TRIPS Agreement acknowledged that some licensing restrictions contained in a patent license contr... more TRIPS Agreement acknowledged that some licensing restrictions contained in a patent license contract may contravene the principles of competition law. Hence, adoption of appropriate measures to address issues concerning patent license which relates with competition law has been expressly provided by the TRIPS Agreement in its various provisions. Malaysia as a signatory of the TRIPS Agreement is expected to comply with the recommendations in addressing issues concerning patent license and competition law. Therefore, it is the purpose of this article to identify extends of compliance by Malaysia with respect to the suggestions provided by the TRIPS Agreement. The result shows that Malaysia adopts the recommendations provided by the TRIPS Agreement in its legislation, particularly the Patents Act 1983. Contribution/ Originality: This study contributes in the existing literature on patent and competition law as a result of a new law introduced by the Malaysian government known as the Competition Act 2010 and the recent Malaysia Competition Commission (MyCC) Guidelines on Intellectual Property Rights and Competition Law.
Introduction 1 Originality and Creativity in Copyright Law 2 Borrowing 3 Who Is an Author? 4 Auth... more Introduction 1 Originality and Creativity in Copyright Law 2 Borrowing 3 Who Is an Author? 4 Authorship by Legal Fiction: Employers Copyrights in Works Made for Hire 5 Copyright Duration: Theories and Practice 6 Fair Use and Social Practices 7 First Sale? 8 Copyright Issues in Fandom 9 Copynorms: Copyright Law and Social Norms 10 Finding Safe Harbors for Speech: Internet Service Providers and Copyright Law 11 To Observe and Protect? How Digital Rights Management Systems Threaten Privacy and What Policymakers Should Do About It 12 Library Copyright Issues 13 Collective Rights Organizations 14 Creative Commons 15 Open Source Software and Information Wealth 16 Concentration in the Copyright Industries 17 Copyright Law and Black Musicians 18 The Propertization of Copyright 19 Virtual Property and the Overextension of Copyright Licensing Online 20 Resistance in the Digital World Index About the Editor and Contributors Volume II Introduction 1 Nonobvious as an Exercise in Gap Measuring 2 The On-Sale Bar 3 Doctrine of Equivalents 4 The Research Exemption to Patent Infringement: The Delicate Balance Between Current and Future Technical Progress 5 Patent Infringement Remedies 6 Patent Litigation and Licensing 7 Patent Misuse: From Inception to Modern Case Law 8 Nonobvoiusness: Looking Back and Looking Ahead 9 Patent Quality and Patent Reforms 10 Seed Wars: Controversies Over Access to and Control of Plant Genetic Resources 11 The Intended and Unintended Consequences of the Bayh-Dole Act 12 Reassessing the Anticommons Debate in Light of Biotechnology Patent Trends 13 A Global Controversy: The Role of Morality in Biotech Patent Law 14 Patents, Human Genome, and Medical Research 15 Software Patents 16 Technology Transfer and IP Management 17 Trade Secrets Index About the Editor and Contributors Volume III Introduction 1 Likelihood of Confusion 2 Initial Interest Confusion: The Diversion of Trademark Law 3 Scandalous and Immoral Trademarks 4 International Recognition and Protection of Famous and Well-Known Marks 5 Trademark Dilution 6 Trademark Fair Use or Bad Faith Analysis 7 First Amendment Limitations on Trademark Rights 8 Authorship and Trademark Law 9 Trade Dress Protection 10 A Critical Analysis of the Doctrine of Naked Licenses in Trademark Law 11 What's the Frequency, Kenneth? Channeling Doctrines in Intellectual Property 12 The Territorialitiy of United States Trademark Law 13 Clothing Designs 14 Domain Names Issues 15 Right of Publicity and Cultural Images 16 IP and Secured Financings 17 IP and Tax Index About the Editor and Contributors Volume IV Introduction 1 The Architecture of the International Intellectual Property System 2 Doing Deals with Al Capone: Paying Protection Money for Intellectual Property in the Global Knowledge Economy 3 The TRIPs Agreement 4 Challenges for International Harmonization of Intellectual Property Rights 5 Beyond FTA Negotiations 6 The Romance of the Public Domain 7 International Intellectual Property, Conflicts of Law, and Internet Remedies 8 Enforcement and Protection: Internal and External Considerations 9 Recognizing Authority in the Marketplace: The Curious and Ubiquitous Problem of Gray Markets 10 The EC Duration Directive and Its Legislative Background: An Example for the Complexity of the Harmonization of Laws in the European Community 11 Across the Pond and Back Again: Digital Database Protection in the European Union and the United States 12 Of Plant Variety Protection, Agricultural Subsidies, and the WTO 13 Geographical Indications 14 The Myth of Trademark Harmonization 15 When the Same Patent Means Different Things in Different Jurisdictions: A Comparative Analysis of Patent Interpretation 16 Indigenous Peoples and Emerging Protections for Traditional Knowledge 17 The Role of Intellectual Property in Promoting International Trade and Foreign Direct Investment 18 The Economics of Global Intellectual Property and Economic Development: A Survey 19 Intellectual Property, Biological Resources, and Traditional Knowledge 20 IP and Pubic Health 21 IP and the Development Agenda Index About the Editor and Contributors
Abstract The “Making of the TRIPS Agreement” presents for the first time the diverse personal acc... more Abstract The “Making of the TRIPS Agreement” presents for the first time the diverse personal accounts of the negotiators of this unique trade agreement. Their contributions illustrate how different policy perspectives and trade interests were accommodated in the final text, and map the shifting alliances that transcended conventional boundaries between developed and developing countries.
