scholarly journals Law and Literature in Intellectual Property Methodologies

2021 ◽  
pp. 361-372
Author(s):  
Zahr K. Said
Keyword(s):  
Intellectual Property ◽  
Practical Wisdom ◽  
Law And Literature ◽  
Community Law ◽  
Scope Of Protection

This chapter offers an overview of Law and Literature and explores three primary areas in which intellectual property (IP) scholarship engages with Law and Literature’s methods and tools: the creation of objects that give rise to rights; the definition and enforcement of those rights and their limits; and the narrative of progress and revisionist theories of the field. IP concerns intangible constructs: works, inventions, secrets, marks, or personas. IP ownership implicates theories of representation given the symbolic nature of IP rights to the things they protect, and determining the scope of protection almost always entails multiple interpretive steps. Hence theories of representation and interpretation are relevant to defining the work, assessing the scope of protection, and conducting infringement analysis. Lastly, Law and Literature offers larger narratives about IP that centre on values, history, textuality, theory, culture, context, selfhood, or community. Law and Literature has helped broaden beyond the narrow utilitarian framing of the received approach to IP and thus provided disciplinary cover for pluralistic accounts of the field to emerge. In this revisionism, the three main strands of Law and Literature—which centre on practical wisdom, interpretation, and narrative—offer diverse alternatives for measuring progress or evaluating the IP system in broader sociological and constitutional context.

14. Defences to trade mark infringement

2019 ◽  
pp. 320-360
Author(s):  
Stavroula Karapapa ◽  
Luke McDonagh
Keyword(s):  
Intellectual Property ◽  
Trade Mark ◽  
European Economic Area ◽  
European Economic ◽  
Trade Mark Infringement ◽  
Economic Area ◽  
Parallel Importation ◽  
Own Name ◽  
Scope Of Protection

This chapter looks at the various defences against trade mark infringement and the way in which the courts have interpreted them. A defendant's principal argument will be to deny that there has been any infringing conduct, and/or that what has been done is not within the scope of protection given to the registered mark. There are, however, a number of statutory defences. These defences span from the use of one's own name to a framework outlining the conditions of comparative advertisement and the role of exhaustion of rights as a defence to an action for trade mark infringement, including the ways in which the intellectual property owner can object to the parallel importation of non-European Economic Area (EEA) goods.

The History and Background of American Copyright Law: An Overview

1978 ◽  
Vol 6 (2) ◽  
pp. 151-158 ◽  
Author(s):  
Gerard Magavero
Keyword(s):  
Intellectual Property ◽  
General Public ◽  
Economic Incentive ◽  
Book Trade ◽  
Copyright Law ◽  
Law And Literature ◽  
Printing Press ◽  
Limited Time ◽  
Medieval Europe ◽  
Ancient Times

Copyright is a monopoly conferred upon authors or creators of literary, dramatic, musical, and artistic works to produce, reproduce, adapt, or perform their works for a limited time. The Copyright Law, by conferring this monopoly upon authors and their assignees, provides an economic incentive “to those with the requisite ability to create intellectual property” and to “publishers, recording firms, and similar enterprises to package and distribute these intellectual creations to the general public.” Prior to the invention of the printing press the possibility of commercial gain from the production of intellectual property was severely limited by the drudgery involved in manual copying of manuscripts, which work was performed by slaves in ancient times and monks under a vow of obedience later. Private patrons and universities provided the only economic incentive to authors to produce intellectual property and the book trade was small. Although both law and literature existed in abundance in ancient and medieval Europe, Copyright Law was unknown.

scholarly journals How Vague Can Your Patent Be? Vagueness Strategies in U.S. Patents

2017 ◽  
Vol 25 (48) ◽  
pp. 55
Author(s):  
Ismael Arinas
Keyword(s):  
Intellectual Property ◽  
Qualitative Analysis ◽  
The Other ◽  
Desirable Characteristic ◽  
Other Hand ◽  
Starting Point ◽  
Semantic Indeterminacy ◽  
The One ◽  
Scope Of Protection

Patent claims define the protection scope of the intellectual property sought by the patent applicant or patentee. Broad claims are valuable as they can describe more expansive rights to the invention. Therefore, if these claims are too broad a potential infringer will more easily argue against them. But if the claims are too narrow the scope of protection of the intellectual property is greatly reduced. Patent claims have to be, on the one hand, determinate and precise enough and, on the other hand, as inclusive as possible. Therefore patent applicants must find a balance in the broadness of the scope defined by their claims. This balance can be achieved by the choice of words with a convenient degree of semantic indeterminacy, by the choice of modifiers or other strategies. In fact, vagueness in patent claims is a desirable characteristic for such documents. A quantitative and qualitative analysis of a corpus of 350 U.S. patents provides a promising starting point to understand the linguistic instruments used to achieve the balance between property claim scope and precision of property description. To conclude, some issues relating vagueness and pragmatics are suggested as a line of further research.

