Intellectual Property Legislation Research Articles

Copyright’s Modest Ontology—Theory and Pragmatism inEldred v. Ashcroft

Focusing on the recent U.S. Supreme Court decision, Eldred v. Ashcroft, which held that the U.S. Congress acted constitutionally when it extended copyright terms by twenty years, this article argues that copyright law in the United States for the most part responds to pragmatic imperatives. The article examines the theoretic/pragmatic distinction at an institutional level and argues that intellectual property lawmaking is at its most pragmatic in the legislative realm. While there is greater potential for theoretical concerns to influence intellectual property law-making in the judicial review context, in Eldred v. Ashcroft, the Court declined to allow grand intellectual property theories to dictate the freedom Congress enjoys to craft copyright legislation in the light of its rational view of the best (pragmatic) cultural and economic policies. The article concludes that in Eldred v. Ashcroft there can be detected an ontological approach to the “Copyright Clause” in the U.S. Constitution. The Court’s role is to ensure that Congress acts consistently with what copyright “is”; that is, a vehicle for motivating the “creative spark” of authorship. Congress has relatively free rein to determine what copyright should “do”. Moreover, any limitations on what copyright is meant to achieve are certainly not to be determined by theoretical concerns. Even the Court’s ontological approach to copyright law should be regarded as “modest,” however, given the Court’s general deference to the policy and cultural choices legislators make in the copyright field.

Competition in Information and Computer Technology Markets: Intellectual Property Licensing and s 51(3) of the Trade Practices Act 1974

Intellectual property licensing presents competition lawyers and regulators with something of a puzzle. The practice is both pervasive and necessary and yet will often take forms which on their face appear to run foul of the sometimes broadly expressed prohibitions through which most jurisdictions enact their competition policy. While most of these prohibitions have long been tamed into rules of reason, they can, as currently in Australia still induce panic (a panic largely borne of confusion) in right holders and licensees who confront them for the first time. Panic rises to even higher levels when intellectual property owners are threatened with the sudden removal of the statutory shield which up until now has protected most (but significantly not all) of their dealings with licensees from the attention of regulators and competitors. Feeling more than usually exposed by this proposed legislative disarmament are suppliers of computer software and other forms of information and communications technology, accustomed as they have been to the steady expansion of legal protection (the lifting of parallel importation restrictions being one of the rare examples of retreat) rather than the contraction they wrongly assume to be imminent unless fended off by intensive lobbying. How justified are these fears? For the most part, not very. Only where the Trade Practices Act 1974 imposes per se liability do the lobbyists have a case and here the proposed changes improve the position of right holders rather than the contrary. Indeed if there is a criticism to be made of the suggestions of the Intellectual Property and Competition Law Review Committee's (the 'Ergas Committee') in its Review of Intellectual Property Legislation under the Competition Principles Agreement and the government's response to them ('Government Response') is that the changes are prompted by long standing problems with the whole of Part IV itself (still under review at the time of writing).

Who owns life?

With the mapping of the human genome and the development of cloning and other genetic engineering techniques, scientists have embarked upon a whole new era of biomedical research and with it a maze of complex ethical and legal questions. This excellent collection of articles by scientists, ethicists, and legal experts analyses the convergence of biotechnology and intellectual property legislation, which has given rise to these new moral dilemmas. It will serve as a valuable reference work to give educated lay readers a starting point to make their own judgements about matters we will all face in the near future.

Understanding Copyright Law for Slavic, East European, and Eurasian Materials

ABSTRACT In the last decade the issue of copyright has become more complex for Slavic and East European librarians for a number of reasons. Technological advances have led to new forms of publication and new options for document distribution, and have also had a major impact on intellectual property law in the U.S. and abroad. As the technical means for copying and distributing materials in various formats have increased, and as electronic resources comprise a steadily increasing proportion of the material used in libraries, copyright law has become more integral to the work of librarians. In the background of technological progress, the newly independent states which emerged after the dissolution of Communism have all adopted new copyright laws within the context of global developments in intellectual property legislation. This paper provides a context for copyright as it relates to the work of Slavic and East European librarians in the U.S., by offering a framework for understanding the main issues surrounding copyright and a method for approaching questions related to copyright protection of library materials. The emphasis of this article is on use by U.S. libraries of textual material created or published in Slavic and East European countries.

Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on the Commerce Power by the Copyright Clause

A series of recent cases challenging the constitutionality of congressional expansions of the duration and scope of copyright protection have focused considerable attention on the so-called preamble to the Copyright which requires that congressional action promote the Progress of Science and useful Arts. Most recently, in Eldred v. Ashcroft, the Supreme Court considered whether, in light of the 'preambular statement of purpose' contained in the Copyright Clause, a 20 year extension of existing copyrights is unconstitutional. Surrounding these cases has been a sharp difference of opinion between legal academics arguing that the progress requirement acts as a constraint on congressional intellectual property legislation, and the courts, which have thus far rejected arguments to that effect. This Article considers the merits of these arguments, but also asks a more important question: are these arguments actually moot? In the event that the preamble of the Copyright Clause is found to constrain congressional action under that clause, could Congress simply enact intellectual property legislation under its commerce power? After all, who could deny that intellectual property rights implicate interstate commerce? The Article examines the interaction between constitutional clauses and grants of power, and considers several arguments to the effect that the preamble of one clause constrains legislation otherwise authorized by other clauses. It concludes that although there is no reason to believe that the copyright preamble directly constrains commerce clause legislation, Congress is nonetheless bound to adhere to the purposive requirements of that preamble because only those restraints ensure that intellectual property rights are consistent with the First Amendment. In short, even if socio-economic change has placed intellectual property rights within the scope of the commerce power, as well as the copyright clause, the First Amendment continues to limit the permissible extent and purpose of those rights in a way that closely resembles the constraints of the copyright preamble. So while the preamble of the Copyright Clause may not itself constrain Congress, intellectual property legislation must nonetheless adhere to the purposive limitations it imposes.

Copyright and Intellectual Property Legislation and Related Activities

L'arrivee de l'internet et des technologies numeriques, en tant que plateformes de distribution des produits d'information, a considerablement modifie la facon dont les proprietaires et les createurs de l'information autorisent l'acces a ces ressources. Les considerations economiques et la volonte d'encourager le commerce electronique l'emportent sur les considerations sociales. Les clauses des lois telles que le DMCA (Digital Millenium Copyright Act) et l'UCITA (Uniform Computer Information Transactions Act) sont au detriment des utilisateurs de l'information, tout en illustrant le passage d'un cadre reglementaire fonde sur le droit d'auteur a un cadre defini par les accords de licence. Certaines affaires portees devant les tribunaux representant une tentative pour retablir l'equilibre du systeme. Les bibliotheques de recherche ont besoin d'etablir un regime de propriete intellectuelle equilibre qui soutienne la recherche et l'education aussi bien que les interets des detenteurs de droits de propriete intellectuelle.

The Paradox of Intellectual Property Lawmaking in the New Millennium: Universal Templates as Terms of Surrender for Non-Industrial Nations; Piracy as an Offshoot

This paper argues in two major sections that the role of the less developed or non-industrial countries (nICs) in intellectual property (IP) lawmaking has vanished for the most part and that piracy in nICs is partly the flip side of the inability of nICs to come to the aid of their national economic and cultural pursuits. It maintains, in section 1, that IP lawmaking has come to a virtual end in nICs because the crucial issues that compel the adoption of national formulae to enhance economic and cultural progress are precisely those already covered under TRIPs. The imposition on nICs that have become members of the WTO to adopt TRIPs, the latest by 2005, has effectively put paid to the role of nICs to intervene in their own interests. The paper also contends, in section 2, that, while piracy is a global problem, rampant even within the ICs themselves, the incidence of piracy in nICs is better characterised as being a direct consequence of the forcible incorporation of incongruent or inappropriate IP laws into the statute books of the nICs. The paper concludes that there are no ways forward; that, any movement to redress the in-built biases in the international IP system against the nICs should adopt a number of steps backwards and introduce exceptions to TRIPs in the interest of national development, health, education and culture.

