Linkages in International Law Affecting Intellectual Property

Author(s):  
Henning Grosse Ruse-Khan

This chapter gives a cursory review of situations where the rules of international intellectual property (IP) law interface with those of other rule-systems in international law. Mapping these relationships is challenging, given the multitude of rules, institutions, and actors in international law. Those have increased dramatically in number since the foundations of international IP law in the form of the Berne Convention (BC) on the Protection of Literary and Artistic Works and the Paris Convention on the Protection of Industrial Property. These interfaces, however, give evidence of a wider phenomenon which is commonly referred to as ‘fragmentation’ on the global level. Such fragmentation has provoked a debate in social, political, and legal science on how to perceive and describe this phenomenon and what responses (in particular in terms of ways to resolve conflicts or tensions between branches of international law) it calls for.

2021 ◽  
pp. 1-20
Author(s):  
Tuomas Mylly ◽  
Jonathan Griffiths

This chapter traces the transformation of global intellectual property protection. The classical Convention regime, epitomised by the Paris Convention protecting industrial property and the Berne Convention protecting copyright, dominated the international IP scene for about a century. Other norm sets have become relevant for IP more recently. These often strengthen IP rights or grant them complementary protection and include international investment agreements (IIAs), predominantly in the form of bilateral investment treaties (BITs) and investment chapters in trade treaties; the protection of property ownership as a fundamental right; private regulation of IP; and IP-specific counter-norms. Ultimately, this transformation of global IP law necessitates a broadening of the constitutional discourses relevant for IP. Constitutional pluralism, new constitutionalism, and societal constitutionalism represent the main currents of such global constitutional discourses.


Author(s):  
Henning Grosse Ruse-Khan

This book examines intellectual property (IP) protection in the broader context of international law. Against the background of the debate about norm relations within and between different rule systems in international law, it constructs a holistic view of international IP law as an integral part of the international legal system. The first part considers norm relations within the international IP law system. It analyses the relationship of the two main unilateral IP conventions to the World Trade Organisation (WTO) Agreement on Trade Related Aspects of International Property Rights (TRIPS), as well as the relationship between TRIPS and subsequent Free Trade Agreements (FTAs). The second part discusses alternative rule systems for the protection of IP. The third part identifies important intersections and links between the traditional system of IP protection and other areas of international law related to environmental, social, and economic concerns. These include free trade in goods; biological diversity, genetic resources, and traditional knowledge; multilateral environmental agreements (MEAs) on climate change; and access to medicines and food. This analysis provides significant insights into the nature and quality of international law as a legal system. The fourth part identifies appropriate norms within the international IP system that can respond to these complexities and linkages.


Author(s):  
Henning Grosse Ruse-Khan

This chapter discusses conflict-resolution tools and develops an analytical structure building on rules and principles in international intellectual property (IP) treaties, other rule-systems, and general international law to define norm relationships of interpretation and of conflict. Several tools are taken from the ‘toolbox’ developed in the Fragmentation Report of the International Law Commission and other fragmentation literature. Depending on the type of relationship at stake, the most appropriate legal tools to address them may vary. The ILC Report and Conclusions provide for some of the tools and to some extent for an analytical structure, a logical order for examining these relationships. As the chapter shows, for some types of legal relations other approaches are more adequate. They hence complement the ILC principles and need to be integrated in the set of tools available.


