6
INTRODUCTION After a year of US political discussion and months of media attention the General Agreement on Tariffs and Trade (the GATT)’ has been approved by Congress. “Just like the historic vote on NAFTA a year ago, this vote for the GATT shows once again that our country is moving in the right direction”, stated President Clinton, after the Senate, in a 76 to 24 vote, blessed the newest version of the GATr’ GOP leader Bob Dole, who helped deliver needed Republican votes, praised the accord as best he could, #It’s not a perfect trade agreement, but... it’s clearly going to be a net gain for the American peopleN.3 The GATT thereby became the first major Congressional action taken, albeit by a lame duck Congress, following the 1994 election. There were many proponents and critics of the GATT who lobbied senators during Congressional consideration. Propo- nents of the trade pact argued that world trade would increase between $230 billion to $274 billion by 2005, hundreds of thousands of new jobs would be created, and American intellectual property would enjoy increased protection.4 Critics of the agreement argued that multinational corporations would shift jobs to low-wage countries (the NAFTA argu- ment), lower US tariffs would increase the budget deficit, and certain industries such as the textile and apparel industries would be crippled.5 Political characterizations aside, the GATT is clearly the most ambitious free-trade agreement ever signed. It reduces or eliminates tariff and non-tariff trade barriers, liberalizes trade in industrial goods, agriculture and textiles, establishes a frame- work to reduce trade barriers in service industries such as banking and insurance, imposes a standard of intellectual property protection required to be implemented by all signatories, and establishes a new organization to govern international trade called the World Trade Organization (WTO). The high tech industry is expected to benefit from both the provisions strengthening protections for intellectual property (IP) as well as the reduction in tariff and non-tariff trade barriers which is the basis of the agreement. The United States, the European Community, Korea and Japan will reduce tariffs by 50-I 00% for most electronic products, including computers, disk drives, monitors and printed circuit boards.6 Tariffs will be cut or eliminated on software and countries may continue to value software on the value of the medium only.’ However, the most significant structural changes brought about by the GATT deal with legal standards for the protection of intellectual property. US trade negotiators have estimated that American entrepre- neurs lose an estimated $60 billion each year to piracy.8 Attempts to fight piracy have been successful only on a limited GATT, TRIPS, AND HIGH TECH basis, with little help from government enforcement officials in countries where the highest number of violations occur. The GATT was seen by US administrations as a vehicle to assist US computer companies and protect US technology. The computer industry was instrumental in including two provi- sions in the GATT designed to reduce piracy to its lowest levels and generally strengthen intellectual property rights: the intellectual property standards set out in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)’ and the enforcement mechanisms incorporated in both TRIPS and the Agreement Establishing the World Trade Organiza- tion.” Together these provisions will establish or enhance copyright, trademark and patent protection for manufacturers of software, semiconductors, and multimedia products in all countries which are signatories to the GATT.” DEVELOPMENT OF THE TRIPS PROPOSAL The United States and the European Community were instrumental in including intellectual property rights on the agenda of topics to be discussed in a proposed round of negotiations following conclusion of the Tokyo Round of the GATT in 1983. formal negotiations did not begin until 1986, initiating the Uruguay Round, and by 1990 the framework for intellectual property protection began to appear, only to have the talks stall on agricultural issues. The stalemate was resolved with the efforts of the GATT General-Director, Arthur Dunkel, who published a proposed text of the GATT used as the basis for the current version. The Clinton administration accepted the Dunkel draft as a basis for negotiation and took the lead to negotiate the most contentious points with the EC. The current version was the result of these negotiations.12 The impetus behind US efforts was concern for many years with the influx of counterfeit goods into the United States, from running shoes and luggage to auto parts and medica- tions. At the same time that research and development costs in high tech industries grew, technology provided tools reducing the cost of copying, especially software, music tapes, and videos. US business saw this piracy as theft of inherent property rights.13 Developing countries, some without a system of private ownership, looked at this as an opportunity to improve and grow their economies. At the outset of the GATT negotiations certain countries, including Brazil and India, were against the inclusion of any provisions on intellectual property. If such provisions were to be included, these countries wanted them to be examples of a code, not mandated directives for implementation into local law.14 In a 1980 conference of the World Intellectual Property Organization (WIPO) developing countries actually attempted to weaken the protection standards set forth in the Paris Convention.‘5 It was also apparent that existing laws failed to protect adequately the interests of software developers, manufacturers of semiconductor chips, and developers of new biotech products. On an international basis most copyright laws failed to protect software expressly or grant any patent protection as an alternative. Data compilations and databases were not recognized as protected works. Developing countries often 182