This paper provides a brief sketch of the historical development of intellectual property (IP) la... more This paper provides a brief sketch of the historical development of intellectual property (IP) law, situating its origins within the same, broader policy context that also gave rise to contemporary competition (or 'anti-trust') policy. It aims to give background and perspective to the broader endeavour, manifested in the present volume, of progressing towards a broader, better integrated and systemic understanding of the relationship between IP and competition policy, centred on a coherent approach to domestic policymaking and regulation of the market to promote social and economic welfare. In briefly reviewing some of the key features of the early development of the law in one specific legal tradition, however, it does not pretend to be a comprehensive, representative or authoritative historical account. This paper is therefore not a work of original scholarship but is rather a reflective essay. At most, therefore, it attempts to inform and stimulate discussion about the more deep-rooted policy (and sometimes, by the same token, less immediately visible) considerations that have shaped, and today continue to shape, IP and competition policy, as two complex, specialised and highly focused, but closely intertwined, legal and regulatory systems. A major limitation and shortcoming of the paper is its focus on the roots of the common law tradition, particularly English law: this should not be seen as privileging or endorsing that particular tradition, but as merely putting it forward as one illustrative case study, albeit one tradition that has been influential in the formation of the law in a number of other jurisdictions. Reflecting on the aftermath of the French revolution and the turn of the eighteenth century, de Tocqueville observed that 'two rivers had emerged, as from a common source: the first led men to free institutions, while the second led them to absolute power.' The roots of IP and competition policy can also be traced to political upheavals and resistance to monarchical excesses, and a tension between the exercise of power and economic freedoms. The exercise of tracing back the development of the modern laws of IP and of competition policy, in search of a possible common source, discloses a long history of tension between the impact of absolute power, in the form of royally dispensed monopolies, and the cultivation of the freedom to trade legitimately. The law and policy of IP and the regulation of competition have today been structured, and indeed channelled, into distinct legal and institutional streams, but to venture upstream towards their historic origins may disclose far greater interaction and dynamic interplay as legal systems responded to changes in the economic, political and technological environment. In turn, reflecting on these historically distant roots may provide perspective and insights that can inform policy considerations today.