A Critical Guide to Knowledge Society Newspeak: Or, How Not to Take the Great Leap Backward

The advent of the `knowledge society' appears so fascinating to social theorists because the theorists themselves have been finally incorporated into the capitalist mode of production. In postmodern societies, knowledge itself becomes a commodity subject to market forces, rather than an overarching principle of rationalization and legitimation. The article critically surveys the clearest indications of this transition: the requirement of credentials for employment, the development of computerized expert systems and the expansion of intellectual property legislation. Together these trends point to the rise of `knowledge management', which treats knowledge as raw material that needs to be cultivated and pruned, an idea that runs counter to most academic thinking on the nature of knowledge from philosophy to economics. A sign of these changing times is the designation of universities by knowledge managers as `dumb organizations' that mindlessly produce knowledge without any clear organizational goals. This leads the author to revisit the three ways of defining the value of goods in classical political economy - rent, labour, profit - as a foundation for recovering knowledge-producing institutions from the knowledge managers and knowledge society theorists.

Can trips serve as an enforcement device for developing countries in the WTO?

Developing countries assert that the limited size of their markets renders conventional trade retaliatory actions by them ineffective. The complaint is that they have no effective mechanism for forcing developed countries into compliance with WTO obligations that have market access consequences for developing countries. This paper proposes a design for the use of TRIPS as a retaliatory weapon in WTO trade disputes that would overcome some of these difficulties. The proposal has many advantages: it is feasible, effective, legal, and has certain attractive attributes that are absent in conventional trade retaliation. The very presence of the threat of such retaliatory action in domestic intellectual property legislation could lead to improved compliance by developed countries.

Intellectual property law, technology flow and licensing opportunities in the People's Republic of China

This study explores the interrelationship between intellectual property (IP) law and technology transfer via licensing activity in China. In the absence of patent, trademark, design and utility model laws, and their effective enforcement, advanced country firms will be rarely willing to license technology to developing countries. The enactment and enforcement of such laws in developing countries, therefore, should result in greater international IP flows from advanced nation firms seeking to exploit market opportunities by exporting, licensing and direct foreign investment. Within just 20 years, China has moved from viewing IP as public property to having in place a raft of modern IP legislation. We relate these changes to the upsurge in IP activity in China since 1985, both in aggregate and by country of origin, and to technology flows from Japan and the USA. We then discuss remaining weaknesses in China's legislative framework and enforcement procedures.

Intellectual Property Disputes and the Supercourt of the World Trade Organisation: The Case for a New Model of Dispute Resolution

ABSTRACT The closing decade of the 20th century witnessed the emergence of a WTO ‘supercourt’ having the power to review states' intellectual property legislation. This article challenges the use of law as an instrument of global economic integration without a commensurate growth in legitimacy and public accountability to accompany the process. The recent case of United States and India—Patent Protection for Pharmaceutical and Agricultural Chemical Products provides a focal point for an analysis of key issues of legitimacy in the dispute resolution process. The article concludes that matters would be best remedied with an appropriate theoretical model in mind. To this end, having reviewed various models of trade legalism, the author endorses the stakeholder model as best suited to underpin the necessary reforms.

IPLEX: Intellectual property laws and treaties on CD-ROM

IPLEX is a unique database in the field of intellectual property legislation with its constantly increasing coverage of countries and full-text multilingual hypertext features. It is an indispensable tool for patent attorneys, copyright specialists, private companies, university libraries, and for all those who are interested in legal information on intellectual property.

