Intellectual Property Rights Law Research Articles

Copyright Exemptions to Facilitate Access to Published Works for the Print Disabled – The Gap Between National Laws and the Standards Required by the Marrakesh Treaty

The issue of whether and to what extent the law of copyright should provide exemptions in order to facilitate access to published works by the blind, visually impaired and print disabled is complex and emotive, integrating a variety of areas of law, most notably intellectual property and human rights law. The issue has recently been debated on the international stage in the drawing up of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (WIPO Doc VIP/DC/8, hereinafter: the Marrakesh Treaty). The Treaty aims to facilitate the availability of published works in accessible format copies by requiring Member States to provide a limitation or exception in their national copyright laws permitting authorized entities to reproduce a published work in an accessible format, and distribute it without the authorization of the copyright holder to persons who are blind, visually impaired or experiencing other print disabilities. However, the journey to passing the Marrakesh Treaty was by no means linear and involved the expression of often divergent views by the member countries in the international context. This divergence of opinion is reflected in the vastly varying levels of support for related copyright exceptions and limitations provided in the laws of nations around the world. The Marrakesh Treaty was adopted at the World Intellectual Property Organization (WIPO) diplomatic conference on 27 June 2013. It is, however, pertinent to note that this treaty will not enter into force until it has received 20 ratifications (Art. 18.). As attention now moves to ratification and implementation of the treaty by Member States, it will be useful to examine the nature of the gap that presently exists between national laws and the standards required by the treaty, and to thereby evaluate whether and to what extent the provisions of the treaty are likely to be implemented in the domestic laws of the Member States. To this end, this article begins by providing a global overview of the copyright exemptions presently in operation in various nations. Thereafter, some specific issues concerning the treaties reflected in the drafts proposed by different countries will be discussed. These issues will be the subject of the first two parts of the discussion. The third part outlines the ambit of the Marrakesh Treaty and points out issues needing further clarification. The conclusion analyzes the prospects of final ratification by reference to the willingness of Member States to adapt their national copyright laws to the Marrakesh Treaty – a willingness that may be indicated by their current legal practices and their contributions to the treaty.

Moral Rights a Comparative Analysis

The world of Intellectual Property Rights (IPR) law is at a crossroads. The pervasive use of digital technologies is making us question the basic premises underlying Intellectual Property Rights and how it should be managed so as to ensure that “Free Culture” remains free, the public domain continues to be enriched, while ensuring creativity gets due returns.In this work, we will look at the other, often overlooked aspect of copyright law — “Moral Rights” and how they may work in the context of the digital age. The concept of Moral Rights or Droit Moral, the foundation of which lies in the concept of “author’s right” — upon which the copyright of continental Europe is built, are a set of rights which persist with the author even after he has transferred his economic rights to another. Prima facie, this would seem to hinder the exploitation of said work and also be at conflict with one of the avowed reasons for copyright’s stated purposes — enrichment of the Public Domain.We will try to understand whether this is really the case by looking at:• the underpinnings of Intellectual Property and Copyright Law,• a detailed analysis of what Moral Rights are,• how Moral Rights work around the world,• Moral Rights in India,• finish off with some open questions, especially with regards to the potential impact of Moral Rights on software development

Software piracy, inequality and the poor: evidence from Africa

Purpose – Poverty and inequality undoubtedly remain substantial challenges to economic and human developments amid growing emphasis on intellectual property rights (IPRs) (with recent advances in information and communication technology (ICTs)) and good governance. In the first empirical study on the incidence of piracy on inequality in Africa, the purpose of this paper is to examine how a plethora of factors (IPRs laws, education and ICTs and government quality) are instrumental in the piracy-inequality nexus. Design/methodology/approach – Two-stage least squares estimation approaches are applied in which piracy is instrumented with IPRs regimes (treaties), education and ICTs and government quality dynamics. Findings – The main finding suggests that, software piracy is good for the poor as it has a positive income-redistributive effect; consistent with economic and cultural considerations from recent literature. ICTs and education (dissemination of knowledge) are instrumental in this positive redistributive effect, while good governance mitigates inequality beyond the piracy channel. Practical implications – As a policy implication, in the adoption IPRs, sampled countries should take account of the role less stringent IPRs regimes play on income-redistribution through software piracy. Collateral benefits include among others, the cheap dissemination of knowledge through ICTs which African countries badly need in their quest to become “knowledge economies.” A caveat, however, is that, too much piracy may decrease incentives to innovate. Hence, the need to adopt tighter IPRs regimes in tandem with increasing income-equality. Originality/value – It is the first empirical assessment of the incidence of piracy on inequality in Africa: a continent with stubbornly high poverty and inequality rates.