This paper provides a systematic overview of the legal and policy interaction between the intelle... more This paper provides a systematic overview of the legal and policy interaction between the intellectual property (IP) system and the governance of genetic resources (GR). It reviews the distinctive characteristics of GR and the implications for their governance, the diverse sets of value systems, perspectives and notions of ownership and control that are engaged, and the particular impact of biotechnology patents. The development of modern biotechnology, in particular the development of transgenic technologies, is mapped against parallel developments in patent law and policy and the policy implications of genetic diversity and the preservation of biological diversity as an end in itself. The paper maps the distinct forms of regulatory regimes applied to different forms of GR and considers the distinct characteristics of the human genome. A review of topical issues arising from legal regimes at the international, regional and domestic levels covers both IP and other legal mechanisms. It considers the specific regulatory issues raised, including questions of patentability and proposed linkages between access and benefit sharing obligations and the patent system. The paper reviews the interaction between the Convention on Biological Diversity (CBD) and the IP system, focussing on the implications of sovereignty over GR and the diffusion of GR, retroactivity, and the application of principles of prior informed consent, equitable benefit sharing and the transfer of technology, and reviews proposals for further hard law and soft law instruments, current as at 2008. The paper concludes with a consideration of the pivotal character of the notion of ‘equity’ and the policy and regulatory responses to perceived inequities arising from the rapidly evolving technological capacity to extract commercial and other benefits from GR. At the heart of the CBD is that the perception of inequitable returns to the original custodians from the downstream extraction of value from genetic resources would negate any incentive to conserve biodiversity in the first place and to use its components sustainably, a normative logic binding together the triple objectives of the treaty. Two broad aspects of equity are considered: fairness of process (procedural equity), and fairness of outcome (distributive equity). The patenting process may also become an equitable fulcrum, a locus for remedying claimed inequities in access to and use of genetic resource. Ideas of equity range from the relatively technical procedural question of whether a patent should be enforceable if it was obtained by inequitable conduct, to a broader sense that the patent system should be used to police distributive equity in the allocation of benefits derived from genetic resources. The impact of technology on perceived equities, and the extensive flow of GR between societies and jurisdictions, taken together make it highly desirable to establish an international and cross-cultural dispensation that is widely seen and accepted to be equitable.. But diverse value systems and different legal rights and interests intersect, overlap, abut and conflict, rendering complex and elusive any form of perceived fairness and equity in the allocation of the value appropriated through research. Source communities and individuals naturally attach high value to their GR, and this ‘value’ goes well beyond immediate economic exchange value and technological utility; it extends to an expectation that the inherent worth of GR be recognized, as an end in itself and as an element of the cultural identity of a community, and the personality of an individual. The call for equity in the dispensation of genetic resources therefore reaches beyond the specific framework of law and regulation to touch on core human rights and the essence of our genetic and cultural identities.
Everyone is going to talk a little bit about what was happening in the past, the present, and som... more Everyone is going to talk a little bit about what was happening in the past, the present, and some prediction of the future with regard to anything they are discussing. Because we have distinct areas and there is not a lot of overlap, we have a very large panel. I'm going to ask everyone to state their name and affiliation. MR. OMAN:
April 5, 2016 The Lasagna Effect: what do layers of bilateral and regional norms mean for multila... more April 5, 2016 The Lasagna Effect: what do layers of bilateral and regional norms mean for multilateral intellectual property law? Case Western Reserve University School of Law Spangenberg Center for Law, Technology & the Arts Speaker: Antony Taubma
TRIPS Agreement acknowledged that some licensing restrictions contained in a patent license contr... more TRIPS Agreement acknowledged that some licensing restrictions contained in a patent license contract may contravene the principles of competition law. Hence, adoption of appropriate measures to address issues concerning patent license which relates with competition law has been expressly provided by the TRIPS Agreement in its various provisions. Malaysia as a signatory of the TRIPS Agreement is expected to comply with the recommendations in addressing issues concerning patent license and competition law. Therefore, it is the purpose of this article to identify extends of compliance by Malaysia with respect to the suggestions provided by the TRIPS Agreement. The result shows that Malaysia adopts the recommendations provided by the TRIPS Agreement in its legislation, particularly the Patents Act 1983. Contribution/ Originality: This study contributes in the existing literature on patent and competition law as a result of a new law introduced by the Malaysian government known as the Competition Act 2010 and the recent Malaysia Competition Commission (MyCC) Guidelines on Intellectual Property Rights and Competition Law.
