scholarly journals Taxing Computer Software Royalties in Kenya: Reconciling Conceptual Approaches through Copyright and Property Law

2021 ◽  
Vol 1 (1) ◽  
pp. 63-90
Author(s):  
Claude Kamau
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Computer Software ◽  
Property Law ◽  
Diverse Range ◽  
The Subject

Kenya has recently witnessed litigation regarding the tax implications of acquired software. Simply phrased, if software is intellectual property, then the usual tax implications attached to intellectual property will obtain. Though intuitive, this position is not as straightforward when it comes to acquisition of computer software. One main reason is responsible for the difficulty – the anatomy of computer software. This anatomy forces a more nuanced analysis of the components of a software transaction, and specifically the nature of interest in question. A corollary is that a diverse range of transactions – all involving different and separate interests – are possible. A proper taxation regime requires clarity as to what subject matter is subject to the tax treatment, be it a sale, licence, gift, and so on. The diversity of transactions possible regarding a single copyrighted work, however, anticipate the possibility of varied subject matter, specifically for tax purposes, which possibility diminishes any immediate certainty of the subject matter involved. Therefore, if it is possible for various kinds of market transactions, all with different tax implications, to inhere with respect to a single work of software, a more deliberate view is required. Kenyan jurisprudence has appeared to accept a broad characterisation of software-related transactions as attracting royalty payments. Recognising the obvious conceptual error in this view, other jurisdictions have drawn a clearer line between ‘copyright’ itself and ‘copyright-embodying’ articles. Fundamentally antithetical tax obligations accordingly accompany this differentiation.

Justine Pila, The Subject Matter of Intellectual Property

2019 ◽  
Vol 23 (1) ◽  
pp. 142-144
Author(s):  
Patrick Masiyakurima
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
The Subject

Introduction

2018 ◽  
Author(s):  
Gerhard Preyer
Keyword(s):  
Subject Matter ◽  
Diverse Range ◽  
The World ◽  
The Subject ◽  
The Relationship

The study of meaning in language embraces a diverse range of problems and methods. Philosophers think through the relationship between language and the world; linguists document speakers’ knowledge of meaning; psychologists investigate the mechanisms of understanding and production. Up through the early 2000s, these investigations were generally compartmentalized: indeed, researchers often regarded both the subject matter and the methods of other disciplines with skepticism. Since then, however, there has been a sea change in the field, enabling researchers increasingly to synthesize the perspectives of philosophy, linguistics, and psychology and to energize all the fields with rich new intellectual perspectives that facilitate meaningful interchange. One illustration of the trend is the publication of Lepore and Stone’s ...

Definitions and Intellectual Property Subject Matter

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Legal Definition ◽  
Policy Context ◽  
The Subject ◽  
Scholarly Attention

This chapter considers the relative absence of scholarly attention to the meaning of the terms used to denote the subject matter that IP rights protect and the nature of those subject matter themselves. It then outlines the aims and methods of the definitional task undertaken in later chapters, and the stages in which that task proceeds. Using the distinction drawn by Richard Robinson, it proposes a nominal word:thing definitional exercise, rather than a word:word exercise, that considers recent use of the terms to be defined by European and UK legal officials. Drawing on the stipulative nature of authoritative legal definition, it also proposes an explicative aspect to the definitional exercise, focused on clarifying legal officials’ understandings of the relevant terms in the light of the relevant legal and policy context. And finally, it summarizes the conclusions reached at each stage of the definitional exercise undertaken in later chapters.

The Subject Matter of Intellectual Property

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Final Stage ◽  
Theoretical Framework ◽  
Trade Mark ◽  
Second Stage ◽  
Essential Properties ◽  
The Subject ◽  
Three Stages ◽  
The Relationship

This book offers a study of the subject matter protected by each of the main intellectual property (IP) regimes. With a focus on European and UK law particularly, it considers the meaning of the terms used to denote the objects to which IP rights attach, such as ‘invention’, ‘authorial work’, ‘trade mark’, and ‘design’, with reference to the practice of legal officials and the nature of those objects specifically. To that end it proceeds in three stages. At the first stage, in Chapter 2, the nature, aims, and values of IP rights and systems are considered. As historically and currently conceived, IP rights are limited (and generally transferable) exclusionary rights that attach to certain intellectual creations, broadly conceived, and that serve a range of instrumentalist and deontological ends. At the second stage, in Chapter 3, a theoretical framework for thinking about IP subject matter is proposed with the assistance of certain devices from philosophy. That framework supports a paradigmatic conception of the objects protected by IP rights as artifact types distinguished by their properties and categorized accordingly. From this framework, four questions are derived concerning: the nature of the (categories of) subject matter denoted by the terms ‘invention’, ‘authorial work’, ‘trade mark’, ‘design’ etc, including their essential properties; the means by which each subject matter is individuated within the relevant IP regime; the relationship between each subject matter and its concrete instances; and the manner in which the existence of a subject matter and its concrete instances is known. That leaves the book’s final stage, in Chapters 3 to 7. Here legal officials’ use of the terms above, and understanding of the objects that they denote, are studied, and the results presented as answers to the four questions identified previously.

