Journal of World Intellectual Property最新文献

{"title":"The elephant in the room of EU copyright originality: Time to unpack and harmonize the essential requirement of copyright","authors":"Vincenzo Iaia","doi":"10.1111/jwip.12343","DOIUrl":"https://doi.org/10.1111/jwip.12343","url":null,"abstract":"<p>The dividing line between the artistic and literary heritage privatized by copyright and the public domain depends on just one word which is completely alien to the traditional legal jargon: originality. As if it were not enough the essential requirement of copyright is highly polysemic, being its meaning also sensitive to the specific temporal and geographical context. For instance, the same interior design for make-up stores has been reputed original in Italy but not in France and Portugal. The European legislator has deeply regulated several aspects of copyright, but paradoxically it is laconic on the fundamental element triggering the exclusive right: a work is original if it reflects the author's own intellectual creation. Although the CJEU played a pivotal role in filling this gap through a string of decisions, national judges are still uncertain on the relevant factors for the originality assessment, as witnessed by three new references for preliminary rulings. The different approaches to the originality requirement could be problematic for the well-functioning of the artistic and cultural markets considering the potential heterogeneous legal status of the same creation, which might be under copyright protection in one Member State while in the public domain in another one. This could prejudice rights clearance processes, including the latest one regarding text and data mining for machine learning purposes advocated by a line of scholars. By elaborating on settled European and national case-law, this paper extracts some metrics for ensuring legal certainty on the interpretation of the originality requirement. These coordinates could be incorporated in a wider European intervention harmonizing copyright law, keen to the Wittem Group project. Finally, it argues that the idea of introducing copyright formalities would also ensure more legal certainty on the status of intellectual works since the computational analysis of voluntary registrations could become a useful tool for predicting the originality of future works.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 2","pages":"471-490"},"PeriodicalIF":0.7,"publicationDate":"2024-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12343","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144615498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The role of Intellectual Property as a tool for business development in the informal economy of Ghana","authors":"Nancy Ama Sackey,&nbsp;Eunice Adu Boahen,&nbsp;Emmanuel Sackey","doi":"10.1111/jwip.12338","DOIUrl":"https://doi.org/10.1111/jwip.12338","url":null,"abstract":"<p>Innovation has become one of the main drivers of economic growth and development making its protection the focus of contemporary economic strategies. Intellectual Property (IP) protects and promotes innovation. The IP system strives to create an environment where creativity and innovation thrive by finding a suitable equilibrium between the interests of innovators and the broader public interest. Although IP has been shown to play a particularly important role in formal-economy innovation, its role in the informal economy (IE) has been less explored. This study therefore sought to interrogate the utilisation of IP in the IE of Ghana and the role it plays in business development and competitiveness. This was achieved by determining innovative capacity, IP knowledge uptake/awareness, utilisation and challenges as well as discussing the policy approaches and institutional mechanisms necessary to promote growth and development of the IE for national gain. A qualitative research design was adopted and using the purposive sampling method, a sample of 100 respondents from two metropolitan districts in Ghana was selected. The findings revealed that 72% of the informal businesses studied had developed new products, processes or methods. Although 53% of the respondents had heard of or were conscious of the existence of some words relating to IP such as ‘copyright’ and ‘trademarks’, the respondents had little practical understanding of IP as a subject matter relevant for business. Only 19% out of the total number of respondents had acquired formal IP rights while most of the businesses employed other appropriation mechanisms outside of the use of conventional IP tools in protecting knowledge and innovation. Challenges to IP acquisition identified include financial constraints, lack of appreciation for the value of IP for business and the difficulty in meeting registration requirements. The study concluded that the IE is innovative and the utilisation of various IP tools such as trademarks, industrial designs, copyright and utility models were identified to be desirable to be employed in the pursuit for business development. It is recommended that decision making bodies such as the national IP office must establish effective policies aimed at promoting awareness and utilisation of IP rights in the IE. The government should also institute incentives such as cost waivers that are needed to stimulate innovation and creativity and create an enabling environment that supports the acquisition of IP for development and growth of the IE.