Intangible Property Research Articles

Are Your Computer Files Protected Under the Fourth Amendment?

ABSTRACT Currently, the government(s) in the United States can seize a copy of a hard drive of a computer and not violate the Fourth Amendment. This paper examines this situation and looks at ways to protect private computer files under the Fourth Amendment. This paper analyzes the historical context of the Fourth Amendment and its affinity toward tangible private property. Physical private property is protected, but intangible private property such as the information in your computer is not. It is the opinion of the author that this situation should be corrected. Since court cases influence the interpretation of the Amendment, relevant cases are discussed. Since computer forensics is the process used to submit digital evidence in a court of law, the impact of computer forensics is discussed. Seminal work in the area of the Fourth Amendment and digital information is also presented. The paper ends with suggestions on how to incorporate private computer files under the protection of the Fourth Amendment.

Materials, Skills and Cultural Resources: Onta Folk Art Pottery Revisited

This article looks at a variety of issues surrounding the use of skills and materials in the production of Onta pottery, a style of Japanese mingei, or “folk art,” whose methods of production have now been designated an Important Intangible Cultural Property by the Japanese Government's Agency for Cultural Affairs. It relates how a fall-off in market demand has threatened the continued manufacture of traditional forms, and, as a consequence, the throwing skills that underpin them. It also describes how various external developments, beyond the potters' control, have affected their access to natural glaze materials, before showing the potential consequences these developments have on Onta pottery's designation as a traditional cultural form. Its particular theoretical concern is with the ways in which cultural resources are appropriated by and negotiated among various actors, including the potters themselves, critics, aesthetes, government officials, marketing agents, and consumers.

Cost contribution agreements: The South African tax implications of research and development costs incurred by multinationals participating in joint research projects with offshore associates

Cost Contribution Agreements (CCAs) or cost sharing of research and development costs, is one of the vehicles sanctioned by tax authorities that may be used by multinational enterprise groups (MNEs) to develop and distribute intangible property among members of the group. Such an agreement, which is often used as an international tax planning mechanism, may provide a solution to the challenge of determining a transfer price for the cross-border transfer of rights to intangible property between connected entities, thereby avoiding double taxation, limiting transfer pricing uncertainty and transfer pricing risk, as well as providing the planning opportunity for MNEs to potentially reduce their global tax liability.Although CCAs have been used in international tax planning for a considerable number of years by MNEs, the South African legislative tax framework, unlike some international tax systems, does not make specific provision for the regulation of CCAs. The purpose of this study is therefore to consider the concept of CCAs, and to critically evaluate, within the current South African regulatory framework, the potential application of CCAs for South African taxpayers, with specific reference to the deductibility of CCA costs incurred. Although CCAs that are well planned and structured may provide tax planning opportunities, South African taxpayers face unique planning challenges, since the income tax deduction regime in respect of research, development and intangibles may potentially discourage participation by South African resident taxpayers in joint research and development initiatives such as CCAs.

To have and to hold? Conversion and intangible property

To have and to hold? Conversion and intangible property

Harry Potter and the (Re)Order of the Artists: Are We Muggles or Goblins?

In Harry Potter and the Deathly Hallows, author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the 'muggle' world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property and moral rights. Because of the way these parallels have been developing and growing, we seem to be becoming more goblinish in our willingness to recognize ongoing rights in artistic objects, including allowing the artist to collect a commission on subsequent resale of the work. Practical and social considerations suggest that we are unlikely to go as far as recognizing a permanent personal right in the creator that lets him or her reclaim such an object after a sale or other transfer is made. However, we are moving closer to recognizing some forms of the collective right that the goblins actually seem to demand, a cultural moral right in important cultural objects that enables the descendants of that culture as a group to demand the return of the object. Thus, we muggles may not be as far from the goblins as we may have at first believed.

Using Balanced Scorecard to Explore Learning Performance of Enterprise Organization

