Proprietary Rights Research Articles

PROTECTION OF INTELLECTUAL PROPERTY RIGHTS OF ACADEMIC TEACHING STAFF: ACHIEVEMENTS, PROSPECTS, ISSUES

On the basis of the current legislation of Ukraine author analyses the legal status of the academic teaching staff member. Legislative definitions of the notions «academic teaching staff member», «scientist», «scientific activity», «scientific and organizational activity», «academic and teaching activity» are examined. The essence of some rights of academic teaching staff as well as their realization is clarified. The author analyzed the regulations of working time rules and regulations of maximal workload for a scientific and pedagogical worker. High education institution defines standard time for methodical, scientific, organizational work. However, these figures are not reflected neither in the mode of work, nor in the exercise of scientific and pedagogical workers. The scientific and methodical work are not regulated by working hours or workload. Therefore, the results of such work does not affect the pay or other forms of promotion of the teachers. The rights of scientific and pedagogical staff are provided by the special law. Among them is the right to protection of intellectual property rights. Conducting research activities is defined by law as a duty of scientific and pedagogical workers. Scientist’s right to get proper incentives to scientific and scientific and technical activity has to be supported by the duty of a person who should be bound by law to ensure it. Such incentives have to be directed toward the objective evaluation of realization of specific tasks taking into account end result. In the absence of any legal mechanisms of right’s ensuring and exercise its realization would be impossible, while legal provisions are declarative. Normative requirements set forth by current legislation as for the conditions of academic degrees and titles awarding are analyzed. The author emphasized on the excess formalization of some normative requirements concerning the form and content of the publications. Special attention is paid to the controversial legislative approaches to the proprietary intellectual property rights’ distribution in the case of work created in connection with the labour contract execution. It is suggested to introduce and apply contractual forms of distribution and disposal of proprietary intellectual property rights as for such works. It may be done by means of contracts concluded between the authors as the primary copyright holders and their employers in all spheres of scientific activity.

Taxation of Software Transactions in India

The present millennia has witnessed a tremendous growth in the Information Technology field in India and the software transactions, both domestic and foreign, have grown manifold during this period. The International and domestic software companies have found India as a market with an immense potential for their off-shelf as well as customised products. As the underlying intellectual property rights in the software is subject to the copyright laws, the transfer of proprietary rights involved in a purchase of software totally differs from the sale of traditional goods and services. Even though the medium of storage of software, like a CD Rom or a memory card, is tangible the inherent intangible nature of the software for which the purchaser is paying brings in an element of ambiguity, making it difficult to draw a definite boundary to define the transaction either as a sale of good or extension of service. Under the present indirect tax laws these software transfers are subject to sales tax/VAT, service tax or both, many a time resulting in double taxation of such transfers. The net effect of this is an increase in the effective price of the software which is ultimately borne by the purchaser. Even though Hon’ble Supreme Court had in Tata Consultancy Services v. State of Andhra Pradesh brought in some clarification to the prevailing ambiguities, the question as to whether the sale of a software is to be classified as a sale of good or a service is yet to be answered concretely which is evidenced by the subsequent clarification given under the Education guide released by CBEC and the subsequent writ applications filed before various High Courts in this regard.This paper attempts to understand the nature of software transactions and how the same stands different from the traditional sale of goods. An attempt is made herein to understand whether the software transaction can be fit into watertight compartments of Sale of Goods or service, in the light of the Judgement given by various legal forums.

A Comparative Perspective on the Concept of Ownership in Russian Law: From the Svod Zakonov to the 1994 Civil Code

