Intellectual Property Regime Research Articles

Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy

Nigerian fashion entrepreneurs are finding the market increasingly appealing due to the growing viability of small and medium-size enterprises (SMEs) in the fashion industry, particularly online retail fashion stores, and the easy accessibility of the Internet and digital media. However, with intellectual capital being the hallmark of the fashion industry, the nearly constant violation of intellectual property (IP) rights is a threat to the fashion sector’s continued existence and profitability in Nigeria. Fashion businesses are thwarted by an antiquated IP regime and the conflicting decisions of the courts on infringement cases which continue to frustrate the marketing of fashion brands on social media. This study used a descriptive and analytical approach, relying on both primary and secondary data, to analyse and assess the laws available for the protection of fashion designers’ intellectual works. The study also considers the various developments in fashion IP protection in more advanced countries, such as the United States and in the European Union, and makes practical recommendations to support the growth of IP law, fashion legislation and the Nigerian fashion industry in the digital economy.

Amendments to Chinese Criminal Law Concerning Intellectual Property Crimes

Chinese authorities have taken decisive steps to tackle violations of intellectual property (IP) rights in the People’s Republic of China (PRC). The National People’s Congress (NPC) adopted a new amendment to China’s criminal law on December 26, 2020. These regulations entered into force on March 1, 2021. The article aims to draw attention to the recent developments and ways to fight against the IP infringement in China. The study focuses on the IP courts in China and then analyzes the recent amendment to Chinese criminal law. Therefore, it is based on the descriptive and dogmatic methods. The article seeks to answer the question of whether the regulations are effective and significantly prevent the spread of IP infringements in China. It brings us to the conclusion that China’s accession to the WTO was a turning point that influenced the development and the improvement of domestic IP regime. Hence, China became a country with complex, multifaceted, and contentious environment regarding IP rights. One of the most significant changes concern the establishment of IP courts across China. It is too early to determine whether these solutions are effective due to the ongoing COVID-19 pandemic in China.

Intellectual Property and National Economies

While a few nations had intellectual property (IP) laws before 1800, many more created them in the nineteenth century, and even more than that waited until well into the twentieth century. When scholars examine different national and international IP regimes, they find not only controversy and apparently intractable debate about the laws’ merits but also seemingly irreducible variety. Two recent books—the edited volume Patent Cultures: Diversity and Harmonization in Historical Perspective put together by Graeme Gooday and Steven Wilf and Inventing Ideas: Patents, Prizes, and the Knowledge Economy by B. Zorina Khan—examine the global diversity of IP systems and their impacts on national economies.

The type individuation problem

Lockean justifi cations of intellectual property postulate the appropriation of immaterial entities, in various contexts called types, patterns, designs, or technologies. It is widely believed that the ownership of such entities gives the owner a right to control their physical embodiments and prohibit imitation. For the prohibition to be meaningful, a condition identifying forbidden objects must be formulated. It must cover not only objects which are identical to some original artifact or its exact, ideal description, but also those which are only similar. This requires systematic answers to three questions: (1) which material structures and which of their subsets should be compared? (2) which of their characteristics should be compared? (3) how to combine these characteristics into a decision rule for token identification? There is no underlying empirical reality that could be independently consulted by individuals in order to incontestably answer these questions. Meanwhile constant evolution in technology and arts requires addressing them repeatedly. Consequently, intellectual property regimes must rely on political institutions incessantly dictating the scope of prohibition, and hence they cannot originate or exist in a prelegal state of nature.

Terms of Reference of The Iraqi Commercial Court

In light of the Iraqi Supreme Judicial Council No. (74) for the year 2000 and its influence on the economic and commercial side, this study attempts to illustrate the viability of founding the Iraqi Commercial Court. It is the whole seed. The goal is to make commercial conflicts more swiftly and efficiently resolved through establishing an expert commercial judiciary. Specialized judges with high expertise and knowledge help ensure that court judgments are successful in both processes and causes. In light of the statement published by the Supreme Judicial Council No. (74) for the year 2020, the research focuses on the efficacy of the Iraqi commercial Court in addressing commercial disputes. This article reveals that the Iraqi legislative attempts to attract international investment and the Iraqi executive branch's continued efforts to resolve investor concerns by modifying the Investment Law. The Iraqi court has successfully developed a stable legal environment for multinational firms. Commercial courts, acknowledged as fair by international businesses, were established to accomplish this. As a result of Iraq's communist past, foreign investment was viewed as a source of skepticism and mistrust for many years. These courts will undoubtedly play a significant role in advancing Iraq's progress. However, courts alone will not provide the long-term guarantees needed to transform Iraq's legal framework for domestic and foreign businesses to operate inside. Civil law countries like Iraq necessitate significant reforms to the country's intellectual property, investment, and arbitration regimes.

