scholarly journals A Post-Colonial Framework for Researching Intellectual Property History

2021 ◽  
pp. 260-271
Author(s):  
Michael Birnhack
Keyword(s):  
Intellectual Property ◽  
Late Nineteenth Century ◽  
Critical Approach ◽  
Trademark Law ◽  
Post Colonial ◽  
Foreign Law ◽  
The Social ◽  
The Law ◽  
Ip Law ◽  
British Colonies

Most of the literature on intellectual property (IP) legal history focuses on Western IP norms and ideas, especially British, American, and former British colonies. This chapter adds critical questions, in the context of imperialism and colonialism, namely, a post-colonial view of IP. As the Empires of the late nineteenth century and early twentieth century, especially the British Empire, extended their global reach, they applied their own IP law in the new territories they controlled. They did so mostly for their own benefit. Thus far, most IP history was told from the colonizers’ perspective. This chapter argues for the inclusion of the colonized perspective and offers a conceptual research framework. Colonial IP lies at the intersection of: (1) a critical approach to legal transplants that views it as a process and interaction of foreign law and local laws and norms; (2) applied in a colonial setting; and (3) taking into account IP’s unique features. This framework offers a critical stance that is aware of the multiplicity of voices, and builds on lessons from the study of law and society about gaps between the law in the books and the law in practice, about the social construction of the law, and the powers at stake. It enables us to be sceptical of the official history and is a post-colonial approach to IP. Along the discussion, I provide some examples, mostly from copyright and trademark law in Mandate Palestine (1922–1948).

scholarly journals Weighing intellectual property: Can we balance the social costs and benefits of patenting?

2018 ◽  
Vol 57 (1) ◽  
pp. 140-163
Author(s):  
Mario Biagioli
Keyword(s):  
Intellectual Property ◽  
Social Costs ◽  
Costs And Benefits ◽  
Ip Protection ◽  
The Public ◽  
Clear Sense ◽  
The Social ◽  
The Law ◽  
Social Costs And Benefits ◽  
Ip Law

The scale is the most famous emblem of the law, including intellectual property (IP). Because IP rights impose social costs on the public by limiting access to protected work, the law can be justified only to the extent that, on balance, it encourages enough creation and dissemination of new works to offset those costs. The scale is thus a potent rhetorical trope of fairness and objectivity, but also an instrument the law thinks with – one that is constantly invoked to justify or to question the extent of available IP protection. The balancing act that underlies the legitimacy of IP is, however, literally impossible to perform. Because we are unable to measure the benefits that IP has for inventors or the costs it has for the public, the scale has nothing to weigh. It conveys a clear sense that IP law can be balanced, but in fact propagates only a visible simulacrum of balance – one that is as empty as it is powerful.

scholarly journals Is There a New Extraterritoriality in Intellectual Property?

2021 ◽  
Vol 44 (4) ◽  
Author(s):  
Timothy R. Holbrook
Keyword(s):  
Intellectual Property ◽  
Patent Law ◽  
The State ◽  
Current State ◽  
Descriptive Account ◽  
Foreign Law ◽  
Lower Courts ◽  
The Law ◽  
Ip Law ◽  
The Impact

This Article is the first to comprehensively interrogate the impact of the Supreme Court’s recent interventions in extraterritoriality as it relates to the three historical forms of federal intellectual property: patent, copyright, and trademark. In this manner, it fills an important gap in the literature because most assessments of the presumption focus only on one area of law. Moreover, this Article offers a novel comparative assessment of the evolution of the presumption across the patent, copyright, and trademark regimes, offering both a descriptive account of the state and evolution of the law, as well as a normative assessment of whether the current state of the law best effectuates the policies that justify these forms of protection. In reviewing the application of the Supreme Court’s recent jurisprudence in these three areas of intellectual property, the Article concludes that the Supreme Court’s effort to standardize the law of extraterritoriality has failed. Lower courts’ engagement with the presumption has been, at best, inconsistent. There are times where the courts simply ignore the Court’s recent cases, relying on previous cases and doctrine without pausing to reconsider whether those doctrines survive the Supreme Court’s latest changes to the law. The Article also concludes that this inconsistency cannot be justified based on the differing policies surrounding copyright, trademarks, and patents. This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been some impact on patent law, but virtually none on copyright or trademark. The Article assesses whether there is a new extraterritoriality for intellectual property and concludes that there is not: The Supreme Court’s efforts, at least in IP, have not led to greater coherence. While there may be reasons for the lower courts’ failure to follow the framework, it does represent a missed opportunity for cross fertilization, at least among intellectual property regimes, if not across all fields of law. It also offers a call for the consideration of comity—looking to foreign law and potential conflicts—in deciding whether to apply U.S. law extraterritorially.

