Journal of World Intellectual Property最新文献

Artificial Intelligence (AI) continues to be a powerful tool in the research and development ecosystem. AI computers are invented to assist human invention and also created to invent. Where an AI is created to invent, through self-learning, they can interact with set of data presumably created by humans and as a result, a new patentable invention(s) can emerge. However, where the AI inventors and the resulting inventions sit within the inventorship legal framework, and the theory of legal personhood continues to raise legal and policy questions that challenge some underlying or presumed settled intellectual property law assumptions. One of the contentions has been the implications of the AI machine's autonomous inventions on the legislative and judicially established threshold for patent inventorship and the jurisprudential theory of legal personhood. The judicial decisions in the United States of America (USA), United Kingdom (UK), and Australia in the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS) patent applications have given judicial certainty on whether AI machine inventors qualify as inventors. However, they also reawakened the debate about the need to sustain patent incentives for AI innovations. This article draws from the inventorship threshold in the UK and US following the court decisions in the DABUS cases. The judicial decisions of courts and the administrative judgements of national Intellectual Property Offices (IPOs) relating to inventorship as well as the theory of legal personhood, reveal that an AI machine invention can be patent eligible. However, the machine does not satisfy the inventorship criteria and consequently is incapable of being named an inventor. On the other hand, the inventorship requirement of contemporaneous conception and reduction to practice meant that an AI owner/programmer may not satisfy the requirement of inventorship, even though he/she programmed the inventing machine. These decisions and judgements favour an implied situation where autonomous AI inventions could be without named inventors and owners. Consequently, those inventions will automatically form part of prior arts thereby rendering myriads of future human and AI inventions obvious or already existing in the public domain. In contributing to the discourse, this article advances the argument that to optimise the patent system, national IPOs and the courts can rely on ‘simultaneous conception and reduction to practice’ to recognise the programmer/owner or other relevant stakeholders in AI innovation as the inventor of AI autonomous inventions.

The birth of intellectual property right (IPR) is accompanied by the emergence of scientific and technological revolution, and is deeply influenced by continuous advancement of science and technology. Meanwhile, the emergence of new technology will inevitably undergo a process of development, game, evolution or even extinction. As an important proxy of IPR, patents play a crucial role in indicating the evolution of IPR. Therefore, this paper focuses on the S-type diffusion and evolutionary game process of IPR, and reveals the main influencing factors of this dynamic evolution process by constructing a bionic evolution system of IPR development through empirical research combined with data analysis methods. This research can promote a deeper understanding of both the formation and the future developmental logic of IPR for the academic community, and will provide new research ideas for improving the theoretical system of IPR. Moreover, this can provide some new solutions to the operation of IPR system and the practice of strategic promotion in a new round of scientific and technological revolution under the new normal.

While intellectual property laws protect rights holders from infringement of their intellectual property, these laws also protect against abuse of those rights where rights holders unjustifiably threaten competitors with infringement proceedings. The introduction of additional damages for flagrant unjustified threats under the recent Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) may benefit an alleged infringer who is not found to have infringed a valid patent. In particular, new section 128(1A) to the Patents Act 1990 allows additional damages to be awarded against a person for making blatant unjustified threats of infringing a patent. In cases where it is difficult to determine the loss and ordinary damages cannot be awarded, a court could award a nominal amount in compensation, but the difficulty lies in whether, in some cases, damages can be awarded at all. This raises the need to consider other legal avenues to address the issue of unjustified threats relating to patented inventions. In this paper we have identified four such other legal avenues being: specific provisions of the Australian Consumer Law; the misuse of market power provisions in s 46 Competition and Consumer Act 2010 (Cth); the duty of care and diligence in s 180 Corporations Act 2001 (Cth); and the law of joint tortfeasorship. Each of these potential legal solutions will be examined in turn however a comparison of remedies, or interactions with the laws of evidence, and exploration of costs are beyond the scope of this analysis. Further while we acknowledge that other Australian legislation provides a cause of action arising from the making of unjustifiable threats, such as in the Copyright Act 1968, the Trade Marks Act 1995, the Designs Act 2003 and the Circuit Layouts Act 1986, this paper is focused on the Patents Act 1990 only.

