Exhaustion Of Rights Research Articles

Legal Regulation of Parallel Import in the States of the Eurasian Region

The article is devoted to the problem of regulating parallel imports in the countries of the Eurasian region, which is significant in the conditions of the modern world economy. The relevance of this issue is related to the economic sanctions applied to such states of the Eurasian region as the Russian Federation and the Republic of Belarus. The legal regulation of issues of protection of intellectual property rights in Russia, Belarus, Kazakhstan, China, and Azerbaijan is analyzed. Special attention is paid to the consideration of the practice of the Constitutional Court of the Russian Federation, as well as legal acts regulating the rights of both copyright holders and importers and consumers, who are subject to the consequences of certain decisions of copyright holders who do not consent to the import of goods into different states.Aim. Research of the legal regulation of the institution of parallel imports in the states of the Eurasian region in the context of economic sanctions.Tasks. Analysis of regulations governing the protection of intellectual property rights in the states of the Eurasian region, research of the main directions of parallel imports in the states of the Eurasian region, as well as identification of the main legal problems associated with the legalization of parallel imports in the region.Methods. Comparative legal and cross-temporal analysis of international and national regulations in the field of antitrust, copyright and customs law, as well as the study and analysis of general scientific literature and the formation of one’s own conclusions during the research.Results. As a rule, the states of the Eurasian region have established the national principle of exhaustion of rights to a trademark, and the international principle is used as an exception for certain groups of goods. The legalization of parallel imports raises several formal questions about the compliance of permission to import without the consent of the copyright holder with the international obligations of various states.Conclusions. In connection with the introduction of economic sanctions against some states of the Eurasian region, parallel imports are an effective mechanism for protecting the domestic market from abuses by copyright holders who unreasonably deny importers the right to distribute goods. Also, one of the methods to neutralize the consequences of sanctions regulation is to use the markets of other countries in the Eurasian region, which do not directly prohibit parallel imports.

Exhaustion of rights and parallel import: legal assessment from the point of view of security

In the context of external challenges and threats, integration and digitalization of the economy, attention is growing to the issues of exhaustion of rights or parallel imports. The article considers the issues of exhaustion of exclusive rights to intellectual property objects from the point of view of ensuring security.The object of the study is the model of exhaustion of exclusive intellectual property rights in Russia, its features from the point of view of ensuring various types and levels of security. Based on the proposed periodization of the legal regulation of exhaustion of rights in Russia in the context of Eurasian economic integration, the author examines the formed model of exhaustion of intellectual property rights, highlights its features, identifies options for its scientific justification from the standpoint of ensuring national security in the context of internal and external threats.Methods of systemic, historical and institutional analysis, formal logical and comparative legal methods were used. The author proposes a periodization of the legal regulation of exhaustion of rights in Russia in the context of Eurasian economic integration, a classification of participants in legal relations directly or indirectly involved in the mechanisms of creation, use and turnover of intellectual property rights. Attention is drawn to three aspects of the mechanism of exhaustion of rights that has developed and is developing in Russia: the conceptual apparatus of the mechanism, the complexity and multilevel nature of the security provided by it and the mobile nature of the mechanism of exhaustion of rights. Conclusion are drawn that in modern Russia the established model of exhaustion of rights, combining elements of regional and international principles of exhaustion, can be considered as a way to counteract sanctions pressure, measures to protect domestic copyright holders, producers and consumers, measures to support the domestic economy, conditions for the formation and strengthening of technological sovereignty. It is proved that the established correlation of various models of exhaustion of rights in Russia reflects the dominance of aspects of national security protection, the strengthening of economic components of intellectual property rights protection.

Chinese Legislation and Theoretical Basis for Patent Parallel Import: Consideration of Parallel Import of Pharmaceutical Patents During the Pandemic

The current Chinese Patent Law permits parallel import, but its theoretical basis is disputed. Neither theprinciple of domestic exhaustion of rights nor the principle of international exhaustion of rights can be used as thetheoretical basis to support parallel import. Chinese legislation can set aside the traditional dispute between the principleof exhaustion of rights and the principle of territoriality, support parallel import in principle, and make exceptions in whichparallel import can be prohibited if the parallel importer violates the contract or authorization agreement or conductsunfair competition to damage the legitimate rights and interests of the patentee or the consumer. The primary objective oflegislation on parallel imports of pharmaceutical patented products should be better protection of public health. Permittingparallel import of patented medicine is of utmost significance to decrease the price of patented drugs and expand theaccessibility of drugs. However, we should also prevent the import of fake and inferior goods. China should be cautiousabout permitting the parallel import of “repackaged” pharmaceutical patented products in legislation and law enforcement.Regarding administrative enforcement, the customs should set up special supervision authorities for patent import andexport, and standardize the enforcement procedure for parallel import.

