Journal of World Intellectual Property最新文献

Using freedom of information requests, we examine the operation of the Patents Māori Advisory Committee of Aotearoa New Zealand. The Committee advises the Intellectual Property Office of New Zealand on whether inventions claimed in a patent application are derived from Māori traditional knowledge or from indigenous plants or animals; and if so, whether the commercial exploitation of that invention is likely to be contrary to Māori values. There is limited publicly available information on the operations of the Committee and the decision-making process undertaken in reviewing applications. The requests and our searches identified 13 patents referred to the Committee, of which most (9 of 13) dealt with inventions related to Mānuka (Leptospermum scoparium), a taonga species known for its role in producing unique honey. Only two applications have been found to be contrary to Māori values, and these applications have both since been abandoned. The review of applications found to be ‘not contrary to Māori values’ is instructive, identifying important considerations taken into account by the Committee in reaching a decision, including the importance of benefit sharing and engagement with Māori in considering whether an invention may be contrary to Māori values. The analysis highlights the limitations of the Committee in reviewing only those applications filed in Aotearoa New Zealand and referred to the Committee for advice and identifies the importance of mechanisms such as disclosure of origin to ensure all relevant applications are reviewed by the Committee. The paper concludes by highlighting how the operation of the Committee may inform the development of similar bodies in other jurisdictions, such as Australia.

The OAPI member states constitute a space for the harmonization of copyright in Africa. This harmonization is yet to be completed, as attested by the conventional rules relating to the publishing contract. In addition, investigating about the publishing contract in the OAPI space requires an examination of both the text of the Bangui Agreement and that of the national laws of the 17 member states. Some differences must be pointed out keeping in mind the question of possible conflict of laws.

In China, a hosting audio-visual platform does not bear a copyright general monitoring obligation. It bears a public law obligation to monitor content proactively and constantly to safeguard the governance objective of cybersecurity. Little literature has discovered that Chinese case law has shown a risk that this public law obligation can impose an actual copyright general monitoring obligation upon platforms. The crux lies in that the public law obligation weakens the rationale of the copyright no monitoring obligation that a platform cannot access and assess each piece of work proactively. Copyright general monitoring seems to be workable as a platform is given such an opportunity to access and evaluate each content upon the fulfillment of the public law obligation. It, however, is unjustifiable to create this copyright law obligation by transferring it from the public law obligation, as copyright monitoring is much more complicated and costly within China's online environment. Access to content does not necessarily indicate a platform's ability to figure out content's copyright authorization status. China should retain adopting the no copyright general monitoring obligation even considering that the public law obligation has been contextually emphasized as a mandatory obligation to platforms.

The availability of punitive awards varies across different common law jurisdictions. In recent years, China, as a civil law jurisdiction, has progressively introduced a comprehensive punitive damages system in Intellectual Property (IP) law in recent years. To investigate how this common law product functions in the civil law system, this paper scrutinizes the evolution and functions of punitive damages and depicts the map of punitive damages in Chinese IP law. Then this paper reports and analyses 657 IP judgments involving the application of punitive damages that were tried and decided in all parts of mainland China by all levels of courts from June 1, 2021, to May 31, 2022. Our empirical data shows that punitive damages are frequently sought by claimants, yet courts are reluctant to award them due to the complexities in determining the basis for calculation and judges' reluctance towards detailed legal reasoning. Furthermore, a critical analysis of the application of punitive damages in IP trials is provided, critiquing the court's preference for statutory damages, the complexity in determining the basis and multipliers for calculation, and the strict standard of proof, which accounted for the small portion of punitive damages awarded in judicial practices.

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.