GATT Trips — A US perspective: GATT, trips, and high tech

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Page 1: GATT Trips — A US perspective: GATT, trips, and high tech

INTRODUCTION After a year of US political discussion and months of media attention the General Agreement on Tariffs and Trade (the GATT)’ has been approved by Congress. “Just like the historic vote on NAFTA a year ago, this vote for the GATT shows once again that our country is moving in the right direction”, stated President Clinton, after the Senate, in a 76 to 24 vote, blessed the newest version of the GATr’ GOP leader Bob Dole, who helped deliver needed Republican votes, praised the accord as best he could, #It’s not a perfect trade agreement, but... it’s clearly going to be a net gain for the American peopleN.3 The GATT thereby became the first major Congressional action taken, albeit by a lame duck Congress, following the 1994 election. There were many proponents and critics of the GATT who lobbied senators during Congressional consideration. Propo- nents of the trade pact argued that world trade would increase between $230 billion to $274 billion by 2005, hundreds of thousands of new jobs would be created, and American intellectual property would enjoy increased protection.4 Critics of the agreement argued that multinational corporations would shift jobs to low-wage countries (the NAFTA argu- ment), lower US tariffs would increase the budget deficit, and certain industries such as the textile and apparel industries would be crippled.5 Political characterizations aside, the GATT is clearly the most ambitious free-trade agreement ever signed. It reduces or eliminates tariff and non-tariff trade barriers, liberalizes trade in industrial goods, agriculture and textiles, establishes a frame- work to reduce trade barriers in service industries such as banking and insurance, imposes a standard of intellectual property protection required to be implemented by all signatories, and establishes a new organization to govern international trade called the World Trade Organization (WTO). The high tech industry is expected to benefit from both the provisions strengthening protections for intellectual property (IP) as well as the reduction in tariff and non-tariff trade barriers which is the basis of the agreement. The United States, the European Community, Korea and Japan will reduce tariffs by 50-I 00% for most electronic products, including computers, disk drives, monitors and printed circuit boards.6 Tariffs will be cut or eliminated on software and countries may continue to value software on the value of the medium only.’ However, the most significant structural changes brought about by the GATT deal with legal standards for the protection of intellectual property. US trade negotiators have estimated that American entrepre- neurs lose an estimated $60 billion each year to piracy.8 Attempts to fight piracy have been successful only on a limited

GATT, TRIPS, AND HIGH TECH

basis, with little help from government enforcement officials in countries where the highest number of violations occur. The GATT was seen by US administrations as a vehicle to assist US computer companies and protect US technology. The computer industry was instrumental in including two provi- sions in the GATT designed to reduce piracy to its lowest levels and generally strengthen intellectual property rights: the intellectual property standards set out in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)’ and the enforcement mechanisms incorporated in both TRIPS and the Agreement Establishing the World Trade Organiza- tion.” Together these provisions will establish or enhance copyright, trademark and patent protection for manufacturers of software, semiconductors, and multimedia products in all countries which are signatories to the GATT.”

DEVELOPMENT OF THE TRIPS PROPOSAL The United States and the European Community were instrumental in including intellectual property rights on the agenda of topics to be discussed in a proposed round of negotiations following conclusion of the Tokyo Round of the GATT in 1983. formal negotiations did not begin until 1986, initiating the Uruguay Round, and by 1990 the framework for intellectual property protection began to appear, only to have the talks stall on agricultural issues. The stalemate was resolved with the efforts of the GATT General-Director, Arthur Dunkel, who published a proposed text of the GATT used as the basis for the current version. The Clinton administration accepted the Dunkel draft as a basis for negotiation and took the lead to negotiate the most contentious points with the EC. The current version was the result of these negotiations.12 The impetus behind US efforts was concern for many years with the influx of counterfeit goods into the United States, from running shoes and luggage to auto parts and medica- tions. At the same time that research and development costs in high tech industries grew, technology provided tools reducing the cost of copying, especially software, music tapes, and videos. US business saw this piracy as theft of inherent property rights.13 Developing countries, some without a system of private ownership, looked at this as an opportunity to improve and grow their economies. At the outset of the GATT negotiations certain countries, including Brazil and India, were against the inclusion of any provisions on intellectual property. If such provisions were to be included, these countries wanted them to be examples of a code, not mandated directives for implementation into local law.14 In a 1980 conference of the World Intellectual Property Organization (WIPO) developing countries actually attempted to weaken the protection standards set forth in the Paris Convention.‘5 It was also apparent that existing laws failed to protect adequately the interests of software developers, manufacturers of semiconductor chips, and developers of new biotech products. On an international basis most copyright laws failed to protect software expressly or grant any patent protection as an alternative. Data compilations and databases were not recognized as protected works. Developing countries often

