This paper examines the question whether, and to what extent, John Locke’s classic theory of property can be applied to the current debate involving intellectual property rights (IPRs) and the information commons. Organized into four main sections, Section 1 includes a brief exposition of Locke’s arguments for the just appropriation of physical objects and tangible property. In Section 2, I consider some challenges involved in extending Locke’s labor theory of property to the debate about (...) IPRs and digital information. In Section 3, it is argued that even if the labor analogy breaks down, we should not necessarily infer that Locke’s theory has no relevance for the contemporary debate involving IPRs and the information commons. Alternatively, I argue that much of what Locke has to say about the kinds of considerations that ought to be accorded to the physical commons when appropriating objects from it – especially his proviso requiring that “enough and as good” be left for others – can also be applied to appropriations involving the information commons. Based on my reading of Locke’s proviso, I further argue that Locke would presume in favor of the information commons when competing interests (involving the rights of individual appropriators and the preservation of the commons) are at stake. In this sense, I believe that Locke offers us an adjudicative principle for evaluating the claims advanced by rival interests in the contemporary debate about IPRs and the information commons. In Section 4, I apply Locke’s proviso in my analysis of two recent copyright laws: the Copyright Term Extension Act (CTEA), and the Digital Millennium Copyright Act (DMCA). I then argue that both laws violate the spirit of Locke’s proviso because they unfairly restrict the access that ordinary individuals have previously had to resources that comprise the information commons. Noting that Locke would not altogether reject copyright protection for IPRs, I conclude that Locke’s classic property theory provides a useful mechanism for adjudicating between claims about how best to ensure that individuals will be able to continue to access information in digitized form, while at the same time also allowing for that information to enjoy some form of legal protection. (shrink)

This paper argues that intellectual property rights are incompatible with Rawls’s principles of justice. This conclusion is based upon an analysis of the social stratification that emerges as a result of the patent mechanism which defines a marginalized group and ensure that its members remain alienated from the rights, benefits, and freedoms afforded by the patent product. This stratification is further complicated, so I argue, by the copyright mechanism that restricts and redistributes those rights already (...) distributed by means of the patent mechanism. I argue that the positions of privilege established through both the patent and the copyright mechanisms are positions that do not “allow the most extensive liberty compatible with a like liberty for all.” They do not “benefit the least advantaged.” Nor are they “open to all under conditions of fair equality of opportunity.” In making this argument I critically assess the utilitarian defense of intellectual property rights and find it insufficient to respond to the injustices manifest in our current arrangement for the protection of intellectual property rights. (shrink)

This study deals with the protection of intellectual property rights in French and Iraqi civil law. This is because the literary and life creativity in Iraq is declining, it is difficult to invest money in new things, and the number of people who comply with the artificial laws made since 2003 is increasing, and secondly, another reason, people's ignorance of the existing laws in Iraq. Iraq, so it is necessary. In each legislation, legal mechanisms are used to (...) promote media and life publishing and help people make money in the process of inventing literary and life works, which can be achieved by granting them a series of intellectual property rights that represent different privileges. From the fundamental rights of people, which are psychologically and morally valid at one or more points in time. This leads us to delve deeper into these rights, which have been incorporated into civil subjects since the creation of some of them through exchanges between authors and publishers or those who own innovative objects. This returns to the ownership model of the target company. In this way, we will mainly discuss the issue of intellectual property rights and carefully discuss the specific rights divided between the French Civil Code and the Civil Code, and then turn our attention to the two themes of law and incentives. The Civil Code collapses. This consists of comparing the independence of intellectual property rights, mainly regulated by French and Iraqi civil laws, and secondly with some provisions of the model. (shrink)

‘It is much more difficult than is often admitted to make a strong case for the ownership of computer software.’ This closely argued study of the strengths and weaknesses of the case for intellectual property rights and against software piracy is based on material contained in the author’s joint work with Douglas Adeney, Computer and Information Ethics, Greenwood Press, an imprint of Greenwood Publishing Group, INC., Westport, CT, forthcoming May, 1997. The author is a member of the (...) School of Information Studies at Charles Sturt University, PO Box 588, Wagga Wagga, NSW 2650 Australia; tel 61 69 33 2372; fax 61 69 33 2733; email [email protected] wishes to acknowledge the contribution to this paper of Douglas Adeney of the University of Melbourne. (shrink)