The Plant Variety Rights Act of Aotearoa New Zealand (PVR Act), recently reformed in 2022, adopts new protections for Indigenous relations with native and culturally significant plants, and for traditional knowledge. The Act specifically aims to protect kaitiaki (guardian or caretaker) relationships that Māori have with taonga (treasured, culturally significant) plant species and mātauranga Māori (Indigenous knowledge) in the PVR system. By taking these reforms into account and examining how they may operate in practice, this article considers whether the PVR Act fulfils the constitutional obligations the government owes to Māori under the Treaty of Waitangi | Te Tiriti o Waitangi framework. In addition to conducting a doctrinal assessment of the revised statute, the article undertakes an intellectual property landscape analysis, revealing how PVR systems, both domestically and overseas, have been used by non-Māori entities to assert ownership claims to varieties of taonga plants in the past. The article further draws upon a third research methodology, presenting initial results from qualitative interviews conducted with Māori and non-Māori experts in intellectual property, taonga plants, and mātauranga Māori. Synthesising the results of these three forms of investigation, the article argues that while some of the changes made in the PVR Act support the exercise of partial Māori authority in relation to taonga, it remains to be seen whether the Treaty promise of tino rangatiratanga (chieftainship, sovereignty, or self-determination) can be fully achieved in the PVR system.

The increasing prevalence of immersive technologies and blockchain platforms in modern commerce has ignited animated debates among intellectual property law scholars on the use of nonfungible tokens (NFTs) in the sale of crypto-assets or virtual property. Despite the rapidly growing interest in the implications of NFTs for copyright law, particularly in the realm of digital art, relatively little attention has been given to the question of whether the rights of copyright stakeholders (as opposed to the works in which such rights subsist) are capable of tokenisation as NFTs or of being transferred via NFT-tethered transactions in blockchain environments. This article highlights the dangers of treating copyright as capable of being tokenised or transferred as NFTs on blockchain platforms, and argues that such an approach poses fundamental risks to the ‘nemo dat’ principle in property law. The article further proposes that the right of communication in copyright law should be extended to include the minting of NFTs in relation to digital files containing creative expression, to protect the interests of digital artists from the exploits of rogue crypto-traders on blockchain platforms.

Copyright protects original works of authorship by granting the author economic rights, which give the author an exclusive right of economic exploitation, and moral rights, which protect noneconomic interests of the author. Moral rights are not considered property, but an aspect of the author's personality. The aim of this study is to find a solution how to include one of the author's moral rights—the right of withdrawal—in the national legal acts, so that it meets the interests of both the author himself and the user of the work. The research question is: how much should it be necessary to limit the right of withdrawal so that neither the transferee of the economic rights nor other coauthors of the work suffer from its excessive use? To find an answer to the research question, international and national legal norms of various countries were studied, the materials of international conferences were analyzed, as well as the information available on the Internet about the origin, use, and development of moral rights were taken into account. There is a wide diversity of opinion on the application of right of withdrawal, as well as great differences in the laws of individual countries. Although the laws of Common Law countries include mandatory moral rights (according to the Berne Convention), the right of withdrawal in its classical form is not provided for in any of the analyzed countries. In Civil Law countries are different attitudes to withdrawal rights. Some Civil Law countries have and some have not included these rights in national copyright law. The right of withdrawal can be included in the catalog of moral rights of national copyright laws, but it cannot be an unlimited right. Certain limitations or exceptions must be established for specific types of work or specific situations of use. It should also be possible for the author to contractually transfer or waive certain moral rights in specific situations.