Directions in Intellectual Property Law Research: A Linguistic Contribution

2021 ◽  
pp. 344-360
Author(s):  
Alan Durant ◽  
Jennifer Davis
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Language Use ◽  
Public Debate ◽  
Policy Formation ◽  
Property Law ◽  
Concurrent Use ◽  
Subject Areas ◽  
Ip Law ◽  
Legal Meaning

The questions in intellectual property (IP) law which most directly engage language fall into several types. ‘Language’ questions may concern particular signs or stretches of language examined for their registrability as a trademark, or disputed in relation to alleged infringement of literary copyright. Other kinds of words and phrases may also create difficulty, such as the words ‘distinctive’ or ‘generic’ which describe features of, and categorize, such signs or stretches of language. Such words and phrases establish a metalanguage that overlaps with frameworks in linguistics (e.g. ‘noun’, ‘consonant’) yet differs from such frameworks both in detail and purpose. Across all IP subject areas, a further kind of language, the field’s legal terms of art, defines the intangible subject matter, doctrines, and rationales of IP law, giving specialized legal meaning to otherwise general words and phrases whose meaning in law may nevertheless be contested. Such terms remain in concurrent use beyond law, with related but different meanings, and may therefore also be problematic when relied on in policy formation and in public debate about what IP is. ‘Language’ in these and other IP contexts is not, we argue, a single, unified topic. Rather, it consists of a number of very different kinds of language use, which raise different questions and call for varied forms of analysis. This chapter describes and illustrates those specialized kinds of language use. It also discusses prominent examples of research into them by legal scholars and linguists, and highlights further topics that may be amenable to linguistic investigation. In conclusion, we explain why specialist linguistic expertise is less important in such study of than interdisciplinary, legal and linguistic collaboration.

7. Rights akin to copyright: database right and performers’ rights

2019 ◽  
pp. 238-264
Author(s):  
Abbe Brown ◽  
Smita Kheria ◽  
Jane Cornwell ◽  
Marta Iljadica
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Property Law ◽  
Intellectual Property Law ◽  
Database Right

This chapter considers two rights similar to copyright in many ways, in terms of both subject matter and the substantive contents of the rights: (1) the special or sui generis database right, which operates alongside the copyright in databases; and (2) performers’ rights. Both rights have been relatively recently introduced into the armoury of intellectual property law. The chapter gives an account of each of these rights, comparing them with copyright but also underlining the differences between the regimes, and the reasons behind these differences. The chapter considers relevant the relevant international and EU frameworks and also highlights the nature and importance of these rights.

Ch.3 International Exhaustion of Rights

2020 ◽  
Author(s):  
Correa Carlos Maria
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Subject Matter ◽  
Dispute Settlement ◽  
Foreign Market ◽  
Trips Agreement ◽  
Parallel Imports ◽  
The Subject ◽  
Domestic Law

This chapter focuses on the issue of exhaustion of rights. Article 6 disclaims any intent in the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement to limit the Members’ freedom to regulate the issue of exhaustion of rights with regard to all types of intellectual property rights (IPRs). It declares the admissibility of the international exhaustion of rights, that is, the possibility of legally importing into a country a product protected by intellectual property rights, after the product has been legitimately put on the market in a foreign market. These imports—made by a party without the authorization of the title-holder but equally legal—are generally known as ‘parallel imports’. Moreover, Article 6 of the TRIPS Agreement has left Member countries freedom to incorporate the principle of exhaustion of rights into their domestic law with a national, regional, or international reach. The issue as such cannot be the subject matter of a dispute settlement under the Agreement.

scholarly journals An Autonomous EU Functionality Doctrine for Shape Exclusions

2020 ◽  
Vol 69 (6) ◽  
pp. 567-577
Author(s):  
Uma Suthersanen ◽  
Marc D Mimler
Keyword(s):  
European Union ◽  
Intellectual Property ◽  
Public Interest ◽  
Subject Matter ◽  
Trade Mark ◽  
Copyright Law ◽  
Property Law ◽  
The European Union ◽  
Court Of Justice ◽  
Functionality Doctrine

Abstract Exclusionary subject matter are often underpinned by public interest considerations. In the case of shapes of products, the Court of Justice of the European Union has aligned the interpretation of the relevant exclusionary provisions within design and trade mark laws. More recently, European jurisprudence within copyright law in relation to conditions of protection has imported the same considerations so as to regulate the protection of shapes of products. This article explores the multitude of doctrinal and policy reasons underpinning shape exclusions and argues that the Court is consciously creating an EU autonomous functionality doctrine within intellectual property law. We also argue that the Court is building a European macro-rationale within these laws namely to ensure that protection does not unduly restrict market freedom and competition.

Part III Jurisdiction, Foreign Judgments and Awards, 14 Limitations on Jurisdiction

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Subject Matter ◽  
The Subject

This chapter discusses the limitations of the English courts' jurisdiction under the traditional rules. It first considers three types of limitations: limitations that affect the subject matter of the issue, limitations that affect the kind of relief sought, and limitations relating to persons between whom the issue is joined. It also explains limitations on jurisdiction imposed by certain statutes before addressing jurisdiction in respect of foreign property such as foreign immovables and intellectual property rights. Furthermore, it describes jurisdiction over the parties, focusing on persons who cannot invoke the jurisdiction and those who may claim exemption from the jurisdiction. The chapter concludes with an overview of statutory limitations on jurisdiction.

scholarly journals Intellectual Property Litigation at the Court of Session: A First Empirical Investigation

2017 ◽  
Vol 21 (2) ◽  
pp. 192-216
Author(s):  
Jane Cornwell
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Empirical Investigation ◽  
Research Data ◽  
Civil Justice ◽  
Court Records ◽  
The Subject ◽  
Jurisdictional Competition

Scotland is said to enjoy an economy rich in intellectual property (“IP”), but reported decisions from the Court of Session in IP matters are rare. This article analyses a new dataset of Court of Session IP actions compiled from court records for the period from 2008 to 2014, alongside a survey and interviews conducted among Scottish legal practitioners working in the field of IP. The research provides insights into the Court of Session's IP caseload, parties and their sectors, the subject matter of claims and remedies sought. This article discusses key themes emerging from the research data against the broader context of civil justice reform and jurisdictional competition between the Scottish, English and other courts.

Sign in / Sign up

Export Citation Format

Share Document