Dancing someone else's movements through someone else’s body

In this article, we will describe the uneven conditions in which dance practices are being extracted and circulated by looking at how online gaming platforms have digitised and commodified human movement. The study of these controversial cases contextualised within the legal aspects of dance copyright are the basis to offer speculative courses for both dance practitioners. The first section explores the issues of digitisation and ownership of bodily movement within virtual spaces by looking at notions of disembodiment and dance as a commodifiable object. The second section illustrates the complexities of copyrighting choreography through a critique on how intellectual property regimes disregard collective and social practices. Finally, we will present alternatives for dance practitioners going forward by looking at how to protect dance as a digital object; the current initiatives to engage dancers with technological affordances; and the decentralising potential of blockchain networks to build new collaborative landscapes for the circulation of creativity.

The Reform of Nigerian Intellectual Property Law in Perspective

As Africa’s most populous nation and its largest economy, Nigeria occupies a strategic position in the Continental architecture of human capital. As the powerhouse of Africa’s creative and entertainment industries and better than half of the Economic Community of West African States (ECOWAS) subregional economic bloc, Nigeria is arguably the hub of the Continent’s pool of creativity and innovation in search of a dynamic intellectual property (IP) system to deliver on national developmental aspirations. Given that the IP system rests eminently at the commanding heights of the new global order, intellectual property right (IPR) protection has assumed greater prominence at the international and national levels. The fundamental role of IP in harnessing creative and innovative enterprises has never been more significant than today. In the words of Michael A. Gollin (Driving Innovation: Intellectual Property Strategies for a Dymanic Word, Cambridge University Press 2008, p. 1) IP is the invisible infrastructure of innovation and a source of hidden wealth worth trillions of dollars. With the crises of access around the increasing intersectionality of IP and access to knowledge, and the spirited pursuit of global development policies, IP has become intensely existential to humanity and the flourishing of society. In the areas of health, education, agriculture, traditional knowledge, climate-crisis innovation including frontier technologies and more recently, the COVID-19 pandemic, these normative debates present an enduring test of the strength of IP institutions in meeting the challenges of public welfare, especially for indigenous societies who have been caught up in the systemic imbalance in the global IP regime complex.

COVID-19 vaccine equity: a health systems and policy perspective

ABSTRACT Introduction The global COVID-19 vaccine rollout has highlighted inequities in the accessibility of countries to COVID-19 vaccines. Populations in low- and middle-income countries have found it difficult to have access to COVID-19 vaccines. Areas covered This perspective provides analyses on historical and contemporary policy trends of vaccine development and immunization programs, including the current COVID-19 vaccination drive, and governance challenges. Moreover, we also provide a comparative health system analysis of the COVID-19 vaccine deployment in some countries from different continents. It recommends that the international Access to COVID-19 Tools Accelerator (ACT-A) partnership requires a strong governance mechanism and urgent financial investment. Expert opinion All WHO member states should agree on technology transfer and voluntary license-sharing via a commonly governed technology access pool and supported by a just Intellectual Property regime. Contextualized, dynamic understandings and country-specific versions of health systems strengthening are needed to improve vaccine equity in a sustainable matter.

TRADITIONAL KNOWLEDGE AS A PROTECTED FORM OF INTELLECTUAL PROPERTY RIGHTS IN NEPAL: A LAW AND POLICY ASSESSMENT

A serious discourse is built around the world for proper and better protection of traditional knowledge associated with intellectual property rights. Traditional knowledge was considered as a leftover subject in intellectual property governance since the IP has been a talk of the town. Nepal is rich in terms of traditional knowledge associated with indigenous communities largely used in the medical sectors or what we generally name with “ home-grown medicines”. There is a lack of proper protection and also incentives for these communities and researches have shown that there are also possibilities of conflict over ownership over such knowledge. The traditional knowledge will not only benefit particular stakeholders rather in an extended way, it creates values for the nation and ultimately a global asset in the intellectual property regime across the world. The IP Policy, Law, and Regulations need further incorporation of elements as the subject of traditional knowledge specifically used for medicinal purposes. This paper is based on a theoretical analysis of law, policies, rules, cases, and practices for the protection of traditional knowledge for medicinal in Nepal. This paper has further analyzed the position of existing umbrella clauses as seen in intellectual property laws for the said purpose.

