Intellectual Property Rights Law Research Articles

Transfer of ESTs in international law: A climate justice approach

Early industrialization of the developed countries has enabled their leadership in technological innovation, including environmentally sound technologies. ESTs are technologies that help prevent, control, or reduce greenhouse gas emissions. Endorsed as an integral part of climate action, a binding obligation to ensure access for global south to these technologies remains missing from international environment law and international intellectual property rights law. Transfer of technology also faces certain economic barriers such as lack of infrastructure and human resources that enable adoption and absorption of ESTs. Moreover, there exists ideological differences between developed countries and developing and least developed countries regarding mechanism of technology transfer, creating an impasse in international negotiations to achieve EST transfer. In this paper the author has attempted to reframe the discussion on transfer of ESTs through a climate justice perspective. An incorporation of the practical aspects of the common but differentiated responsibilities of the developed countries into the TRIPS regime, in the form of binding obligations to technology transfer and financial assistance, or relaxations in patent protections, may provide adequate resolution. A balanced and rational approach to EST transfer, beyond the exigencies of global politics, is necessary for the continued prosperity of the Earth.

Exploring indigenous intellectual property rights and e-governance: a legal analysis of customary aboriginal knowhow in Arunachal Pradesh, India

The research study examines the legal protection of clan-based aboriginal healing processes, handicrafts, and unique creative works, which have been undermined from the ab initio. The government should shield the interests of their customary know-how under the IPR approach and community-based legal shields and documentation in the e-database. The research aims to investigate conventional aboriginal know-how practices of the Galo clan and e-governance meadow relating to the CAK issue and recommend lawful aspects. The researchers surveyed and collected information from 46 houses in Aalo town, Darka village, and Kabu village in West Siang District and Basar District in Arunachal Pradesh, the primary sources. The paper reports on findings from a study conducted in Arunachal Pradesh, India, to assess attitudes towards customary Aboriginal know-how (CAK) and its conservation. The survey demonstrates multiple views regarding the significance of safeguarding CAK through intellectual property rights (IPR) laws, traditional knowledge's role in socio-economic development, and whether e-governance can effectively help preserve CAK. In conclusion, a delicate balance must be between preserving traditional Galo practices and embracing modernity. A structured survey questionnaire collects quantitative data on attitudes, perceptions, and practices related to customary aboriginal know-how (CAK) conservation and legal protection. The questionnaire includes closed-ended questions to elicit specific responses from the informants regarding their views on safeguarding CAK, the role of intellectual property rights (IPR) laws, and the potential of e-governance in preserving CAK.

Interface And Interplay Between Intellectual Property Rights (IPR) And Competition Law

Intellectual property rights (IPR) bestow exclusive legal privileges upon owners, restricting others’ access and thereby potentially reducing market competition. In contrast, competition law (also known as antitrust law) aims to foster competition and enhance market accessibility. These two domains may appear fundamentally opposed, yet an alternative perspective suggests that they can not only coexist but also mutually reinforce each other. This Paper endeavors to explore the interconnectedness and interdependence of IPR and competition law and seeks to unravel the common thread between these legal domains in the Indian context, providing a comprehensive understanding of their interplay. It underscores the essential role of both in bolstering a nation’s economic efficiency. By coexisting harmoniously, IPR and competition law contribute to a more robust system, and this study offers practical guidelines to enhance the effectiveness of India’s competition law framework and patent offices.

Implementasi Permasalahan Hak Atas Kekayaan Intelektual dalam Perspektif Hukum di Indonesia

The stated purpose of the state is articulated in the Preamble of the 1945 Constitution (UUD 1945), specifically in the fourth paragraph. "Following that, establish an Indonesian State Government that safeguards the entire Indonesian nation and the bloodshed of all Indonesians, promotes the general welfare, educates the populace, and aids in the implementation of a global order founded on independence, lasting peace, and social justice, as delineated in the 1945 Constitution's articles, wherein one facet delineates the condition of a nation's economic development success." As stated in Article 33 of the 1945 Constitution, the following are provisions of the national economy's structure: (2) It is a collaborative effort based on the principle of kinship; (2) The state exercises control over critical sectors of production that have a significant impact on the lives of numerous individuals; (3) It is the state's responsibility to manage the land, water, and natural resources within for the greatest good of the people; and (4) The economic democracy that underpins the organization of the national economy. The Intellectual Property Rights Law of Indonesia governs the implementation, application, and procedure pertaining to intellectual property rights. The Intellectual Property Rights Act is designed to provide additional oversight over an individual's rights to their work and has the potential to apprehend those who commit offenses related to intellectual property rights