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required copyrightable works to be first published in their country in order to receive what copyright protection existed. The term of patents rights was often short, under 10 years, or practically shortened by lengthy application procedures some- times lasting more than five years. Many of these patent laws also provided for compulsory licensing, denying the rights holder the ability to fulfill local use requirements through imports of the patented products. Trademark law was similarly ineffective in protecting foreign marks, often allowing registrations or use of marks confusingly similar to interna- tionally recognized marks.

CONTEMPORANEOUS EFFORTS TO PROTECT IP: SECTION 301 AND NAFTA The US response to inadequate foreign protection and increasing competition from pirated technology was to negotiate intellectual property standards of protection in the GATT while passing domestic legislation and negotiating bilateral treaties designed to pressure other countries to offer protection to US technology. Section 301 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988,16 provided a mechanism for the US Trade Representative (USTR) to initiate retaliatory action against countries whose legislation or practices violate or are inconsistent with US rights under treaties or otherwise impose unjustifiable burdens on US commerce.‘7 In these cases Section 301 grants the USTR power to suspend trade privileges, impose duties and import restrictions, and enter into agreements with these countries to end discriminatory practices.18 With the passage of the GATT, the USTR will find it difficult to use Section 301 against the GATT signatories (members). Whereas Section 301 mandates retaliatory action, the GATT provides a mechanism for members to consult on matters relating to TRIPS before the Council for TRIPS and for disputes to be brought before the World Trade Organization.lg Joshua Bolten, former General Counsel to the Office of the United States Trade Representative, testified before Congress that in his view the moral authority of the US to use Section 301 powers would be constrained by the meaning and spirit of the GATT provisions which allow developing countries and centrally-planned countries an extended period to comply with the provisions of TRIPS.” Micky Kantor, USTR, told a news conference at the end of 1993 that Section 301 would not be affected by the WTO; however; he quickly conceded that the US would have to take certain cases to the WTO before activating Section 301 powers.2’ The North American Free Trade Agreement (NAFTA) estab- lished a high level of intellectual property protection which is not superseded by the GATT. Among its strong intellectual property rights provisions NAFTA protects computer programs as literary works, provides for rental rights for computer software, and product and process patents for all types of inventions, including pharmaceuticals and agricultural pro- ducts, and protects service marks, trade secrets and integrated circuits.22 These protections mandated by NAFTA were already provided by US law. Canada amended its copyright law to provide rental rights to copyright holders and Mexico is amending its laws to come within the agreement. As NAFTA

encompasses more members in the Western Hemisphere, these intellectual property provisions will strengthen the laws already required by TRIPS.23 Section 301, NAFTA, and other conventions and directives, from the Berne Convention to the European Copyright Directive, are all methods of providing protection for intellectual property which are supplemented by TRIPS. The significance of TRIPS lies especially in its scope, in its application to member countries which have as yet not adopted adequate laws or enforcement procedures.

GENERAL SCOPE AND PRINCIPLES OF TRIPS The substantive provisions of the GATT apply to all members of the GATT, i.e. all countries who have signed the GATT and have had the agreement ratified or passed by referendum as required by their own laws. Members are given a period of one year following entry into force of the WTO Agreement24 to implement the provisions of TRIPS, except that developing countries and countries in the process of transition from a centrally planned to a free-market economy are entitled to an additional period of four years.*’ Least-developed countries are given an extended period of 10 years from the date the WTO Agreement goes into force. 26There are two important general principles with respect to protection*’ of intellectual property which apply to all TRIPS provisions: national treatment and most-favoured-nation treatment.28 The rule on national treatment requires countries to accord nationals of member countries no less favourable treatment than it accords its own members, subject to exceptions set forth in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. These exceptions recognize the right of a country to deny protection to nationals of other countries which do not provide adequate protection to its own nationals.*’ Most-favoured-nation treatment must be accorded all mem- bers of the GATT, i.e. that any advantage, favour, privilege or immunity granted to nationals of one member should be granted to other members, except for certain international law enforcement agreements, exceptions under the Berne Con- vention or the Rome Convention, with respect to rights of performers, record producers, and broadcasters not provided for under TRIPS, or agreements entered into prior to TRIPS3’ Developing countries, Australia and New Zealand lobbied for an additional provision specifically allowing parallel imports3’. The US wanted a provision specifically prohibiting parallel imports.32 As a compromise no provision on parallel imports was included in the final draft. One exception to all of the provisions mandating intellectual property protection is the recognition in TRIPS of the need for members to control anti-competitive behaviour. Despite copy- right, trademark or patent rights granted under local legislation, countries may determine that certain licensing practices or conditions constitute abuses of intellectual property rights and have an adverse impact on competition. Members may, in these cases, adopt appropriate remedies or controls including exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing.33