scholarly journals Making a Large Universe Visually Perceptible

2018 ◽  
pp. 13-36 ◽  
Author(s):  
Denis Croze
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Standing Committee ◽  
Member States ◽  
Legal Regimes ◽  
Definition Of ◽  
Scope Of Protection

As it is the case for most intellectual property rights, trademarks have been experiencing an extension of their scope of protection in new domains and today more and more IP offices are registering non-traditional trademarks (NTTMs). However, because of the lack of internationally accepted definition of NTTMs, the absence of international instrument harmonizing their registration and protection at the multilateral level—which leads to a diversity of national legal regimes and practices—their trademark owners often experience uncertainty in their protection. Although WIPO treaties have not specifically regulated NTTMs, their development has been extensively discussed at WIPO meetings and diplomatic conferences. This chapter details the discussions and documents produced by the WIPO at the request of the Standing Committee of Trademarks (SCT) which provide a thorough analysis of the challenges, practices, methods of representation, and description of NTTMs, as well as possible areas of convergence which have been agreed upon by WIPO Member States.

scholarly journals PERLINDUNGAN HUKUM TERHADAP PENGETAHUAN TRADISIONAL MELALUI PENGEMBANGAN SUI GENERIS LAW

FIAT JUSTISIA ◽  
2016 ◽  
Vol 9 (4) ◽  
Author(s):  
Rohaini Rohaini
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Qualitative Approach ◽  
Property Right ◽  
Intellectual Property Right ◽  
International Pressure ◽  
Property Regimes ◽  
Scope Of Protection

It’s cannot deny that intellectual property right laws, in certain aspects are possible for using to protect traditional knowledge from their utilization. However, in the same time, intelectuual property rezim also become “a tool” to legitimate of biopiracy practices. Due to the massive of international pressure, mostly developing countries, and the awereness that intellectual property regimes doesn’t optimal to protect traditional knowledge, it develops a discourse to develop a sui generis law outside of intellectual property right regimes. By using the normative method and qualitative approach, this research shows that in order to develop the sui generis law in Indonesia, there are several minimum elements that shall be contained in it, inter alia: the purposes of protection; scope of protection; creteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how does the rights acquired; how to enforce it; how does the rights lost or expired; and dispute resolution.Keywords: protection, traditional knowledge, sui generis law

The Protection of Traditional Knowledge in the Knowledge Economy: Cross-Cutting Challenges in International Intellectual Property Law

2012 ◽  
Vol 14 (2) ◽  
pp. 137-178 ◽  
Author(s):  
Teshager Dagne
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Economic Integration ◽  
Knowledge Economy ◽  
Legal Protection ◽  
Property Law ◽  
Global Knowledge ◽  
Intellectual Property Law ◽  
Equitable Sharing ◽  
Scope Of Protection

Abstract This article explores and analyses existing frameworks and current initiatives for legal protection of traditional knowledge (TK) in international intellectual property law. The need to protect TK and to secure fair and equitable sharing of benefits derived from its use is accepted in major forums of international intellectual property law-making. Considerable differences exist, however, on the mode and scope of protection, and the extent to which the issue of TK protection can be addressed in respective institutions entrusted with the task: the CBD, WIPO, WTO, and FAO. In this article, general trends and specific problems that underlie demands for the protection of TK are analysed in light of contemporaneous trends of global economic integration in the age of global knowledge economy. After consideration of challenges and threats to TK that need to be addressed through a protection system, initiatives for the protection of TK in national and international frameworks are analytically explored, and various proposals and approaches for protection are critically examined.

The Legal Protection of Databases: a Study of Jordanian Law

2008 ◽  
Vol 22 (4) ◽  
pp. 359-386
Author(s):  
Fayyad Alqudah
Keyword(s):  
Intellectual Property ◽  
Legal Protection ◽  
Trips Agreement ◽  
World Intellectual Property Organization ◽  
Exceptions And Limitations ◽  
Local Law ◽  
Precautionary Measures ◽  
Criminal Protection ◽  
International Conventions ◽  
Scope Of Protection

