Intellectual Property Law Research Articles

THE CONCEPT OF THE SYSTEM OF LEGAL PROTECTION OF OBJECTS WILDLIFE AS A RESULT OF INTELLECTUAL ACTIVITY

The problems of the legal regime of the results of creative activity related to wildlife and humans have acquired special scientific significance and practical value in many countries, including Russia and Kazakhstan. Therefore, research on the development of concepts for the adaptation of the intellectual property law system as a sub-branch of civil law, the definition of the legal regime of new wildlife objects resulting from intellectual activity, and their integration into the already existing legal system, have a strategic level of state tasks aimed at achieving a balance of public and private interests, especially in the field of biomedical technologies and genomic experiments that create very significant risks not only for the living humanity, but also for future generations. Taking into account the above, this article presents the results of a scientific analysis conducted in order to develop a theoretical concept for building a system of legal protection of wildlife objects as the results of intellectual activity and to make proposals for improving legislation in the field of intellectual property law. Based on the results of the study, it is proposed to modernize the system of law in the field of intellectual property in terms of objects of wildlife, including new objects in addition to existing breeding achievements, namely: strains of microorganisms, genetically modified organisms, biomedical cell products, genomes, and other results of intellectual activity created using human and animal biomaterials, including birds, fish and other representatives of fauna, and provide them with an independent legal regime. The revision of the last object "other results ..." allows you to leave the list of wildlife objects open in order, if necessary, to introduce another innovative object into the intellectual property system, providing it with an appropriate legal regime, without additional changes to the law.

INTERACTION OF CONSTITUTIONAL LAW AND INTELLECTUAL PROPERTY RIGHTS IN THE REPUBLIC OF KAZAKHSTAN

The article is devoted to the interaction of intellectual property law with the constitutional law of the Republic of Kazakhstan (hereinafter - RK). The Constitution of the Republic of Kazakhstan proclaims freedom of work and profession, as well as freedom of choice of creativity. Paragraph 1 of Article 20 of the Constitution of the Republic of Kazakhstan states that freedom of creativity is guaranteed. Currently, the scientific research of Kazakhstani scientists does not pay enough attention to the freedom of creativity. The analysis of materials and documents of the Constitutional Court of the Republic of Kazakhstan indicates the absence of a deeper analysis of the constitutional guarantee of freedom of creativity and the limits of this freedom. In addition, there are no provisions on intellectual property in the Constitution of the Republic of Kazakhstan, and the interpretation of norms can only be literal, and we are talking only about freedom of creativity. In this article, the author attempts to show the problems of interaction of intellectual property law with constitutional law, since the relationship between them is deeper than it is reflected in the Constitution of the Republic of Kazakhstan. In the legal literature, most studies of the constitutional and legal regulation of creative relations are reduced only to the objects of copyright, while the freedom of creativity lies in invention, the objective expression of means of individualization. The author has analyzed the concepts of creativity and freedom of creativity and justifies the need for the constitutional consolidation of intellectual property guarantees, to obtain constitutional and legal protection, since it has a significant role in the state policy of the development of the economy of Kazakhstan, expressed in industrialization and the widespread use of digital technologies, which are based on creative intellectual activity. In this regard, it is not enough to establish only a constitutional and legal guarantee of freedom of creativity and labor, it is necessary to include intellectual property norms in the Constitution of the Republic of Kazakhstan, thereby enabling authors and the copyright holder to constitutionally protect their rights and legitimate interests.

WHEN IP MEETS NFTs: THE CASE FOR INTELLECTUAL PROPERTY PROTECTION FOR NON-FUNGIBLE TOKENS

The world has seen enormous disruption by new age technologies in every domain of today's economy including the arena of art, music and entertainment. Furthermore, the impact of artificial intelligence and blockchain technology particularly the Non Fungible Tokens (NFTs) has overwhelmed scholars about their understanding of laws related to intellectual property. Advances in technology are expanding the scope of intellectual property beyond traditional patents, trademarks, designs, trade secrets, plant breeders' rights, and more. Various issues related to intellectual property have taken centre stage in the world of NFTs and Blockchains. Intellectual property disputes over virtual goods and NFTs are on the rise, and countries across the world are endeavoring to address the issues related to the protection of virtual goods. This article analyses the nature and scope of protection granted to virtual goods and NFTs in major jurisdictions viz the US and China. Further, the article analyses if the provisions of Indian IP Laws particularly the Trademarks and Designs Acts are sufficient to grant protection to the virtual goods.