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COPYRIGHT TRIPS provides copyright protection generally in accordance with US copyright law. Copyright protection is given to expressions and not “ideas, procedures, methods of operation or mathematical concepts as suchN.34 If the term is measured by other than the life of the author then protection must be granted for at least 50 years from the end of authorized publication, or failing authorized publication, 50 years from the making of the work.35 In general, members must provide at least the protection afforded by the substantive provisions of the Berne Convention (1971), excluding Article 6 his which provides for moral rights. The United States has consistently protested against the inclusion of moral rights in TRIPS as well as other international conventions, including the European Copyright Directive.36 Moral rights are recognized by many countries, especially civil law countries, in providing authors the right to claim authorship to their work and object to distortion, mutilations or other modifications of their work even though the author transferred his or her economic rights. The drafters of TRIPS agreed to US desires to exclude moral rights from the minimum protections required. Computer programs, both source and object code, are recognized as literary works enjoying the exclusive rights accorded such works, i.e. the right to reproduce or copy, adapt or prepare derivative works, distribute the work, and the right to authorize or prohibit the commercial rental of a computer program (except with respect to rentals where the program is not the ‘essential object’ of the rental).37 Databases and compilations of data which constitute intellectual creations are also protected with respect to the compilation but not the data itself.38 There is no requirement that members’ copyright laws permit licensees of software to make backup or archival copies. TRIPS does not address fair use (the issue of research, scholarship, news, and with respect to software certain decompilations for purposes of developing compatible soft ware) or specifically deal with reverse engineering. US negotiators were especially concerned that protection be given to new forms of technology and that existing computer technology be adequately covered. Computer programs were therefore included in Article 10 covering copyrights, but sui generis protection was provided under Section 6 for layout- designs of integrated circuits. The decision to deal with mask works outside of copyright law was similar to the concerns behind passage of the Semiconductor Chip Protection Act of 1984, i.e. that the dividing line between expression and idea was blurred with mask works and better dealt with in a tailored section. Rights holders to layout-designs of integrated circuits or mask works are to be provided protection in accordance with the Treaty on Intellectual Property in Respect of Integrated Circuits3’ for a minimum period of 10 years from the date of filing or commercial exploitation.40 In addition the rights holder has the exclusive right to authorize the import, sale, or distribution of a protected mask work or integrated circuit containing the protected mask work.4’ New technologies may require new methods of protection not presently envisioned. TRIPS is designed to evolve with technology by allowing for amendments and additions over time. A Council for TRIPS is to be established to coordinate actions with WIP042 and to review implementation of the agreement after the transitional dates provided for developed,

developing and least-developed countries to implement the GATT, and then every two years thereafter.43 The Council can initiate earlier reviews in the light of any relevant new developments which might warrant modification or amend- ment” of TRIPS.44 Not only will the Council review compliance by members but also the effectiveness of TRIPS in a changing commercial and technological environment.