Co-Ownership of Communal Intellectual Property in Perspective Support to Regional Tourism

Purpose: The aim of this research is to determine the extent to which cross-conceptions in intellectual property rights can be resolved, and ultimately can be used to support efforts to record the legality of rights both individually and communally. The next goal is to encourage communal intellectual property to become a regional tourism commodity. Theoritical Reference: Theoretically, Intellectual Property Rights have an individual and personal nature, while communal intellectual property actually has a communal nature. So, placing communal intellectual property rules into intellectual property rights law brings about theoretical confusion. Method: The research method used uses a doctrinal approach by collecting data through literature study and then presenting it. Data were analyzed descriptively. Result and conclusion: This study found: the fact that IPR legislation in Indonesia places communally owned objects into IPR legislation, such as the inclusion of Geographical Indications containing Communal Intellectual Property in the Trademark and Geographical Indications Law, which is actually a statutory regulation. IPR invitation (personal). Likewise, the further impact is the weak potential for utilizing economic rights in the form of loss of potential tourism commodities, especially regional tourism. It is concluded that there is equalization of intellectual property legal institutions, namely the incorporation of communal intellectual property objects into intellectual property legislation. Even though this equality does not constitute equal distribution of legal principles, the resulting legal consequences weaken the economic influence of a commodity. Optimizing the economic potential of communal intellectual property, especially to support regional tourism development, will be disrupted. Research Implication: This research has implications for harmonization of the principles of intellectual property law so that they can be applied in the development of economic rights, especially in the tourism sector. Originality/value: This research is something new because it not only looks at conflicting conceptions in the regulation of intellectual property rights, but synergizes with legal benefit factors, namely the economic impact of tourism that can be achieved if.

The Impact of the Trips Agreement in the Framework of Providing Industries Based on Traditional Cultural Expression

Indonesia, rich in EBT, has promising economic potential, especially related to the tourism and creative economy industries. Indonesia's original cultural wealth claimed to belong to other countries, amounts to 34 types of culture. This condition is undoubtedly detrimental to society. This study aims to analyze how the protection of industrial products based on traditional cultural expressions as part of Intellectual Property Rights after the entry into force of the TRIPS Agreement and to analyze how intellectual property rights law in Indonesia should be in order to protect traditional cultural expressions from claims by other countries. The research method used in this study is normative legal research that examines secondary data sources from literature studies in books, regulations, notes, and research results from previous studies. Efforts to protect traditional cultural expressions after the entry into force of the TRIPS Agreement with the inclusion of EBT in Law no. 28 of 2014 concerning Copyright. IPR law in Indonesia protects traditional arts from claims made by other countries by drafting adequate legislation, namely by issuing Law No. 5 of 2017 concerning the Advancement of Culture, which protects industrial products based on traditional cultural expressions to prevent claims and piracy from foreign parties.

Role of Intellectual Property Law in Increasing Science Education Capacity in Indonesia

Currently, the world of education is the backbone of the development of Intellectual Property Rights (IPR). Research results in learning and research activities in the form of science and technology are objects of IPR that must be registered and protected. This is because the findings are an innovation that has high moral and economic value. This study aims to identify the role of IPR law in increasing the capacity of science education in Indonesia. This type of research is legal research using a conceptual approach. Data collection techniques were carried out using library research. Data analysis techniques were carried out using the critical hermeneutic method. The results of the study state that IPR law has two functions, namely: a protective function and an economic function. The function of protection means that the registration of IPR legally protects the findings of inventors as intellectual property. Inventors also have the right to sue other parties who use their findings without rights. The economic function means that registered innovations in science education can provide economic benefits for inventors as well as a source of income (royalty). However, the level of HKI registration in the world of science education is still low. The existence of HKI learning materials in science education is something that is needed at this time.

The Registration Process of Industrial Property Rights

The objective of this article is to determine the registration process of industrial property rights. This research uses normative law methode, which is a qualitative research method utilizing content analysis of secondary data. In general, the registration process of industrial property rights is by submitting the application to Directorate General of Industrial Property Rights (DJHKI) in writing in Bahasa Indonesia through filling the application form with full identities of the applicant. The application is signed by the applicant or the proxy (holder of authority) along with the attachments of the industrial property rights which are applied to the registration. The registration process of industrial property rights also has different special provisions. The research results show that the registration process of industrial property rights is regulated under Intellectual Property Rights Law and has been in conformity with International Convention.
 Keywords: Industrial Property Rights, Process, Registration

Protection of intellectual property and human rights during health emergencies: an assessment of the patent waiver proposal