Who owns what? Indigenous knowledge and struggles over representation

Ownership of field research records involving informants and subject communities is discussed with regard to doing research amongst indigenous populations. Intellectual property rights (IPR) law often assumes, for example, that an age-old mythical story retold by a contemporary informant is owned by the legal entity that facilitated its being captured in writing. The implication is that if the story-teller now wants to tell the same story to someone else, written legal permission from the legal entity would be required. IPR contracts freeze the dynamism of knowledge, killing its ‘lived’ relation, and the process owned by others (our research partners/hosts/subjects) is transformed into commodities that the original storytellers no longer own or control. For our ǂKhomani Bushman hosts, this constitutes information theft. A third party, in our case the academy, claims ownership of ideas our subjects thought were theirs. This article examines ensuing issues of IPR and ethics in relation to doing research amongst indigenous communities.

KEBERADAAN DAN IMPLIKASI PRINSIP MFN DAN NT DALAM PENGATURAN HAK KEKAYAAN INTELEKTUAL DI INDONESIA

The WTO – TRIPs Agreement regulates the principle of non- discrimination which must be complied by its member countries. There are two principle of non discriminationnamely the principle of National Treatment ( NT ) and Most Favoured Nations principle (MFN). This study focus to the adoption of MFN and NT principles into IntellectualProperty Rights laws of Indonesia whether it harmony with the legal system in Indonesia. This study uses the normative legal research methods by using conceptual approachand statute approach . The legal materials that studies in this research consists of thePrimary Legal Materials : Act No. 19 of 2002 , Act No. No. . 15 of 2001, Act No. 14 of2001, as well as the TRIPs Agreement. Secondary legal materials studied in this research are legal text books and law journals related to NT and MFN principle in the field of IntellectualProperty Rights. .The results showed that the Principle of Non Discrimination System in the form of theprinciple of National Treatment (NT) expressly governed through Article 3 TRIPsAgreement and the principle of Most Favoured Nations (MFN) regulated through Article 4TRIPS Agreement. As a member of WTO-TRIPs Agreement, Indonesia should comply andadopt the MFN and NT principles into IPR laws. Currently those principles exist implicitlyand explicitly such as in the Act No. 19 of 2002, the Act No. 14 of 2001, and the Act No. 15of 2001. Although the MFN and NT principles has already adopted, it is still need moreeffort to implement the principle of non Discrimination, especially in the relationshipbetween Indonesia and other unequal size countries, between developing and developedcountries.

Overcoming India’s Food Security Challenges: The Role Of Intellectual Property Management And Technology Transfer Capacity Building

The growth of the Indian economy after Independence has had little impact on the food security of the country. The paper analyses the development of advanced crop varieties through the use of agricultural technologies (hereinafter "agbiotech") within the technology transfer system, a framework which comprises of the interactions of intellectual property rights law and agricultural research and development in India. Through this, the author argues that agricultural innovation in India is failing due to the absence of connections within the technology transfer system and advocates for the creation of a national program aimed at advancing IP and tech-transfer capacity in agbiotech.

The Impact of Formal Institutions on Knowledge Economy

Using Kauffman, Kraay, and Mastruzzi governance indicators, this article analyzes the impact of formal institutions on the knowledge economy- by assessing how the enforcement of Intellectual Property Rights (IPRs) through good governance mechanisms affects the knowledge economy. The article also employs the World Bank’s four components of the knowledge economy index characteristic of its knowledge for development (K4D) framework. We estimate panel data models for 22 Middle East & North African and Sub-Sahara African countries over the period 1996-2010. The results show that for this group of countries the enforcement of IPR laws (treaties), although necessary, is not a sufficient condition for a knowledge economy. The results also suggest that other factors are more likely to determine the knowledge economies of these nations. Overall these findings have important implications for both policy and further research.