Separate Issues of Implementation of Parallel Imports Regime and Related Problems of Intellectual Property Protection in Russia under Sanctions

It is already possible to conduct a comprehensive assessment of parallel imports introduction into the Russian legislation, which aims at providing Russian consumers with goods that are no longer available on the national market due to the sanctions against the Russian Federation adopted in 2022 and a number of companies suspending their activities in the Russian Federation. Exhaustion of intellectual property rights has been known in the world for quite a long time as a tool aimed at ensuring a balance of interests of copyright holders, consumers and importers, as well as a tool for ensuring international competition. In a particular state, one or another regime of exhaustion is applied taking into account the economic, political foundations of the functioning of the state economy, legal and evolutionary prerequisites. In this context, the paper presents a number of conclusions and proposals aimed at optimization of the parallel imports regime in Russia. The author considers some aspects of the customs, and substantiates the expediency of direct consolidation of international exhaustion of rights in the Russian legislation and possible development trajectories of the «list» approach to parallel imports. General approaches to the protection of intellectual property under sanctions are formulated, as well as proposals for solving problems related to the use of copyright objects belonging to copyright holders who have suspended their activities in Russia following sanctions regimes. The formulated conclusions and proposals could be summarized and taken into account in the Strategy for the Development of Intellectual Property in Russia — a strategic document that is extremely necessary in order to systematize and optimize measures for the development of approaches to the protection and promotion of the creation of intellectual property in Russia.

Parallel Imports and the International Principle of Exhaustion of Rights under Sanctions

In the modern world, parallel imports implemented in compliance with the international principle of exhaustion of intellectual property rights can and should become a mechanism for developing free trade, ensuring international competition and protecting the interests of consumers around the world. The sanctions adopted in early 2022 and imposed against the Russian Federation, as well as suspension of the activities of a number of foreign companies in the Russian Federation, encouraged the author to examine the current trajectories of introducing the international principle of exhaustion of rights into legislation and the possibility of parallel imports applied in order to provide Russian consumers with goods that have ceased to be available on the domestic market. The author reviews legislative regulatory acts adopted in Russia for the purpose of ensuring parallel imports and implementing the international principle of exhaustion of rights, analyzes possible problems of its implementation and ways to solve the problems under consideration, examines foreign experience, international legal and regional foundations for the introduction of the exhaustion of rights regime.

Exhaustion of Exclusive Rights to Computer Programs Under the Laws of Russia, the USA, the EU, China and India

This article provides a comparative analysis of the doctrine of exhaustion of exclusive rights in respect of computer programs with a focus on the legislation of Russia, the United States, the European Union, China and India. The purpose of this study is to examine the impact of the doctrine of exhaustion of exclusive rights on intellectual property and propose potential solutions to address problems that may arise. The laws in force in Russia concerning the exhaustion of rights to computer programs are discussed, and it is noted that they are restraining in nature and limit the distribution of computer programs to the first distribution under contracts for the complete alienation of the tangible medium. Although these laws are aimed at protecting the rights of authors and right holders, they also impede the free distribution of computer programs, making it difficult for consumers to access them. Therefore, the article proposes changes in the Russian legislation to ensure free distribution of computer programs, including the possibility of leasing, secondary sale of electronic copies and exchange. It is also proposed to reduce the requirement to recognize the introduction into civil circulation, because the existing wording “sufficient to meet reasonable public needs, based on the nature of the work” is vague and contrary to current international practice. I believe that these changes will help mitigate or circumvent current or future Western sanctions. The analysis underlines the need to improve Russian legislation with respect to the doctrine of exhaustion of exclusive rights. By adopting more flexible laws, Russia can facilitate the free distribution of computer programs while protecting the rights of authors and rightsholders. Such improvements will increase access to software and foster innovation and creativity in the digital age.