Purpose Several countries, such as South Africa and India, believe that intellectual property rights (IPRs), including patents, impede the efficient increase in vaccine production to inoculate the global population as they scramble to recover from the COVID-19 pandemic. Their proposal at the World Trade Organization (WTO) to waive these pharmaceutical patents has been met with resistance from a few developed countries, who believe that the abrogation of IPRs is unnecessary, even during a pandemic. The purpose of this paper is to discuss the impact of a potential waiver of medical patents at the WTO versus the status quo of IPR laws in the global economy. Design/methodology/approach This study examines key arguments from economic and moral standpoints regarding the provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and other related international agreements and their validity based on the premise of the internalisation of positive externalities posed by vaccines. Findings The effectiveness of the TRIPS agreement in securing medical access is weak on account of the ability of profit-making multinationals to secure IP rights and on account of the Trans-Pacific Partnership, a multilateral agreement that supports patent evergreening and a period of protection on test data which challenges the access to medicines and the fundamental human right to health. Originality/value This study examines international IPRs through the lens of human rights and proposes a new system that balances the two.

Intellectual property rights protection and prospect of industrial development in Nigeria

The incidence of infringement and violation of intellectual property rights (IPRs) especially in the nature of counterfeiting and piracy has been on the increase in Nigeria; and has deprived many producers and industrialists of the benefits of their creativity. This study explores how IPRs protection influences industrial development in Nigeria using quarterly data spanning 2007Q2 and 2019Q1. The result of autoregressive distributed lag model reveals that IPRs protection exerts negative effects on industrial development due to weak enforcement and non-compliance with industry related IPRs laws which discourage individuals and firms to develop new commercialisable inventions and innovations. Based on this finding, we conclude that IPRs protection cannot significantly improved the prospects of industrial development if not properly enforced with total compliance in Nigeria. Therefore, we recommend that government should strengthen IPRs laws with formidable policies that would create incentives for firm-level innovations/inventions through knowledge creation, adequate funding for R&D in Nigeria.

An empirical study on India’s progress in intellectual property rights with reference to patent filing and grants in the emerging technological era

India is a country of versatility, diverse culture, and complex social dimensions. India has been a country of agriculture, and even in today’s era, the majority of the population relies on agriculture for their livelihood; however, despite all these facts, India has seen a tremendous growth and change in economy, science and technology, education, and so on. In the process of development, invention and innovation have gained immense importance, which have resulted in application of inventions and innovations in the form of technology. In this background, the legal protection for the inventors arises, which is being catered by intellectual property rights (IPR) in the whole world as well as India. In Indian context, the IPR has not yet reached every business organization because the word IPR has always been misunderstood by most of the people that it is meant only for science and scientific inventions, but the fact is IPR’s applicability is much wider and it is applicable even to the smallest businesses. In the entire world, China is a nation which has the highest number of IPR grants, followed by USA. IPR in the present situation is very prominent and relevant because changes in industries like telecommunication, computer science, and so on are in the frontline and India is not lagging in invention and innovations. In 2021, out of the total number of applications received, China has the major contribution, which amounts to 40%. But very shockingly, India is not even in the top 10, which hints us that India needs to be vigilant and needs more attention of IPR. This research article speaks on how India is progressing in applicability of IPR and why India is not extensively using the provisions of IPR. We all know that IPR includes various elements like patents, copyrights, and trademarks; geographical indicators; industrial design; and utility models. But to be more precise and detailed, we have narrowed down our study only to patents in India, and even in that, we have considered patent applications, patent grants, and patents in force. It is to be noted that India’s economy is vibrant and dynamic. An economy like India is truly in need of extensive use of IPR and its provision to protect the rights of the real owner and inventor. But most of the population is ignorant about the IPR, so we are making an attempt to understand what is India’s position in IPR and its applicability. To narrow down our research, we have confined our study to only patents. In a further study, we can analyze how we can improve the awareness, and it may also help us in updating of IPR laws and its provisions.

Dimensions of Intellectual Property Rights Law Regulations in Indonesia

Intellectual Property Rights are private rights where a creator/inventor is free to invite or not to apply for the registration of his intellectual works. That in Indonesia the existence of intellectual property rights as rights to immaterial objects or intangible objects. Property rights arise from a person's ability to produce a work based on the work of his brain/intellectuality, the results of that intellectual work then grow the concept of ownership of an intangible object in the form of intellectual property rights. Whereas intellectual property rights also recognize the existence of economic rights (economische) the community can take economic benefits from a copyrighted work of findings and or provide economic benefits that are positively useful in the community. The importance of understanding the Dimensions of Intellectual Property Rights Law in Indonesia, as a basis in implementing the protection of intellectual property rights in Indonesia (rechten/economic rights) in this case where the creators or inventors.