Research on Intellectual Property Law Education in Higher Education Institutions under the Background of Optimizing the Business Environment

With the acceleration of global economic integration and informatization, intellectual property has become a core competitiveness of a country. Optimizing the business environment and promoting high-quality development have become major strategic measures for the economic development of a country or even the entire region. As an important base for knowledge production and dissemination, universities play a crucial role in optimizing the business environment. Intellectual property legal education is an important component of higher education, not only in cultivating specialized talents in intellectual property, but also in promoting technological innovation and economic development. In the context of optimizing the business environment, exploring the reform and innovation of intellectual property legal education in universities has important theoretical and practical significance for improving China's intellectual property protection level, promoting the transformation of scientific and technological achievements, and promoting high-quality socio-economic development.

A Tale of Two Fashion Nations: Comparative Fashion IP Laws in the United States and China

A Tale of Two Fashion Nations: Comparative Fashion IP Laws in the United States and China

Міжнародно-правові стандарти щодо правового регулювання cфери інтелектуальної власності: зарубіжний досвід

Before the twentieth century, obtaining intellectual property protection in different countries was considered a difficult task since the legislative regulations of this process were quite different. That is why more and more states wanted to systematise and develop a unified approach to the legal regulation of intellectual property at the international level. The emergence of international legislation on intellectual property is explained by the fact that the rights to the results of intellectual activity have the quality of a ‘territorial limitation’, i.e. in the absence of international treaties, they are recognised and protected only in the territory of the state where they originally appeared. The international system of legal regulation of social relations related to the creation and use of intellectual property results is based on the desire to overcome this contradiction. It interacts with national systems of intellectual property protection, ensuring the rights of creators outside their countries. The article emphasises that, given the intensification of international economic and cultural relations, the unification of intellectual property legislation is essential. The adoption of international treaties solves this problem only partially. The analysis shows that the development of international legal instruments does not contribute to, and sometimes even hinders, the development of intellectual property law since it is based on the prevailing paradigm, according to which ensuring a high level of legal protection of intellectual rights is the main criterion for assessing legislation. The author examines the current state of social relations in intellectual property law, the dynamics of international legal regulation, and the peculiarities of legislative adaptation to the current priorities of developed countries in this area.

Особенности уголовно-правовой охраны интеллектуальной собственности в законодательстве некоторых зарубежных стран

The article examines the problems of regulating criminal liability for violation of intellectual property rights in foreign countries, examines approaches to criminal protection of intellectual property in various legal systems: Anglo-Saxon and Romano-German. The authors note that there is a global consensus that the field of intellectual property should be regulated, including criminal law, in order to protect the rights of intellectual property owners. Although there is some uniformity in national intellectual property laws, there are separate copyright laws and regulations in each jurisdiction. The work also explores various solutions and approaches to the problem of regulating criminal liability for violation of intellectual property rights, especially copyrights, in the national legislation of both developed Western countries - the USA, England, Spain, and neighboring countries - Belarus, Kazakhstan, Kyrgyzstan, Moldova, etc. A comparative legal analysis of the criminal law prohibition contained in Article 146 of the Criminal Code of the Russian Federation and similar norms in the legislative acts of some foreign countries has been carried out.