Abstract:Although the idea of intellectual property (IP) rights—proprietary rights to what one invents, writes, paints, composes or creates—is firmly embedded in Western thinking, these rights are now being challenged across the globe in a number of areas. This paper will focus on one of these challenges: government-sanctioned copying of patented drugs without permission or license of the patent owner in the name of national security, in health emergencies, or life-threatening epidemics. After discussing standard rights-based (...) and utilitarian arguments defending intellectual property we will present another model. IP is almost always a result of a long history of scientific or technological development and numbers of networks of creativity, not the act of a single person or a group of people at one moment in time. Thus thinking about and evaluating IP requires thinking about IP as shared rights. A network approach to IP challenges a traditional model of IP. It follows that the owner of those rights has some obligations to share that information or its outcomes. If that conclusion is applied to the distribution of antiretroviral drugs, what pharmaceutical companies are ethically required to do to increase access to these medicines in the developing world will have to be reanalyzed from a more systemic perspective. (shrink)

Western attempts to obtain Chinese compliance with intellectual property rights have a long history of failure. Most discussions of the problem focus on either legal comparisons or explanations arising from levels of economic development (based primarily on the example of U.S. disregard for such rights during the 18th and 19th centuries). After decades of heated negotiation, intellectual property rights is still one of the major issues of misunderstanding between the West and the various (...) Chinese political entities. This paper examines the sources of this problem from the standpoint of traditional Chinese social and political philosophy (specifically Neo-Confucianism). It points out that the basic assumptions about the nature of intellectual property, which arose during the 17th and 18th centuries in Europe, are fundamentally at odds with the traditional Chinese view of the role of intellectuals in society. It suggests that policies which do not take these differences into account, but which attempt to transfer Western legal concepts without the underlying social constructs are responsible for much of the lack of success in the area of intellectual property rights. (shrink)

Intellectual property Rights (IPRs) is protected by different systems of laws. Journals must choose a definitive form of systems. Some Blackwell journals use copyright system and some Blackwell use license from authors. Now a days online journals are using creative common licenses. Under creative common license journals are open access, allowed to download, copy, distribute, and display derivative works with proper attribution to author or owner for noncommercial purpose at a free cost. Education on IPRs will support (...) to comprehend ones rights, professional code of conduct and the doctrine of "fair use" in publication. One cannot do anything with once writing. Researchers, academic, editors and readers must have the basic knowledge on who owns the rights in a publication and what users can do with the publication by law. (shrink)

No natural rights theory justifies strong intellectual property rights. More specifically, no theory within the entire domain of natural rights thinking – encompassing classical liberalism, libertarianism and left-libertarianism, in all their innumerable variants – coherently supports strengthening current intellectual property rights. Despite their many important differences, all these natural rights theories endorse some set of members of a common family of basic ethical precepts. These commitments include non-interference, fairness, non-worsening, consistency, universalisability, (...) prior consent, self-ownership, self-governance, and the establishment of zones of autonomy. Such commitments have clear applications pertaining to the use and ownership of created ideas. I argue that each of these commitments require intellectual property rights to be substantially limited in scope, strength and duration. In this way the core mechanisms of natural rights thinking ensure a robust public domain and categorically rule out strong intellectual property rights. (shrink)

In recent decades, advances in information technology have given rise to a post-industrial society in which emphasis on the manufacture of material goods has been supplanted by the creation of intellectual property. Indeed, this new “knowledge economy” can be tracked by the exponential growth in patented products across a range of sectors since the 1980s. According to the United States Patent and Trademark Office, the number of annual patent applications submitted grew from 112,379 to 520,277 over the past (...) three decades, a 464% increase.The transformation in the industrial markets has been accompanied by the rise of a new, global institution for coordinating intellectual property rights : the World Trade Organization. (shrink)

The expiration of intellectual property rights has been seen to amount to a problem for non-consequentialist theories of intellectual property. In this article, I assess whether the difficulty is real. I maintain that, as things are at least, there is no sufficient reason to believe that the termination of intellectual property rights is an insurmountable problem for non-consequentialist theories of intellectual property rights.