The Impact of Formal Institutions on Knowledge Economy

Using Kauffman, Kraay, and Mastruzzi governance indicators, this article analyzes the impact of formal institutions on the knowledge economy - by assessing how the enforcement of Intellectual Property Rights (IPRs) through good governance mechanisms affects the knowledge economy. The article also employs the World Bank’s four components of the knowledge economy index characteristic of its knowledge for development (K4D) framework. We estimate panel data models for 22 Middle East & North African and Sub-Sahara African countries over the period 1996-2010. The results show that for this group of countries the enforcement of IPR laws (treaties), although necessary, is not a sufficient condition for a knowledge economy. The results also suggest that other factors are more likely to determine the knowledge economies of these nations. Overall these findings have important implications for both policy and further research.

Fusion of Horizons: A New Perspective on Intellectual Property Rights

The mission of legal philosophy and philosophical hermeneutics has always been to comprehend the nature of intellectual property rights and the intellectual property rights system for the purpose of improving them. The difficulty of this task lies in the limitations in legal thinking resulting from the division of labor in the legal profession. A clear perception of the nature of intellectual property rights and the intellectual property rights system can only be obtained when we transcend intellectual property rights law. If we adopt the thinking of legal philosophy and the logic of dialectics to analyze the intellectual property rights system and explore the differing nature of institutional structures and their interrelationships, we can show that the intellectual property rights system is essentially an institutional arrangement involving balancing different considerations and implying a high level of political intellect. Only when intellectual property rights legislation possesses this kind of wisdom will people voluntarily abide by its rules in their life and work.

Fighting Software Piracy: Which Governance Tools Matter in Africa?

This article integrates previously missing components of government quality into the governance-piracy nexus in exploring governance mechanisms by which global obligations for the treatment of IPRs are effectively transmitted from international to the national level in the battle against piracy. It assesses the best governance tools in the fight against piracy and upholding of intellectual property rights (IPRs). The instrumentality of IPR laws (treaties) in tackling piracy through good governance mechanisms is also examined. Findings demonstrate that: (1) while all governance tools under consideration significantly decrease the incidence of piracy, corruption-control is the most effective weapon; (2) but for voice and accountability, political stability and democracy, IPR laws (treaties) are instrumental in tackling piracy through government quality dynamics of rule of law, regulation quality, government effectiveness, corruption-control, and press freedom. Hence, the need for a policy approach most conducive to expanding development is to implement an integrated system of both IPRs and corollary good governance policies. Moreover, our findings support the relevance of good governance measures in developing countries wishing to complement their emerging IPR regimes.

Fighting Software Piracy: Which Governance Tools Matter in Africa?

This article integrates previously missing components of government quality into the governance-piracy nexus in exploring governance mechanisms by which global obligations for the treatment of IPRs are effectively transmitted from international to the national level in the battle against piracy. It assesses the best governance tools in the fight against piracy and upholding of intellectual property rights (IPRs). The instrumentality of IPR laws (treaties) in tackling piracy through good governance mechanisms is also examined. Findings demonstrate that: (1) while all governance tools under consideration significantly decrease the incidence of piracy, corruption-control is the most effective weapon; (2) but for voice and accountability, political stability and democracy, IPR laws (treaties) are instrumental in tackling piracy through government quality dynamics of rule of law, regulation quality, government effectiveness, corruption-control, and press freedom. Hence, the need for a policy approach most conducive to expanding development is to implement an integrated system of both IPRs and corollary good governance policies. Moreover, our findings support the relevance of good governance measures in developing countries wishing to complement their emerging IPR regimes.

Fighting Software Piracy in Africa: How Do Legal Origins and IPRs Protection Channels Matter?