The Status of Anti-Piracy of The Optical Media Board: Basis for an Enhanced Standard Operating Procedure

The rampant piracy issue in the Philippines has significant repercussions for both the entertainment industry and the government. To address this concern, the Optical Media Board (OMB) was established in 2003 as a government agency; responsible for enforcing intellectual property laws related to optical media. Despite the OMB’s efforts, piracy remains a persistent problem, particularly in the digital domain. The researcher conducted surveys among OMB personnel and licensed clients, utilizing a quantitative descriptive method and purposive sampling technique.The comprehensive evaluation of the OMB’s anti-piracy efforts revealed that the board was very effective in several key areas, including: intelligence/enforcement operations, information campaigns, digital piracy operations and quasi-judicial functions. Both OMB personnel and clients acknowledged the high effectiveness of these areas. However, there were perceptible differences in the perception of information campaigns among the respondents. The study recommends that the OMB intensify its efforts in this domain by disseminating information about piracy trends, emerging threats, and best practices to stakeholders. This collaborative approach aims to enhance the overall effectiveness of government-led anti-piracy initiatives. Furthermore, the challenges faced by the OMB are highlighted in the study, particularly the international nature of piracy operations, which is widely regarded as a formidable obstacle.

Unfair competition in public procurement related to intellectual property rights

The article examines the advantages and risks of using the negotiation procedure forpublic procurement of goods, works, and services that include objects of intellectual propertyrights. An analysis of Ukrainian and EU legislation regarding public procurementthat includes objects of intellectual property law was carried out. The practice of conductingpublic procurement in Ukraine under the negotiated procedure in cases where there isa need to protect intellectual property rights is considered. It was concluded that there aredifficulties in understanding and, accordingly, in the practice of applying the provisions ofthe legislation regarding the application of the negotiation procedure for public procurementof goods, works, and services that include objects of intellectual property rights. Imperfectlegislation on public procurement with regard to objects of intellectual propertyrights leads to unfair competition in the form of rights abuse. It is proposed to specify inthe legislation of Ukraine the cases in which the negotiation procedure can be applied tothe public procurement regarding objects of intellectual property rights and to identifyspecific objects of intellectual property rights in relation to which such a procedure can potentiallybe applied. Proposed proposals for supplementing the Law of Ukraine «On PublicProcurement» with the provision of Directive 2014/24/EU that the negotiation procedurefor public procurement related to objects of intellectual property rights is used in exceptionalcases when there is no reasonable alternative or replacement, and the lack of competitionis not the result of artificially narrowing procurement parameters. It was alsoproposed to clarify the provisions of Paragraph 5, Clause 2, Part 2 of Article 40 of the Lawof Ukraine «On Public Procurement» regarding the application of the negotiation procedurefor public procurement that include to objects of intellectual property rights as follows:«if the subject of public procurement is goods, works, or services containing objects ofintellectual property rights» in order to better understand it.

Artificial Intelligence and Intellectual Property: Impact and Legal Implications

The rapid spread and development of artificial intelligence technologies has raised important questions that have an impact on laws and regulations related to intellectual property. In light of this, the research aims to explore the impact of artificial intelligence on intellectual property laws and regulations, and to examine the legal implications of the innovations generated by artificial intelligence on authorship, invention, ownership, infringement, and enforcement of intellectual property laws. In light of the great concerns about its impact on intellectual property laws and regulations and the uncertainty and ambiguity in the application of intellectual property laws, the researcher considered it a problem of the study as it leads to potential risks and challenges for creators, inventors, and intellectual property rights holders. The research followed the comparative approach to provide a view of the different approaches regarding this topic, and to help shed light on the main difficulties faced in applying the law in such an evolving context. The study reached many conclusions, but the most important of them is that artificial intelligence threatens office jobs due to its ability to generate high-quality content quickly and at a low cost, and intellectual property laws will continue to be breached, which necessitates the need for the law to adapt to establish rules of conduct and limits of human work, and recommends engaging in an international dialogue to unify laws and manage disputes related to intellectual property across borders.