scholarly journals THE COMPARISON OF LEGAL DAMAGES FOR COPYRIGHT & BRAND INFRINGEMENT AMONG INDONESIA-CHINA LAWS

2021 ◽  
Vol 8 (3) ◽  
pp. 466
Author(s):  
Heri Gunawan ◽  
Joni Emirzon ◽  
Muhammad Syaifuddin
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Legal Protection ◽  
Trademark Law ◽  
Republic Of China ◽  
Trademark Infringement ◽  
Positive Law ◽  
The Law ◽  
The Right

Intellectual Property Rights or what is often abbreviated as HAKI is a legal protection given by a certain country to a person or group of individuals who express their ideas in the form of works. This law is a state territory. This means that a work will only be protected by rights in the country where the work originated to obtain IPR. As stated in the Copyright Laws, Intellectual Property Rights are exclusive rights granted by a regulation to a person or group of people for their copyrighted works. This protected work is in the form of intangible objects such as copyrights, patents, and trademarks and tangible objects in the form of information, technology, literature, art, skills, science, and so on. The idea of compensation law for copyright and trademark infringement in Indonesia, of course, can imitate the copyright law and trademark law of the People's Republic of China in regulating more clearly the calculation of the value of losses for copyright and trademark infringement in order to be able to provide legal certainty for the owner / rights holders whose rights have been violated. The research use normative juridical approach. The purpose of writing is to analyze and explain the calculation of compensation by looking at the criteria, evidence, basis, form and formulation of calculating compensation for copyright and trademark infringement. The results of the study stated that the law for compensation that arises as a result of copyright and trademark infringement according to positive law in Indonesia still does not regulate in detail the calculation of the value of the loss of both copyrights and trademarks. Copyright Act No.28 of 2014 and Trademark Act No.20 of 2016 only gives rights to the right owner/right holder to file a claim for compensation, but the law does not regulate how to determine the value of the loss for a copyright infringement as well as brands.

scholarly journals A Research Framework on Intellectual Property and Morality

2021 ◽  
pp. 791-806
Author(s):  
Christine Haight Farley
Keyword(s):  
Intellectual Property ◽  
Trade Secret ◽  
Copyright Law ◽  
Patent Law ◽  
Moral Judgments ◽  
Trademark Law ◽  
Research Framework ◽  
Law And Morality ◽  
Ip Law

This chapter traces the role of morality in intellectual property (IP) law by outlining the scholarship that addresses what extent, if any, the law does or should reflect moral judgments. Scholars have investigated this question, either explicitly or implicitly, in all of the categories of IP including patent law, trademark law, and copyright law, and to a lesser extent, trade secret law and right of publicity law. In surveying the robust scholarship and diverse perspectives about whether morality has a place in IP law, the chapter reveals an academic dispute surrounding the degree to which law should rely on morality. Some scholars look at IP through the lens of morality; some see only a disconnect between IP law and morality. For some, morality serves as a basis for IP rights, while others find law and morality to be so conceptually distinct as to be irreconcilable. Some see a danger in IP laws being in conflict with morality, while others view the introduction of morality as a danger. The chapter organizes the scholarship by the position it takes on the appropriateness of the juxtaposition of IP and morality while recognizing that the complexity of IP scholars’ relationship to morality is matched only by the complexity of morality itself as a concern of law.

1. Intellectual property law: an introduction

2019 ◽  
pp. 2-28
Author(s):  
Abbe Brown ◽  
Smita Kheria ◽  
Jane Cornwell ◽  
Marta Iljadica
Keyword(s):  
European Union ◽  
Intellectual Property ◽  
Property Law ◽  
Field Of Study ◽  
Intellectual Property Law ◽  
Global Context ◽  
Realistic View ◽  
The Law ◽  
Ip Law ◽  
Different Levels

This chapter provides an accessible introduction to intellectual property (IP) law. It provides and challenges some definitions of intellectual property law and IP itself. It discusses the development of IP law as a field of study in an increasingly global context and presents a realistic view of the law as it actually operates; the relationships between different levels of IP law—at national, European, European Union, and international levels; the various influences on the formation, justifications for, and development of IP law including between IP law and other legal fields; and the tensions that arise from different perspectives when the law seeks to protect IP.