In the current efforts toward harmonizing intellectual property rights (IPRs) regimes in the African continent, this paper provides answers to four key questions relevant in the policy decision-making processes. After empirically examining the questions, the following findings are established. (1) In comparison to common law countries, civil law countries inherently have a significant autonomous rate of software piracy; consistent with the “law and property rights” theory. (2) But for IPRs laws, the other intellectual property (IP) protection channels (World Intellectual Property Organization treaties, main IP law, and multilateral treaties) reduce the incidence of software piracy. (3) In both short-run and long-term, IPRs protection channels in civil law countries appear to mitigate software piracy more than in common law countries. (4) Formal institutions are instrumental in the fight against software piracy through IPRs protection channels.

Fighting Software Piracy in Africa: How Do Legal Origins and IPRs Protection Channels Matter?

In the current efforts toward harmonizing intellectual property rights (IPRs) regimes in the African continent, this paper provides answers to four key questions relevant in the policy decision-making processes. After empirically examining the questions, the following findings are established. (1) In comparison to common law countries, civil law countries inherently have a significant autonomous rate of software piracy; consistent with the “law and property rights” theory. (2) But for IPRs laws, the other intellectual property (IP) protection channels (World Intellectual Property Organization treaties, main IP law, and multilateral treaties) reduce the incidence of software piracy. (3) In both short-run and long-term, IPRs protection channels in civil law countries appear to mitigate software piracy more than in common law countries. (4) Formal institutions are instrumental in the fight against software piracy through IPRs protection channels.

LAURENCE R. HELFER & GRAEME W. AUSTIN, HUMAN RIGHTS AND INTELLECTUAL PROPERTY: MAPPING THE GLOBAL INTERFACE, CAMBRIDGE, CAMBRIDGE UNIVERSITY PRESS, 2011

LAURENCE R. HELFER & GRAEME W. AUSTIN, HUMAN RIGHTS AND INTELLECTUAL PROPERTY: MAPPING THE GLOBAL INTERFACE, CAMBRIDGE, CAMBRIDGE UNIVERSITY PRESS, 2011. An article from journal Revue québécoise de droit international / Quebec Journal of International Law / Revista quebequense de derecho internacional (Volume 25, Number 2, 2012, pp. 1-251), on Érudit.

Can Shari'a be a Deterrent for Intellectual Property Piracy in Islamic Countries?

This study examines the stance of Islamic legal traditions (Shari'a) towards intellectual property (IP) piracy. Although Muslims may differ on what Shari'a dictates, most of them view Shari'a as God's law and as a main ingredient of Islamic belief system. Since piracy rates in Islamic countries are considerably high in light of existing formal IPR laws, it becomes essential to test if Shari'a has any relation with such phenomenon. Our hypothesis is that, although Muslim countries have formal institutions or laws that protect intellectual property rights (IPR), little attention is given to informal institutions, or human morals, regarding IPR piracy, which negatively affects the enforcement level of IPR laws in these countries. Muslims may not be convinced that IPR violations, although illegal, are unethical or forbidden by Islamic Shari'a. In order to test the level of adherence of Muslims to Shari'a to support our hypothesis, we develop a “religious loyalty” index (RLI). Comparing adherence of followers of different religions with those of Islam, Muslim countries have the highest religiosity level, positively affecting obedience level to Shari'a. Consequently, an investigation of how Shari'a views IPR piracy is conducted. As Islam generally prohibits IPR piracy, the study concludes by offering a set of policy recommendations that can effectively help in minimizing IPR piracy in Muslim countries.

Does TRIPS increase technology transfer to the developing world? The empirical evidence

The World Trade Organization's Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement has as a stated goal to increase the transfer of technology to the developing world. In the debate surrounding the merits of reforming intellectual property rights (IPR) law, it is important to ask if TRIPS is accomplishing its goal: does the agreement actually allow poorer nations greater access to technology and innovation, or is it simply a boon to the developed world? After reviewing several dozen empirical studies from the field of economics, it is shown that a positive, statistically significant relationship exists between stronger IPR protection and higher levels of technology diffusion, with three caveats. First, the evidence is suggestive, but problems in data, measurement, and statistical methods render the results less convincing. Second, the positive effect does not seem to hold for extremely impoverished countries and in some cases may be negative. Third and finally, it is always important to examine data disaggregated by industry since IPR protection affects various sectors differently.

