Journal of World Intellectual Property最新文献

The incorporation of intellectual property laws in Brazil, by drafting or amending laws, as a result of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, has been a subject of political and social debate. The ambiguity of the Agreement's effects explains the Brazilian government's reluctance to address the issue, particularly concerning public health policies, as it presents a conflict between healthcare rights and intellectual property protection. The country had utilized compulsory licensing of an antiretroviral drug for AIDS treatment under Decree No. 6,108/2007. This precedent has sparked discussions about future cases of selective incorporation of compulsory licensing as a national prerogative, aiming to ensure that the patent system upholds the country's right to protect public health and promote access to medicines, in accordance with The Doha Declaration on the TRIPS Agreement. Nevertheless, such a pattern could undermine innovation and discourage private-sector investment and research, which is predominantly conducted by developed countries.

The US affirmed patent protection for genetically modified plant traits in 1985, asserting that firms could patent new hybrid plant varieties when formerly plant variety protection was the primary means to protect hybrid varieties. This paper examines how firms' intellectual property choices have changed for new corn varieties created during the years 1985–2012. The data suggests that firms increasingly rely on patent protection as their only form of intellectual property protection for new varieties. For varieties with patent protection, low-valued varieties, as determined by low patent renewal rates, receive less net benefit from obtaining plant variety protection compared to high-valued varieties.

The Soviet Union was a productive and technologically developed economy. It achieved a remarkable transformation from a feudalistic society to an advanced industrial society. How was it able to do this? This article argues that such rapid industrialisation was possible because the Soviets invested in legal institutions that created a special kind of open and highly coordinated innovation system confined to national borders. These legal institutions remain underappreciated in Western intellectual property scholarship. The article reassesses the Soviet legal institutions, by explaining their functions and effects on knowledge flows. It also conceptualises the Soviet reward system as having elements of an ‘economy of esteem’. The article is informative not only as a revisited historical account on the Soviet regulation of innovation, but also as one that teaches much about the modern models of innovation in market economies.

This paper tries to examine the role and function of the National Collective Management Organization (NCMO) and Collective Management Organizations (CMOs) for songs and music authors along with their related rights based on the existing law and implementing regulations in Indonesia. The discussion specifically revolves around controversies, challenges, advantages, and disadvantages that occurred from the centralized management system in songs and music conducted by NCMO to ease the royalties payment process for commercial users. The research was made by analyzing qualitative data on the laws and their implementing regulations in Indonesia, and also formal reports, it is supported by in-depth observation and interviews with selected sources in the fields. Results show that to perform its task as the centralized management body for royalties of copyrights in Indonesia, the NCMO has to transform the way they operate. There are three practicable and acceptable options of transformation which all shall require a structural change, transparency, and reasonable operational costs shared in terms of NCMO's and CMOs' operation. It must also involve improvement in consistency to NCMO, CMOs, and other related agencies to act as trustee bodies.

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.