TRADEMARKS Trademarks are to be granted protection for a minimum period of seven years, renewable indefinitely, and may be any sign or combination of signs identifying goods or services including personal names, letters, numerals, figurative elements and combinations of colours which are capable of distinguishing the goods or services.45 Members may however require marks to be visually perceptible, which would obviously deny trademark protection for smells and sounds currently protected under US law.46 Prior use of the trademark may not be a precondition to registration, and failure to use a trademark within three years of application may not constitute grounds for denying an application.47 Registration may however be cancelled for failure to use a mark for more than three years absent mitigating circumstances4’ Members may also provide limited exceptions for fair use, i.e. marks which are merely descriptive or which are deceptively misdescriptive may be denied registration.4g Fair use will also include the ability of members to deny registration of marks which are themselves scandalous or immoral; however, the nature of the underlying goods or services cannot be grounds for denying registration of a mark which otherwise qualifies for registration.50 TRIPS requires that trademark protection grant rights holders the right to prevent others from using identical or similar marks in a way which would result in a likelihood of confusion.5’ Unlike US trademark statutory law, if identical marks are used then confusion will be presumed.52 Article 16 also incorporates Article 6 his of the Paris Convention regarding Well-Known Marks for both goods and services.53 Initial drafts of TRIPS applied Paris Convention rules on well-known or famous marks on the basis of international recognition. This was changed to require only that the mark be well-known in the relevant public sector in the registering country. Marks on goods or services which are confusingly similar to well-known marks and which would indicate a connection between the two can be denied registration. However, in dropping the use of an international recognition standard, holders of well-known marks who have not registered in a country are not given another tool to prevent registration of confusingly similar marks in that country.54 Compulsory licensing of trademarks is not allowed under TRIPS and trademark holders have specific rights to sell their mark without selling the underlying business.55

PATENTS Patent protection was of particular concern to the US high tech and biotech communities. TRIPS establishes a minimum standard of patent protection for a period of 20 years from the filing date56 which members must provide “without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.N5’ This will require specific changes in the laws of

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certain East Asian countries which have historically required local invention or prohibited patent protection for foreign patents affecting protected domestic industries. The standard for granting patent protection is that the invention, which can be a product or process, must be “new, involve an inventive stepN and be “capable of industrial applicationN.58 The footnote to this section clarifies that “inventive step” and “capable of industrial application” may be read as synonymous with the terms “non-obvious” and “usefulfl, terms used commonly in US patent law.5g Holders of patents will have the exclusive right to make, use, offer for sale, sell, or import a product, or in the case of a patented process, to prevent others from using the process, or using, offering for sale, selling or importing products which are the result of the patented process.60 It is not clear whether computer software would be patentable where, for example, it was not merely an expression of an idea or mathematical algorithm, but in fact directed a process. Patentability of software is still a developing area of law in the US and there certainly is no consensus on international computer patents which could have led to inclusion of clear standards in the GATT. Biotechnology was another area of patent protection of particular concern to US negotiators, however, TRIPS falls short of providing strong patent protection for the industry. Not only may members exclude inventions on the basis of their need to protect public order and morality,6’ a rather broad exclusion, but they may also exclude “diagnostic, therapeutic and surgical methods... [and] plants and animals other than micro-organisms... and essentially biological processes for the production of plants or animals.... V62 This is similar to Article 1709(2) and (3) of NAFTA. TRIPS does require members to provide protection, by a patent or sui generis system, for plant varieties and indicates that these provisions will be reviewed four years after entry into force of the WT0.63 Unlike NAFTA, TRIPS does not require countries newly establishing patent protection for pharmaceuticals and agricultural chemicals to extend such protection to products already patented in other countries for the unexpired terms of those patents, i.e. pipeline patents.64 Nor does TRIPS specifically prohibit compulsory licensing. Instead it requires that authorization from the patent holder be attempted and, lacking that, then there must be adequate compensation, limitation of the scope and duration of use and in the case of semi-conductor technology [that it] shall only be for public non- commercial use or to remedy a practice determined... to be anti-competitive, non-exclusivity, non-assignability and under generally defined circumstances necessitated for government use, of an urgent nature or equivalent to a national emergency.65

ENFORCEMENT Progress has been made over the past five years in the enactment of copyright, trademark and patent laws in many countries which have been notorious locations of piracy of intellectual property rights. Despite the enactment of these protective laws, infringement and piracy have continued. Poor enforcement procedures have been cited as preventing serious attempts to use these laws and clamp down on illegal use of protected intellectual property.