Intellectual Property and the European Courts, Conference at the Court of Justice of the European Union, Luxembourg, 5 June 2024

Abstract On 5 June 2024, the German Association for Intellectual Property Law (GRUR) and the University of Luxembourg organised a conference on Intellectual Property and the European Courts at the Court of Justice of the European Union (CJEU) in Luxembourg. This one-day event featured fruitful discussions on the role of courts in protecting and enforcing intellectual property rights. Among the renowned speakers and moderators were judges from European courts, prominent attorneys, representatives of various organisations and associations, and leading academics from across Europe.

Public Health and Patent Law to Access Medicine in India

India's 1970 decision to include a process patent regime in its patent legislation is regarded as a reformative step that was a well-considered reaction to internal issues including the nation's then-current socioeconomic realities. The primary goal of this research project has been to critically analyse the connections among public health, the global intellectual property law, and the availability of necessary medications, with a particular emphasis on India. The study's main focus is the persistent issue of developing and least developed nations' lack of access to reasonably priced medical care in the post-crisis age. This study aims to investigate the inherent barriers to intellectual property that impact medical access, excluding the impact of non-intellectual property impediments such as distribution, infrastructure, quality, and medical facilities. The purpose of this study is to examine how patent law affects drug accessibility while accounting for drug costs.

Use of Objective Tests in Examining Law Courses at Daystar University

The use of multiple-choice questions (MCQs) in law schools has not gained widespread acceptance, unlike in medical schools where they enjoy global usage. Law Schools traditionally use essay-type/problem-solving questions to assess students. The efficacy of this form of assessment is increasingly being attacked due to increasing numbers of students and advancements in technology that enable students to generate answers. Bloom’s Taxonomy provides for a hierarchy of learning processes, which include ‘remember’, ‘understand’, ‘apply’, ‘analysis’, ‘evaluate’, and ‘create’. Studies on whether MCQs can test higher-order learning processes required in law courses have been inconclusive. We did a retrospective study to investigate whether MCQs are an efficient and effective way of assessing law courses. Underlying this study was the desire to find an alternative mode of assessment to overcome the threats facing the essay type. Results from selected law courses were analyzed in which students’ performance on MCQ tests, oral tests, and final examinations were compared. MCQs were analyzed on a two-dimensional Bloom’s table to establish the extent to which they tested higher-order learning processes. We compared the results of scores on the MCQs with those of oral tests and final essay-type examinations using correlational analysis and one-way analysis of variance (ANOVA). This was for the courses Constitutional Law (n = 22, MCQs = 75), Intellectual Property Rights (n = 113, MCQs = 100), Broadcast & TV Law (n = 11, MCQs = 76), Administrative Law (n = 65, MCQs = 91), and Cyberspace Law (n = 28, MCQs = 101). In general, students performed best on the MCQ test compared to orals and final exams. A two-tailed correlation analysis comparing all five courses showed a strong correlation between MCQs and Orals (r = 0.699, p = 0.189) and a weak correlation between MCQ test and final exam (r = 0.196, p = 0.752). Sixty-eight percent of 75 MCQs in Constitutional Law tested higher-order processes. The mean scores for MCQ (+ = 39.45 + 4.83), orals (+ = 7.64+18.72), and final exam (+ 28.5 + 8.88) showed a best performance for MCGs. ANOVA comparing test scores for MCQs, Orals and Final examination showed a very significant difference (F (2, 63, 0.05) = 38.11, p < 0.0001). Fifty-four out of 100 MCQs for intellectual property Law tested higher-order learning processes. The mean scores for MCQ (+ = 39.78 + 5.22), orals (+ = 18.88+14.66), and final exam (+ 29.0442 + 7.71) showed a best performance for MCQs. ANOVA results were highly significant (F (2,342,0.05) = 125.565, p < 0.0001). In Broadcast & TV Law, 44.7% of 76 MCQs tested higher-order learning processes. The mean scores for MCQ (+ = 43.27+6.89), orals (+ = 31.09+12.53), and final exam (+ 32.09 + 6.69) were different. ANOVA results were very significant (F (2,30,0.05) = 6.057, p < 0.01). There were 91 MCQs in Administrative Law of which 74% tested higher-order processes. The mean scores for the three tests were MCQ (+ = 33.05 + 4.76), orals (+ = 22.89 + 16.08), and final exam (+ 32.58 + 5.58). ANOVA results were very significant with F (2,191,0.05) = 20.388, p < 0.0001. Cyberspace Law had 101 MCQs of which 38.6% tested higher-order learning processes. The mean scores for MCQ (+ = 43.50 + 4.51), orals (+ = 36.43 + 2.27), and final exam (+ 35.04 + 7.71) were different. ANOVA results were very significant (F (2,81,0.05) = 20.375, p < 0.0001). We concluded that MCQs are efficacious and efficient in testing higher-order learning processes. MCQs can be used to assess learning of law courses. We recommend that law schools should embrace MCQs for assessing law courses.

