Intellectual Property Rights Holders Research Articles

Inclusion of electronic sports in the Olympic Games for the right (or wrong) reasons

ABSTRACT With so many popular and unique sports played around the world, one of the most important challenges for the International Olympic Committee is deciding which ones merit inclusion in the Olympic Games. In recent years, a spirited debate has ensued surrounding electronic sports, also known as esports, and the possible inclusion of this type of competitive video gaming at the Olympic Games. Considerations centre around the sporting legitimacy of electronic sport, which games might be appropriate to play at events such as the Olympics, and whether esports epitomise the values and ideals promoted by the Olympic Movement. There may be substantial and contrasting information on the topic and these aforementioned questions, but the growing popularity and significance of esports are noteworthy. Over the years, numerous policy entrepreneurs and stakeholders, including governing bodies, intellectual property rights holders, teams, players and sponsors, have all put forward various agenda and policy solutions in response to these questions. In this article, multiple perspectives on the potential inclusion of esports at the Olympic Games are presented and discussed in the context of both the Multiple Streams Framework and Actor-Network Theory. It is the hope of the authors that this article will fuel further discussions on the important topic of the possible, future inclusion of esports at the Olympic Games.

Private prosecution of intellectual property rights infringements in Singapore

Case law from Singapore shows that one of the ways in which intellectual property rights holders have protected their rights is through private prosecutions. This is the case although the relevant pieces of legislation on patents, copyright and trade marks are silent on the issue of private prosecutions. The question of who is entitled to institute a private prosecution in intellectual property rights infringements remains unclear to some people. The purpose of this article is to discuss the issues of locus standi to institute a private prosecution in intellectual property cases and the measures to minimize abusing the right to institute a private prosecution.

Protection of Design Patents in China and Comparison with European Union Law: How Foreign Companies Can Protect Their Design Patents in China

This paper is mainly focused on a specific aspect of Chinese intellectual property law: design patents and utility models related to foreign companies, especially in automotive and fashion industries. It aims to analyze and examine the protection of design patents and utility models featuring in foreground real cases in China and involving foreign companies, especially European and Italian companies. Holders of intellectual property rights and possible solutions to their cases are the focus and objective of this paper: how foreign companies can face these issues through the existing Chinese intellectual property law and, when Chinese law is not satisfactory enough or when there is a lack, trying to find new possible solutions and suggestions which might be beneficial for foreign companies. Considering interests and concerns which involve foreign companies and their products in the subject matter, Chinese intellectual property law has evolved in the past few years in order to safeguard foreign companies from infringement of their rights, which became quite frequent. Currently the aim of Chinese intellectual property law is not only to prevent lawsuits between foreign and local companies, but also the infringement itself by local companies. Comparing Chinese intellectual property law with European provisions concerning intellectual property rights system, the objective is trying to understand the differences and mostly the advantages that one system can show more than the other one, finding new strategies and remedies, such as updates and solutions that might be useful to insert in the current Chinese intellectual property system and which might be efficient and functional for foreign companies’ business in China as well as to protect their intellectual property rights in the best way.

The Impact of Brexit on the Unitary Rights of the European Union

Besides the politic and the economic perspective, Brexit results in chaos regarding intellectual property rights, especially unitary rights. The future of these rights raises interrogations. Even more, it worries many economic operators. In particular, intellectual property rights holders are preoccupied with the fate of their European asset. Whereas the Regulations on the European Union trademark and in the Community design deal with the question of newly acceding States, there is no mention of the withdrawal of a Member State and of the future of a European Union trademark in it. Must we conclude that the proprietors of European Union trademarks will see their rights denied in the United Kingdom? This solution is hardly conceivable, both from a commercial point a view and a legal one. The complete disappearance of European Union trademark law for the British territory would constitute an infringement of the property of the proprietor, protected by article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, it is necessary to consider the future of European Union Trade Marks and Community designs (A), and the strategies which can be advised with regard to the numerous issues (B).