The modern European unitary conception of ownership emerged from the dissolution of feudalism and achievement of a deeper understanding of Roman law to become an ideal of property law in the European Civil-Law tradition. Prior to its dissolution European feudalism represented hierarchies of legal tenure in land, such as the division of land ownership between dominus directus (direct owner) and dominus utilis (beneficial owner) and overlapping hierarchies of social class descending from monarchy and aristocracy to bonded serfdom. Support for the resolution of divided land ownership and victory for the unitary concept of ownership was found in the Roman law tradition. The dissolution of feudal hierarchies took different historical courses in the legal traditions that we now identify as the French, German, Common-Law and Russian legal systems and with great local variation even within those emergent traditions. The unitary concept of ownership is found today in the French and German Civil Codes and is for practical purposes reflected in the prevalence of the common-law tenure of freehold. In Russia the systemized digest of the laws of the Russian Empire, the Svod Zakonov of 1832, provided no civil-law notion of divided ownership or perpetual rights. In the Soviet era exclusive state ownership of land and the means of production was also viewed as unitary, which raised serious questions about how state agencies and enterprises could engage in transactions with their assets and products. Venediktov’s celebrated doctrine of the right of operative management, codified in the Civil Code of the rsfr of 1964, provided legal recognition of de facto proprietary rights for state enterprises. This introduced a form of divided ownership ‘on the ground’ despite the dogma of unitary state ownership. This reality further manifested itself in widespread division of ownership between land and buildings. The Civil Code of the Russian Federation of 1994 retained and even extended some of these solutions that relied on split or divided ownership. This might have been a pragmatic way forward in the early 1990s, however twenty years later the demands of a modern sophisticated legal system require a policy trajectory back toward a modern European unitary conception of ownership. The Russian Civil Code thus should be extended in this direction.

Community Legal Compliance with the Certification of Proprietary Rights Over Land in Takalar Regency, South Sulawesi, Indonesia

Community Legal Compliance with the Certification of Proprietary Rights Over Land in Takalar Regency, South Sulawesi, Indonesia

THE COOPERATIVE MEMBER’S PROPRIETARY RIGHT TO AN APARTMENT: A LEGAL SURVIVAL OF THE PERIOD OF ACTUALLY EXISTING SOCIALISM IN POLISH PRIVATE LAW

Spółdzielcze własnościowe prawo do lokalu jest przykładem reliktu prawnego epoki socjalizmu realnego, który przetrwał pomimo przemian społeczno-gospodarczych, politycznych i prawnych zapoczątkowanych w 1989 r. Omawiane prawo zostało powołane do życia w latach 50. XX w., a swoją formę ustawową uzyskało w 1961 r. Jego powstanie było uwarunkowane istniejącymi w minionym okresie stosunkami politycznymi i gospodarczymi, a także względami ideologicznymi. Prawo to miało bowiem zastąpić odrębną własność lokali, przy równoczesnym zapewnieniu uprawnionym możliwości władania, za pomocą prawa in rem, lokalem, którego budowę sfinansowali z własnych środków. Ramy prawne omawianej instytucji w okresie PRL nacechowane były elementami „uspołeczniającymi”, m.in. uniemożliwiając nabycie więcej niż jednego prawa przez tę samą rodzinę, uzależniając podnajęcie lokalu od zgody spółdzielni, czy też wtórne nabycie prawa mortis causa i inter vivos od przyjęcia nabywcy w poczet członków spółdzielni. Po roku 1989 spółdzielcze własnościowe prawo do lokalu nie zostało automatyczne przekształcone w odrębną własność lokali, czego można by się spodziewać w kontekście transformacji od gospodarki nakazowo-rozdzielczej do gospodarki rynkowej. Pomimo postępującej konwergencji pomiędzy spółdzielczym własnościowym prawem do lokalu oraz odrębną własnością lokalu, widocznej zarówno w warstwie prawnej, jak też w szczególności w zakresie funkcji społeczno-gospodarczych, prawo to istnieje nadal w obrocie stanowiąc relikt prawny epoki socjalizmu realnego.

The New Fort William and the Dockyard: Constructing Company’s Calcutta in the Late Eighteenth Century

In this article I will try to show how certain schemes of infrastructural development of a space often do not produce the desired effect, but instead set in motion a whole range of activities that brings forth a range of other issues. Through the study of the building of the New Fort William and the project of construction of a dockyard in Calcutta in the second half of the eighteenth century, I intend to focus on some of the key issues that shed light on the urban settlement in the post-Plassey period. The building of the New Fort William and the dockyard were important projects that shaped the space of the town. But the projects themselves did not have the intended effect on the settlement—the fort took a long time to complete and the dockyard could not be built in the first attempt. The halted and aborted efforts did leave a mark on the space of the town, brought in new forms of labour regulations and put forth questions of proprietary rights of individual and the Company. These projects also shed light on the relationship between the Company settlement and the rest of the province.