Innovation Benefits of Software Patents in Kenya

Globally, it is generally accepted that the legal protection of creations of the human mind, such as software, should contribute to technological innovation. In Kenya, software is ordinarily regarded as literary work and therefore protected by way of copyright. Recently, however, there have been suggestions that software should be patented. This raises the problem of whether and how the tension between copyright and patent protection of software can be resolved in a manner that is just, fair and reasonably proportionate to the highly desirable goal of incentivising production and dissemination of technology. This study examines the extent to which software patents in Kenya might be appropriate in light of both the nature of software and the need to foster innovation. Using the capabilities approach as the basic theory and comparative methods, the study finds that patents provide better protection for the idea embodied in software than does copyright and this is in exact accordance with the capabilities Kenyan’s would like the protection to provide for them. It recommends that Kenya should consider improving its intellectual property regime by making provisions for patentability of software or some sui generis right akin to software patents in order to aid in fostering innovation.

After TRIPS: Can India Remain ‘the Pharmacy of the Developing World’?

India has long played a key role in supplying low-cost pharmaceuticals to people in developing countries, gaining a reputation as ‘the pharmacy of the developing world’. Yet, changes to India’s intellectual property regime under the World Trade Organization’s 1995 Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement mean that India’s capacity to produce and supply affordable medicines has been undermined. We use a political economy approach to investigate the factors that are determining the future of Indian generic pharmaceutical companies as suppliers of affordable medicines in the ‘post-TRIPS’ environment. We argue that while there is some scope within this environment for legal safeguards to protect access to life-saving medicines, the future of the ‘pharmacy of the developing world’ is in question, not just because of the ownership rights awarded to multinational corporations (MNCs) under the TRIPS framework, but also because of the way the market system is tilted towards MNCs. MNCs can ‘play’ the system locally and across the world, including by exerting pressure on safeguards that India instituted to protect the affordability of medicines. Against this background, we explore the challenges faced by the Indian government in creating an environment that is more likely to ensure access to life-saving medicines.

Preserving the Public Domain: Limits on Overlapping Copyright and Trade Secret Protection of Software

The traditional understanding of intellectual property (IP) suggests that each IP category has a discrete subject matter of its own and exceptions thereto. Based on such an understanding of IP law, one would assume that there would not be overlapping IP protection for the same subject matter or product features. However, this understanding does not hold water. It has been argued that the development of overlapping IP rights has intensified as the subject matter that can be protected has expanded through the introduction of new rights and as the scope of protection for existing rights has increased. What may be particularly problematic is that, when policymakers focus on one IP regime at time, any issues arising from IP overlaps may remain undetected. For quite some time, there has been a policy tendency towards broadening the scope of intellectual property protection, which has led to a decrease in scope for the public domain. This tendency shows that the value of the public domain has not been appropriately identified or at the least not appreciated. One way to define the public domain is as the sphere that is not protected by any form of IP. This article will focus on the overlaps created by the Software Copyright and Trade Secrets Directives with regard to the protection of software. The ultimate aim of the article is to query whether the combined effects of these two Directives could be interpreted in a way that limits the undesirable expansion of protection.

Current Intellectual Property Regimes in the U.S. Fail to Protect Fashion Designs

The United States does not offer adequate intellectual property protections for designs within the fashion industry. The quick pace and constantly evolving nature of the fashion industry creates obstacles for designers’ ability to obtain lasting protection in their fashion articles. The intellectual property regimes for trademark, trade dress, patent and copyright will be analyzed in the fashion industry context. These intellectual property regimes in the United States do not adequately protect designers in the fashion industry. Small fashion brands and independent designers are often left unprotected by the copying of their designs. Designers “remain vulnerable to knockoff artists who can steal ideas straight off the runway and produce copies before the originals even hit the stores.” Due to the lack of intellectual property protection for fashion designers in the United States, fashion companies and retailers are able to “steal American designs, make low-quality copies in foreign factories with cheap labor and import them into the U.S. to compete with original designs”. This presents a huge concern for young and emerging designers who can be “put out of business before they even had a chance.” Emerging designers are left vulnerable to the threat of copying [1].