Self-employment: the role of intellectual property right laws

Little is known about the impact of intellectual property rights (IPRs) on typically imitative self-employment. IPR laws have contrasting dual innovation creation and access effects on self-employment activity. The first effect is positive where strong IPR laws promote innovation and so create new opportunities for self-employment. The second effect is negative where strong IPR laws restrict access to innovation and technology used as inputs to self-employed businesses. Using a 33-country dataset over the period 1995–2000, we estimate the impact of IPR laws on self-employment, helping to fill the vacuum of empirical evidence that has plagued policy decision making in this area. We find that patent activity has a negative effect on self-employment. However, overall, we find that more extensive and strong IPR laws have a net positive effect on self-employment activity.

Does Stronger Intellectual Property Rights Protection Induce More Bilateral Trade? Evidence from China’s Imports

Summary Most of the previous studies on the trade effects of intellectual property rights (IPR) protection have been from the perspective of major industrialized nations. However, much of the current debate on the effects of IPR protection involves large developing countries. This study contributes to the literature by analyzing the impact of stronger IPR laws in China on its bilateral trade flows. We estimate the effects of IPR protection on China’s imports at the aggregate and detailed product categories for both developed and developing countries. The empirical results suggest that increased IPR protection stimulates China’s imports, particularly for knowledge-intensive products.

Intellectual Property Rights Law and Innovation in Uganda: The Need for a Coherent Policy Framework

Innovation has been recognised as a major sourceof modern productivity and constitutes a centralprocess of economic development and in the case ofdeveloping countries, poverty reduction. However,Sub-Saharan Africa, and particular Uganda, has beenleft out in innovation because of the concentrationof its intellectual property legislation processes onthe transfers of technology that does not take thedeliberate and conscious effort in building indigenouscapacity in innovation and inventiveness. This paperentails a discussion an analysis of the factors shapingpatent law reforms in Uganda in the absence of anational system of innovation and thus exposes thedisjuncture of patent legislation with the nationalsystem of innovation. It is argued, herein, that forthe reforms to be more meaningful, there is need forharmonization of the two processes, lest the reformprocess will be irrelevant to Uganda and continueserving global north patent interests.As a colony of Britain, Uganda adopted herpatent law from England as part of the colonialheritage (Uganda was put under British influencefollowing the Anglo-German Agreement of 1800).A Royal Chartered company trading in the nameand style of Imperial British East African Company(IBEACO) was at the earliest tasked with trading aswell as administering the geographical extent thatcame to be known as Uganda. In 1894, Capt. FredrickLugard a colonial administrator was sent andformally declared Uganda a British Protectorate. Theinterest of the British was at the onset imperialist, tiedto economic exploitation. This economic imperialismarrested the autonomous development of Ugandaand divorced it into an integrated world commodityeconomy as Nabudere aptly puts it:

Learning about Intellectual Property Rights Law in the Construction Industry

Intellectual property rights (IPR) law makes it possible for innovative, creative, and inventive intellectual output to be managed and traded. IPR includes patents for novel, inventive products or processes, designs for new or original aspects of products, trade-marks for graphic signs that indicate the distinctive quality of products or services, and copyright of original works. Owners of IPR can defend their rights against infringers. IPR is an issue of great relevance to the construction and engineering field. IPR are generated at different stages of the construction process and play a significant role in the commercial realization of construction projects. For this reason, IPR has been seen (in some, but by no means all, universities) to be a key, if not core, subject for inclusion in the syllabus of the different discipline studies that together comprise construction engineering. Intellectual property issues are part of the day to day commercial life of the construction industry. When things run smoothly, it is easy to overlook the IPR underpinning a contract or a license. Intellectual property law makes it possible for innovative, creative, and inventive intellectual output to be managed and traded.