?

Each of these relationships stands on its own. I have known Vaclav Havel since 1982, when I was an observer at the trial that resulted in a four-year sentence for him. I wrote on his behalf for Amnesty International at that time. When I returned to Czechoslovakia at the end of 1989, it was apparent that the regime was going to be overthrown and that Havel was going to be a very important part of the new government. We met, and he asked me to help with the creation of a new constitution. I pointed out that I was not a constitutional lawyer, but I agreed to help put together a team of constitutional experts and to help with raising funding for the project from the American foundation community. Among the constitutional experts was Pierre Elliott Trudeau who must, of course, be credited with having kept Canada together. Unfortunately, by the time the constitution came to be written, no document could keep the Czechs and Slovaks together in one country.

With respect to Andrei Sakharov, in late 1976 Jimmy Carter had been elected and was going to take office the following January. At that point the position he was going to take on human rights was not clear. I suggested to Sakharov that he write Carter a letter explaining the terrible human rights situation that then prevailed in the Soviet Union. He did, and I delivered it. Ten days later Carter cited that letter in the famous speech that defined his administration's stand on human rights.

Editor: In addition to your career in court, and your career as a writer, you have served as a consultant on the media and communications in a number of countries. Please tell us how that came about.

Many things are interconnected. The group working on the Czech constitution spent a considerable amount of time in the country during the 18 months that the project was underway. During that period, the Czech government was faced with the responsibility of creating laws about libel, defamation, decency/indecency, and so on, as well as about media regulation. I was qualified to help them with that and, of course, I was already spending a great deal of time in the country.

In the early 1990s I was in Russia working with the Constitutional Court. The question was whether this tribunal could deal with communist-era actions - and specifically their perpetrators - through ex post facto laws.

Years later in China I worked on an issue that was very familiar in light of my experience in Eastern Europe: how to develop an independent press during that period of time that governmental subsidies are essential. Neither advertising nor circulation revenue is yet available to permit newspapers to survive without that governmental support.

The American Constitution is an extraordinary document. In Eastern Europe, in particular, people were interested in talking to lawyers and scholars familiar with the document and the rights it protects. My background and experience in this area has resulted in my being called upon to help.

Editor: In addition to everything else, you have taught at a variety of institutions, most recently at Tsinghau University in Beijing. How did that come about?

NYU and Temple University run a program at Tsinghau University. They, together with the Chinese government, asked me to do some teaching on intellectual property rights. This involved the judges of the new Chinese copyright court in addition to the law students. The Chinese recognize that the question of protecting intellectual property is crucial. China is accused, and correctly, of being a center of copyright infringement. And their pirating is not limited to tangible products; it extends to the multi-million dollar creative advertising campaigns that promote them.

I also became a legislative consultant to the National Peoples' Congress with respect to new copyright legislation. I would have to say that the legislation is sound enough. It is its enforcement that is the issue. That, and the absence of a sufficient number of lawyers familiar with intellectual property issues, are holding China back. People with intellectual property interests to protect are going to invest in places where those interests are protected, and, in the case of China, and irrespective of the laws on the books, they are not.

From the perspective of the Chinese government, this is a very complicated problem. There are areas of the country and areas of the economy where the government's writ is pretty weak. It is estimated that there are 100 million migrants - unemployed people - living in desperate conditions. If the government demands of some official that he shut down a local enterprise producing, say, knock-off Gucci handbags, he is going to go to considerable lengths to avoid doing so. The work force at such an enterprise may include members of his own family, as well as friends, and in shutting it down he is forcing them to join this migrant population. The educational level is very low in many of these rural areas, and it is extremely difficult for the government to effectively explain the importance to the entire country of protecting rights in intellectual property.

This is not to say that the problem is hopeless. Five years ago pirated DVDs were sold openly on the streets of Beijing and Shanghai. Now they are sold, if at all, under the counter. The police will act, although they are neither consistent nor entirely effective even in the major cities. There has been progress, however. At some point in the future - perhaps around 2015 - I believe Chinese authors are going to be in a position to demand effective enforcement of their government as a result of perceived losses from piracy. That is the kind of pressure that will result in an effective policing of piracy.

By the same token, the emergence of China as an integrated member of the world economy - evidenced by their efforts to establish Chinese versions of Starbucks and Wal-Mart in the West - means that the Chinese are developing intellectual property that requires protection throughout the world. The world community is not going to be very accommodating if China's knock-off industry and copyright infringements continue.

The Beijing Olympics in 2008 and the World Expo in 2012 represent a challenge for China, but also an opportunity to show itself as worthy of membership in the world community. The protection of intellectual property rights is not the least of the standards that the world community expects in awarding the hosting of these events to China.

Editor: You are optimistic about China in the long run?

Yes. China says that it will be a developed nation by the year 2050. To get there the Chinese understand that they must achieve stability and develop an economy that continues to enhance the income of its people. They have an extraordinary perception of their problems, and they understand the particular need to address the migrant population issue.

Editor: Please give us your thoughts on globalization.

Globalization is a reality that must be dealt with. At present, China is a market of 1.4 billion people for just about everything that Japan and the West produce. The protection of those products is a crucial issue as between China and the world community. What happens when China develops a technology that is capable of producing things equal in quality to those of Japan and the West but at half the cost? The global economy is going to be faced with a major issue when that day arrives. At the same time, the protection of the intellectual property that underlies that technology is going to be a major issue for China. In both cases, it is the protection of intellectual property that remains at the heart of the global economy.

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