TRIPS requires Members to establish adequate and effective enforcement procedures to permit action against infringers so long as these procedures do not create new trade barriers or anti-competitive weapons for local industry.66 In particular, holders of intellectual property rights should have access to a fair and equitable administrative or judicial proceeding at a reasonable cost and in a reasonable time frame.67 Decisions should be reasoned and in writing and be subject to judicial review.68 Judicial bodies should have the power to compel evidence.6g Most importantly the judicial authorities must have the power 1) to enjoin infringement, 2) to award damages, expenses and attorney fees to the rights holder, 3) to order recovery of profits and/or payment of pre-established damages, 4) to order that the infringing goods be disposed of or destroyed, and 5) to order the infringer to disclose the identity of third persons involved in the infringement.” TRIPS requires that these enforcement measures be supplemented by procedures authorizing judicial bodies to order provisional measures to prevent infringement and providing rights holders the means to stop and inspect goods on entry into the country upon valid grounds for suspecting infringement7’ In addition to civil procedures members must provide criminal penalties for “wilful trademark counterfeiting or copyright piracy on a commercial scale. N72 Penalties should include imprisonment, fines and seizure of infringing goods on a level similar to penalties given for crimes of equal gravity. If the intellectual property laws required by TRIPS are not adopted or enforced by a Member then any other Member has the right to raise this issue before the Council for TRIPS which will review the case and submit recommendations to the Ministerial Conference for approval by consensus.73 This procedure does not offer much advantage over the procedures for handling complaints under the old GATT; procedures which were seldom effective. However, the new GATT also establishes the WTO and a set of dispute settlement procedures which provide significant power to the WTO to resolve disputes between members.74 In general, disputes should be raised to panels of experts who will, subject to strict time limits, issue decisions which may be appealed to an appellate body which may uphold the decisions or overrule them. This procedure is an improvement over the prior GATT dispute settlement procedures under which panel decisions were sent to the GATT Council where members could simply block implementation of the decision.75 The preferred result of an accepted appellate decision or panel decision in favour of the claimant would be termination or a phasing out of the challenged laws or enforcement measures. Should this fail then compensation may be ordered and retaliation left as a measure of last resort.76

CONCLUSION The GATT has provided a much needed floor of intellectual property protection and enforcement mechanisms in support of copyright, trademark and patent owners. Although the framework of protection has been designed, the implementa- tion of these laws, especially in developing and least-developed countries, will take anywhere from two to 10 years. Infringement of intellectual property rights will not be effectively reduced by the provisions of TRIPS over the next few years, but it achieves a great deal in just setting a standard

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of internationally accepted norms of intellectual property Stephen 1. Doyle protection and by establishing the principle that intellectual Copyright IC 1994 Stephen J. Doyle, Partner, Mirick, property rights holders should be protected in order to foster a O’Connell, DeMallie & Lougee better international economic climate. Email: [email protected]

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BOOKREVIEW MARKET DATA - REGULATION

The Ownership of Price and Quote Information: Law Regulation, Economics and Business, by Ruben Lee, 1995, Oxford Finance Group, 247 pp., f400.00, ISBN 189975900X The purpose of this report is to analyse the bundle of rights and obligations linked to the purchase and sale of price and quote information emanating from an exchange or market, while assessing how the ownership of such data affects the structure and development of exchanges and markets. The author identifies four factors which may give rise to uncertainty about such ownership questions - complexity, conflict, change and terminology. The complexity lies in the nature of the business relationships in the market data industry, the institutional structure and architecture of different exchanges and markets, and the legal principles governing the dissemination of price and quote informa- tion. Conflict arises between different branches of the relevant law and regulation, and changes occurring in economic knowledge, legal practice and in technology. The confusion arises over terminology, where the same word means different things to different people. The work is divided into six chapters. Chapter one explains these four factors, while chapter two explores the various commercial goals and concerns that exchanges, vendors, intermediaries and investors have in their use of price and quote information. The chapter also discusses the implica-

tions of these goals and concerns for the rights which they claim over this information. Chapter three examines contracts, identifying and describing the rights claimed by exchanges in the dissemination of their data which affect the structure and development of exchanges and markets. Chapter four, dealing with the economics, describes the current state of knowledge, as examined in the economics literature, of what role the dissemination of prices and quotes plays in the functioning of markets. Chapter five, on law and regulation, describes some important elements of the law and regulation which govern the dissemination, purchase and sale of price and quote information. Finally, chapter six - Analysis - considers what rights an exchange might claim in the dissemination of this data and what its conduct should be in its dissemination policy to avoid being judged anti-competitive. Finally, it asks what regulation there should be to govern the dissemination of price and quote information in trading markets. The author, Ruben Lee, is Director of the Oxford Finance Group, which is a research and consulting firm specialising in business, economic, legal and regulatory issues related to the financial and commodity markets. Available from the latter at Oxford Finance Group, Research and Consult- ing, 100 St Mary’s Road, Oxford OX4 1QD. UK; tel: +44 (0)1865 201228 or fax: +44 (0)1865 201131.

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