Проблемы статуса частного образовательного учреждения в свете реформирования законодательства о вещных правах

In the light of the reform of the legislation on proprietary rights and improvement of the provisions on legal entities, a question arises on the necessity to preserve, in the Russian law and order, the structure of private institutions based on the right of operational management. The problem is becoming relevant because this form is widely used for the creation of private educational institutions (schools, higher educational institutions, etc.), and any reforms in this area will affect the customers, the contractors and the consumers of the educational services. The article considers the notion, the significance and the place occupied by private institutions within the system of legal entities according to the Russian civil law, both from the viewpoint of trends of development of civil law and the legal stance of judicial authorities and from the viewpoint of traditions of the Russian science of private law. The author pays special attention to the analysis of the legal nature, structure and scope of application of the right of operational management in proprietary relations. The author substantiates that during the reforming of the legislation on proprietary rights, only governmental (municipal) enterprises and institutions should remain the subjects of the right of operational management. The author analyzes the topical issues of legal bonds between founders in case of a creation of a private institution by several persons, as well as the topical issues of legal bonds between the institution and its founders.

Энергия как объект договорных отношений: к вопросу о понятии и правовой природе

The article is devoted to one of the discussion topics of modern law — the legal nature of energy as the object of law and contractual relations. Definition of the legal nature and the concept of any object of law is of primary importance from the point of view of classifying it among the existing groups of objects of law. Practical meaning of such classification involves establishing for each group of a legal regime, primarily determining the order of vesting rights for them and conditions of their circulability. The article analyzes doctrinal positions of scientists, who view energy as special property, on which the right of ownership arises, as a “bodiless” thing, etc. Taking into account the nature of energy as a phenomenon, the author comes to the conclusion about its nonmaterial nature, which allows making the assumption about impossibility to classify it either as a thing or as property. All the more so, classifying energy per se to an independent and only object of an agreement gives rise to doubts. As a result, by analogy with the recognized legal regime of intellectual property objects, the article proposes to vest energy with “indirect” circulability, and to understand the term “energy” as a special nonmaterial object of law, possessing economic value, in relation to which the contracting parties acquire corresponding proprietary rights.

Territorial Self-Governing Units of the Czech Republic as Entities Possessing Ownership and Other Proprietary Rights (the Basic Conceptual Issues)

Abstract The property owned by self-governing units represents an important socioeconomic factor with the potential to affect a wide range of aspects of life, considering the scope of self-governing units. The aim of this paper is to present an overview of the recent legal regulations regarding the proprietary position of Czech self-governing units (municipalities and regions) as well as comments on their development (considering wider circumstances) from 1990 to the present day. It focuses on the nature of legal entities sui generis (in Czech called “příspěvková organizace”), which perform ownership and other proprietary rights of the municipalities and regions on the basis of specific public law relations. Appropriate attention is also dedicated to other legal subjects operating in the sphere of territorial self-government considering their proprietary position. The sub-objectives of the article are the identification and explanation of solutions to the identified problems concerning the analyzed questions. The methodological part of the article is based on the analysis and critical evaluation of the current state of the discussed legal issues. The authors use the methods of legal hermeneutics to obtain correct interpretations of the analyzed legal regulations. The entities sui generis in question are found to be a relic of the transition period in Czech legal development after the 1990s and should be replaced with up-to-date forms of a public legal entity.