EU Geographical Indications and Intangible Cultural Heritage

Misappropriation of intangible cultural expressions occurs in countries other than their state of origin and is therefore of a transnational nature. In 2003 the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage was adopted to safeguard intangible cultural heritage (ICH) at the domestic and international level. However, this Convention lacks rules on transnational misappropriation. To safeguard ICH across borders, the States Parties adopt intellectual property rights (IPRs) of a collective nature, in particular geographical indications (GIs). However, registration of GIs in the country of origin of the ICH cannot safeguard it across the globe. Indeed, GIs must not only be registered in their country of origin, but also in other jurisdictions. Hence, certain States Parties register GIs in their respective territories, as well as in other countries. In particular, EU GIs are registered by non-EU Member States. However, multi-state registrations of GIs still cannot safeguard ICH transnationally, since the parallel GIs must currently be enforced in each and every country of registration, even in the case of EU GIs. In fact, the EU Quality Schemes Regulation does not establish a system of cross-border enforcement of GIs and must be integrated in the EU private international law rules of the Brussels system. This system applies an exclusive jurisdiction rule to transnational disputes on IPRs, however, which implies multiple parallel proceedings, with the risk of conflicting judgments, considerable litigation costs and inequalities between parties, particularly when IPR holders are the ICH bearers, and are therefore communities, groups or individuals. Yet, unlike transnational disputes concerning IPRs, those regarding GIs do not fall under the exclusive jurisdiction rule of the Brussels system. Thus, this system allows for their consolidation before a single competent court. This consolidation would be in line with recent international academic proposals, among them the International Law Association Committee on Intellectual Property and Private International Law.

China and intellectual property rights: A challenge to the rule of law

China is not meeting its international obligations to protect intellectual property rights (IPRs), harming the innovation process in China and elsewhere. We review the benefits of IPR protection and discuss the magnitude and cost of China’s IPR violations. We also emphasize that these violations undermine the international rule of law and impair China’s legitimacy as a leader in evolving global governance institutions. We criticize the argument that China will endogenously improve IPR protection due to internal pressures from its domestic IP sector as the United States and some other countries did in the past. China’s governance institutions are very different from those of the liberal Western democracies, past and present, as China has a weak internal rule of law, a fragmented governance system, and cultural traditions that favor collective over individual rights. As China’s IP sector develops, its IPR governance regime might even be used as a strategic tool to further disadvantage foreign IPR holders. We argue that China should play a lead role in any international IPR reforms but that it must first establish legitimacy by meeting its current international IPR commitments. We conclude that other countries should take action to pressure China to meet its IPR obligations.

Intellectual Property and Competition Law

This chapter, prepared for the Oxford Handbook of Intellectual Property Law, surveys the intersection of competition law — or antitrust law, as it is known in the United States — with intellectual property (IP). It examines whether and how IP rights alter the substantive scope of antitrust law, either by operation of statute or as a matter of economic policy. It discusses a wide variety of antitrust claims, alleging collusion, exclusion, or both, that have been raised against IP rights holders. The examples are drawn mainly from the United States, although European developments are also included where relevant. The analysis supports the conclusion that, beyond a rights holder’s core ability to assert a valid, infringed right against a rival, IP restricts antitrust law less than one might expect. Moreover, the restrictions that do exist are often subtle.

A Global Fight Against Counterfeit: Infringement Caused by Goods in Transit Under the New European Trademark Law Regulation No. (EU) 2015/2424 and Directive (EU) 2015/2436

The impact of fake products does not only affect holders of Intellectual Property rights. It also has a negative effect on economy and mainly affects consumers’ welfare. Product falsification and replication of copyright protected materials are considered serious offences in many jurisdictions around the world. Nevertheless, there is no such thing as an international harmonized practice regarding the control over counterfeit products. With the modernization of commercialization channels (internet, digital buying, offshore companies, etc.) this situation is reaching unprecedented limits, and criminal organizations are now considered as having a significant market control in global trade. In addition, the situation is aggravated by a combination of illicit activities related to this offense such as drug trafficking, tax evasion, money laundry and child labor exploitation in emerging economies. Different global players, such as international firms and Member States of various international treaties are cooperating to combat this crime. Nevertheless, the efforts sometimes get affected by judicial interpretations on how to enforce the law or by non-strict policies from the producing countries. But, where do we strike the balance between chasing infringers and allowing free markets and freedom of transit in accordance to international obligations imposed by the World Trade Organization? This paper will focus on explaining how did the European Court of Justice dealt with this question under the Nokia/Philips case regarding the possible infringement of IP rights by goods in transit within the European Union. In addition, it will expose the current situation under the amendments introduced by the new Trademark Regulation No. (EU) 2015/2424 and Directive (EU) 2015/2436.