In the early industrial age which with high intensity of machine and labor, using financial measurement index was good enough to tie in company’s mechanization and philosophy of management and been in efficiency. But being comply with “New Economic age,” a new economic environment is full of knowledge and information, the enterprise competition had changed from tangible assets, plants to intangible innovation ability of knowledge. As recognizing the new tendency by enterprise, they value gradually the growth and influence from learning. Practice of organization learning not only needs firm structure and be in coordination with both hardware and software, but also needs an affect measurement model to offer enterprise to estimate learning performance. It’s a good instrument of financial performance measure mold in the past years, But it’s for measuring the past, couldn’t formulate enterprise trend to future, hard to estimate investment for future, such as development of products, organization learning, knowledge management etc, as which intangible assets and knowledge ability just the key factors of being win around competition environment in the future. In 1992, Kaplan and Norton brought up Balance Scorecard (BSC) on Harvard Business Review, as an instrument helping enterprise to measure performance, which is being considered to be a most influence management instrument. It added non‐financial index such as customer, internal process and learning growth besides traditional financial index, as offering enterprise an index to measure and manage intangible assets and intellectual property. As being aware of organization learning is hard to be ignored in the new economic age, this research is based on learning and growth of BSC, and citing one national material company try to let the most difficult measurement performance of organization learning, to be estimate through BSC, analyze of factor and individual case, to discuss the company how to make the related strategy and vision of organization learning to develop learning and growth of the structure of BSC, subject the matter of out put factors to be discussed, and measure the outcomes as a result of research. The research affect offers (1) the base implement procedure of carrying out BSC; (2) the reference of formulating measurement index while enterprise using BSC to estimate performance of organization learning; (3) the possibility bottleneck maybe forcing while carrying out BSC, to be an improvement or preventive for enterprise.

Intangible but not intractable: the prediction of fish ‘quality’ variables using dielectric spectroscopy

In many fields the concept and measurement of quality is of prime importance. The fish industry is no exception to this and many sensory approaches have been devised to quantify this rather intangible property. The EU 5th framework project ‘SEQUID’ has concentrated on the measurement of the dielectric properties of fish tissue as a function of time both in frozen and chilled storage. The many deteriorative biochemical and microbiological processes that take place during the gradual spoilage of such materials have a subtle influence on the dielectric properties across the spectrum but notably in the microwave frequency region. In this region the complex interactions of water, solutes and structure-forming proteins are systematically changed by death and decay. Chilling or freezing may slow these processes but such preservation techniques do not halt them entirely. The SEQUID project has shown that it is possible, using a combination of time domain reflectometry and multivariate analysis, to predict certain quality-related variables, both sensory and biochemical, with comparable accuracy to existing methods. These results are presented in this paper.

Cultural Conceptions of Intellectual Property: The Pirated Disc Market in Xi'An, China

Property has long been a focus of anthropology because of the impact that different legal and cultural concepts of ownership have on people’s everyday lives. This thesis, based on ethnographic research conducted in Xi’an, China in 2005, focuses on intangible property and the market for discs. It thus addresses intellectual property (IP), the recent and ongoing creation of new categories of ownership and thus commoditization, through the intersection of legal conceptions of daoban (literally, pirated edition) and zhengban (literally, correct edition) and the everyday morality of the movie and music market. What makes this research especially intriguing is the gap that exists between the non-indigenous laws marking such goods illegal and the social norms which allow guilt-free trade in them. The thesis, concentrating on the local contexts of consumption and sales of daoban, describes Chinese conceptions of intangible property paying attention to retail business, police actions, and daoban’s conceptual borderlands. It concludes with a look at how change is and is not occurring in China and the often-unintended consequences of the interactions of structures and agents that drive such change. The thesis advocates for a more active role to be played by anthropology in understanding the forces that push to convert IP from a constructed regime into a natural part or right of humanity.產權一直是人類學的焦點之一，因為不同的所有權概念，不論是法律或是文化定義的概念，都對於人類的日常生活影響重大。本論文為一民族誌研究，田野地為中國西安，時間為二○○五年，關注焦點是無形產權與盜版碟片。本文以知識產權為著眼點，因為知識產權是一個新近才被定義、創造出來的所有權概念。藉由探討法律概念所定義的盜版與正版，如何與日常生活裡的道德觀交會，來瞭解音樂、電影碟片市場裡，知識產權的商品化過程。本研究重要之處在於理解，當一個外來的法律概念被強加於一文化時，與既存的社會規範會產生什麼樣的差距；而個人又如何因此社會規範，使罪惡感無從而生。本文從地方文化脈絡下來探究盜版的消費與買賣，並以零售業、警察行動與盜版的概念邊界來理解中國文化的無形產權概念。在結論裡，本文檢視結構與能動者的互動、這些互動所促成的變化、以及已經在中國發生的或未曾發生的變化來了解中國脈絡下的知識產權。本研究認為人類學應該要更積極地去瞭解，知識產權是如何地從一個被建構出來的概念，變成一個人類的自然權利。

STOCK MARKET REACTIONS TO KNOWLEDGE-MOTIVATED ACQUISITIONS.

