Journal of World Intellectual Property最新文献

This paper delves into the complex legal landscape surrounding the enforcement of intellectual property (IP) rights on goods in transit, using the contentious EU–India–Brazil dispute as a case study. The dispute centers on the seizure of generic pharmaceutical shipments transiting through the Netherlands, leading to patent infringement complaints by Dutch patent holders. The heart of the matter lies in the interpretation of Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) Agreement provisions, specifically Articles 51, 52, and Footnote 13, in conjunction with General Agreement on Tariffs and Trade 1994 (GATT) Article V and XX(d), which addresses the freedom of transit. Since the dispute was never conclusively decided by World Trade Organisation Dispute Settlement Body, the concerns are still alive and merit discussion.

The author contends that enforcing patent rights on goods in transit contradicts the principles of territoriality and commerciality inherent in patent laws and infringes upon the freedom of transit articulated in the GATT. Drawing from the perspectives of scholars and legal experts, this paper presents a nuanced argument that seeks to reconcile the seemingly contradictory provisions. It proposes Footnote 13, of TRIPS be read down to allow enforcement only when there is a risk of diversion into the transit country's commercial channels.

Moreover, the paper argues normatively, emphasizing the adverse impact of transit enforcement on international trade, especially for developing and least developed countries. In conclusion, it underscores the urgency of addressing this issue to protect global trade interests while safeguarding the rights of developing nations and promoting equitable access to essential goods.

Over the last two decades, the EU's foreign trade strategy shifted diametrically from the multilateral World Trade Organization to the bilateral free trade agreements (FTA) route. Accompanying this shift, the EU's regulatory ambitions became more apparent, as can be gleaned from its strategy documents. The main question is whether the EU is succeeding in effectively exporting or promoting its regulations. In this paper, we combine the two disciplines of law and international relations to gauge the EU's success in achieving its external regulatory goals through FTAs. The EU is described in the political science literature as a regulatory power which is trying to promote or export its regulations outside its own jurisdiction. Using two case studies of the recent EU FTAs with Canada and Japan, we conduct a rigorous legal analysis of these FTA texts as well as their implementation in the local jurisdiction by focusing on the area of Geographical Indications (GI). These regulations are compared with the EU's goals mentioned in its strategy documents and from interviews with EU representatives involved in the FTA negotiations. Our results show that the EU has been moderately successful in both FTAs in achieving its general goals such as equal protection for foodstuffs and alcoholic drinks, ex officio protection, and the clawback of some generic names. Overall, the EU was most successful in getting Japan to embrace an EU-inspired sui generis GI system, whereas Canada showed less leniency and favoured its trademark system.

The status and trends of geographical indication (GI) registration in Indonesia is presented and analyzed. Indonesia amended the GI-related legal systems in 2019, and despite its increase in registration and policy developments, the extent of coverage and classification of GI-registered products remain unclear. Thus, we analyze the current status and trends of GI registration by mapping the spatial distribution and classification of GI products. We supplemented our analysis by capturing and reviewing GI-related publications in Indonesia. Results showed that GI-registered products are concentrated in Java and Sumatra regions, with agricultural products as leading commodities. The spatial distribution further exhibits that cultural and traditional values play an important role in shaping GI products. Meanwhile, for GI publications, we documented that scientific literatures produced by domestic scholars are more abundant than international publications. Although this is a positive assertion, reviewed publications are mostly focused on the legal aspects. Other aspects such as GI promotion, development, and benefits are lacking. The policy and practical implications of such findings highlighted the critical role of provinces and domestic scholars in promoting GIs of Indonesia to the global arena.

In this paper, a complex interplay is demonstrated, indicating that the impact of intellectual property rights (IPR) and patent protection varies in certain trade contexts. We review the IPR and patent laws in Oman and subsequent amendments following the signing of free trade agreements and investigate how strong protection of patents and IPRs affects Oman's trade. A panel data set comprising the majority of Oman's trading partners from 2000 to 2021 was utilized to achieve this objective. Under the Oman Intellectual Property (IP) Laws, 5617 patent applications were used to calculate the patent index scores. This study contributes four significant findings. First, it analyzes how strong IP and patent protection affect Oman's exports and imports. Second, it assesses the variation in overall trade flows and manufacturing trade flows. Third, while most studies use the IPR index, this study offers a more specific perspective by examining the patent index, particularly concerning manufacturing trade, which is primarily associated with patent-protected technologies. Fourth, this study provides the first comprehensive analysis of a GCC country that is heavily dependent on oil. This study reveals that Oman's strong IPR and patent regimes significantly enhance overall exports. Strong patent protection promotes the import of high-tech goods, whereas robust IPR protection unexpectedly reduces manufacturing trade.