Playing with pirates: how companies can win the endgame

Purpose The purpose of this paper is to expose two mechanisms by which pirated firms that market cultural goods can strategically use piracy to increase their profits. Design/methodology/approach The authors interpret several world examples through the lens of behavioral economics to identify mechanisms that can make pirates’ initiatives profitable for the intellectual property rights holders. They also address two principal objections to “beneficial piracy”. Findings First, intrinsically motivated pirates can be in a better position to shape consumers’ preferences in a sense favorable to the firm profit. Second, pirates can generate strategic information that can help original producers to increase their profits. Research limitations/implications Fighting piracy can be perfectly justified from a legal viewpoint while constituting simultaneously a bad decision for a business viewpoint. Moreover, some pirates follow ethical rules that can lead to a symbiotic relationship with pirated businesses. Nevertheless, the generalization of our analysis must be undertaken with caution given that our arguments have been developed out of observations of particular institutional settings. Practical implications Distinguishing “good pirates” from “bad ones” can lead managers to reconsider the systematic disapproval of copyright infringement in favor of more nuanced approaches. Social implications Piracy can be useful under some circumstances for the pirated firm and even for the whole society, by increasing access to cultural goods. Originality/value The authors identify two mechanisms that can make piracy profitable for pirated firms. These insights can help managers to avoid a “one-size-fits-all” policy regarding piracy and to seek how to create conditions for a mutual and shared success.

Proving the infringement of digital intellectual property rights: Overview of the Anglo-saxon legal system

The multifaceted process of identifying and proving the infringement of intellectual property rights is further complicated and aggravated in the so-called analogue environment. The development of Information Technologies has given rise to a new set of problems. The digital technology has facilitated the infringement of intellectual property rights and additionally aggravated the process of proving these infringements. Hence, it is the duty of digital forensics to identify relevant (valid) evidence and present it in the court of law, which is not an easy task. In that course, the problems are twofold: legal and technical. First of all, the legislation in many countries is not adjusted to resolving the issues constantly emerging in the digital environment and there are apparent differences in the manner of regulating these issues. On the other hand, there is no standardized and unified technology which would provide for a uniform qualification and comprehensive treatment of these issues. Moreover, the place of commission of these criminal offences as a rule does not coincide with the place of occurring legal consequences. Yet, in spite of all these difficulties, there are technological methods and tools which facilitate the detection of cybercrime and provide evidence for securing relevant punishment. In the time to come, the developments in this area are expected to be aimed at strengthening the protection of legitimate interests of holders of intellectual property rights.

Harmonising and Matching IPR Holders at IP Australia

This document describes the methodology developed by the Melbourne Institute to: (i) harmonise holders of intellectual property rights (IPRs) at IP Australia (applications for patent, designs, trademarks and plant breeder’s rights); (ii) match Australian IPRs holders to the Australian business register; (iii) identify the ultimate owners within Australia; and (iv) identify which holders are small and medium size enterprises.

Who Owns the Intellectual Property Rights to Chinese Genetically Modified Rice? Evidence from Patent Portfolio Analysis.

Who Owns the Intellectual Property Rights to Chinese Genetically Modified Rice? Evidence from Patent Portfolio Analysis.

Human Rights, Technology, and Food: Coordinating Access and Innovation for 2050 and Beyond

The purpose of this article is to suggest a path to alleviating the enduring tension between the right to food and intellectual property rights holders, particularly patent holders, of food-related technologies. After examining the role of technology in relieving the increasing demographic pressure for food, this manuscript explores how the dependence on technology for food solutions can cause a collision with barriers of intellectual property rights. The manuscript then examines how the protect, respect, and remedy framework,developed and introduced by U.N. Special Representative John Ruggie, can be used as an important tool to manage the innovation-access dilemma. The framework can stimulate coordination and innovation between interests in food access and the need for food innovation through rights holders. Policy recommendations are also presented to further encourage a reconciliation between food access and intellectual property regimes.