Introduction 1 Originality and Creativity in Copyright Law 2 Borrowing 3 Who Is an Author? 4 Auth... more Introduction 1 Originality and Creativity in Copyright Law 2 Borrowing 3 Who Is an Author? 4 Authorship by Legal Fiction: Employers Copyrights in Works Made for Hire 5 Copyright Duration: Theories and Practice 6 Fair Use and Social Practices 7 First Sale? 8 Copyright Issues in Fandom 9 Copynorms: Copyright Law and Social Norms 10 Finding Safe Harbors for Speech: Internet Service Providers and Copyright Law 11 To Observe and Protect? How Digital Rights Management Systems Threaten Privacy and What Policymakers Should Do About It 12 Library Copyright Issues 13 Collective Rights Organizations 14 Creative Commons 15 Open Source Software and Information Wealth 16 Concentration in the Copyright Industries 17 Copyright Law and Black Musicians 18 The Propertization of Copyright 19 Virtual Property and the Overextension of Copyright Licensing Online 20 Resistance in the Digital World Index About the Editor and Contributors Volume II Introduction 1 Nonobvious as an Exercise in Gap Measuring 2 The On-Sale Bar 3 Doctrine of Equivalents 4 The Research Exemption to Patent Infringement: The Delicate Balance Between Current and Future Technical Progress 5 Patent Infringement Remedies 6 Patent Litigation and Licensing 7 Patent Misuse: From Inception to Modern Case Law 8 Nonobvoiusness: Looking Back and Looking Ahead 9 Patent Quality and Patent Reforms 10 Seed Wars: Controversies Over Access to and Control of Plant Genetic Resources 11 The Intended and Unintended Consequences of the Bayh-Dole Act 12 Reassessing the Anticommons Debate in Light of Biotechnology Patent Trends 13 A Global Controversy: The Role of Morality in Biotech Patent Law 14 Patents, Human Genome, and Medical Research 15 Software Patents 16 Technology Transfer and IP Management 17 Trade Secrets Index About the Editor and Contributors Volume III Introduction 1 Likelihood of Confusion 2 Initial Interest Confusion: The Diversion of Trademark Law 3 Scandalous and Immoral Trademarks 4 International Recognition and Protection of Famous and Well-Known Marks 5 Trademark Dilution 6 Trademark Fair Use or Bad Faith Analysis 7 First Amendment Limitations on Trademark Rights 8 Authorship and Trademark Law 9 Trade Dress Protection 10 A Critical Analysis of the Doctrine of Naked Licenses in Trademark Law 11 What's the Frequency, Kenneth? Channeling Doctrines in Intellectual Property 12 The Territorialitiy of United States Trademark Law 13 Clothing Designs 14 Domain Names Issues 15 Right of Publicity and Cultural Images 16 IP and Secured Financings 17 IP and Tax Index About the Editor and Contributors Volume IV Introduction 1 The Architecture of the International Intellectual Property System 2 Doing Deals with Al Capone: Paying Protection Money for Intellectual Property in the Global Knowledge Economy 3 The TRIPs Agreement 4 Challenges for International Harmonization of Intellectual Property Rights 5 Beyond FTA Negotiations 6 The Romance of the Public Domain 7 International Intellectual Property, Conflicts of Law, and Internet Remedies 8 Enforcement and Protection: Internal and External Considerations 9 Recognizing Authority in the Marketplace: The Curious and Ubiquitous Problem of Gray Markets 10 The EC Duration Directive and Its Legislative Background: An Example for the Complexity of the Harmonization of Laws in the European Community 11 Across the Pond and Back Again: Digital Database Protection in the European Union and the United States 12 Of Plant Variety Protection, Agricultural Subsidies, and the WTO 13 Geographical Indications 14 The Myth of Trademark Harmonization 15 When the Same Patent Means Different Things in Different Jurisdictions: A Comparative Analysis of Patent Interpretation 16 Indigenous Peoples and Emerging Protections for Traditional Knowledge 17 The Role of Intellectual Property in Promoting International Trade and Foreign Direct Investment 18 The Economics of Global Intellectual Property and Economic Development: A Survey 19 Intellectual Property, Biological Resources, and Traditional Knowledge 20 IP and Pubic Health 21 IP and the Development Agenda Index About the Editor and Contributors
Abstract The “Making of the TRIPS Agreement” presents for the first time the diverse personal acc... more Abstract The “Making of the TRIPS Agreement” presents for the first time the diverse personal accounts of the negotiators of this unique trade agreement. Their contributions illustrate how different policy perspectives and trade interests were accommodated in the final text, and map the shifting alliances that transcended conventional boundaries between developed and developing countries.
This paper provides a brief sketch of the historical development of intellectual property (IP) la... more This paper provides a brief sketch of the historical development of intellectual property (IP) law, situating its origins within the same, broader policy context that also gave rise to contemporary competition (or 'anti-trust') policy. It aims to give background and perspective to the broader endeavour, manifested in the present volume, of progressing towards a broader, better integrated and systemic understanding of the relationship between IP and competition policy, centred on a coherent approach to domestic policymaking and regulation of the market to promote social and economic welfare. In briefly reviewing some of the key features of the early development of the law in one specific legal tradition, however, it does not pretend to be a comprehensive, representative or authoritative historical account. This paper is therefore not a work of original scholarship but is rather a reflective essay. At most, therefore, it attempts to inform and stimulate discussion about the more deep-rooted policy (and sometimes, by the same token, less immediately visible) considerations that have shaped, and today continue to shape, IP and competition policy, as two complex, specialised and highly focused, but closely intertwined, legal and regulatory systems. A major limitation and shortcoming of the paper is its focus on the roots of the common law tradition, particularly English law: this should not be seen as privileging or endorsing that particular tradition, but as merely putting it forward as one illustrative case study, albeit one tradition that has been influential in the formation of the law in a number of other jurisdictions. Reflecting on the aftermath of the French revolution and the turn of the eighteenth century, de Tocqueville observed that 'two rivers had emerged, as from a common source: the first led men to free institutions, while the second led them to absolute power.' The roots of IP and competition policy can also be traced to political upheavals and resistance to monarchical excesses, and a tension between the exercise of power and economic freedoms. The exercise of tracing back the development of the modern laws of IP and of competition policy, in search of a possible common source, discloses a long history of tension between the impact of absolute power, in the form of royally dispensed monopolies, and the cultivation of the freedom to trade legitimately. The law and policy of IP and the regulation of competition have today been structured, and indeed channelled, into distinct legal and institutional streams, but to venture upstream towards their historic origins may disclose far greater interaction and dynamic interplay as legal systems responded to changes in the economic, political and technological environment. In turn, reflecting on these historically distant roots may provide perspective and insights that can inform policy considerations today.