Digital exhaustion of the right of distribution in the European Union copyright law

In this article, the author presents the conditions for exhaustion of the distribution right and overviews the main sources regulating exhaustion, from which the main problem related to the recognition of digital exhaustion of the distribution right - the separation of the right of communication to the public and the right of distribution - arises. In the view of the author, transmission of works or objects of related rights over computer networks for permanent use by its users is not fully attributable to distribution, due to international and EU provisions restricting the distribution right to material copies only. Therefore, the author considers that intervention of the legislator is necessary in order to implement the rule of digital exhaustion and to make a clear distinction between the rights of distribution and communication to the public. Other risks associated with the digital exhaustion of the distribution right, such as the “first copy” problem, and the inefficiency of the technical measures to ensure that works (other objects) transmitted over computer networks are not reproduced without the permission of the rightholder, are also analysed in this work. Notwithstanding the mentioned concerns, the author suggests reviewing legal provisions related to digital exhaustion in order to ensure that copyright law better meets actual social relationships and key consumer needs.

Legal Regulation of Relations in Parallel Imports. The Experience of Eurasian Region States

Parallel imports as a tool for the international trade development and better availability of goods in different countries and in some sense an instrument of international competition, give rise to a number of legal issues, the solution of which depends on the stability of trade relations, availability of goods in the markets of different states, compliance with the intellectual rights of copyright holders. The authors analyze legal approaches to parallel import and the problem of exhaustion of rights in the states of the Eurasian region using Russia, Armenia, Kazakhstan, Azerbaijan and the EAEU as case studies. It is noted that there is no normative consolidation of the concept of «parallel import» at the level of international level. There are no international legal grounds allowing the right holder to prevent introduction of the international principle of exhaustion of rights in full in a particular State. The standards of significant difference in the implementation of the international principle of exhaustion of rights seem permissible for regulatory consolidation only in cases where significantly different goods are distributed by the rightholder in at least two States and have ever been imported by the rightholder or with his consent for distribution to the State introducing parallel imports. Even in this case, introduction of the standards of significant difference remains at the discretion of the State introducing the international principle of exhaustion of rights.The regional principle of exhaustion of exclusive rights within the EAEU, can serve as an important mechanism for completing the markets of goods and services in the EAEU member states, filling in the missing goods on the market of the EAEU member states, increasing competition and optimizing prices for goods in the region At the same time, it is necessary to provide for the possibility of using the international principle of exhaustion of exclusive rights, clearly establishing the list of goods (trademarks) subject to its operation.

유럽에서의 권리소진원칙의 적용과 한계

On December 19, 2019, the European Union Court of Justice (CJEU) issued a preliminary decision in the case of Tom Kabinet in the Netherlands. It was a much- awaited decision in a situation where there were mixed judgments on the application of the digital exhaustion principle among the member states of the European Union. According to CJEU's preliminary decision, second-hand sales of e-books are not subject to European Union Computer Program Directive(Directive 2009/24/EC) but the Information Society Copyright Directive (Directive 2001/29/EC). It was concluded that the principle of exhaustion of rights does not apply to the provision of second- hand e-books by downloading as the Communication to the Public provisions of Article 3 in InfoSoc Directive. However, the standards presented in Tom Kabinet's judgment are still not clear enough to be applicable to all digital works online markets, and platforms are competing to develop new business models and technologies to avoid these standards. The legal, technical and economic debates are likely to continue. This article discusses the scope and limitations of the principle of exhaustion of rights proposed by CJEU by examining the judgment of Tom Kabinet, and the necessity of the principle of exhaustion of rights. Chapter Ⅱ examines the general principle of exhaustion of rights, and Chapter III examines the CJEU judgment on Tom Kabinet in detail. In Chapter Ⅳ, Ⅰ will examine the significance of Tom Kabinet's judgment and its impact on the application of the digital rights exhaustion principle in the future. In the conclusion, the necessity and role of the principle of exhaustion of rights in the Copyright Act is mentioned, and the necessity of expanding the application of the principle of exhaustion of digital rights along with the problems of CJEU's preliminary judgment is raised.

On the Legitimacy of Exhaustion of Rights in Non-Fungible Token Transactions of Digital Works

As the golden rule of resolving the conflict between intellectual property and right in rem of the same object, exhaustion of rights aims to avoid the influence of exercising intellectual property right on right in rem. The academic circle is unable to come to any agreement concerning the discussion of extending the rule of exhaustion of rights to the regulation of utilizing works in digital conditions. The blockchain technology and market have a transformative impact on the copyrights in the digital environment. NFT and the mode of NET of digital works have reshaped the traditional ecology of online works transmission and utilization, offering opportunities for the exhaustion of rights to be applied in the network environment. Hence, it is the right moment to create the digital environment to apply the exhaustion of copyrights.