Through this paper the authors intend to establish a connect between religion and Intellectual Property Rights (IPR) particularly how various religions have justified IPRs and analyze whether religion can prove to be the much-needed enforcement tool to fight infringement of IPRs. Intellectual Property is a domain which is governed purely by creativity and technology and has traditionally been justified by utilitarianism. However, the evidence we are in possession of does not entirely justify the rationale of exclusive rights granted under the current IPR regime. While questioning the contradictory evidence seems as a logical move, instead scholars are turning to nonindustrial faith-based arguments which justify intellectual property as a moral end in itself. A growing number of academics are choosing to devote at least a portion of their research to examining how religious thought can influence approaches to difficult intellectual property questions because they find the religious texts to be a rich source of inspiration on both temporal and eternal issues. A major obstacle in the enforcement of IPR is that people are not entirely convinced that infringing IPR is unethical. This enforcement challenge, surprisingly in the presence of legislations, may be tackled by informal institutions such as religious commitments.

The European Union's (EU's) Artificial Intelligence Act (AI Act), published on 12 July 2024, seeks to establish a consistent legal framework for AI systems within the EU, promoting trustworthy and human-centric AI while safeguarding various fundamental rights. The Act classifies AI applications into three risk categories: unacceptable risk, high risk, general purpose AI models with systemic risk and low or no risk, each with corresponding regulatory measures. Although initially not focused on copyright issues, the rise of generative AI led to specific provisions addressing general purpose AI models. These provisions include transparency obligations, particularly regarding the technical documentation and content used for training AI models, and policies to respect EU copyright laws. The Act aims to balance the interests of copyright holders and AI developers, ensuring compliance while fostering innovation and protecting rights.

Web scraping is a technique that allows the extraction of online information and data to train Generative Artificial Intelligence (GenAI) systems. Although the use of deep learning algorithms to produce user-requested outputs (texts, images, music and code) based on models learned from vast data sets dates back a few decades, its use has become fundamental with the recent development of GenAI and has been accompanied by the emergence of the first legal disputes. Doctrine and jurisprudence are called upon to consider the legal consequences arising from the combination of web scraping and GenAI, often encountering inadequate and fragmented legislation. Laws and regulations vary significantly across different countries and regions, reflecting diverse priorities and legal approaches. However, while doctrine, regardless of the latitudes, agrees in condemning the illicit acts and abuses due not so much to the extraction method but to the use of the extracted data (where protected by intellectual property rights), jurisprudence (particularly in Europe and North America) has already had the opportunity to express divergent opinions in some leading cases.

In this era of global trade and digital communication, where geographical borders between states have become virtually redundant, the ‘aura’ of well-known trademarks easily transgresses national borders. As an upshot of this, the reputation and goodwill attached to well-known trademarks have become less and less commensurate with the territorial boundaries of individual states. This raises the question of whether strict adherence to the bedrock principle of ‘territoriality’ is both apt and justifiable in the backdrop of modern commerce—not only from a trademark holder's perspective but also from a consumer-centric viewpoint. Although the judicially crafted concept of ‘trans-border reputation’ is often hailed as a promising solution to this problem; sometimes it postulates a too-liberal approach to protecting the interests of the foreign trademark owners. Most significantly, the concern has been raised that the application of an unbridled doctrine of ‘trans-border reputation’ may unduly thwart the interests of local entrepreneurs. Thus, the argument that the ‘priority of innocent use’ by a local trader should not be superseded by the trans-border reputation of a foreign well-known trademark cannot be easily ignored. This paper aims to critically evaluate the application of the trans-border reputation concept within the Indian and Sri Lankan legal landscapes, discussing in detail the implications of the landmark cases determined by the Indian and Sri Lankan judiciaries. Most importantly, it seeks to introduce a mechanism for minimizing prejudice to the bona fide domestic users of marks, by employing ‘bad faith’ as a balancing tool.

For two decades, commentators have argued for law and policy reform to incentivise organisations to develop new indications for (already) authorised drugs, an area of drug development known as ‘repositioning’. In short, they argue that hurdles in patent and pharmaceutical law hinder repositioning and, therefore, reform is required to increase its use. Yet, these arguments are made primarily on anecdotes; the empirical evidence is scant. One foundational question is how many drugs are repositioned each year in Europe. This study develops a method to examine the number authorised each year. The results show a marked increase in repositioning over the last 3 years, and that the number per year is comparable, though slightly fewer than, the number of new compounds, indicating modest to higher-than-expected activity. This study considers what the results mean for four suggested reform options, including the EU Commission's recent proposal. We conclude that the reforms may not achieve their goals or that further evidence is required before we can know whether they will be effective. Lastly, this paper explains how the method and data in this study could serve as a benchmark for evaluating the success of future reforms.

The Supreme Court of India, in the recent case of Knit Pro International v. State of NCT of Delhi, clarified that the offence under S. 63 of the Copyright Act, 1957 is cognizable and nonbailable. This decision is likely to have far-reaching consequences in the field of copyright enforcement. This article is meant to examine the current state of criminal enforcement of Copyright in India, its interface with freedom of speech and expression and the likely impact of the said judgement on copyright enforcement in India. The article starts with an overview of criminal remedies under the Copyright Act, 1957 and the criminal procedure applicable to those remedies. It then analyses the provisions in light of five factors which are considered crucial in criminalizing an offence—seriousness, proportionality, legal soundness, enforceability and alternative remedies. The article concludes that the current regime for criminal enforcement of copyright leans heavily in favour of enforcers and requires a change to ensure a balance between copyright and the right to freedom of speech and expression.