Adapting legal horizons in reshaping intellectual property law for the artificial intelligence revolution

Adapting legal horizons in reshaping intellectual property law for the artificial intelligence revolution

Protection of IP Rights as an Investment

Intellectual property (IP) rights are embedded as an asset under the definition of investment in most international investment agreements. These agreements ensure protection and promotion of investment. Where IP rights are treated as an investment, they do benefit from the protection standards afforded by the international investment agreements. However, it is highly debated that to what extent an IP right constitutes an investment. Does the inclusion of IP rights under the investment definition of agreement suffice to be qualified as an investment? Or are there any other requirements? Over the last few years, these questions have attracted considerable scholarly interest. This article aims to analyse protection of IP rights as an investment and legal issues deriving from intersection between IP law and international investment law. Accordingly, it will attempt to answer the question as to when IP rights constitute an investment. In this sense, the article will initially discuss the inclusion of IP rights under the definition of investment afforded by several investment agreements. Subsequently, protection of IP rights in ICSID Convention will be discussed critically. Thirdly, the article will try to underscore the roles of international investment law and domestic law in determining whether an IP right is investment.

The year of jubilees

The years 2023–2024 bring up some significant anniversaries for a range of historical events in the development of modern intellectual property law. Many of them have implications for how patents are obtained and recorded in the public domain. The original documents are cited for further reading.

TRIPS and the right to human health: A case study on Brazil's health policies and its implications

AbstractThe incorporation of intellectual property laws in Brazil, by drafting or amending laws, as a result of the Trade‐Related Aspects of Intellectual Property Rights (TRIPS) Agreement, has been a subject of political and social debate. The ambiguity of the Agreement's effects explains the Brazilian government's reluctance to address the issue, particularly concerning public health policies, as it presents a conflict between healthcare rights and intellectual property protection. The country had utilized compulsory licensing of an antiretroviral drug for AIDS treatment under Decree No. 6,108/2007. This precedent has sparked discussions about future cases of selective incorporation of compulsory licensing as a national prerogative, aiming to ensure that the patent system upholds the country's right to protect public health and promote access to medicines, in accordance with The Doha Declaration on the TRIPS Agreement. Nevertheless, such a pattern could undermine innovation and discourage private‐sector investment and research, which is predominantly conducted by developed countries.