This article contributes to the analysis of refusal to license cases as abuse of a dominant position pursuant Article 82 EC from an economic perspective. In the Microsoft case, the European Commission introduced an "Incentives Balance Test" to assess whether the refusal to give access to interface information can be justified by arguing that this information is protected by Intellectual Property Rights (IPRs): The Commission argued that if the overall innovative effects evoked by a compulsory license are (...) significantly higher than without this access, the IPR owner is obliged to license. This should be assessed through balancing the different incentives to innovate between the dominant firm and its competitors. In the paper we pursue two objectives: Firstly, we analyze to what extent the decision of the Court of First Instance, which confirmed the decision of the Commission, helps to clarify the criteria in refusal to license cases; in fact, it is disappointing in this regard. Secondly, we demonstrate that the basic idea of the Incentives Balance Test can be interpreted as a test whether the specific IPRs of the dominant firm can be defended from the perspective of the economics of IPRs. This implies that Article 82 allows competition law to correct economically not optimal IPRs through a specific economic analysis. This is followed by a broad overview on theoretical and empirical insights from economics of IPRs, innovation economics and competition and network economics that can help to develop a more general and sophisticated Innovation Effects Test that can be applied in Article 82 refusal to license cases. (shrink)

Diese Arbeit untersucht die Frage, ob der aktuelle Schutz des geistigen Eigentums bei Arzneimitteln in Deutschland moralisch zu rechtfertigen ist. Die Untersuchung orientiert sich dabei am aktuellen Diskurs und ordnet die bestehenden Positionen entsprechend ihrer Abstraktheit. Dabei bilden Argumente gegen einen Schutz geistigen Eigentums die allgemeinste Ebene, und Argumente, die sich spezifisch gegen deutsche Arzneimittelpatente richten, die konkreteste Ebene. Ich werde zeigen, dass starke deontologische und konsequentialistische Positionen existieren, welche die realpolitischen Auswirkungen von Arzneimittelpatenten kritisieren. Die konsequentialistische Position argumentiert in (...) erster Linie mit den jüngsten Wirtschaftsdaten, während die deontologische Position die bürgerlichen Autonomieansprüche betont. (shrink)

This paper addresses an apparent dilemma that must be resolved in order to respond ethically to global climate change. The dilemma can be presented as follows. Responding ethically to global climate change requires technological innovation that is accessible to everyone, including inhabitants of the least developed countries. Technological innovation, according to many, requires strong intellectual property protection, but strong intellectual property protection makes it highly unlikely that patent-protected technologies will be accessible to developing countries at affordable (...) prices. Given this, responding ethically to global climate change is highly unlikely. I argue that this apparent dilemma – which I call ‘the patent dilemma in global climate change’ – should be taken seriously. I discuss a number of possibilities for resolving it, and I argue that any acceptable strategy must satisfy the criteria of near-term feasibility and non-paternalism. Finally, I propose a multi-pronged, multi-tiered strategy that meets these conditions. (shrink)

Much of today’s international trade is conducted according to trade agreements that involve substantial and uniform protections of intellectual property rights. Intellectual property rights are a socio‐economic tool that create a temporary monopoly for inventor firms and enable such firms to charge prices for their innovations that are many times higher than the marginal cost of production of the innovations. This allows the inventor firms to salvage their research‐costs and secure a profit on their (...) innovations. A large body of contemporary philosophical and interdisciplinary literature suggests that intellectual property rights give rise to a number of ethical problems. This review paper seeks to give an overview of what these problems are. It also offers an outline of proposals as to how these problems might be alleviated, and it briefly explains the two classical defenses of the ethical permissibility of intellectual property rights. The ethical issues surrounding intellectual property rights are most pertinent when it is socially valuable goods that are given intellectual property protection. The discussions in this paper revolve around just one product type in order to bring out the broader ethical issues surrounding intellectual property rights. In line with much contemporary literature on the ethical dimensions of intellectual property rights, the product type in question is life‐saving medicines. (shrink)