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 2","pages":"406-427"},"PeriodicalIF":0.7,"publicationDate":"2024-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144615278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revisiting the public versus private debate on model statutes for collective copyright management organisations in China","authors":"Jie Liu","doi":"10.1111/jwip.12340","DOIUrl":"https://doi.org/10.1111/jwip.12340","url":null,"abstract":"<p>China received the collective copyright management concept during a period of economic transition and constructed collective management organisations (CMOs) as social organisations exhibiting a discernible inclination towards a public administrative objective rather than one concerned with market considerations. Consequently, CMOs in China have manifested behavioural patterns distinct from those of other private entities. This paper revisits the problem of CMOs in China with a focus on organisational structure issues. The contention posited in this paper is that the correct focal point for current debate should not concern the feasibility of multiple CMOs coexisting, but rather should revolve around the essential discussion between public versus private legal model statutes for CMOs in China, and thereafter on the regulatory architecture governing the coexistence of CMOs alongside alternative independent rights-clearing entities.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 2","pages":"385-405"},"PeriodicalIF":0.7,"publicationDate":"2024-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144615464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An analysis of green trademarks vis-à-vis Indian trademark law","authors":"Nikhil Mishra,&nbsp;Digvijay Singh","doi":"10.1111/jwip.12337","DOIUrl":"https://doi.org/10.1111/jwip.12337","url":null,"abstract":"<p>Businesses have a huge impact on the environment in the present economic era. The market is full of noneco-friendly products. In the epic struggle between the profit-oriented mode of production and environmental protection, green branding acts as a ray of hope for change, satisfying the needs and objectives of both, the capitalists as well as the environment. Green branding is a method to demonstrate the products as eco-friendly through a green trademark which implies that the mode of production, constituents, packaging, final output and/or the disposing of the products is eco-friendly. However, there is no evidence suggesting recognition of green trademarks across the jurisdictions. Authors argue that the global challenge of environmental protection cannot be neglected by the reason of varying laws or their absence at all. Further, there has been continuous efforts by businesses to harness the profit by marketing numerous noneco-friendly products as eco-friendly by misutilising the concept of green branding in absence of any stringent laws constituting the greenwashing. Such practices must be curtailed to protect consumers from misleading information while promoting genuine environmental responsibility and encouraging sustainable business practices. This article analyses the statutory standing of green trademarks in India and the existing and potential measures, including legislative changes, which are and can be potentially taken for recognition, registration and promotion of green trademarks and to curb any existing or potential misutilisation of the same.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 2","pages":"375-384"},"PeriodicalIF":0.7,"publicationDate":"2024-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144615419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Japan's legal framework for copyright protection of AI-generated works: A comparative law analysis exploring the possibility of Japan's adoption of the UK legislative approach","authors":"Seiya S. Takeuchi","doi":"10.1111/jwip.12333","DOIUrl":"https://doi.org/10.1111/jwip.12333","url":null,"abstract":"<p>This paper examines the legal policy for copyright protection of artificial intelligence (AI) generated-works that are autonomously created by AI models without a human's creative process in Japan from the perspective of a comparative law analysis between Japan and the United Kingdom. In summary, this paper concludes that the legal policy-making approach for copyright protection of AI-generated works within the framework of Japanese copyright law should involve: (a) addressing concerns about legal consistency through careful selection of a legislative measure; and, therefore, (b) directing the focus of legal policy discussions towards considerations of legal eligibility, moving beyond discussions on legal consistency. This entails an analysis of the strict necessity for copyright protection of AI-generated works within the prevailing social environment in Japan. First, the focal point of the legal eligibility discussions should focus on a possible loss of market demand for human creations and necessity of social defence to human creations (social defence function for human creations logic) in Japan. In addition, based on the social incentive protection theory, it should be emphasised that the second purpose of incorporation of copyright protection for AI-generated works under Japanese copyright law is to promote future Japanese industry's investment in AI technologies (AI industry's investment promotion logic), which will indirectly contribute to the cultural advancement in society (Berne Convention's cultural advancement logic). The author expects that the conclusion presented in this paper will accelerate more intensive social scientific analysis work on legal eligibility of the legal policy for copyright protection of AI generated-works.