Platformizing family production: The contradictions of rural digital labor in China

AbstractHow is the rise of platform capitalism reinventing the traditional regime of familial production, while at the same time being energized by it? How do the historically informed, lived experiences of rural e-commerce entrepreneurs or workers in China help reconceptualize digital labor and platform studies? Deploying the analytic of platformized family production, this article addresses these questions through a deep description of the experiences of variously positioned platform-based and mediated laborers in an e-commerce village in East China. I argue that the ongoing process of platformizing family production is profoundly contradictory. As an alternative to a model of development based on unevenness and the rural-urban divide, village e-commerce has created opportunities for peasants and marginalized urban youth to achieve social mobility. However, it also shapes a new regime of value that privileges the individualized e-commerce entrepreneur as an ideal subject, and fetishizes and instrumentalizes innovation and creativity in conformity with the global intellectual property regime. These tendencies not only contradict the reality of collective labor organization both on e-commerce platforms and in villages, but also conflict with the indispensable role of manual labor in the production process—reinforcing rather than overcoming existing inequalities and stratification in rural China.

Critical Examination of the Intellectual Property Regimes in the Gulf-Co-operation Council (GCC) States

The research focuses on the intellectual property developments made by the member states of the GCC and how intellectual property development and subsequent deployment, can act as a catalyst for financial prosperity. The main purpose of the research is to analyse and examine the intellectual property provisions currently in existence within the states of the GCC. The aim is to provide recommendations to improve the current level of intellectual property protection at both a national level and at a state level in the GCC through an integrated intellectual property protection model. There have been three main stages in the development of intellectual property in the Gulf states; a pre Trade Related Aspects of Intellectual Property Rights (TRIPS) stage, the current level of TRIPS compliance and a push towards TRIPS Plus. To date, each individual Gulf state has developed its intellectual property laws at varying rates. Post 2000, the Gulf states all display a set of intellectual property laws that are largely compliant with TRIPS. Therefore a question arises as to how much scope there is in the current laws to accede to more stringent intellectual property provisions. The research will show this is a key question for the GCC, its international partners and the wider trading communities of the WTO. The findings of the research are that the GCC does not have the capacity to take on TRIPS Plus provisions without compromising its sharia laws and value and that instead an integrated intellectual property protection model is needed.

Innovation in Indian Pharmaceutical Industry: Impact of Changing Regulatory Regime

Background: The Pharmaceutical industry has always been fostered with a culture of radical innovation. Nevertheless, the significance of radical innovation is yet unrealized by the Indian pharmaceutical firms. 
 Introduction: The Indian pharma companies often seek immediate profit avenues rather than investing in radical innovation. They lead by imitation than innovation. This has been majorly due to the lax intellectual property laws in the country.
 Objectives: This paper ruminates on the significance of a stringent intellectual property regime and its impact on profitability and innovation.
 Result: The findings of the study indicate that increased R&D intensity enhances innovation. Furthermore, this relationship is bolstered in the presence of a stringent intellectual property regime. The findings also indicate that enhanced innovation activity increases the profitability of the firms.
 Conclusion: Innovation activity is enhanced in presence of a stricter intellectual property regime, and this indeed has a positive impact on the firm profitability as well. Hence, as the results of the study indicate, the pharmaceutical firms in India should be encouraged to invest in research and development, especially considering the stricter patent laws. It will help firms bolster their profitability and have a sustained competitive advantage in the industry.

Intellectual property regimes and wage inequality

We use The Patents (Amendment) Act, 2002 in India as a quasi-natural experiment to identify the causal effect of higher incentives for innovation on a firm’s compensation structure. We find that stronger intellectual property (IP) protection has a sharper impact on the demand for managerial skill for technologically advanced firms. Firms that were a-priori above the industry median (in terms of technology adoption, more so for R&D expenditure) witness a rise in the share of managerial compensation by 1.3%–8.3% higher than the rest. This effect is completely driven by firms between 5–8th decile with no effect on firms below the median or at the very top of the technological ladder. This observed “snail-shape” in the firms’ response to the IP shock is rationalized in a model where firms within an industry compete for patents by investing in managerial inputs. The observed increase in wage inequality can partly be attributed to a stronger performance pay for high-tech firms. Associatedly, high-tech firms invested more in technology adoption, started to produce more product varieties at higher quality, and filed for more product patent claims.