2019 ◽  
Author(s):  
Riki Andus Manulang

Revolusi industri di Inggris pada sekitar abad 18 telah mengubah dunia secara drastis. Teknologi telah mengambil alih peran manusia dalam memenuhi kebutuhan hidupnya terutama dalam hal mengatasi ruang dan waktu. Temuan-temuan besar seperti mesin uap, mesin cetak dan lain-lain membuat para inventor dan perusahaan besar mulai sering memamerkan hasil-hasil temuan mereka. Namun, bersamaan dengan ditemukannya teknologi industri timbul kekhawatiran bahwa ada kemungkinan ide atau gagasan-gagasan mereka dicuri oleh pesaing-pesaing bisnis mereka atau orang yang akan menggunakannya tanpa ijin dan mengambil keuntungan pribadi, tanpa memperhatikan hak-hak penemu, sehingga mereka enggan ikut dalam pameran-pameran internasional (world fair) . Sejak saat ini dia antara mereka timbul kebutuhan perlindungan hak hasil kekayaan intelektual. Kebutuhan perlindungan atas suatu desain industri mulai dikenal sekitar abad ke 18. Kebutuhan perlindungan hukum ini dimotori sekelompok profesional,Patent Lawyers yang sedang berkumpul di Vienna, Austria dalam suasana Vienna World Fair pada tahun 1873. Pada 1883 mereka mengadakan konvensi di Paris yang kemudian dikenal dengan The Paris Convention for the Protection of Industrial Property. Saat ini Paris Convention mengakomodasi perlindungan penemuan-penemuan di bidang industri seperti hak atas paten, merek, rahasia dagang, desain tata letak sirkuit terpadu, indikasi geografis, varietas tanaman termasuk desain industri.Dalam pertemuan Putaran Uruguay di Marrakes, Maroko 1994, Indonesia hadir dan menandatangani The Final Act Embodying the Results of The Uruguay Round of Multilateral Trade Negotiations yang menghasilan dibentuknya organisasi perdagangan dunia (World Trade Organization). Moment ini mempunyai arti yang luas dan dalam bagi Indonesia, baik secara politis, ekonomi dan hukum. Selain menjadi anggota WTO yang mempunyai hak-hak sebagai anggota juga kewajiban-kewajiban antara lain mentaati seluruh keputusan-keputusan yang diambil organisasi ini. Di dalam lampiran The Final Act terdapat lampiran Trade Releated Aspect of Intellectual Property (Aspek-aspek dagangan kekayaan intelektual). Dampak dari hal itu ada kewajiban bagi negara anggota untuk melakukan harmonisasi peraturan-peraturan termasuk peraturan kekayaan intelektual. Maka, pada tahun 2000, pemerintah Indonesia menerbitkan beberapa peraturan HKI, yaitu Undang-Undang No. 29 tahun Tentang Varietas Tanaman; Undang-Undang No. 30 Tahun 2000 Tentang Rahasia Dagang; Undang-Undang No. 31 Tahun 2000 Tentang Desain Industri; Undang-Undang No. 32 Tahun 2000 Tentang Desain Tata Letak Sirkuit Terpadu.Dengan judul Desain Industri Sebagai Seni Terapan Dilindungi Hak kekayaan Intelektual secara yuridis normatif akan dijelaskan bahwa suatu desain selain dapat dilindungi hak Desain Industri juga dapat dilindungi dengan hak cipta. Dalam tulisan ini akan diangkat tentang apakah suatu desain dapat dilindungi dengan hak cipta? Bagi seorang pendesain perlindungan hak apa yang akan dipilih untuk melindungi hasil desain suatu produk?


2021 ◽  
pp. 15-33
Author(s):  
Henning Grosse Ruse-Khan

This chapter offers a framework for legal research that concerns or applies ‘international law’ concepts, perspectives, and methodologies to intellectual property (IP). The idea is to discuss how research questions related to IP can be framed from the standpoint of international law. This begs an initial question: what do we mean by ‘international law’ and how does this relate to IP? Section I tackles these questions by offering a range of possible views on the notion of international IP Law. Section II then considers how a multidimensional conception of international law can serve to frame research questions on IP. It also gives some more concrete examples of the diversity in adopting an international law approach to IP.