This paper provides a systematic overview of the legal and policy interaction between the intelle... more This paper provides a systematic overview of the legal and policy interaction between the intellectual property (IP) system and the governance of genetic resources (GR). It reviews the distinctive characteristics of GR and the implications for their governance, the diverse sets of value systems, perspectives and notions of ownership and control that are engaged, and the particular impact of biotechnology patents. The development of modern biotechnology, in particular the development of transgenic technologies, is mapped against parallel developments in patent law and policy and the policy implications of genetic diversity and the preservation of biological diversity as an end in itself. The paper maps the distinct forms of regulatory regimes applied to different forms of GR and considers the distinct characteristics of the human genome. A review of topical issues arising from legal regimes at the international, regional and domestic levels covers both IP and other legal mechanisms. It considers the specific regulatory issues raised, including questions of patentability and proposed linkages between access and benefit sharing obligations and the patent system. The paper reviews the interaction between the Convention on Biological Diversity (CBD) and the IP system, focussing on the implications of sovereignty over GR and the diffusion of GR, retroactivity, and the application of principles of prior informed consent, equitable benefit sharing and the transfer of technology, and reviews proposals for further hard law and soft law instruments, current as at 2008. The paper concludes with a consideration of the pivotal character of the notion of ‘equity’ and the policy and regulatory responses to perceived inequities arising from the rapidly evolving technological capacity to extract commercial and other benefits from GR. At the heart of the CBD is that the perception of inequitable returns to the original custodians from the downstream extraction of value from genetic resources would negate any incentive to conserve biodiversity in the first place and to use its components sustainably, a normative logic binding together the triple objectives of the treaty. Two broad aspects of equity are considered: fairness of process (procedural equity), and fairness of outcome (distributive equity). The patenting process may also become an equitable fulcrum, a locus for remedying claimed inequities in access to and use of genetic resource. Ideas of equity range from the relatively technical procedural question of whether a patent should be enforceable if it was obtained by inequitable conduct, to a broader sense that the patent system should be used to police distributive equity in the allocation of benefits derived from genetic resources. The impact of technology on perceived equities, and the extensive flow of GR between societies and jurisdictions, taken together make it highly desirable to establish an international and cross-cultural dispensation that is widely seen and accepted to be equitable.. But diverse value systems and different legal rights and interests intersect, overlap, abut and conflict, rendering complex and elusive any form of perceived fairness and equity in the allocation of the value appropriated through research. Source communities and individuals naturally attach high value to their GR, and this ‘value’ goes well beyond immediate economic exchange value and technological utility; it extends to an expectation that the inherent worth of GR be recognized, as an end in itself and as an element of the cultural identity of a community, and the personality of an individual. The call for equity in the dispensation of genetic resources therefore reaches beyond the specific framework of law and regulation to touch on core human rights and the essence of our genetic and cultural identities.
Everyone is going to talk a little bit about what was happening in the past, the present, and som... more Everyone is going to talk a little bit about what was happening in the past, the present, and some prediction of the future with regard to anything they are discussing. Because we have distinct areas and there is not a lot of overlap, we have a very large panel. I'm going to ask everyone to state their name and affiliation. MR. OMAN:
April 5, 2016 The Lasagna Effect: what do layers of bilateral and regional norms mean for multila... more April 5, 2016 The Lasagna Effect: what do layers of bilateral and regional norms mean for multilateral intellectual property law? Case Western Reserve University School of Law Spangenberg Center for Law, Technology & the Arts Speaker: Antony Taubma
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