The transit dilemma revisited: the new Customs Regulation and the legislative package on trade marks

Carl De Meyer and Carina Gommers are partners of Hoyng Monegier LLP, based in Brussels. They both specialise in intellectual property and have substantial expertise relating to border detention programs. After Philips/Nokia, customs authorities could detain goods in transit in application of the Customs Regulation when there was an indication of infringement, but in the ensuing substantive proceedings holders of intellectual property rights would have to prove the actual infringement in the EU. In most cases, the evidence of such actual infringement is not available for the holders of the intellectual property right. We have therefore called upon the European Commission to provide for a reversal of the burden of proof: when customs authorities decide to detain goods in transit in accordance with Philips/Nokia, hence when there is an indication of infringement, there would be a rebuttable presumption that these goods are also destined for the EU. This reversal of the burden of proof is however not included in the new Customs Regulation that will be effective as from 1 January 2014. On the contrary, the new Customs Regulation now seems to require proof of an infringement in the Member State where the goods are being detained by customs, raising the bar for holders of intellectual property rights even further. When the EU legislator is really committed to enhance the protection of intellectual property rights, it must now come forward with adequate proposals to tackle the transit debacle because only then will the Customs Regulation remain an effective tool to block the illegitimate trade in infringing goods. An immediate change in the substantive laws dealing with intellectual property rights is therefore an absolute necessity. A first step in the right direction is taken in the legislative package regarding trademarks, since the act of transit is therein under certain circumstances qualified as an infringement of intellectual property rights under EU or national law.

Goods with embedded software: Obligations under Section 12 of the Sale of Goods Act 1979

The Sale of Goods Act 1979, section 12 imposes obligations on sellers. Sellers must have the right to sell the goods, and they impliedly warranty that the buyer will enjoy quiet possession. Actions by intellectual property rights holders can lead to liability for sellers for breach of the section 12 obligations. Recent technological change has brought about the development of goods that operate in conjunction with software. The extent of the relationship between goods and software varies, but the level of integration may be sufficient to consider the software ‘embedded’ within goods. To what extent can the holders of intellectual property rights in software extend their interest into goods with embedded software? Can a third-party sub-purchaser escape the reach of the intellectual property rights? A reform proposal is made that would enable sub-purchasers to avoid the problems of pre-existing intellectual property rights in goods with embedded software.

How Does the Experience of U.S. Telecommunications Regulation Inform the Forced Sharing of Intellectual Property Rights under Global Competition Law?

Competition authorities in foreign jurisdictions have recently adopted or are considering guidelines on applying competition law to intellectual property rights (IPR). A common concern that certain exercises of IPR can restrict competition underlies IPR provisions that would enable competition authorities to compel holders of IPR to license their IP at regulated royalties. The experience of telecommunications regulation in the United States, from the AT&T divestiture in the early 1980s to the implementation of the Telecommunications Act of 1996, illustrates the potential harm to competition and innovation that such forced-sharing policies would cause. The AT&T divestiture was a costly exercise that prevented or delayed the introduction of new services. Forced sharing of incumbents’ network elements at regulated rates under the Telecommunications Act reduced investment by both incumbents and entrants. Ironically (yet predictably), the competition for local telephone service that the Act sought but failed to foster was provided by wireless and cable operators, which were deliberately left unregulated and thus had both the incentive and means to upgrade and expand their networks to handle mass volumes of voice and data communications. The failure of forced sharing to promote competition and innovation counsels competition authorities to proceed with caution when using competition law to regulate IPR.

The Influence and Illusion of China's New Left

The 2008 global financial crisis was a wake-up call for China’s leadership about the potential limits of the free market system to achieve optimum development policy outcomes. The 30-year consensus among China’s leadership has been that economic policy should be primarily market-centric and efficiency-first. However, there is now a growing divergence of opinion among Chinese intellectuals on whether China should continue this fundamental course.

Is There A Piracy Kuznets Curve?

We investigate empirically the relationship between software piracy and GDP per capita by considering non-linear effects. We use a panel data analysis for 100 countries over a period of 15 years. We remedy several previous econometric and methodological shortcomings and show that piracy follows a Kuznets-like curve. Concretely, piracy first increases with the level of GDP per capita, reaches a maximum, and then decreases at higher levels of income. Making people richer can be the best way to decrease piracy over the long-term horizon. Intellectual property rights holders should not aim for a decrease of piracy per se, but rather a decrease of piracy in those circumstances where it is most likely to be substituted by legal sales. Economic growth can generate by itself incentives to curb piracy.