scholarly journals Intellectual Property Law – Transfer of Technology

2008 ◽  
Vol 36 (2) ◽  
pp. 338-341 ◽  
Author(s):  
Veerendra Tulzapurkar
Keyword(s):  
Intellectual Property ◽  
Copyright Law ◽  
Property Law ◽  
Confidential Information ◽  
Trademark Law ◽  
Intellectual Property Law ◽  
Transfer Of Technology ◽  
The Law ◽  
Written Law

The law of patent, trademark law, copyright law and the law relating to industrial designs are the statutory enactments forming part of intellectual property law which have a bearing on the transfer of technology. There is one more branch of intellectual property law which also has a bearing on the transfer of technology and that is the law relating to confidential information or law relating to confidentiality. This law is not a written law; it is judge made law, in the sense that it is developed through cases.

Remedies

2017 ◽  
Author(s):  
Terence P. Ross
Keyword(s):  
Intellectual Property ◽  
Western Tradition ◽  
The Future ◽  
Recent Developments ◽  
American Intellectual ◽  
The Law ◽  
Anglo American ◽  
Ip Law

This chapter surveys the development of the law of damages and remedies in Anglo-American intellectual property (IP) law. It differentiates the two principal approaches to damages for IP infringement in the Western tradition—pre-fixed or statutory and discretionary damages—and explains several predicates for obtaining them. It also discusses how damages awards are calculated in IP, and what are their key elements. Finally, it discusses non-monetary remedies for IP infringement, including general principles of equitable awards with particular attention to their procedural requirements and potential defenses. The chapter concludes by identifying certain recent developments that may be expected to have a significant impact on this aspect of IP law in the future.

scholarly journals Owning Mark(et)s

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Intellectual Property ◽  
Empirical Data ◽  
Free Riding ◽  
Real Property ◽  
Trademark Law ◽  
Legitimate Interests ◽  
The Law

Trademark owners regularly rely on claims that the defendant is “freeriding” on their mark by making money using that mark, foreclosing anopportunity for the trademark owner to capture that revenue. We analyzethose free riding claims and find them wanting. The empirical data showsthat defendants in unrelated markets can benefit from using a well‐knownmark, but that neither mark owners nor consumers suffer any injury fromthat use. A legal claim that a defendant is unjustly benefiting by using aplaintiff’s mark is hollow unless it is accompanied by a theory of why thatbenefit should rightly belong to the plaintiff. And unlike real property,or even other types of intellectual property, trademark law has no suchtheory. The result is that free riding claims fall back on emptycircularity. Those free riding arguments are - explicitly or implicitly -behind the most problematic expansions of trademark law in recent years. Wesuggest that trademark law needs a theory of trademark injury thatdistinguishes harm to legitimate interests the law should protect from amere desire to capture a benefit enjoyed by another.

scholarly journals The Role of National and International Intellectual Property Law and Policy in Reconceptualising the Definition of Investment

2021 ◽  
Vol 52 (2) ◽  
pp. 103-136
Author(s):  
Pratyush Nath Upreti
Keyword(s):  
Intellectual Property ◽  
Intellectual Property Rights ◽  
Main Argument ◽  
Investment Arbitration ◽  
Law And Policy ◽  
The Social ◽  
Definition Of ◽  
Ip Law ◽  
Investment Agreements

AbstractThis article analyses the role of national and international intellectual property (IP) law in assessing IP as a protected investment. It offers two approaches for controlling investment arbitration related to intellectual property rights (IPRs), followed by an examination of the implications and challenges of those approaches. Its main argument is that even if a dispute arises from an investment (IP as an investment), it does not necessarily fall under the jurisdictional requirements of investment arbitration. Rather, assessing IP as an investment must be done by referring to national laws. This is more relevant in the case of IPRs as they are territorial. This means that rights and obligations are derived from national IP legislation. Essentially, only those IPRs that are “protected” by national regimes should be treated as investments. This article also examines the language used in investment agreements and arbitral awards to analyse the role of national law, particularly in determining the validity and scope of IP investments. Then it examines three IP-related arbitral cases to discuss how arbitral tribunals have used national law. Finally, it suggests approaches for controlling investment arbitration by integrating the territoriality principle and the social objectives and bargains achieved through international IP treaties.

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