The European Union (EU) text and data mining (TDM) provisions are a progressive move, but the horizon is still uncertain for both generative artificial intelligence (GenAI) models researchers and developers. This article suggests that to drive innovation and further the commitment to the digital single market, during the national implementation, EU Member States could consider taking the Japanese broad, all-encompassing and “nonenjoyment-based” TDM as an example. The Japanese “nonenjoyment” purposes, however, are not foreign to the European continental view of copyright. A similar concept can be found under the German concept of “Freier Werkgenuss” or enjoyment of the work. A flexible TDM exception built upon the German notion of nonenjoyment purposes could become an opening clause to foster innovation and creativity in the age of GenAI. Moreover, the article argues that an opening clause allowing TDM with “nonenjoyment” purposes could be permissible under the so-called three-step test. This article further suggests, if there is no political will to safeguard “the right to read should be the right to mine” and to provide a welcoming environment for GenAI researchers and developers, when shaping the legal interpretation through national case law, the EU Member States could consider the following: (1) advocate for 72 h of response if technological protection measures (TPMs) are preventing TDM, and (2) Robot Exclusion Standard (robot.txt) as a warning when TDM is not allowed on a website. It is now in the hands of the EU Member States, whether to protect the interests of rightholders or to create a balance between safeguarding “the right to read should be the right to mine,” protecting rightholders exclusivity, and creating a supportive environment for the GenAI models researcher and developers.

Art 17 Directive 2019/790 on copyright and related rights in the Digital Single Market (CDSMD) offers not only a new perspective on service provider liability but also on user rights in the digital sphere of copyright law. The Directive obliges Member States to enable users of online content sharing service providers to assert the use of an exception or limitation before a court or another judicial authority. Hence, art 17 CDSMD foresees a subjective, that is, enforceable, right of the user deriving out of the exceptions and limitations of copyright and related rights. Yet, there is no clear guidance on how to transpose this requirement into national law, neither in art 17 CDSMD nor within the judgment of the CJEU in the annulment proceeding or the guidance of the EU Commission. This generates uncertainty for Member States, for which the concept of enforceable user rights is novel. The paper examines the requirements which art 17 CDSMD sets out for digital user rights and the difficulties for Member States to comply with them. The example of the German transposition of art 17 CDSMD shows that a high standard of user protection is not necessarily accompanied by a respective enforceability mechanism.

Coronavirus disease 2019 (COVID-19), a highly contagious infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), has had a devastating effect on world demographics and emerged as a significant global health emergency since the influenza pandemic of 1918. It emphasized the significance of international cooperation in battling SARS-CoV-2 efficiently ever since the discovery and publication of the virus's genome in January 2020. The world took significant steps to combat the disease, ranging from increasing personal protective equipment production and emphasizing the importance of social distancing/masking to the Emergency Use Authorization of remdesivir/therapeutic antibodies. Despite significant advances in clinical research that have led to a better understanding of SARS-CoV-2 and COVID-19 management, limiting the virus's and its variants' spread, has become a growing concern as SARS-CoV-2 continues to cause chaos around the world, with many countries experiencing a second or third wave of outbreaks attributed primarily due to the emergence of mutant virus variants. Considering the potential threat of this global outbreak, scientist and medics have rushed to identify possible treatment regimens and effective therapeutic drugs and vaccinations. As a matter of fact, several COVID-19 vaccines candidate have been researched, created, tested, and reviewed at a breakneck pace. Finding patents, examining relevant patents for current research activities and assessing them plays a key part for the best possible research and development before establishing and executing a trading strategy, especially with recent technology advancements. Therefore, to support current research and development we have evaluated patents relevant to various COVID-19 vaccine technology platforms. The aim of the present research work is to map the existing work through an analysis of patent literature in the field of Coronaviruses, particularly COVID-19 vaccines which will subsequently help the organization launch campaigns, as well as academics and research-driven institutions with the aid of patent literature information for a range of initiatives to combat this circulating demon.

The Covid-19 pandemic inflicted socioeconomic harm on an unprecedented scale. Across the world and to varying degrees, cinemas were closed, festivals were cancelled or postponed, and film releases were moved to future dates or delayed indefinitely. In 2020 the entire global theatrical and home/mobile entertainment market totalled $80.8 billion, the lowest figure since 2016 and a decline of 18% from 2019. Theatrical entertainment accounted for only 15% of the total global entertainment revenue, compared to 43% in 2019. While some has been written about the effects of Covid-19 on both international and local film industries, this article seeks to provide an African perspective focusing on the realities in Nigeria and South Africa, respectively. This article examines the importance of filmmaking industries in Nigeria and South Africa as well as the difficulties faced during the Covid-19 pandemic. Copyright laws in both terrains are critically reviewed based on the capacity of these laws to protect the interests of film industries pre and post-Covid-19.