Economic Analysis of Private Copy Remuneration

The present Study focuses on the economic rationale and effects of the private copy remuneration (or PCR) system, by virtue of which consumers pay the holders of Intellectual Property Rights (IPR) a given amount in consideration of the private copying of their works. The scope of the Study is limited to the economic aspects of PCR and, consequently, legal, political, cultural, and other facets of the phenomenon are only incidentally referred to.This Study is not comparative, in the sense that it does not analyse alternative legal systems and, particularly, no argument is intended – either expressly or implicitly – to compare IPR systems based on fair use doctrines (such as the one currently enforced in the United States) with those that are based on legal private copying exceptions (such as those in place in most European Union countries). The Study focuses only on private copy exception-based systems. It does briefly compare systems of private copy exceptions with and without remuneration, but the conclusions reached cannot be automatically transplanted to any comparison between fair use-based and private copy exception-based legal systems.This Study focuses on the effects of PCR on the music sector. Notwithstanding this relatively narrow focus, the conclusions reached are applicable to a significant extent to all types of IPR-protected works (such as audiovisual or literary), with some adjustments to tackle certain peculiarities of the several types of intellectual and creative works. However, for the sake of simplicity and clarity, all the examples and data provided in the Study refer exclusively to music.The Study is limited to the setting and collection aspects of PCR, as well as its effects on incentives to creation of intellectual works. The collective administration of PCR, its distribution amongst right holders, and its use as a source of financing for cultural and social activities also lie outside the scope of the Study. Each of these topics might merit a separate report. Therefore, the Study assumes that PCR is efficiently distributed by the collective management societies to each rights holder according to a proper estimation of the number of copies made of her/his works.Similarly, the Study does not analyse the potential benefits to society that may derive from the cultural activities that are financed with a share of the PCR collected in different Member States. From a purely economic perspective, it must be stressed that the Study is implicitly based on certain assumptions that inevitably condition its content and its lines of reasoning, which are derived from economic theory and which will be out of question in the present Study. First, it is assumed that intellectual property rights are a part of the basic property rights on which developed economies have their foundations. Second, it is assumed that generating incentives for the creation of IPR-protected goods is a key role of economic regulation. Finally, it is also assumed that IPR-protected contents are a significant driver of economic growth for all societies and, particularly, for the Information Society.Finally, this Study does not intend to forecast precisely any future market or sector sales or penetration rates, nor does it intend to predict the exact total PCR collection by countries or products. Instead, based on sound assumptions regarding market conditions, the Study tries to assess the relative efficiency of the current system and to illustrate the potential quantitative importance of certain effects that are usually neglected in the ongoing debate about the PCR system.

The global health complex

In February 2009, Andrew Witty, the Chief Executive of GlaxoSmithKline (GSK) announced that GSK would slash the prices of its medicines in low-income countries, and, more surprisingly, raised the idea of a patent pool, where holders of intellectual property rights would share discoveries in order to stimulate neglected diseases research (Lancet, 2009; McNeil, 2010). The announcement generated cautious praise from non-governmental organizations (NGOs) such as the Medicins Sans Frontieres (MSF) and the Drugs for Neglected Diseases Initiative, the latter suggesting that GSK has emerged as the ‘most innovative’ pharmaceutical company to tackle the persistent problem of how to encourage the private sector to pour RD see also Lexchin, 2010). Behind the apparent selflessness of GSK’s strategy lies much contestation and controversy over the economic motivations and unintended consequences of recent attempts to address disparities in access to medicines and health care. Using the complex matrix of global health initiatives as an anchor, contributors to this special issue explore the underlying contention behind actions such as GSK’s, examining how industry moves such as priceslashing in developing regions and calls for patent sharing relate to wider concerns about the tensions between private and public investment in health care; the nature of what Marcel Mauss once referred to as the ‘in fact obligatory and interested’ character of philanthropy and gift-giving; and the national security objectives embedded in bilateral and multilateral global health initiatives (Lakoff and Collier, 2008; Mauss, 1990).