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 2","pages":"323-343"},"PeriodicalIF":0.7,"publicationDate":"2024-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144615388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Generative artificial intelligence is not a mere tool: Revisiting Indonesian Copyright Law","authors":"Ghazali Hasan Nasakti,&nbsp;Rianda Dirkareshza","doi":"10.1111/jwip.12335","DOIUrl":"https://doi.org/10.1111/jwip.12335","url":null,"abstract":"<p>Generative artificial intelligence (GAI) is capable of creating original works with such a remarkable degree of autonomy that it makes no sense to be considered or analogized to traditional technologies that are merely used by humans. The human who provides the initial input (prompt) to the GAI does not make sense to be considered as the author of the GAI's self-created works. The internal characteristics of GAI that enable it to create its own works and the works per se challenge the four prevailing justifications in Indonesian Copyright Law: the biological humans, the idea-expression dichotomy, the Hegelian, and the Lockean justifications. This research finds the problem that there is a legal vacuum in the copyright regime in Indonesia regarding the legal status of GAI's self- created works. The research uses normative legal research method; with theoretical, symbolic logic legal interpretation––which assists in logical modeling of new legal provisions, comparative law, and conceptual approaches; this research aims to answer the legal lacuna which can be addressed with the proposed solution of placing GAI's self-created works as <i>sui generis</i> and should be put into the public domain with attribution given to GAI which is logically coherent, efficient, and in line with existing justifications and principles of copyright. However, this research also found that the Indonesian copyright regime itself does not formally acknowledge the concept of public domain, which complicates it compared to the United States Copyright Law, hence the urgency to revise it by adopting and adding a concrete formulation of public domain––as elaborated in this article––which is different from public domain in the informal sense, and then adding the formulation of attribution provisions to GAI.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 2","pages":"344-374"},"PeriodicalIF":0.7,"publicationDate":"2024-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144615398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A case against enforcement of patent rights in transit: Resolving the unresolved controversy","authors":"Siddhant Pengoriya","doi":"10.1111/jwip.12336","DOIUrl":"https://doi.org/10.1111/jwip.12336","url":null,"abstract":"<p>This paper delves into the complex legal landscape surrounding the enforcement of intellectual property (IP) rights on goods in transit, using the contentious EU–India–Brazil dispute as a case study. The dispute centers on the seizure of generic pharmaceutical shipments transiting through the Netherlands, leading to patent infringement complaints by Dutch patent holders. The heart of the matter lies in the interpretation of Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) Agreement provisions, specifically Articles 51, 52, and Footnote 13, in conjunction with General Agreement on Tariffs and Trade 1994 (GATT) Article V and XX(d), which addresses the freedom of transit. Since the dispute was never conclusively decided by World Trade Organisation Dispute Settlement Body, the concerns are still alive and merit discussion.</p><p>The author contends that enforcing patent rights on goods in transit contradicts the principles of territoriality and commerciality inherent in patent laws and infringes upon the freedom of transit articulated in the GATT. Drawing from the perspectives of scholars and legal experts, this paper presents a nuanced argument that seeks to reconcile the seemingly contradictory provisions. It proposes Footnote 13, of TRIPS be read down to allow enforcement only when there is a risk of diversion into the transit country's commercial channels.</p><p>Moreover, the paper argues normatively, emphasizing the adverse impact of transit enforcement on international trade, especially for developing and least developed countries. In conclusion, it underscores the urgency of addressing this issue to protect global trade interests while safeguarding the rights of developing nations and promoting equitable access to essential goods.