A Watercourse ‘in Variance’: Re-situating a Sixteenth-Century Legal Map from Ashbourne, Derbyshire

ABSTRACTLaw-related English local maps, especially those dating from the early- to mid-sixteenth century, remain in need of both extensive and close study. In this article, a hand-drawn sketch map in the Folger Shakespeare Library, Washington, DC, is re-contextualized in relation to documents connected with lawsuits in The National Archives in England. These lawsuit documents, concerning disputes brought before the court of the Star Chamber in the mid-sixteenth century, allow us to correct the accepted date of the map’s creation, suggest its likely creator and identify its probable use at a time of expanding cartographic consciousness among the educated classes. The importance of the manuscript map to one English family’s subsequent assertions of proprietary rights in a small stream running from Bradbourne to Ashbourne, Derbyshire, explains its provenance outside official court records.

The Law relating to syndicated loan agreements and its application in commercial practice

The Law relating to syndicated loan agreements and its application in commercial practice

IPRs, Public Health, and International Trade: An International Law Perspective on the TRIPS Amendment

AbstractThis article critically examines the dynamics between public health, intellectual property, and international trade in the context of the TRIPS Amendment and its theoretical implications in international law. The article suggests that international efforts in the TRIPS 2003 Waiver and 2005 Amendment addressing public health concerns have not been very successful due to the birth defect of TRIPS, i.e., hoping a private-rights-in-nature regime could accommodate public interests in health concerns. TRIPS’ birth defect further reveals itself in post-TRIPS development and contributed to the failure of the TRIPS Waiver and Amendment due to the resulting practice fragmentation and procedural hurdles in domestic compulsory licensing administration. Moreover, the TRIPS Amendment raised a fundamental theoretical issue, i.e., how the WTO as an international organization in public international law can regulate compulsory licensing of intellectual property rights as private rights – in particular the proprietary right to remuneration – while recognizing that TRIPS grants no positive rights. The paper suggests that the key to the issue is the treatment of private rights in public international law. It is submitted that the TRIPS Amendment has no legal basis in international law due to its unwarranted intrusion into members’ domestic affairs and individuals’ private proprietary rights. The article thus calls for alternative thinking about the TRIPS Amendment, in particular to leave administration of compulsory licensing fully with domestic authorities as it is in the Paris Convention.

Проблемы вещного права в современном российском праве

The article analyzes the progress and further prospects of development of the Russian civil legislation in terms of actual and appropriate improvement of the proprietary legal regulation. The author notes the historical prerequisites of and, substantiates the possible areas for, development of the Russian civil law in terms of traditions of the European private law which originates from the Roman law and the law of pandects; in this connection, the author substantiates the necessity for systemic development of the legislative regulation of limited proprietary rights. In line with the existing specific features of legal regulation of proprietary relations in the Russian law, the author considers advantages of regulation of rights to land plots, which are in the public domain, by means of forms and types of limited proprietary rights; in this connection, the author demonstrates inefficiency of extending mechanisms of law of obligations only, mainly the models of lease contracts, on land relations. The author analyzes differences between legal regulation of homogeneous relations within the civil legislation and the land legislation as a temporary phenomenon and a feature of the transitional stage in the development of the Russian civil legislation.

Husband and Wife as Co-owners of Immovable Property

Property relations between spouses have for many years been a domain which did not receive the proper and direct attention it deserved from the hands of the legislature.Ottoman and Mandatory Periods: Under the Ottoman regime these matters were dominated by personal or religious law, as the case happened to be, and there was no law in existence which was applicable to all the inhabitants of die territory known as Palestine, irrespective of people's religious beliefs or formal religious affiliations.The Mandatory authorities did not wish to interfere with the existing pattern. The Palestine Orders-in-Council 1922–1947, under arts. 51–67, accorded a special status to the religious courts of the various religious communities within the judiciary of Palestine. Not all religious courts enjoyed the same extent of jurisdiction but all exercised, in matters of personal status either exclusive jurisdiction over the members of their communities or concurrent jurisdiction together with the civil courts in those cases where all the parties to the action consented to such jurisdiction. “Personal status” as defined by art. 51 covered a wide range of matters some of them concerning the person as such and others concerning proprietary rights to which a person is entitled by reason of his personal status such as alimony, maintenance, succession.