This article presents a study on the value of acquisitions in relation to the company that acquired them. The study looks at the short term performance in the market of tangible property acquisitions versus intangible property acquisitions. The researchers also look at the amount of information relayed before the acquisition, again comparing knowledge based products versus property based products. The study also measures whether or not the short term market performance will relate to the business relationship between the purchasing company and the

Valorisation des ressources biologiques dans les tumorothèques

The transfer and commercialization of biological materials, whether in the form of tumour samples, tissue samples or chemicals, and of the data base pertaining to such material have become a subject of considerable importance for both the private and public sectors involved in medical research. In order to fully appreciate and apprehend the process for the protection and the valuation of the transferred material, intellectual property law must be taken into account. As a result, a distinction is made between the tangible and intangible elements of the biological material and of the attached data base, thus providing the transferring entity the possibility to claim property rights to future intellectual property arising from the research regarding the transferred material. The transfer of biological material and attached data base without such contractual provisions can lead to the loss of this potential value as well as of physical and legal control over the material transferred by the providing entity. The intentions and the assumptions of the parties must be negotiated and written into terms of contract, at the risk of losing future value due to unexpressed assumptions concerning intangible property rights.

Is a domain name property?

Legal context. Domain names have become increasingly valuable assets, in some respects more valuable than trade marks. A domain name may identify not only the source of the goods, services, business or information, but also the virtual location of the source, much as an address or telephone number does. However, there is still a significant unresolved issue as to whether a domain name is a form of intangible property or merely a contractual right. Resolution of this issue is important for commercial transactions affecting domain names and for legal proceedings and remedies relating to them. Key points. Domain names have been analogized by courts to addresses, patents, trade marks, and even by one writer to cattle. However, in this author's view, the best way to characterize the legal status of a domain name is by analogy to a telephone number. Although United States appellate authority suggests that a domain name is a form of intangible intellectual property, it is submitted that the better, but not judicially clear or consistent, view is that a domain name is not property. This position reflects the practice in Canada where, in registering a .ca domain name, the registrant agrees, as a contractual condition of registration, that it acquires no property right in the domain name. Practical significance. The authorities in this area are still not clear. Until this issue is resolved, whether globally or on a country-by-country basis, the prevailing uncertainty will inhibit commercial transactions involving domains, such as their transfer and their value for the purposes of securitisation.

The Need for Working Capital Adjustments in a Transfer Pricing Setting: A Theoretical Note

Transfer pricing involves the price that one member of a multinational organization charges another member operating in a different tax jurisdiction for goods, services or intangible property. Performing working capital adjustments are necessary to ensure that returns derived from a set of comparables can be reliably applied to a tested party operating in a non arm's length setting. There is no theoretical argument that suggests that working capital adjustments should be rejected. The analysis has shown that operating in a perfectly competitive environment implies that working capital adjustments are a requirement. These findings are supported on theoretical grounds which are violated when different working capital intensities between firms exist. Given that firms are assumed to be price-takers, then the only way that prices charged by all firms can be a taken as given is if all of the factors that affect prices, including working capital intensities, are the same.

Privacy, Liberty, and the Genetic Modification of Humans

In this paper I will argue that intangible property of this sort can be owned-that the proper subjects of intangible property claims include medical records, genetic profiles, and gene enhancement techniques. Coupled with a right to privacy, these intangible property rights allow individuals a wne of control that will, in most cases. justifiably exclude governmental or societal invasions into private domains. I will argue that the threshold for overriding privacy rights and intangible property rights is higher, in relation to genetic enhancement techniques and sensitive personal information, than is commonly suggested. Once the bar is raised, so-to-speak, the burden of overriding it is formidable. In the end, I am not so worried about the prospects of a brave new world brought upon us by gene manipulation-I am much more worried when societies, committees, and concerned citizens use the force of government to tell us what we can do to and in our own bodies.

The valuation of intangibles for hotel investments

Reviews the literature on the valuation of intangibles for hotel investments. Contrary to the sceptical outlook portrayed in the literature, demonstrates the effectiveness of ex‐post models and hedonic pricing models (HPM) as an objective and robust tool in separating and measuring intangible hotel property and decomposing total asset value. Develops two HPM models using data on 50 hotel properties appraised in 1997. All hotels are owned and managed by the same hotel company and affiliated with the same brand. Some 58 per cent of the properties are freeholds and the rest are leaseholds. Estimates the hedonic price equations by regressing appraised values on physical, location and economic characteristics of the properties. Results confirm the effectiveness of HPM and in fact its relative superiority to traditional ex‐ante modelling in measuring and decomposing intangible property. As expected at the outset, comparable‐leases and excess‐profits‐based models produced similar results.

Intangible Heritage and Intellectual Property: challenges and future prospects

(2004). Intangible Heritage and Intellectual Property: challenges and future prospects. Museum International: Vol. 56, No. 1-2, pp. 97-107.