ГРАНИЦЫ ИСКЛЮЧИТЕЛЬНЫХ ПРАВ НА ПРОГРАММЫ ДЛЯ ЭВМ

In the article, the author examines time, content and object boundaries of exclusive rights to computer programs. It has been substantiated that the meaningful boundaries of exclusive rights should be established through a closed list of cases of free use. At the same time, the balance sheet doctrine of fair use, supplemented by the concepts of “transformative use”, cannot serve as a tool for establishing such boundaries. At the same time, in order to resolve atypical conflicts of interest arising in relation to a specific object of copyright between a person interested in access to such an object and the rightholder, standards for assessing the behavior of the rightholder should be developed – special (in relation to Article 10 of the Civil Code of the Russian Federation) limits for the implementation of exclusive right. With regard to the object boundaries of rights to computer programs, it was concluded that they are established by means of the “traditional” concept of copyright “protected form – unprotected content” and the doctrine of “essential part”. The principle of exhaustion of rights should not apply to such objects.

The evolution and consequences of digital rights management in relation to online music streaming

AbstractStreaming services now provide the dominant way in which music is distributed and consumed online. Digital rights management (DRM) lies at the heart of this trend and has evolved alongside a movement from copy-based to streaming-based consumption. This shift poses a number of new and unique issues. Music streaming services have changed the nature of the product offered, with musical content becoming de-bundled and reduced to a series of permissions covered by DRM and associated licences, leaving users trapped in a permission-based system. This may create tension with copyright law principles regarding personal ownership and exhaustion of rights in relation to secondary markets, but through analysing relevant US and European case law it can be demonstrated that there is little, if any, legal opportunity for digital secondary markets to emerge. There are also further specific consequences which may affect artists relating to musical diversity and the composition of popular music and, also, consequences regarding the changing nature of the Internet itself. In this context copyright remains centrally important, but only in establishing the initial proprietary rights that enable subsequent DRM and licence-based online exploitation, indicative of a re-establishment of record industry power that is now allied to streaming platforms.

Pengaturan Impor Paralel dalam Merek (Studi Perbandingan Hukum Indonesia, India dan New Zealand)

Parallel import is a concept for importing and reselling original products from distributors that are legally obtained from producers at lower prices rather than buying directly from producers. These products are placed on the market in one country with the approval from owner and imported to another country without the permission of the owner. Parallel imports are built on the principle of exhaustion of rights. Basically, there are three principles of exhaustion of rights, namely;the principle of international exhaustion of rights, domestic/national exhaustion of rights and regional exhaustion of rights. Based on the TRIPS agreement, each country is given the freedom to determine and regulate the principle of exhaustion of rights to be applied. The issue under discussion is how the parallel import regulation in brands according to Indonesia, Indian, and New Zealand laws what can be adopted in Indonesia law regarding parallel imports based on these comparisons. In this study, the writer used a normative research method. This research also uses legal comparison as part of its analysis with data collection techniques through literature study. Data analysis method used is descriptive qualitative method. The results of the study showed that Indonesia has no regulation regarding parallel imports. While in India and New Zealand there are related regulations. Regarding disputes settlement regarding parallel imports in Indonesia, civil law is adopted, in India with a judge's decision in accordance with existing regulations. What can be adopted by Indonesia in this case is to explicitly reinforce regulations regarding parallel imports in brands.

Exhaustion of Rights in Case of Products Commercialised without the Trademark Holder’s Consent

Exhaustion of Rights in Case of Products Commercialised without the Trademark Holder’s Consent

The Bollywood Amendments: Film, Music and Indian Copyright Law (2010 to 2012)

One of the key objectives of the amendments made to the Indian copyright statute in 2012 was to protect the authors of underlying works in films (such as scriptwriters, lyricists and music composers) from exploitation by effecting extensive structural changes to the Indian Copyright Act, 1957, and, consequently, in the workings of India’s film and music industry. The other objectives were to ‘update’ India’s copyright statute to cause it to be compliant with the WIPO Internet Treaties (which India has not signed), and to ‘update’ it to bring it into consonance with new technological developments. The 2012 amendments therefore cover a wide range of subjects including the exhaustion of rights, the regulation of copyright contracts and the role of copyright societies; this paper examines the provisions of the 2012 amendments which affect the film and music industry, and, taking into consideration the factual background, explores whether the amendments are likely to realise their objectives.

DISTRIBUTION RIGHT ON THE INTERNET

Issues of “the right on publicity of the work” and “right to distribute” of works in the conditions of digitalization are examined in this article. Norms of international treaties in the sphere of copyright law on Internet. The analysis of national law of the Kyrgyz Republic. The issue of exhaustion of rights on the Internet are also examined.