This article deals with the legal protection of databases under Jordanian law. Section 1, on protection afforded under international conventions and agreements, discusses four international conventions: i.e., the Berne Convention for the Protection of Literary and Artistic Works, Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, World Intellectual Property Organization Copyright Treaty (WCT) and Arab Convention on Copyright. Section 1.1. discusses the legal base in Jordan for such protection under international conventions. According to Jordanian law and court practice, international conventions to which Jordan is party have supremacy over the provisions of local law. In Section 1.2., the scope of protection, including exceptions and limitations, is discussed. Databases are protected under these conventions if the selection and arrangement of their content can be shown to be intellectual property. Section 1.3. is devoted to the remedies these conventions offer. It is shown that the TRIPS Agreement includes detailed provisions that afford administrative, precautionary, as well as civil and criminal protection to authors of databases. Section 2.1., on protection under Jordanian law, shows that Jordanian Copyright Law (JCL) provides a legal base for protection of databases in its provisions, as discussed in Section 1.1. The scope of protection, including exceptions and limitations, is presented in Section 2.2. In addition to protecting the author's traditional rights to the database created, JCL has introduced legal measures to protect the technology used to prevent illegal access to databases. Section 2.3. discusses the remedies afforded under local law, i.e., administrative, precautionary measures as well as civil and criminal protection. Also, Jordanian courts have upheld such protection in all areas. Thus, one may conclude that databases are protected under the Jordanian legal system to the same degree upheld in the TRIPS Agreement and in compliance with international standard.

Judging from Experience

2019 ◽  
Author(s):  
Jeanne Gaakeer
Keyword(s):  
Practical Wisdom ◽  
Legal Theory ◽  
Building Blocks ◽  
Interdisciplinary Studies ◽  
Law And Literature ◽  
Law System ◽  
Legal Professionals ◽  
Judicial Practice ◽  
Advanced Students ◽  
Law And Humanities

Judging from Experience forms part of Law and Literature and/or, more broadly, Law and Humanities, the interdisciplinary movement in legal theory that focuses on the various bonds of law, language and literature. The book presents a view on law as a humanistic discipline. It demonstrates the importance for academic legal theory and legal practice of a iuris prudentia as insighful knowledge of law that helps develop the practitioner’s practical wisdom. In doing so it builds on insights from philosophical hermeneutics ranging from Aristotle to Ricoeur. The building blocks it proposes for law as praxis are indicative of a methodological reflection on interdisciplinary studies in law and the humanities and of the development of legal narratology.The book engages with literary works such as Flaubert’s Bouvard and Pécuchet, Musil’s The Man without Qualities, and McEwan’s The Children Act to illuminate its arguments and offer a specific European perspective on the topics discussed. The author combines her understanding of legal theory and judicial practice in a continental-European civil-law system, and, within it, in the field of criminal law, to propose a perspective on law as part of the humanities that can inspire both legal professionals and advanced students of law. Thus the book is also a reflection of the author’s combined passions of judicial practice and Law and Literature.

scholarly journals Framing an Islamic Vision of Intellectual Property: Maqasid - Based Approach

2018 ◽  
Vol 5 (3) ◽  
pp. 25-40
Author(s):  
Kawthar Abdalla Bayoumi ◽  
Arieff Salleh Rosman
Keyword(s):  
Intellectual Property ◽  
Practical Implication ◽  
Holistic Approach ◽  
Major Premise ◽  
Current Application ◽  
The Core ◽  
Property System ◽  
Utilitarian Approach ◽  
Rule Based Approach ◽  
Scope Of Protection

The Islamic scholarship on Intellectual Property (IP) has extensively investigated its affinity to Shari’a upon a rule-based approach whereby a profound analogy and reasoning eventually generated a Fiqh rule that embraced the concept. However, a lingering discrepancy vis-à-vis the philosophical underpinning is hardly addressed. This paper undertakes an approach based on Maqasid al-Shari’a (objectives of Shari’a) to explore that underpinning as it pertains to the three key elements in the making of IP, namely, creativity, property, and policy. The major premise of the paper is that the current IP framework failed to fulfil the needs and aspirations of the Islamic countries. While its underlying objective emphasizes a strong utilitarian approach that contradicts in many ways the Islamic Shari’a. Consequently, better outcomes can be reached by adopting a holistic approach that takes into consideration the practical implication of IP system according to the benefits and interest of Muslim’s societies. Whereby, IP should be comprehensively addressed according to the sources, objectives, and principles of Islamic Shari’a. These can be employed to evaluate the current application of IP and to identify the elements required in an IP system that is congruent with Islamic Shari’a. The comparative analysis of the fundamentals of the present international intellectual property system and the Islamic perspective indicated that the core aspects of IP concerning the concept of creativity and the scope of protection are delineated differently under the Islamic framework. Moreover, the policy and regulations as can be derived from the principles and Maqasid al-Shari’a have a great potential in promoting a robust Islamic IP system that is in line with Shari’a, the needs, and orientation of the society.

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