2019 ◽  
Vol 2 (1) ◽  
pp. 81
Author(s):  
Amjad Hassan ◽  
Hasan Falah

A trademark is considered to be one of the most important elements of intellectual property for its ability to distinguish goods and services from others, it is the fruit of the effort of the merchant who did the best he could to bring the product to its fame and gained the admiration of the public worldwide. The merchant aims to attract customers, control the market, compete legitimately and takes the trademark as a way to achieve it, the greater the fame of the brand, the greater its popularity and financial value. This leads others to try to take advantage of the reputation and popularity of this brand by simulating, copying or falsifying it, which harms the owners of trademarks and consumers and negatively affects the development of the national economy. The regulation of well-known trademarks is a national necessity and an international requirement, and therefore Arab laws and international conventions "The Paris Convention for the Protection of Industrial Property and the Agreement on the Aspects of Intellectual Property Rights from International Trade" (TRIPS) all implemented special regulations of well-known trademarks. In Palestine, the Jordanian Trademark Law No (33) of 1952 is applicable in the West Bank and the Regulator of Trademarks in general; It did not establish special rules for the protection of well-known trademarks, which imposes on the Palestinian judiciary and specialists the burden of searching for ways to protect these marks in accordance with the provisions of the Trademark Law and the general rules, judicial principles and practical familiarity with reality.


Author(s):  
Caroline B. Ncube

Intellectual property (IP) law is a knowledge governance system for creative works, marks, products, and processes that exists at domestic, regional, and international levels. National legislation creates economic and moral rights in works, marks, products, and processes. Generally, IP is categorized into two main classes, namely (i) industrial property and (ii) copyright and related rights. Industrial property encompasses patents, which protect product and process inventions; trademarks, which protect marks such as logos and brands; industrial designs; and geographical indications. Copyright protects creative works, including those of a literary, dramatic, musical, and artistic nature. Related rights protect performers, producers of phonograms or sound recordings, and broadcasters of radio and television programs. National IP legislation on each of these aspects is informed by binding international norms contained in agreements which the relevant state is party to. African states are party to several IP law regimes with other countries within the continent and beyond. International here means beyond continental borders, that is, arrangements for IP regulation with non-African state parties. This article outlines the literature on the engagement with, and participation in, international IP law regimes by African states and related literature on topical issues such as access, regional integration, international relations, innovation, development, biodiversity, plant breeders’ rights, and the protection of traditional knowledge. This work is based on the research supported in part by the National Research Foundation (NRF) of South Africa. Any opinion, finding and conclusion or recommendation expressed in this material is that of the author and the NRF does not accept any liability in this regard.


2018 ◽  
Author(s):  
Boris N. Mamlyuk

10 Washington University Global Studies Law Review, (2011)This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with an examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence, and tension between state ideology, positive law, and "law in action." The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has emerged as one of the largest hurdles for Russia's prolonged accession to the World Trade Organization (WTO), these historical precedents may help explain Russia's apparent theoretical and political disconnect from the WTO. If Russian policymakers and many Western analysts agree that Russia has complied with all necessary structural adjustment reforms for WTO accession (including reforming its IP legislation), then deeper points of contention between Russia and the West must be identified. One point of departure, the Article posits, is Russia's lingering inability to convey adherence to general international law.Thus, this Article re-conceptualizes the link between domestic and international legal orders by connecting the IP debate to broader debates over the nature of international law in the Soviet and post-Soviet space. Specifically, Part I examines how Soviet theorists attempted to reconcile IP regulation with Marxist ideology and socialist international law. Part II surveys the main IP law reform projects in post-Soviet Russia from 1992 to 2006, with particular emphasis on harmonization with global legal standards. The second part also provides a brief comparative analysis of Russia's latest IP law (effective 2008) and copyright protections in U.S. law as well as the 1971 Berne Convention. The Article concludes with an overview of doctrinal debates within Russia over harmonization, WTO accession, and international law. These debates shed light on the development of local resistance to further legal harmonization efforts, an issue of immediate relevance not just for policymakers working with Russia, but for broader law and development debates.


Author(s):  
Henning Grosse Ruse-Khan

This chapter turns to the various approaches for addressing overlaps and resolving conflicts previously summarized. A range of specific conflict rules, the general conflict of norm principles referred to in the ILC Fragmentation Report, as well as alternatives such as conflict-of-laws concepts and the substantive law method are explored and applied to the rule relations assessed throughout prior chapters. The chapter then offers a birds-eye perspective on the relations within the international intellectual property (IP) system, those to alternative systems for protecting IP assets in international law, and to other global legal orders that interface the protection of IP. This perspective cannot claim to be objective and of course does not offer any sort of absolute truth. However, the chapter attempts to present this perspective as one that goes beyond the traditional realm of ‘international intellectual property law’ and truly engages with other rule systems in international law.