Protecting Intellectual Property in Russia

OVERVIEW: In the year since the fall of Communism, Russia has revised its patent, trademark and computer software law to meet generally-accepted international standards. Copyright and trade secret legislation still falls short of international standards, but should be revised by 1994. Companies selling or developing technology in Russia need to comply with the registration formalities of Russian legislation or risk losing their parent and trademark rights. Furthermore, they must ensure that all their Russian employees sign written contracts assigning intellectual property rights and agreeing to respect trade secrets. With its great natural resources, wealth of scientific talent, and improving legislation, Russia is promising, both as a market for and a source of new technology. No country has the combination of large numbers of brilliant scientists and low salaries that Russia has today. This combination makes attractive the idea of investing in high-technology projects in Russia, where a large research team and its laboratory can be hired for the price of a single researcher in the United States, Germany or Japan. Although coordination of efforts at a distance is a problem, most Russian scientists know English and have access to quick and reliable electronic mail communication. Russia also can be a major market for advanced technology. Despite current economic difficulties, it remains one of the world's largest producers of industrial goods. Companies developing new technologies must take steps now to protect that technology under Russian intellectual property law or risk losing the Russian market to competitors. Companies considering starting advanced technology projects in Russia, or marketing their technology there, are probably aware that Soviet law, as it existed in the late 1980s, did not provide adequate protection for intellectual property. Some types of intellectual property were not protected at all (e.g., computer programs, trade secrets), or were protected at too low a level to provide necessary incentives (inventions, copyrightable works). Major improvements were made in Soviet intellectual property law in 1991, but the law still fell short of world standards. When Russia attained full sovereignty with the dissolution of the Soviet Union, intellectual property protection unexpectedly achieved high priority among law-making activities. Intellectual property legislation was a key element of plans for transition to a market economy. Furthermore, by moving to world standards of intellectual property protection, Russia could show its good faith to prospective international trading partners. Legislation recently adopted by Russia's Parliament will, on paper at least, bring Russia up fully to international standards of protection of patents, computer software, computer chip designs, and trademarks. However, to take full advantage of this legislation, foreign business partners will need to comply with the formalities of Russian law and to negotiate appropriate contracts with their Russian partners. The following discussion considers six areas of intellectual property law: Patent law; protection of integrated circuit designs; protection of computer programs and databases; trademark law; copyright law; trade secret law. Legislation to modernize the first four of these areas was passed in the spring of 1992, but was vetoed by President Yeltsin on the basis of technical objections. (The laws failed to take into account the rights of the constituent units within the Russian Federation.) Parliament amended the legislation to meet President Yeltsin's objections and passed it again in September 1992. Modernization of copyright and trade secret law is on the legislative agenda, but will probably not occur until sometime in 1993 or 1994. CHANGES IN PATENT LAW The new patent legislation introduces two important changes in patent law. First, it expands the coverage of patent law to cover such important areas as pharmaceuticals and products of genetic engineering. …

Recent Developments in EEC Intellectual Property Legislation

Recent Developments in EEC Intellectual Property Legislation

Trademark Protection in the United Arab Emirates

The United Arab Emirates (UAE)1 is the only member state of the Arabian Gulf Cooperation Council (AGCC)2 that does not have any compreherlsive intellectual property legislation covering either patents or trademarks.3 What legislation, regulations and policies do exist are neither comprehensive nor definitive. Draft legislation covering at least patent and trademark rights (including design patents) and unfair competition has been pending with the Federal Government since as early as 1981,4 but has yet to be enacted. After the establishment of the UAE as a federation in 1971, the Federal Government has progressed steadily in setting up a regulatory framework and adopting an institutional approach to provide for the requirements of modern commerce within the trappings of a traditional Arab state.5 Examples of significant Federal legislation include statutes providing for the regulation of industry and industrial affairs;6 labour affairs;7 the establishment of a Central Bank, a monetary system and the organisation