Journal of World Intellectual Property最新文献

Intellectual property (IP) law is traditionally considered rigid, with little room for maneuvering in crisis cases. In this article, through three case studies, we discuss how health crises have affected IP rights, especially in Brazil, and the relationship of Brazilian decision-making with internationally accepted legal frameworks. In the first case, on the AIDS crisis, we discuss the initiatives of compulsory licenses in Brazil and the debate on the Doha Declaration on public health, in which the international community recognized the national margin of appreciation of TRIPs in specific cases, making the Brazilian government's action viable. In the second case, on COVID, we discuss some proposals for waiver of IP rights that, although not effectively implemented, were important to pressure economic players to find solutions to transfer technology and expand the production of newly discovered vaccines, with the transfer of technology and expansion of Brazilian vaccine factories. In the third case, also on COVID, we discuss how the health crisis induced the Brazilian Judiciary, Executive, and Legislative branches to change different points of the IP law that had been under discussion for many years and reduced the extent of these rights, to increase access to medicines, but limited by international minimum standards. We conclude that IP law is essential for developing new drugs to deal with health crises. At the same time, these crises are essential for constructing Law that prevents abuses by dominant economic actors.

Thailand is facing ongoing trade-related challenges that threaten access to an affordable and sustainable supply of medicines. Despite Thailand's history of balancing trade pressures and public health priorities, little is known about the factors that enable or constrain a focus on access to medicines in trade-related intellectual property (IP) decision making. Using document analysis and qualitative interviews, and drawing on Kingdon's Multiple Streams Framework, this qualitative study examines the factors that have enabled or constrained Thailand from focusing on access to medicines in three case studies of trade-related IP policy: Thailand's patent law and its amendments; its issuance of compulsory licences; and its decision-making about TRIPS-plus trade agreements including potential membership of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. The degree to which access to medicines has been prioritised in Thailand's trade-related IP policymaking has varied across different types of policymaking and over time. Integral to its successes has been the involvement of the Ministry of Health and sustained advocacy by access to medicines coalitions which exert political pressure, generate evidence, and provide technical assistance to support evidence-based policy reform. In addition, Thailand's compulsory licencing was made possible by a policy entrepreneur with the motivation and authority to implement policy change. Constraints to Thailand's focus on access to medicines have included its trade dependence on the United States (US), ongoing US trade pressure to implement TRIPS-plus measures, and intense lobbying from Pharmaceutical Research and Manufacturers of America, the organisation representing US-based major pharmaceutical companies, to increase IP protection for pharmaceuticals in Thailand. Through the use of Kingdon's framework, this study's focus on three different types of trade-related IP policymaking has provided a detailed picture of the factors that have influenced the prioritisation of access to medicines and how these have played out in Thailand. Thailand's mixed history with regard to the prioritisation of access to medicines could provide lessons for other low- and middle-income countries facing similar challenges to access to medicines by ensuring that the conditions are right in each of the three streams for windows of opportunity to emerge.

The article titled “Law Libraries, Copyright and Digital Lending” aims to bring to the fore copyright issues related with digital lending by law libraries and is a comparative study of the copyright law of India and the United States. Accordingly, this piece will analyze the situation in two jurisdictions—India and the United States to understand the facilitation of digital lending by law libraries, particularly during the COVID-19 pandemic. It will look at some key concepts such as publication, distribution, reproduction, controlled digital lending, fair use, fair dealing, public interest, exhaustion, and copyright infringement. To understand the practice of digital lending by law libraries in India and controlled digital lending in the United States the author interviewed a few librarians from both countries and learnt about the challenges faced by librarians to facilitate digital lending. The author also learnt that while librarians in the United States practice controlled digital lending, librarians in India do not; they practice only digital lending. Testimonies of librarians and analysis of the present law and precedents in India and the United States led the author to understand that there is no concrete law on digital lending by law libraries at present in the two jurisdictions. Accordingly, this article discusses the utility and necessity of digital lending by law libraries in the present times, as also that of controlled digital lending.