2004 ◽  
Vol 56 (2-3) ◽  
pp. 279-303
Author(s):  
Sanja Jelisavac

Intellectual property refers to creations of the mind: inventions, literary and works of art, as well as symbols, names, images, and designs that are used in commerce. Intellectual property is divided into two categories industrial property, which includes inventions (patents), trademarks industrial designs, and geographic indications of source; and copyright which includes literary and works of art such as novels, poems and plays films, musical works, works of art such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programmes. 1883 marked the birth of the Paris Convention for the Protection of Industrial Property, the first major international treaty designed to help the people from one country obtain protection in other countries for their intellectual creations in the form of industrial property rights, known as: inventions (patents), trademarks, industrial designs. In 1886, copyright entered the international arena with the Berne Convention for the Protection of Literary and Artistic Works. The aim of this Convention was to help nationals of its member States obtain international protection of their right to control, and receive payment for the use of their creative works such as: novels, short stories, poems plays; songs, operas, musicals, sonatas; and drawings, paintings sculptures, architectural works. The Universal Copyright Convention (UCC) was adopted in 1952 and formalised in 1955, as a complementary agreement to the Berne Convention. The UCC membership included the United States, and many developing countries that did not wish to comply with the Berne Convention, since they viewed its provisions as overly favourable to the developed world. Patent Cooperation Treaty, signed on June 19,1970, provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries. An applicant seeking protection may file one application and request protection in as many signatory states as needed. On November 6, 1925, the Hague Agreement Concerning the International Deposit of Industrial Designs was adopted within the framework of the Paris Convention. Under the provisions of the Hague Agreement, any person entitled to effect an international deposit has the possibility of obtaining, by means of a single deposit protection for his industrial designs in a number of States with a minimum of formalities and of expense. The system of international registration of marks is governed by two treaties, the Madrid Agreement Concerning the International Registration of Marks, which dates from 1891, and the Protocol Relating to the Madrid Agreement that was adopted in 1989. It entered into force on December 1, 1995, and came into operation on April 1, 1996. The reason for adopting the much more recent Protocol, following the original Madrid Agreement of 1891 (last amended at Stockholm in 1967), was the absence from the Madrid Union of some of the major countries in the trademark field, for example, Japan, the United Kingdom, and the United States of America. The Protocol is intended to make the Madrid system acceptable to more countries. The Rome Convention consists basically of the national treatment that a State grants under its domestic law to domestic performances, phonograms and broadcasts. Apart from the rights guaranteed by the Convention itself as constituting that minimum of protection, and subject to specific exceptions or reservations allowed for by the Convention, performers, producers of phonograms and broadcasting organisations to which the Convention applies, enjoy in Contracting States the same rights as those countries grant to their nationals. The World Intellectual Property Organization (WIPO) is an international organisation dedicated to promoting the use and protection of works of the human spirit. These works, intellectual property, are expanding the bounds of science and technology and enriching the world of the arts. Through its work, WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations. In 1974, WIPO became a specialised agency of the United Nations system of organisations, with a mandate to administer intellectual property matters recognised by the member states of the UN. With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialised agencies of the United Nations system of organisations. It administers 21 international treaties dealing with different aspects of intellectual property protection. The Organisation counts 177 nations as member states. One of the successes of the Uruguay Round of trade negotiations was the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement), which came into effect on 1 January 1995, and up to date it the most comprehensive multilateral agreement on intellectual property. The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they wish so. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice On January 1, 1996, an Agreement Between the World Intellectual Property Organization and the World Trade Organization entered into force. It provides for cooperation concerning the implementation of the TRIPS Agreement, such as notification of laws and regulations and legal-technical assistance and technical co-operation in favour of developing countries. In the 21st century intellectual property will play an increasingly important role at the international stage. Works of the mind - intellectual property such as inventions, designs, trademarks, books, music, and films, are now used and enjoyed on every continent on the earth. In the new millennium international protection of intellectual property rights faces many new challenges; one of the most urgent is the need for states to adapt to and benefit from rapid and wide-ranging technological change, particularly in the field of information technology and the Internet.


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