PC-FACS

PC-FACS

Womenns Right to Own Property

In the quest for property rights, Nigerian women are usually faced with disadvantages. These difficulties are traced to customs and traditions and the lack of judicial activism in Nigeria’s’ legal system. The crux of the paper is that it explores proprietary rights between men and woman. It also examines gender discrimination and obstacles to the realization of equal access to property rights. In addition, from a gender perspective, it provides a discourse on women’s oppression of inequality in socially constructed gender roles. In other words, aside from identifying the mechanisms of female subjugation in respect of proprietary rights, it provides insights into understanding women’s rights by providing legal analysis on the law. This paper also explores cases that have contributed to the transformation of women's equality in terms of access to property.

Religious Primordialism, Nationalism & Identity

In the quest for property rights, Nigerian women are usually faced with disadvantages. These difficulties are traced to customs and traditions and the lack of judicial activism in Nigeria’s legal system. The crux of the paper is that it explores proprietary rights between men and women. It also examines gender discrimination and obstacles to the realization of equal access to property rights. In addition, from a gender perspective, it provides a discourse on women’s oppression of inequality in socially constructed gender roles. In other words, aside from identifying the mechanisms of female subjugation in respect of proprietary rights, it provides insights into understanding women’s rights by providing legal analysis on the law. This paper also explores cases that have contributed to the transformation of women's equality in terms of access to property.

Legal Implications of Digital Heritagization

Due to the development of information and communication technologies as well as the influence of the Internet, life and work of the contemporary society take increasingly place in virtual form and the approach towards knowledge and heritage fundamentally altered. The remarkable sign of this continuous process is the emergence of Digital Heritage, understood as the accumulation of computer-based, valuable materials, which constitutes a digital reflection of societal developments. Different “heritage institutions” from the public sector, such as archives, libraries, museums, but also private undertakings became involved in the related process of Digital Heritagization encompassing cultural, scientific and administrative resources. The objective aimed for is the preservation of the named resources in order to enable future generations to access the collective memory of our society by means of electronic records. Since the digitization of analogue resources and the utilization of born-digital content presupposes inter alia the reproduction and duplication of the content in question, the field of intellectual property law gains particular interest. Thereby, the discussion on the national and international level is characterized by the heterogeneous and partly restrictive legal framework. The contribution takes this new environment as opportunity to approach the legal framework of civil law as well as common law jurisdictions related to digital heritage from a copyright law perspective, with particular reference to the legal exemptions and fair dealings doctrine. In order to emphasize the high practical impact of the issue at stake, recent judgments of the ECJ, the Swiss Federal Tribunal and the S.D.N.Y. (Google Books Case) assessing the admissibility of the digitalization and related aspects are considered and critically evaluated. On that basis, the future need of legislative measures in order to balance personal proprietary rights and public interests is discussed.

Developmental neurotoxicity test guidelines: problems and perspectives.

Epidemiologic evidence has demonstrated associations between early life exposure to industrial chemicals and the occurrence of disease states, including cognitive and behavioral abnormalities, in children. The developing brain in the fetal and infantile periods is extremely vulnerable to chemicals because the blood-brain barrier is not completely formed during these periods. The Organisation for Economic Co-operation and Development (OECD) developmental neurotoxicity (DNT) test guideline, TG426, updated in 2007, comprises in vivo behavioral observational tests and other tests intended to assess DNT induced by exposure to industrial chemicals. These chemicals may enter the market without having been subjected to DNT testing, as DNT test data is not mandated by law at the time of chemical registration. In addition, proprietary rights have led to problems concerning the non-disclosure of industrial chemical toxicity test data, including DNT test data. To overcome the disadvantages of high-cost and low time efficiency of in vivo DNT tests, in vitro or in silico tests are the proposed alternatives, but it is unlikely that the results of such tests would reflect changes in higher brain functions. Accordingly, the current DNT test guidelines need to be revised to avoid overlooking or neglecting the occurrence of DNT induced by exposure to low doses of chemicals. This review also proposes the introduction of novel in vivo DNT testing methods in light of a cost-performance analysis.

