Journal of Intellectual Property Rights

 

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VOLUME 11

                NUMBER 1

                 JANUARY  2006

CODEN: JIPRFG 11(1) 1-80 (2006)

 

               ISSN: 0971-5544

 

 

CONTENTS

 

Articles

 

 

Human Rights, Knowledge and Intellectual Property Protection

7

Philippe Cullet

 

 

 

Conceptual Issues of Global Counterfeiting on Products and Services

15

Derek Bosworth and Deli Yang

 

 

 

Financing of Intellectual Property: Developing Countries’ Context

22

S K Verma

 

 

 

Proprietary Rights or Common Property? — The Dilemmas of Copyright Protection of
Case-Law Reporters

 

33

Anu Tiwari and Shruti S Rajan

 

 

 

Copyright Laws in India and Maintenance of a Welfare State

43

Ankita Singhania

 

 

Technical Notes

 

 

India’s Tryst with TRIPS Continues!

53

Manoj Pillai, Sushil Kumar, Rajeev Kumar and Pallavi Agarwal

 

 

 

Literature Review

 

 

Author Index
Keyword Index

IPR General

57

 

 

· TRIPS and the pharmaceutical industry: Prescription for profit? · International diffusion and IPR: An empirical analysis · Property rights protection of biotechnology innovations
· Managing intellectual capital · Welfare impacts of IP protection in the seed industry · IPR in China: Governance challenges and prospects · Linking intellectual capital and intellectual property to company performance · IPR in virtual environments: Considering the rights of owners, programmers and virtual avatars · Common heritage to common concern–preserving a heritage and sharing knowledge · Challenges and opportunities for enhancing biotechnology and technology transfer in developing countries · Universities and IPR in Southern European countries

 

 

 

Patents

59

 

 

· Patent information in a changing world: Perspectives from a major patent office · Trends disrupted—patent information in an era of change · Patents: A unique source for scientific technical information in chemistry related industry? · Patents, price controls and access to new drugs: How policy affects global market entry · Inventive progress measured by multi-stage patent citation analysis · Block me not: are patented genes ‘essential facilities’?
· “Nano-Aerobics" and the patent system · Patenting the Minotaur · Scope of protection for gene sequence patents

 

 

 

Copyright and Trademark

 

61

· Defining digital rights - Data protection and intellectual property · Electronic information management and IPR · Copyright or copyleft? An analysis of property regimes for software development · Persistence of piracy: the consequences for creativity, for culture, and for sustainable development · Harry Potter and the three-second crime: Are we vanishing the de minimis doctrine from copyright law? · Media neutrality in the digital era: A study of the peer-to-peer file sharing issues · Towards a new core international copyright norm: The reverse three-step test · The spawn of learned hand-a reexamination of copyright protection and fictional characters · Analysis of prospective geographical indications of India

 

 

IPR News

 

 

 

IPR News—General

 

65

· SCT to take on new work on trademarks and industrial designs · A new city court to deal with copycats and plagiarists · India raises biodiversity, patent issues in Hong Kong · India trying to become intellectual property producer · Gene doping is inevitable but question is when: WADA · Draft IPRs policy released

 
 
 

Patent News

 

67

· Amazon gets patents on consumer reviews · Patent application to claim a fictional storyline · US patent for anti-gravity device · Drug makers lose sleep as patents expire · Drug firms find hope off court

 

 

Copyright and Trademark News

 

68

· WIPO member states consider how to facilitate access to educational materials · Debate rages over copyright limits · New US preregistration copyright law · Court squashes strawberry scent trademark bid · World Cup 2006 trademarks appraisal · Winemakers get the Gallic brush-off over Kiwi trademark · No progress on GI register

 

 

Key Patents

 

71

· Patent for terminal intended for transfer of passport and visa document identification data
· New Nanogen patent · NMR Mosaic, organic chemistry teaching aid patented · European patent for Sil-X(TM) DVD production alloy

 

 

Book Review

 

 

 

What Everyone Should Know About Patents

73

Subbaram N R

 

 

 

Conference Report

 

 

 

INDO-EU Seminar on Protection and Promotion of Geographical Indications of Goods

74

 

 

 

Journal of Intellectual Property Rights

Vol 11, January 2006, pp 7-14

 

Human Rights, Knowledge and Intellectual Property Protection

Philippe Cullet

Human rights and intellectual property protection are two distinct areas of law and have largely evolved separately over time. Nevertheless, a number of links between the two can be identified. On the human rights side, the question of recognition of a human right to intellectual property has been a topic of increasing debate since the adoption of TRIPS Agreement. This falls within the context of the increasingly visible impacts of intellectual property rights on the realization of human rights such as the right to health and in the context of Article 15(1) of the Covenant on Economic, Social and Cultural Rights (ESCR) which provides a framework for addressing the place of knowledge and intellectual development in a human rights context. This article focuses on recent developments concerning the understanding of Article 15(1) of the Covenant and focuses on the need to find a balance between the claims of intellectual property rights holders and all other actors making contributions to intellectual development, such as traditional knowledge holders.