Intellectual Property Rights in the Era of Artificial Intelligence

Purpose: The general objective of this study was to explore Intellectual Property Rights in the era of Artificial Intelligence. Methodology: The study adopted a desktop research methodology. Desk research refers to secondary data or that which can be collected without fieldwork. Desk research is basically involved in collecting data from existing resources hence it is often considered a low cost technique as compared to field research, as the main cost is involved in executive’s time, telephone charges and directories. Thus, the study relied on already published studies, reports and statistics. This secondary data was easily accessed through the online journals and library. Findings: The findings reveal that there exists a contextual and methodological gap relating to Intellectual Property Rights in the era of Artificial Intelligence. Preliminary empirical review revealed that the era of Artificial Intelligence (AI) has significantly transformed the landscape of Intellectual Property Rights (IPR), presenting both opportunities and challenges. It highlighted that traditional IP laws are increasingly inadequate to address the complexities introduced by AI-generated content, necessitating a rethinking of existing frameworks. The study emphasized the need for recognizing AI's role in the creation of new works and inventions and the importance of developing balanced approaches to protect both human and AI contributions. Ethical considerations, such as accountability, transparency, and fairness, were also deemed crucial in ensuring responsible AI use. Overall, the study called for a comprehensive and proactive approach to integrate AI into IPR, ensuring robust protections while fostering innovation. Unique Contribution to Theory, Practice and Policy: The Technological Determinism Theory, Innovation Diffusion Theory and Legal Realism Theory may be used to anchor future studies on Intellectual Property Rights in the era of Artificial Intelligence. The study recommended revising existing IP laws to explicitly include AI-generated content and inventions, clarifying criteria for authorship and inventorship. It suggested expanding theoretical frameworks to accommodate AI contributions, emphasizing the collaborative nature of human and AI creativity. Practical measures, such as enhanced cybersecurity and legal safeguards for AI-generated trade secrets, were advised. Policy-wise, the study advocated for international cooperation to harmonize IP laws concerning AI. Developing ethical guidelines for responsible AI use and implementing education programs to inform stakeholders about AI and IP implications were also recommended. These measures aimed to create a balanced IP framework supporting innovation while protecting the rights of all stakeholders.

The Intersection of Intellectual Property and Public Health

Purpose: The general objective of this study was to investigate the intersection of intellectual property and public health. Methodology: The study adopted a desktop research methodology. Desk research refers to secondary data or that which can be collected without fieldwork. Desk research is basically involved in collecting data from existing resources hence it is often considered a low cost technique as compared to field research, as the main cost is involved in executive’s time, telephone charges and directories. Thus, the study relied on already published studies, reports and statistics. This secondary data was easily accessed through the online journals and library. Findings: The findings reveal that there exists a contextual and methodological gap relating to the intersection of intellectual property and public health. Preliminary empirical review revealed that intellectual property laws, while designed to promote innovation, often created barriers to accessing essential medicines and technologies, particularly in low-income regions. It highlighted how patent protections, while incentivizing pharmaceutical development, led to high drug prices that limited access and exacerbated health disparities. The study emphasized the need for a balanced approach to IP regulations that would encourage innovation while ensuring that new treatments are affordable and accessible. It called for a re-evaluation of IP frameworks to align better with public health objectives and promote global health equity. Unique Contribution to Theory, Practice and Policy: The Theory of Intellectual Property as a Public Good, Theory of Technological Determinism and the Theory of Access to Medicines and Health Equity may be used to anchor future studies on the intersection of intellectual property and public health. The study recommended several key actions to address the issues identified. It suggested revising IP policies to include more flexibility, such as compulsory licensing and support for generic drug production, to improve access to essential medicines. The study advocated for international collaboration to balance IP protections with health needs and proposed that policymakers craft regulations that support both innovation and accessibility. It also emphasized the importance of ongoing research and evidence-based decision-making to guide IP reforms and promote global health equity. Additionally, it recommended fostering partnerships between governments, international organizations, and pharmaceutical companies to enhance healthcare access and address disparities.

Перспективы использования блокчейна в сфере интеллектуальной собственности

Despite the potential of the blockchain in solving the problems facing intellectual property law, its use in this area has boundaries, which are determined both by the properties of the technology itself and by the characteristics of the results of intellectual activity and rights to them. These boundaries relate to the use of blockchain for registration and accounting of intellectual property objects, their tokenisation, protection of the interests of copyright holders, the State and society in the sphere of their turnover. The purpose of the article is to explore the limits of the use of blockchain in the field of intellectual property, considering the risks of such use, including the problems of duplication of information about objects in different distributed registries, the inconsistency of this information and its inconsistency with the real situation. The authors conclude that the solution to the problem is possible by adequate legal regulation in this area, as well as by expanding the powers of Rospatent through the mandate to authorise the entry of information on intellectual rights into blockchain information systems.