The entering into force of Europe's Unified Patent Court (UPC) on 1 June 2023 shifts the question on whether and how a specialised and unified court should be designed to the question on how the already conceived court shall function to meet the set institutional and substantive goals for the European patent adjudication. Despite the contextual legal and economic differences, the examples of the US Court of Appeals for the Federal Circuit (CAFC) and the Tokyo Intellectual Property High Court (IPHC) can serve as guidance for the new European court, especially in its early days of operation. This article, outlining both the differences and similarities in the origins of the three courts, articulates upon the challenges as well as the achievements of the United States and Japanese examples to shed light on the future perspectives of the UPC and wherever relevant, provide policy-oriented and practical recommendations for those in charge of shaping the UPC's jurisprudence. To this end, it is submitted that particular attention should be paid to ensuring the wide range of competences of the UPC judges; the interinstitutional dialogue between the UPC and the Court of Justice of the European Union (CJEU) as well as the dialogue among the UPC judges, including the encouragement of dissenting opinions; consultation of public, if possible in the form of amicus curiae briefs; and international cooperation with existing specialised IP courts worldwide. Based on evidenced foreign practices, these mechanisms are argued to serve the objectives of avoiding ‘overspecialisation’, achieving uniformity while maintaining accuracy, securing the new court's legitimacy and, finally, fostering global judicial harmonisation.

Interactions between internet meme culture and copyright law are inherently complex: online communities often do not seek express permission from rightsholders of underlying work to recreate internet memes. However, internet meme culture can be tremendously valuable from sociocultural and economic standpoints. As such, there are apparent benefits if copyright law could integrate the memetic remix discourse within its evaluations in a systematic manner. To this end, this article entertains the merits of interpreting the joint authorship test flexibly, as one of the many possible ways to integrate the memetic remix discourse in UK copyright law. Such a systematic and integrated approach may better reflect internet meme culture. It allows copyright to prevent selective enforcement because rightsholders of underlying works will not enjoy sole control over the use of their work once they become viral internet memes. It also paves way for copyright law to systematically facilitate underlying works to evolve into viral internet memes without a constant dread of retrospective takedowns and infringement claims.

Terms of service (ToS) for social networking sites (SNS) like Instagram, Meta, X, and so on, is a clickwrap agreement that establishes a legal relationship between platform owners and users, yet probably it is the most overlooked legal agreement. The users of these sites often overlook the ToS while registering themselves on these sites and even if users (especially those with no legal background) are attempting to read them, it is difficult for them to understand because of the legal jargon. As a result, they end up signing away legal rights about which they are unaware. According to these sites' ToS, though the ownership of the user-generated content is bestowed upon the user but the users grant to these sites “a non-exclusive, royalty-free, transferrable, sub-licensable, worldwide license” and this license can be used “to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of user's content.” These sites even bestow on themselves the right to modify the content which poses challenges to the right-holders' moral rights. The fact that these platforms can sublicense the user's work creates complexities when a user intends to grant an exclusive license of his work. There is no clarity on the language of the terms like the manner of exploiting the user's content, what happens if the sublicensing is for a wrongful purpose? The problem magnifies as there is neither explicit indication about the duration of the license nor about the territorial extent. This would suggest that these sites can get a perpetual license on the content of the users. These SNS have consumers spread worldwide but in their ToS, they have forum selection clauses that list out the courts and districts in California. This means users will be discouraged to bring a copyright suit due to the lack of an option to file a claim in their home country. The US case Agence France Presse (AFP) v. Morel helps us conclude twofold mainly there is a hope that SNS will not take ToS to shield themselves from further use of the user's work and strengthen the idea that these platforms may choose to license to their partners. Further, in 2018, the Paris Tribunal declared most clauses of Twitter “null and void” due to the nature of the license and also, because it was not in compliance with French Intellectual Property Code. This gives a faint hope for a positive shift in the legal treatment of user-generated content. Though these sites claim to retain the sublicensing right to run their sites smoothly but the licensing is very broad and carries the possibility of many usages of the content that too without paying compensation to the user. Therefore, this paper aims to highlight and give insight into the unfair licensing terms of the most often used social networking sites and its implications.