This article argues that considerations about the role and predictability of intellectual innovation make the protection of intellectual property morally obligatory even when it greatly reduces short-term welfare. Since the provision of good new ideas is the only productive input not subject to decreasing marginal productivity, welfarist considerations require that no impediment to its maximal provision be erected and the potentially substantial welfare losses imposed by a patent system be mitigated by taxation of other sources of wealth (...) and income. Key Words: patent system • welfarism • decreasing marginal productivity. (shrink)

This paper responds to an invitation by the editors to consider whether the intellectual property regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred (...) by domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognised by European and international law in respect of authorial works. In the argument made, both of these species of IP right may suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to accommodate the relevant public and private interests in respect of the same. (shrink)

International negotiations on anthropogenic climate change are far from running smoothly. Opinions are deeply divided on what are the respective responsibilities of developed and developing countries with regard to the reduction of greenhouse gas emissions and the alleviation of the negative effects of global warming. A major bone of contention concerns the role of intellectual property rights (especially patents) in the development and diffusion of climate-friendly technologies. While developing countries consider IPRs as a formidable barrier to the (...) rapid transfer and the widest possible diffusion of such technologies, developed countries, by contrast, see IPRs as a vital prerequisite for the development and transfer of these same technologies. This debate shows some similarity with the earlier debate on patents and access to lifesaving medicines, although there are also important differences. In our contribution we will explore both the analogies and the differences with this earlier debate. To provide a focus for our discussion, we will examine whether something similar to the Health Impact Fund (HIF), which has been proposed by philosopher Thomas Pogge as a reasonable solution to the ethical dilemmas of protection and accessibility in the field of pharmaceuticals, can also be elaborated for the development and diffusion of climate-friendly technologies. Thus the central question is how an analogous ‘Climate Impact Fund’ would look like and how it would work. This whole exercise will also yield a normative yardstick for assessing the various designs for a Green Climate Fund or a Technology Mechanism that are currently on the table of the international climate negotiations. (shrink)

Recent debate has focused on the use of intellectual property regimes for the protection of indigenous resources. Both domesticated crops and useful wild plants are shaped by indigenous knowledge and by their uses within indigenous cultures. This implies that the preservation of cultural systems is as important as the conservation of the associated biological resources. Intellectual property has been suggested as a means to protect indigenous resources from misappropriation, and to create increased investment in their conservation. (...) Four recent books that discuss the problems that arise from the application of IPR for the protection of indigenous resources highlight a salient issue: that current IPR systems may conflict and undermine the culture, social structure, and knowledge systems of indigenous societies. In order to support conservation through indigenous management of biodiversity, a number of steps are required for the negotiation of intellectual property systems that are more compatible with indigenous people's value systems and concepts of ownership. (shrink)

Most papers included in this special issue were presented at the Fifth International Bioethics Conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.

In this paper, we provide an overview of how the outcomes of the Uruguay Round affected the application of pharmaceutical intellectual property rights globally. Second, we explain how specific pharmaceutical policy tools can help developing states mitigate the worst effects of the TRIPS Agreement. Third, we put forward solutions that could be implemented by the World Bank to help overcome the divide between creating private incentives for research and development of innovative medicines and ensuring access of the (...) poor to medicine. Fourth, we evaluate these solutions on the basis of utilitarian considerations and urge that equitable pricing is morally preferable to the other solutions. (shrink)