Journeys to Louisiana and the Natchez Country

Journeys to Louisiana and the Natchez Country David Narrett (bio) Erin M. Greenwald, ed., and Teri F. Chalmers, trans. A Company Man: The Remarkable French-Atlantic Voyage of a Clerk for the Company of the Indies. A Memoir by Marc-Antoine Caillot. New Orleans: Historic New Orleans Collection, 2013. xlii + 182 pp. Illustrations, maps, notes, bibliography, and index. $40.00. George Edward Milne. Natchez Country: Indians, Colonists, and the Landscapes of Race in French Louisiana. Athens: University of Georgia Press, 2015. xv + 293 pp. Figures, maps, notes, bibliography, and index. $84.95 (cloth); $26.95 (paper). Cécile Vidal, ed. Louisiana: Crossroads of the Atlantic World. Philadelphia: University of Pennsylvania Press, 2014. vi + 278 pp. Figures, maps, notes, bibliography, and index. $49.95. Marc-Antoine Caillot, bookkeeper and clerk, learned a great deal during his two years in New Orleans from 1729 to 1731. Fortunately for today’s readers, he wrote a lively memoir of his Louisiana venture, which, though unpublished and all but forgotten for 250 years after his death in 1758, has now come to light courtesy of a beautiful edition by The Historic New Orleans Collection. While Caillot’s account is emblematic of his time and place, it also bears on issues of cross-cultural encounters, gender, and sexuality that occupy a central place in recent historiography on colonial Louisiana and the Lower Mississippi Valley. The two books considered alongside Caillot’s in this review contribute appreciably to that scholarly literature. George Edward Milne’s Natchez Country analyzes “landscapes” of racial identity among Native peoples and colonials during the movement from uneasy coexistence to bloody warfare. Louisiana: Crossroads of the Atlantic World is a collection of essays elucidating imperial law and administration, international relations, and, above all, the intimacies of marriage and sexuality in a racially charged social order. The Natchez War of 1729–31 is a stark example of French-Indian antagonism in contrast to “the Middle Ground” of the pays d’en haut and the mission villages of the St. Lawrence Valley. Scholars have generally attributed the war’s [End Page 227] outbreak to the Natchez Indian reaction against colonial land engrossment for purposes of commercial tobacco production. In Natchez Country, Milne follows this broad outline while tracing the geography of power relations over a thirty-year period prior to full-scale conflict. Most significantly, the author draws parallels between Natchez Indians’ internal divisions and coincidental discord within the colonial hierarchy during the mid-1710s, when the first serious violence erupted between the Natchez (“the people of the Sun”) and European newcomers. In Milne’s view, the Natchez were as much bewildered as angered by the French refusal to accept a subordinate role in Indian country. Natchez-French relations deteriorated during the 1720s owing to Louisiana’s incipient turn toward a plantation economy under policies advanced by the Compagnie d’Occident and its successor the Compagnie des Indes. Milne’s study briefly addresses French entrepreneurial designs connecting the Lower Mississippi Valley to the Atlantic world. Under company policy, substantial land grants were awarded to concessionaires who obtained proprietary rights besides the command of indentured servants and enslaved Africans whom they purchased on credit or obtained by favor or other means.1 Milne meticulously maps the micro-geography of frontier relations in which European settlers, along with African slaves, were interspersed between Indian population centers. He also juxtaposes Natchez social hierarchies with customs prevalent in the court of Louis XIV. Indians and Europeans had certain mutually recognizable social traits, but differences in cultural outlook allowed only intermittent and limited understanding across ethnic bounds. The Natchez attack of November 27, 1729, was triggered by exploitative conduct by Étienne de Chépart, the newly appointed officer of the local French fort. In one telling episode, the commander evicted an Indian man from his home in order to convert it into a domicile for African slaves. Milne sees the Natchez as readying for war by summoning a “red” identity embedded in their culture, and not mimed from European stereotyping (p. 170). This is an intriguing thesis, and one that should spark future debate. “Redness” was an indigenous cultural landmark, though Native pride in being red did not transcend disparate...