Evolution of the Chinese Intellectual Property Rights System: IPR Law Revisions and Enforcement

ABSTRACTSince the first Trademark Law was enacted in China in 1982, the Chinese intellectual property rights (IPR) system has undergone significant changes in both the design of the legislation and its enforcement. In this article, we analyze the evolution of IPR legislation and enforcement in China. To this end, we illustrate the evolutionary changes of the Chinese IPR system and analyze the changes introduced in four revisions (1992–1993, 2000–2001, 2008–2013, and 2019–2020). Our analysis shows that Patent Law, Trademark Law, and Copyright Law have been substantially enhanced, especially since 2000, when China improved its IPR system to comply with the TRIPS Agreement and join the WTO, and especially the most recent amendments of these three IP Laws. We discuss the number of IPR infringement cases handled by both relevant administrative authorities and courts to analyze IPR enforcement in China. Results indicate that the development of IPR protection enforcement followed the improvement of relevant IPR laws. The two revisions introduced after 2008, changes in the Chinese IPR system, and an increasing number of IPR infringement cases handled by relevant authorities also suggest the willingness of the Chinese government to further enhance its IPR protection.

Awareness and Strategies of the implementation of the Law on Intellectual Property Rights in the State Universities and Colleges in Western Visayas

This study determined the awareness and strategies of implementation of the law on intellectual property rights in the state universities and colleges in Western Visayas. Universities and Colleges are eliciting and harnessing the talents of the faculty, staff, students and alumni in advancing their respective academic missions, specifically in the area of research. Through the years many universities and colleges has maximized the use of its resources in creating products, and processes which are novel in nature. These are either derivatives or products of improvements, of inventions to benefit instruction which gain practical use in the society. The awareness of the possible infringement of the privileges due to the rightful owner of a copyright work, invention and innovation, the idea of protecting their rights demands. The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and for the common good. It is in this perspective, that the researcher works to determine the extent by which Universities and Colleges of Western Visayas implement programs on Intellectual Property Rights, it relation to the overall performance of an educational institution. The respondents of this study are the deans, department heads and the faculty of the four members of the stateuniversities and college in Western Visayas specifically located in the city and province of Iloilo. A universal and purposive sampling was adopted in this study. The deans and department heads were the universal sample, while the faculty are purposive samples and represent the ten percent of the whole faculty populace having apermanent status. In the level of awareness on the provisions of the law on intellectual property rights existing in institutions, the result showed that the weighted mean was 2.318 which means that the respondent were less aware of the provision of the intellectual property rights. In the level of implementation of strategies of the law on intellectual property rights being practiced in institutions showed that the weighted mean was 1.812 which means that the respondent have observed to the least extent in the implementation of strategies of the law on intellectual property rights. In the problems encountered with their degree of seriousness in connection with the enforcement of the intellectual property rights law the result showed that the over-all weighted mean was 1.39 which means that the respondent have not seriously encountered problems with the enforcement of the intellectual property rights in their institution due to unpracticed of the law. In terms of the significant variance in the use of strategies for the enforcement of the law on intellectual property rights in the four state institutions in Western Visayas the result showed that Sig. value was 0.000 which is less than the Alpha level at 0.05 therefore the variance in the use of strategies in the implementation of intellectual property rights law in four state institutions in Western Visayas was significant and the null hypothesis was rejected.

PERAN PEMERINTAH DAERAH DALAM DALAM KONTEKS EKSPRESI BUDAYA TRADISIONAL DALAM PERLINDUNGAN HAK CIPTA (Studi terhadap Peraturan Daerah Provinsi Jawa Barat Nomor 10 Tahun 2018)

Whereas the regulation on Intellectual Property Rights law has been universally applied and accepted by the members of the World Trade Organization (WTO) by making separate rules into the positive law of each WTO member country. The existence of West Java Provincial Regulation Number 10 of 2018 concerning Intellectual Property Management including Traditional Cultural Expressions in it, can mean that the said Regulation acts as a "private legal entity" which can lead to confusion over higher laws and regulations or known as lex superiori derogat legi inferiori (higher regulations override lower regulations), in that context in Indonesia there have been various laws governing Intellectual Property law, namely: Law on Plant Variety Protection, Law on Industrial Design, Law on Layout of Integrated Circuits, Law on Trade Secrets, Law on Copyright, Law on Patents and Law on Marks and Geographical Indications. The Regional Regulation Number 10 of 2018 has the potential to abuse authority and can be categorized as a problematic regional regulation that can lead to confusion in the community.