The last several decades have seen the emergence of intellectual property rights (IPRs), especially patents, as a key issue in developments across the fields of law, the economy and the biosciences, and as part of the burgeoning "bioeconomy". This paper examines how the categories of nature and knowledge, so vital to IPR regimes that support bioeconomy-type projects, are challenged by the allegation of biopiracy. It reflects on the relationship between nature, IPR and the bioeconomy, and presents an (...) example of how the creation of new categories, in this case genetic resources, come to impact on how we come to understand nature in relation to the economy and IPRs. The paper then follows this with an analysis of how knowledge is treated in those same systems, focusing specifically on some of the challenges that arise when attempting to bring traditional knowledge (TK) under the rubric of the IPR system. Finally, it examines the allegation of biopiracy in greater depth, and reflects on how it critiques the way the bioeconomy and the IPR regime treat nature, culture, knowledge, and the relationship between them. (shrink)

Purpose – The purpose of this paper is to consider arguments both for and against intellectual property rights that are premised on each of two conceptions of the information commons that attributes either moral value or disvalue to its preservation. Design/methodology/approach – The methodology is the philosophically standard one of reflective equilibrium. The author considers the argument for a morally protected information commons that is grounded in Locke's famous proviso limiting original acquisition of material property to (...) situations that leave enough of the resource to others and Hardin's famous argument that holding material property in common leads to overuse and depletion – a Tragedy of the commons. In particular, the arguments are evaluated according to whether they cohere with ordinary foundational commitments. Findings – The author argues that neither conception of the commons is directly applicable to information objects and hence is relevant with respect to the issue of whether legal protection of IP rights is morally justified. Originality/value – The identification of key differences between material objects and information objects that shows the irrelevance of these two leading conceptions in resolving the general issue of whether legal protection of IP rights is justified. (shrink)

The common discourse on intellectual property rights rests mainly on utilitarian ground, with implications on the question of justice as well as moral significance. It runs like this: Intellectual property rights are to reward the originators for his/her intellectual labour mainly in monetary terms, thereby providing incentives for originators to engage in future innovative labouring. Without such incentives, few, if not none, will engage in creative activities and the whole human community will, thereby, (...) suffer because of reduced inventions. However, such utilitarian argument on piracy as de-motivation may not be necessarily justified. In fact, intellectual property arrangement is one among different institutions concerning how the society may handle new ideas and creative works. In reality, private ownership over one's intellectual product is merely a modern western concept that is being ' advertised' as being normative, which, by itself, is highly debatable. Alarming still, such normative argument assumes both justness and moral dimensions. This article will analyse whether such argument is philosophically sound. (shrink)

Unauthorized appropriation of geneticresources has been described by the term``biopiracy.'' Technological breakthroughsincluding biotechnological applications canincrease considerably the instrumental value ofbiodiversity as new products or products withnew properties can be made. Nevertheless, itappears that, in most cases, the properties inquestion were already known to the indigenouspeople and used for centuries. The analysisdiscusses both from an economic and an ethicalperspective whether it is just that traditionalknowledge is rewarded. As the conflictintensifies over questions of ownership andcontrol of biological materials, IntellectualProperty Rights are (...) at the center ofcontroversies. The current global systemgoverning biotechnology has largely been shapedby Western expectations and valuations andconsequently has drawn severe criticism. Thecritics doubt both the stability andsustainability of the current patent system andargue for restructuring through benefit-sharingsystems in order to address some of theexisting inequalities. With the help of a casestudy (US patent no. 5,751 on ayahuasca) thetheoretical notion of biopiracy is applied toreal problems. (shrink)

The failure of the Canadian pharmaceutical company Biolyse Pharma to obtain authorization under Canada’s Access to Medicines Regime to produce 15 million badly needed doses of a generic copy...