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 1","pages":"303-320"},"PeriodicalIF":0.7,"publicationDate":"2024-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143581979","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Implementation of the EU's geographical indications in CETA and JEFTA: EU-Phoria or GI-mmick?","authors":"Anke Kennis,&nbsp;Anastasia Volkov","doi":"10.1111/jwip.12334","DOIUrl":"https://doi.org/10.1111/jwip.12334","url":null,"abstract":"<p>Over the last two decades, the EU's foreign trade strategy shifted diametrically from the multilateral World Trade Organization to the bilateral free trade agreements (FTA) route. Accompanying this shift, the EU's regulatory ambitions became more apparent, as can be gleaned from its strategy documents. The main question is whether the EU is succeeding in effectively exporting or promoting its regulations. In this paper, we combine the two disciplines of law and international relations to gauge the EU's success in achieving its external regulatory goals through FTAs. The EU is described in the political science literature as a regulatory power which is trying to promote or export its regulations outside its own jurisdiction. Using two case studies of the recent EU FTAs with Canada and Japan, we conduct a rigorous legal analysis of these FTA texts as well as their implementation in the local jurisdiction by focusing on the area of Geographical Indications (GI). These regulations are compared with the EU's goals mentioned in its strategy documents and from interviews with EU representatives involved in the FTA negotiations. Our results show that the EU has been moderately successful in both FTAs in achieving its general goals such as equal protection for foodstuffs and alcoholic drinks, ex officio protection, and the clawback of some generic names. Overall, the EU was most successful in getting Japan to embrace an EU-inspired <i>sui generis</i> GI system, whereas Canada showed less leniency and favoured its trademark system.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 1","pages":"286-302"},"PeriodicalIF":0.7,"publicationDate":"2024-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12334","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143582016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Geographical indication in Indonesia: A review on the spatial distribution and classification of geographical indication-registered products and -related publications","authors":"Diana Harding,&nbsp;Kevin Muhamad Lukman,&nbsp;Miranda Risang Ayu Palar,&nbsp;Ryo Kohsaka","doi":"10.1111/jwip.12332","DOIUrl":"https://doi.org/10.1111/jwip.12332","url":null,"abstract":"<p>The status and trends of geographical indication (GI) registration in Indonesia is presented and analyzed. Indonesia amended the GI-related legal systems in 2019, and despite its increase in registration and policy developments, the extent of coverage and classification of GI-registered products remain unclear. Thus, we analyze the current status and trends of GI registration by mapping the spatial distribution and classification of GI products. We supplemented our analysis by capturing and reviewing GI-related publications in Indonesia. Results showed that GI-registered products are concentrated in Java and Sumatra regions, with agricultural products as leading commodities. The spatial distribution further exhibits that cultural and traditional values play an important role in shaping GI products. Meanwhile, for GI publications, we documented that scientific literatures produced by domestic scholars are more abundant than international publications. Although this is a positive assertion, reviewed publications are mostly focused on the legal aspects. Other aspects such as GI promotion, development, and benefits are lacking. The policy and practical implications of such findings highlighted the critical role of provinces and domestic scholars in promoting GIs of Indonesia to the global arena.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 1","pages":"263-285"},"PeriodicalIF":0.7,"publicationDate":"2024-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12332","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143582015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Who benefits from strong patent protection? An oil-dependent country's perspective","authors":"Shaikha Al Akhzami,&nbsp;Lokman Zaibet,&nbsp;Abdallah Akintola,&nbsp;Osman Gulseven,&nbsp;Behnaz Saboori","doi":"10.1111/jwip.12326","DOIUrl":"https://doi.org/10.1111/jwip.12326","url":null,"abstract":"<p>In this paper, a complex interplay is demonstrated, indicating that the impact of intellectual property rights (IPR) and patent protection varies in certain trade contexts. We review the IPR and patent laws in Oman and subsequent amendments following the signing of free trade agreements and investigate how strong protection of patents and IPRs affects Oman's trade. A panel data set comprising the majority of Oman's trading partners from 2000 to 2021 was utilized to achieve this objective. Under the Oman Intellectual Property (IP) Laws, 5617 patent applications were used to calculate the patent index scores. This study contributes four significant findings. First, it analyzes how strong IP and patent protection affect Oman's exports and imports. Second, it assesses the variation in overall trade flows and manufacturing trade flows. Third, while most studies use the IPR index, this study offers a more specific perspective by examining the patent index, particularly concerning manufacturing trade, which is primarily associated with patent-protected technologies. Fourth, this study provides the first comprehensive analysis of a GCC country that is heavily dependent on oil. This study reveals that Oman's strong IPR and patent regimes significantly enhance overall exports. Strong patent protection promotes the import of high-tech goods, whereas robust IPR protection unexpectedly reduces manufacturing trade.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"28 1","pages":"240-262"},"PeriodicalIF":0.7,"publicationDate":"2024-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143581935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}