Legal Issues Related to the Commercial Exploitation of Apps

Mobile applications (Apps) are a billion-dollar industry with myriad uses in everyday life. To ensure the successful commercialization of apps, one must study the peculiarities of the Apps market. Contract law issues and copyright law issues related to mobile apps are at the epicenter of this problematic. In the first part of the paper, the various actors engaged in the distribution of applications are identified and the role of the app stores as online platforms - marketplaces is analyzed. The End-user (consumer) is the reference point of the legal approach to interpret the relations created and classify the contract typology. In addition, the operational and technical functionalities of an app store, the terms and conditions, its organizational structure, the types of applications ‘sold’ or ‘licensed’ and payment methods applied, are several of the factors which are weighed upon, in an attempt to define the legal provisions applied on a national level. The second part of the paper focuses on copyright law issues arising from the fact that apps fall under the definition of software. In particular, the evolution of traditional copyright concepts such as the ‘exhaustion of rights’ and ‘first sale’ doctrine, in the context of App Markets, are analyzed. The analysis conducted indicates that, for the time being, application of traditional rules in the app environment does not contribute to legal certainty. Ad hoc cases which would constitute res judicata are rare. Rather, the solution must be sought on a case-by-case basis, and by careful consideration of multiple factors, including organizational and technical characteristics of the app stores.

PARAINEN PEARL SHIPPING LTD v KRISTIAN GERHARD JEBSEN SKIPSREDERI AS

Abstract H1 Patents – European patents – Declaration of non-infringement – Ships – System “for” unloading powdery cargo – Cement handling – Patentee’s ship equipped with patented system declared total loss – Ship re-floated – Title to ship passing to third party – Patented system not operational – Restrictions as to future use – Ship re-sold – Patentee not exercising option to purchase – Later purchasers putting system back into operation – Whether work done amounting to making repair or replacement – Exhaustion of rights – Implied licence – Estoppel

Some issues of application of the Association Agreement as the source of copyright of Ukraine

The article covers the main aspects of the Association Agreement as a source of copyright and problems of its application.On the example of the practice of the Court of the European Union, the criteria on the basis of which the law of the EU can be applied directly and without the implementation in the domestic law were established.Based on the analysis of the rules of the current legislation of Ukraine, it was concluded that the Association Agreement is the part of the national legislation and is applied in the same manner as foreseen for the rules of the national legislation. In the context of copyright, the Agreement has primacy over domestic law provisions that contain rules other than those in the Agreement.Since Ukrainian courts do not refer to the authentic text of the international treaty in a foreign language but to its official translation, the article analyses the legislation in this regard. It is established that in the law of Ukraine there is no provision which obliges to use only the official translation of the international treaty and prohibits the use of the authentic text of the treaty in another language in which it was concluded. However, if the party of the case indicates that the translation of the text of the international treaty is inaccurate and will refer to the authentic text in a foreign language, the court will not take this into account. The article gives an example of such a case, where the claimant tried to draw the court’s attention to the English text of the Association Agreement but the court used the text of the official translation.There are some problems in the official translation of the text of the Association Agreement illustrated by two examples. In Part 2 of Art. 180 translators added the term «mathematical expression» which significantly influences the criteria for providing legal protection to computer programs while in the original text of the Agreement there is no such a term. In Art. 174 translators confused «right of making the work available to the public for the first time» and «right of communication to the public» and incorrectly translated the term «exhaustion of rights». As a result of these errors, a new content was formed which completely differs from the wording of this article in the authentic English text.Due to the fact that some errors found in the official translation of the text of the Agreement have a direct effect on the legal relationships in the field of copyright, this means that the same legal relationship in the EU and Ukraine is regulated differently by the same rule of the Agreement. It is concluded that the official translation of the Association Agreement needs to be amended as the accuracy of the translation is very important for the application of the Agreement.

Параллельный импорт в России: области защиты, риска, потенциала

В 2014 г. Федеральная антимонопольная служба РФ предложила ввести международный принцип исчерпания прав на товарные знаки в России (легализовать параллельный импорт брендированной продукции) поэтапно для отдельных групп товаров. При этом критерии выбора товарных групп для первоочередного изменения режима импорта не были сформулированы. Авторы статьи попытались с учетом существующего опыта оценки эффектов параллельного импорта сформулировать критерии отбора товарных категорий для легализации параллельного импорта в первую очередь. Товарные группы выделялись на основе анализа состава «защищенных» товарных знаков (внесенных в ТРОИС), внешнеторговых потоков брендированной продукции и объемов инвестиций правообладателей в России.