The advent of artificial intelligence (AI) and its generative capabilities have propelled innovation across various industries, yet they have also sparked intricate legal debates, particularly in the realm of copyright law. Generative AI systems, capable of producing original content based on user-provided input or prompts, have introduced novel challenges regarding ownership and authorship of AI-generated works. One crucial aspect of this discussion revolves around text prompts, which serve as instructions for AI systems to generate specific content types, be it text, images, or music. Despite the transformative potential of AI-generated works, the legal landscape remains fragmented, with disparate jurisdictional interpretations and a lack of uniform approaches. This disparity has led to legal uncertainty and ambiguity, necessitating a nuanced exploration of originality, creativity, and legal principles in the context of text prompts and resulting outputs. This article seeks to contribute to the ongoing debate by delving into the complexities surrounding AI-generated works, focusing specifically on the originality of text prompts and their correlation with resulting outputs. While previous literature has extensively examined copyright issues related to AI, the originality of text prompts remains largely unexplored, representing a significant gap in the existing discourse. By analysing the originality of text prompts, this article aims to uncover new insights into the creative process underlying AI-generated works and its implications for copyright law. Drawing parallels from traditional creative works, such as collages, the article will assess how legal principles apply to AI-generated content, considering philosophical foundations as well as copyright principles, such as the idea-expression dichotomy. Furthermore, the article will explore the divergent approaches taken by different jurisdictions, including the United Kingdom, United States, and European Union, in determining originality in the context of copyright law. While refraining from providing definitive answers, the article aims to stimulate critical thinking and dialogue among stakeholders. By offering fresh perspectives and insights, it seeks to enrich the discourse surrounding the copyrightability of AI-generated works and pave the way for informed policy decisions and legal interpretations. The article aims to contribute valuable perspectives to the ongoing debate on copyright and AI, shaping the future trajectory of intellectual property law in the era of artificial intelligence.

The debate between patent rights of pharmaceutical firms and the rights of the poor to equal access to health is an old one. The basic purpose of any patent system that grants a temporary monopoly to an innovator is to stimulate innovation and investment in the production of the newly innovated goods and services, which in turn gives supernormal profits to the innovator. However, the equity considerations dictate the spread of this knowledge in the public domain. The dilemma of the patent system is that, in encouraging R&D, it prevents the diffusion of innovation and consequently creates a non-competitive situation. This paper examines the impact of patent protection on the number of patent filings by the pharmaceutical companies in India after it signed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and the trend in research and development expenditure by domestic firms. It questions the basis of this intellectual property right, especially, when a substantial amount of basic research is often carried out in the universities and federal funding is provided at the basic research and development level. It further investigates the success of various flexibilities provided under TRIPS which the Indian Patent Act has used and can potentially use, in comparison to other developed countries, to provide easy access to the medicines. The paper concludes by exploring other options available during public health emergencies and otherwise.

On February 27, 2015, as part of the Agricultural Growth Act, amendments to the Canada's Plant Breeders' Rights (PBRs) Act came into force, making Canada compliant with Union for the Protection of the New Varieties of Plants (UPOV) 91. One objective of adopting UPOV 91 was that it would encourage increased investment in plant breeding, giving Canadian farmers greater access to new and innovative plant varieties that enable them to be more globally competitive. To assess whether the adoption of UPOV 91 impacted crop variety investments, a survey of Canadian public and private plant breeders was undertaken in 2021–2022. Results indicate that the length of research grants play a significant role in plant breeders' perspectives. Previous research indicated that the adoption of UPOV 91 provided minimal incentives to increase investments. Results of this survey indicate that 52% of respondents, either agree or strongly agree, that the amendments to the PBR Act have provided an incentive to increase plant breeding investments.

The Information and Communication Technology (ICT) platforms that allow copyright owners to reach a large number of users and increase their economic fortune, contritely; enable the potential infringers preferring free-riding to upload and distribute copyrighted materials. Under various theories of direct and secondary copyright infringement, the platforms now loosely called intermediaries are likely to become liable for copyright infringement. Like other jurisdictions, Indian law contains specific provisions to protect the intermediaries from such unanticipated liability. However, this intermediary liability and immunity law got muddied by inconsistent interpretations of the two operating statutes. Taking clues from the cross-jurisdictional insights, this paper looks at the interpretative conundrum. Furthermore, the paper contends how the preferred interpretation is incompatible with the Berne Convention and Agreement on Trade-Related Aspects of Intellectual Property Rights recommended three-step doctrine for creating copyright exceptions. Ultimately, this paper advocates for a legislative intervention to clear the clouds of confusion in view of India's endeavour to enact a new law on ICT.