Governance and regulation of local working requirement and importation: Pharmaceutical industry study

This paper aims to analyze the governance and regulation of local working requirement (LWR) and importation of pharmaceutical products in Indonesia. Based on the theoretical perspectives of Cottier and Panizzon (2004) and Champ and Attaran (2002), this study aims to analyze the important role of patents through LWR and importation, both directly or indirectly to facilitate the transfer of technology and to stimulate technology transfer with the availability of technology information through patent documents. The research was conducted by using a qualitative descriptive-analytical method. A doctrinal approach was used in this study in the context of reviewing the laws and regulations in the field of patents, the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter TRIPS Agreement), health law, and its derivative regulations. The theory used in this study is about the politics of patent law which focuses on the national interest to pursue local production of patented inventions. The results showed that LWR, pharmaceutical importations provisions, and intellectual property rights law policies as a whole in Indonesia need to be harmonized and integrated with policies on technology transfer, industrial development, trade, and investment. The results underscore the main way in which LWR can contribute directly to the transfer of technology in developing countries.

OUP accepted manuscript

Abstract Previous studies often attribute the poor enforcement of intellectual property rights (IPR) law in non-Western countries to environmental constraints, including social, political, or cultural factors. This article tries to reorient our focus to two intrinsic characteristics of legal rights appertaining to their social forms: the intangibility of the constructed legal object and the scope of contradictions among legal subjects. Based on 85 in-depth interviews from six IP-intensive industries in China, I propose a theoretical framework for combining the “textual” and contextual dimensions of studying legal transplants – the susceptibility of law. I argue that the intrinsic qualities of the IP legal concept imply a sizable gray space, making it difficult to interpret, hard to enforce, and thus more susceptible to specific contextual influences. The country-level contextual environment does not provide adequate technique, legitimacy, and experience to effectively enforce IPRs in general, yet some industries may benefit from a set of sub-contexts that provide compensatory support through product-embedded standardizations or network-embedded norms. Although these sub-contexts are not enough to produce a robust IPR regime as in the West, they do generate pockets of effectiveness, allowing industries to muddle through and profit, and an otherwise foreign institution gradually to take root.

IPR Law Protection and Enforcement and the Effect on Horizontal Productivity Spillovers from Inward FDI to Domestic Firms: A Meta-analysis

We study the role of the strength of Intellectual Property Rights (IPR) law protection and enforcement in influencing horizontal productivity spillovers from inward FDI to domestic firms in host countries. While most WTO countries adopted strong IPR legislation due to exogenous pressure resulting from the signing of the Trade-Related Aspects of IPR (TRIPS) agreement, public IPR enforcement strength continues to vary significantly between countries. We meta-analyse 49 studies and find that public IPR enforcement strength has a direct positive effect on horizontal productivity spillovers from inward FDI to domestic firms and a negative moderating effect on the relationship between IPR law protection strength and horizontal productivity spillovers from inward FDI to domestic firms.

Intellectual property rights and law enforcement in developing countries

The attitudes of developing countries for intellectual property rights (IPR) regulations and law enforcement are ambiguous. We seek to clarify this issue by structuring a model, simultaneously considering the IPR index and the strength of law enforcement of China in period 1996–2015. Firstly, the government of a developing country always holds the strictest attitude towards law enforcement. Secondary, the growing level of IPR leads to the decrease of the total welfare, but the decline of total welfare slows down. Third, the motivation of maximising total welfare induces the governments of developing countries to strengthen law enforcement. This provides internal motivation for development. The findings of this article show that developing countries have long-term internal motivations to improve their strength of IPR levels and law enforcement.

Patent Games in the Global South: Pharmaceutical Patent Law-Making in Brazil, India and Nigeria

Unlike the products or processes protected, pharmaceutical patents are neither derived from biological nor physical sciences. Patents, like other intellectual property rights (IPRs), are constructed through negotiations between state and interested non-state actors and conditioned by a confluence of legal, historical, political, social, and economic factors. Although patent laws are designed and introduced at the national levels, international agreements alongside bilateral and regional agreements shape the contours of national patent laws. The World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) occupies the centre of the international patent architecture. TRIPS, presented as Annex 1C of the Agreement Establishing the WTO, was one of the central outcomes of the challenging and controversial Uruguay Round of Multilateral Trade Negotiations (1986–93). Section 5, Articles 27–34 of TRIPS, establishes legally binding minimum patent standards for all WTO members. Although Articles 7 and 8 of TRIPS provides for WTO members to implement these minimum patent standards in ways that promote the socio-economic welfare, public health, and public interest, there are variations in national IPR laws.