Keywords: ESCR Covenant, human right to intellectual property, traditional knowledge

 

Journal of Intellectual Property Rights

Vol 11, January 2006, pp 15-21

 

Conceptual Issues of Global Counterfeiting on Products and Services

Derek Bosworth

and

Deli Yang

Counterfeiting is a global problem of enormous magnitude. Despite its obvious importance, relatively little attention has been paid to the management of counterfeiting. This paper considers the difficulties of measuring counterfeiting and provides evidence of the magnitude of the problem worldwide. The focus is on counterfeiting of privately produced goods and services, rather than the issue of the counterfeiting of currency per se, which is a somewhat different though related issue. A conceptual framework of the private and social costs and benefits of anti-counterfeiting measures is also provided. The framework highlights a number of key driving forces of counterfeiting, including existence of unsatisfied demand at the prevailing prices – a demand that is fuelled by advertising and other promotional activities. The paper draws on a range of conceptual and empirical work to develop an agenda of items for company policy makers.

Keywords: Counterfeiting, globalisation, management, economics

Journal of Intellectual Property Rights

Vol 11, January 2006, pp 22-32

 

Financing of Intellectual Property: Developing Countries’ Context

 

S K Verma

Converting a creative idea into a financial asset is the essential feature of financing intellectual property (IP). IP can be sold, licensed, used as a collateral or security for debt finance. Valuation of IP is also important to secure loans or finances for business. Whereas in the developed world, IP is treated as an asset and a part of the company’s portfolio, this is less prevalent in developing countries because of the level of their development and very meager IP portfolio in general. Financial constraints and lack of infrastructure are also hurdles creating and maintaining IP in developing countries. Capacity building for innovation is a very significant requirement in IP infrastructure. The industries in developing countries need to appreciate that a good portfolio makes good business sense.

Keywords: IP financing, securitization, IP infrastructure, capacity building

Journal of Intellectual Property Rights

Vol 11, January 2006, pp 33-42

 

Proprietary Rights or Common Property? — The Dilemmas of Copyright Protection of Case-Law Reporters

Anu Tiwari & Shruti S Rajan

Law reporters have long been an integral part of the legal fraternity, being the principal source of communicating judicially evolved laws; forming fundamental basis for academic research as well as locating precedents within the litigation arena. Their enhanced electronic availability has led to obvious questions regarding their ambiguous status under copyright legislations, both with respect to protection afforded for individual components like headnotes, indices, etc., as well as of the entire reporter. Such deadlocks in statutory law have spawned extensive litigation in countries like US, Canada, UK, India, etc.

In an attempt to put forth a comparative legal analysis, this paper looks into foreign jurisdictions to unravel the flux in the Indian copyright law on law reporters, preceded by a cursory understanding of macrocosmic standards of originality and the consequent qualification for copyright protection. The paper concludes with an assessment of the various reasons for which law reporters must be accorded copyright or some other form of proprietary rights over their databases, thereby assisting in the proliferation of technically superior reporters.

Keywords: Case-law reporters, proprietary rights, copyright

 

Journal of Intellectual Property Rights

Vol 11, January 2006, pp 43-52

 

Copyright Laws in India and Maintenance of a Welfare State

 

Ankita Singhania

Information has attained the status of a ‘primary good’ and is therefore essential for the socio-economic development of an individual in any society. Given the nature of the Indian polity which is a Welfare State, the current copyright regime in India, which has largely been modelled to fulfil India’s obligations under the TRIPS Agreement, does not strike a harmonious balance between promoting the progress of arts and sciences and fulfilling the constitutional mandate of achieving social and economic justice. The lengthy term of protection of copyright is detrimental to the benefit that public might derive from release of such work in public domain. Developing nations like India should develop copyright models that do not stunt the growth of their skilled work force and further satisfy their constitutional goals.

Keywords: Constitution of India, copyright laws, copyright term, welfare state, monopoly

 

 

Journal of Intellectual Property Rights

Vol. 11, January 2006, pp. 53-56

 

India’s Tryst with TRIPS Continues!

Manoj Pillai, Sushil Kumar, Rajeev Kumar and Pallavi Agarwal

This short note discusses the politics of TRIPS compliance and legal intricacies involved in India’s attempt to read further limitations into TRIPS. It further explains how hard the Committee (entrusted with the task of reading further limitations into TRIPS) will find its tight ropewalk. Will the Committee’s Report open the pandora’s box yet again? – the box this time contains all sorts of controversies on pharmaceutical patents!

Keywords: TRIPS, NCEs, NMEs, microorganisms, patentability

 

 

Author Index

 

Agarwal Pallavi

53

Bosworth Derek

15

Cullet Philippe 

7

Kumar Rajeev

53

Kumar Sushil

53

Pillai Manoj

53

Rajan Shruti S 

33

Singhania Ankita

43

Tiwari Anu

33

Verma S K      

22

Yang Deli

15

 

 

 

Keyword Index

Biodiversity

65

Biotechnology innovations

57

Capacity building                     

22

Case-law reporters

33

Constitution of India     

43

Copyright laws

43

Copyright term

43

Copyright

33

Counterfeiting  

15

Economics

15

ESCR Covenant 

7

Globalization

15

Human right to intellectual property

7

IP financing                  

22

IP Infrastructure

22

Management

22

Microorganisms           

53

Monopoly                                           

43

NCEs     

53

NMEs                               

 

53

Patentability          

 

53

Proprietary rights 33
Traditional knowledge 7
TRIPS  53,57
Welfare State 43