In this paper, we critique the emergent international normative framework of growth – the knowledge economy. We point out that the standardized character of knowledge economy's flagship – intellectual property rights (IPRs) – has an adverse impact on women in emerging economies, such as India. Conversely, this impact on women, a significant consumer segment, has a feedback effect in terms of market growth. Conceptually, we analyze the consequences of knowledge economy and standardized IPR through a feminist lens. (...) We extend the analyses by pointing to various contradictions surrounding growth norms; for example, there are inherent contradictions between established "formal" legalistic interpretation ofIPR, "soft law" norms of corporate social responsibility, a fluid situation of moral claims of human rights, and different institutional capabilities at the international and domestic level. Consequently, we are able to demonstrate how standard IPR laws fail to deliver equity for all. We argue our case through exploring the growth aspects of the agricultural sector in India and the adverse impact of standard biopatenting on women farmers' rights (as producers and consumers) and preservation of environment. We suggest that desired gendered equity is better achieved when there is a constellation of actors – private–sector business, the state, and civil-society leaders – working together to ensure a balanced development through tailoring of IPR to local needs. (shrink)

Open science (OS) is considered the new paradigm for science and knowledge dissemination. OS fosters cooperative work and new ways of distributing knowledge by promoting effective data sharing (as early and broadly as possible) and a dynamic exchange of research outcomes, not only publications. On the other hand, intellectual property (IP) legislation seeks to balance the moral and economic rights of creators and inventors with the wider interests and needs of society. Managing knowledge outcomes in a new (...) open research and innovation ecosystem is challenging and should become part of the EU’s IP strategy, underpinning EU policies with the new open science–open innovation paradigm. (shrink)

Article deals with the situation of enforcement of intellectual property rights in Lithuania after the implementation of 2004 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. First, the authors outline the importance of the proportionality principle which is embedded in the text of the directive, but sometimes may be overlooked because of the rhetoric openly orientated to right holders. Then, the legislative (...) changes in Lithuania’s intellectual property laws and tendencies in case law are analyzed. The main findings of the research show that despite considerable changes in Lithuanian laws, the situation in case law was not in fact influenced. (shrink)

Justifications for intellectual property rights are typically made in terms of utility or natural property rights. In this article, I justify limited regimes of copyright and patent grounded in no more than the rights to use our ideas and to contract, conjoined at times with a weak right to hold property in tangibles. I describe the Contracting Situation plausibly arising from vesting rational agents with these rights. I go on to consider whether (...) in order to provide the best protection for the voluntary activities and consensual interactions occurring within the Contracting Situation, it might be appropriate or even necessary to move to institutions qualitatively similar to copyright and patent. I conclude that in at least some circumstances limited regimes of copyright and patent may be defendable solely on the basis of these very basic rights. (shrink)

Most papers included in this special issue were presented at the Fifth International Bioethics Conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.

The book critically analyses the nature and scope of intellectual property rights using three different approaches: the philosophical, the empirical, and the theoretical. It studies the different justifications usually put forward in favour of protecting intellectual property rights, and shows how such rights come into conflict with other rights in society. The volume also discusses their benefits and drawbacks with the help of case studies. The author contends that rights can and (...) should be 'structured in a lexical order of priority where rights which are linked to survival strategies ought to have enough legal teeth to trump rights which are more in the nature of economic entitlements, like intellectual property rights are'. (shrink)

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in (...) which the grant of a positive limited-term monopoly right entails a corresponding duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions. (shrink)

This article is part of a Symposium that examines the legal and policy issues raised by the Schwarzenegger bobblehead doll litigation, in which a Hollywood star-turned-governor sued under California's right of publicity laws and under federal copyright law to stop a small Ohio company from selling a bobblehead doll depicting Schwarzenegger in a business suit, with a bandolier of bullets, and brandishing an assault rifle. The article contends that defendants' unauthorized use of the Schwarzenegger image on dolls and their accompanying (...) packaging was permissible as First Amendment-protected free speech under California's right of publicity laws and also constituted fair use under federal copyright law. The article rejects the argument that a First Amendment defense to plaintiff's right of publicity claims was unavailable because a bobblehead doll is not a "traditional" medium of expression for ideas. The article recognizes that overly expansive assertions of rights of publicity and other intellectual property rights threaten to stifle creative expression and diminish the cultural commons. The article also calls for clearer and more consistent recognition of defenses to right of publicity claims, particularly for cases where a defendant's unauthorized appropriation of another's image or likeness is for purposes of caricature, parody, or satire¿especially where the image is that of a politician. It concludes that the settlement of the Schwarzenegger bobblehead doll case illustrates how "strategic" assertions of even objectively non-meritorious rights of publicity can allow powerful plaintiffs to censor unflattering depictions of them and to unduly expand intellectual property rights without full adjudication on the merits of such claims.This insight is critical, because while other scholars have suggested that the "over-protection" of intellectual property rights (including rights of publicity) has a deleterious effect on freedom of expression and the public domain, these criticisms focus almost exclusively on published appellate cases. Yet, as this article reminds us, most cases settle and never become litigated cases, much less published appellate decisions. And most disputes - including intellectual property disputes - never result in formal litigation in the first instance. As with most other areas of the civil disputing process, intellectual property disputes are processed in the "shadow of the law", where repeat players have strategic advantages to shape the outcomes of disputes in their favor. Thus, if we want to know whether intellectual property rights are over-protected, we need to know what happens (and why) in the shadow of intellectual property law. This insight is the basis for the author's empirical research-in-progress focusing on "strategic intellectual property enforcement" by owners of trademarks, copyrights, and patents, including enforcement that never results in litigation and is thus under the radar of what most legal scholars in this area of law examine. (shrink)