Maximizing the differentiation principle in regional IP treaties to advance food security: Limitations in West Africa's regional IP and trade regime

AbstractIn this article, I examine whether the contemporary regional intellectual property (IP) agreements negotiated by West African countries are more suitable than multilateral agreements to advance food security in the region, based on the provisions they make for applying the differentiation principle. In this paper, the term “West Africa” is used to designate the 15 countries that are members of the Economic Community of West African States (ECOWAS), the major regional organization in the area (The founding members of ECOWAS were: Benin, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea‐Bissau, Liberia, Mali, Mauritania [left 2002], Niger, Nigeria, Senegal, Sierra Leone, Togo, and Burkina Faso [which joined as Upper Volta]. Cape Verde joined in 1977). By reviewing relevant literature and theories, I propose that the human right to development as a differentiating paradigm may be applied in IP regulation, without compromising the requirement of nondiscrimination in IP regimes. I argue that human rights linked to the food security should be differentiated from the proprietary rights granted in IP. After critical doctrinal analysis of West Africa's regional agreements related to IP rights and food security, I conclude that rather than maximising the adoption of the differentiation principle to advance the regions food security, these treaties are surprisingly less flexible than multilateral agreements, creating further challenges for food security in the region. Consequently, I propose an alternative regional framework for differentiation, that allows for differentiation between IP and human rights norms based on the instrumentalist approach to law, as being more suitable for advancing development and food security in West Africa.

Compulsory Licensing: An Antidote for the Dissemination of Potential COVID-19 Cure?

This paper extensively examines the role of Compulsory Licensing in the Intellectual Property regime with regard to potential COVID-19 vaccinations. In Parts I and II, the paper analyzes the concept of compulsory licensing along with its need. Part III discusses the usage of the flexibilities laid down by the TRIPS Agreement by developing nations after the adoption of the Doha Declaration. This throws light on the status quo pertaining to its implications and repercussions and further helps in determining the situation upon invoking compulsory licensing in the current pandemic scenario. Parts IV and V discusses the pre-emptive measures taken by nations by means of laying forth foundational steps and the legal procedures involved in legitimizing the issuance of these licenses for potential COVID-19 vaccines. It discusses steps taken by various nations across the world, the reasons for doing so and their current legal status pertaining to the licenses. Part VI discusses in detail the diverging views that exist primarily between the United States of America and European Union. It entails discussions regarding accessibility and affordability of potential COVID-19 vaccines in the wake of a jurisprudential analysis of the existing legal provisions relating to compulsory licenses in both provinces. Further, Part VII lays down the negative implications which may arise while invoking compulsory licenses for potential COVID- 19 vaccines. This gives a detailed view of the need for the public healthcare to undertake a balanced approach of the interests of both, the patentee and the public at large. It also lays down the importance of adequate remuneration for the pharmaceutical companies which is often overlooked. Finally, Part VIII analyses both perspectives and lays down the importance of compulsory licensing with regard to both, accessibility and affordability.

Molecular sovereignties: patients, genomes, and the enduring biocoloniality of intellectual property.

Monoclonal antibodies are revolutionizing cancer treatments, but come at an increasingly problematic price for health services worldwide. This leads to pressing demands for access, as in the case of Kadcyla. In 2015, patients in the United Kingdom invoked the sovereign rights of the Crown in order to demand access to this expensive yet potentially life-saving medicine that had prior been de-listed due to price. This article interprets this campaign as an act of sovereign reassertion against a fundamental exclusion, which, however, ultimately fails to challenge the concrete mechanism enabling this exclusion—intellectual property (IP). By connecting this example to other declarations of molecular sovereignty, the article argues that the use of sovereignty can perpetuate further exclusion. Drawing on the notion of biocoloniality (Schwartz-Marín and Restrepo 2013) it points out that the intellectual property regime contains a deeply embedded fiction of the world as terra nullius, a blank uninhabited canvas ripe for discovery and appropriation. This decontextualised vision of life as property works to exclude populations and patients from playing a significant role in determining the use of technologies and treatments. Instead of countering this fundamental exclusion, the concept of sovereignty further entrenches this assumption and merely contests the assignation of this property.