Avoiding the Tragedy of the Anticommons: Collective Rights Organizations, Patent Pools and the Role of Antitrust

The growing importance of intangible property and the development of new technologies come together with the current trend of covering by intellectual property rights (IPRs) an increasingly broader area of resources. Heller showed up that the transition from commons to privatization generates a situation in which too many property rights are owned by too many parties, a spiral of overlapping IPRs in the hands of different owners, with the consequence to obstacle future innovation. The need to coordinate various owners, overcoming transaction costs, strategic behaviours and cognitive biases, supports the rising diffusion of collective rights organizations, a myriad of formal and informal institutions designed to regularize technology transactions and break relational bottlenecks: they include the patent pooling, that is the arrangement among multiple patent holders to aggregate their patents making them available to each member. Antitrust authorities have come closer to a rule of reason analysis towards patent pools, namely a balanced approach able to weigh procompetitive benefits and anticompetitive effects: even if pooling may enhance static and dynamic efficiency by integrating complementary technologies, reducing transaction costs, clearing blocking positions and avoiding costly infringement litigation, at the same time it may be a way to conspire to suppress competition.

Transfer pricing methods in the context of intangible property

The purpose of this study is to evaluate the suitability of existing acceptable transfer pricing methods and their application to international transactions between related parties involving intangible property, more specifically intellectual property that is legally protected. The application of the internationally accepted transfer pricing methodology, which is based on the application of the arm’s length standard to the transaction, necessitates the finding of suitable comparables between independent enterprises. However, the methods of determining an arm’s length value are being challenged as intangible property, which is often unique and for which no suitable comparables exist, increasingly migrates between tax jurisdictions. Consequently, the existing and accepted transfer pricing methods may not always be appropriate to establish an arm’s length value for intangible property migrations.The study established that the comparable uncontrolled price (CUP) method remains highly relevant as a method of determining an arm’s length transfer price for intellectual property transfers. Since the potential for finding suitable comparables in order to apply this method is very limited in the context of unique intellectual property, the less preferred transactional profit methods such as the transactional net margin method (TNMM) and the profit split method may be more relevant from a practical perspective. The key risk for tax authorities becomes apparent in this study, however, namely, that taxpayers may use these less reliable measures of the arm’s length standard purely for the sake of convenience and ease of application. The study therefore recommends that taxpayers should be required to provide documentary evidence that a search for suitable comparables to apply an appropriate traditional method such as CUP has been unsuccessful, in order to justify having recourse to the less accurate transactional profit methods.

Firm performance, knowledge transfer and international joint ventures

Management and protection of proprietary intangible assets, such as technology and management skills, are important for firms considering international expansion via joint ventures. Joint venture partners have incentives to appropriate intangible property. Also, many governments have instituted policies to help domestic firms maximise technology spillovers. Some require foreign firms interested in selling in domestic markets to enter into arrangements that ensure the flow of technology from the foreign firms. This gives the host country partners an advantage over their foreign counterparts when it comes to sharing intangible assets. It is often asserted that these sorts of host country advantages contribute to better economic growth for that country and the domestic firms involved in the international joint ventures. However, there is little empirical evidence on this. We present empirical evidence that transfer of intangible assets from foreign to host country partners contributes to the performance of the host country partner firms.

Accessorising Aboriginality: Heritage Piracy and the Failure of Intellectual Property Regimes to Safeguard Indigenous Culture

The cultural symbols we trade in and use to shape identity have discursive significance attached to them. Dominant norms of imperialist appropriation, product fetish and Western consumer capitalism do not provide the only source of these meanings. Indigenous claims to ‘cultural capital’ pose a direct challenge to hegemonic cultural practice and its associated exploitation of the Other. Cultural production and appropriation are located within discourses of contested meaning. In this paper, the contingent meanings attached to cultural symbols and signifiers will be examined in relation to indigenous claims for protection of intangible property rights within Australia’s Intellectual Property regime.

Balancing Private Rights and Public Policies: Reconceptualizing Property in Databases

This Article presents a new paradigm for thinking about intangible property rights in response to recent criticism that information products such as databases should not be over-propertized. Analyzing the inherent problems with existing approaches, the Article concludes that creating private property rights in these intangible assets will not inevitably lead to commercial and social problems. On the contrary, legislatures can create private property rights that when accompanied by appropriate oversight and monitoring will preserve commercial markets and the public domain of information. Indeed, a new database law can use the concept of property as an organizing tool to properly balance private rights and public policies. In developing this new approach to database protection, this Article examines the international debate on the creation of private property rights in databases. Furthermore, unlike previous models for sui generis database protection law based on copyright or trade secret law, the model in this Article draws on the principles underlying trademark and patent law in reaching a new solution.