The claim that indigenous communities are entitled to have intellectual property rights (IPRs) to both their plant varieties and their botanical knowledge has been put forward by writers who wish to protect the plant genetic resources of indigenous communities from uncompensated use by biotechnological transnational corporations. We argue that while it is necessary for indigenous communities to have suchrights, the entitlement argument is an unsatisfactory justification for them. A more convincing foundation for indigenous community IPRs is the (...) autonomy theory developed by Will Kymlicka. (shrink)

Vietnam is home to a prospering technology community and numerous enterprises that range from small start-ups to development giants. Virtually all public services are offered online. In fact, the country even has a system for e-residency and “data embassies.” This achievement derives in part from the nation’s transparent and enduring political preferences, but more importantly from Vietnamese law and its regulatory system regarding information, the digital general public, and intellectual property rights (IPR) protection. In this examination of (...) the most pertinent aspects of Vietnam’s digital economy legislation, this study explores the nation’s regulatory structure regarding copyright and patents within the context of digital transformation. The study discusses the relationship between foreign and national regulations in terms of IPR protection and the advancement of digitalization. Research on Vietnamese regulations and the practical application of major patent and copyright regulations has revealed that in many respects, the nation is highly reliant on the effective operation of a broader foreign institutional and legal framework. Thus, in the near future, technological advancement will necessitate the establishment of additional transnational regulatory systems. (shrink)

There are complex unresolved ethical, legal and social issues related to the use of human tissues obtained in the course of research or diagnostic procedures and retained for further use in research. The question of intellectual property rights over commercially viable products or procedures that are derived from these samples and the suitability or otherwise of participants relinquishing their rights to the samples needs urgent attention. The complexity of these matters lies in the fact that the (...) relationship between intellectual property rights and ownership or rights pertaining to the samples on which the intellectual property right is based may either be overlooked or taken for granted. What equally makes the matter complex is that samples may be obtained from participants in developing countries and exported to developed countries for analysis and research. It is important for research ethics committees to tread carefully when reviewing research protocols that raise such issues for purposes of ensuring that appropriate benefit sharing agreements, particularly with developing countries, are in place.This paper attempts to analyse the key questions related to ownership and intellectual property rights in commercially viable products derived from human tissue samples. Patent law is used as a point of reference as opposed to other forms of intellectual property rights such as industrial designs because it is the right that most inventors apply for in respect of human tissue-related inventions. The key questions are formulated following a systematic analysis of peer reviewed journal articles that have reported original investigations into relevant issues in this field. Most of the cases and reported studies that are referred to in this paper do not directly deal with HIV/AIDS research but the underlying principles are helpful in HIV/AIDS research as well. Pertinent questions, which members of ethics review committees should focus on in this regard are discussed and suggestions on appropriate approaches to the issues are proposed in the form of specific questions that an ethics review committee should consider. Specific recommendations regarding areas for further research and action are equally proposed. (shrink)