Journal of World Intellectual Property最新文献

{"title":"Pharmaceutical patents: Cathartic or inhibiting","authors":"Ravinder Jha","doi":"10.1111/jwip.12312","DOIUrl":"https://doi.org/10.1111/jwip.12312","url":null,"abstract":"<p>The debate between patent rights of pharmaceutical firms and the rights of the poor to equal access to health is an old one. The basic purpose of any patent system that grants a temporary monopoly to an innovator is to stimulate innovation and investment in the production of the newly innovated goods and services, which in turn gives supernormal profits to the innovator. However, the equity considerations dictate the spread of this knowledge in the public domain. The dilemma of the patent system is that, in encouraging R&amp;D, it prevents the diffusion of innovation and consequently creates a non-competitive situation. This paper examines the impact of patent protection on the number of patent filings by the pharmaceutical companies in India after it signed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and the trend in research and development expenditure by domestic firms. It questions the basis of this intellectual property right, especially, when a substantial amount of basic research is often carried out in the universities and federal funding is provided at the basic research and development level. It further investigates the success of various flexibilities provided under TRIPS which the Indian Patent Act has used and can potentially use, in comparison to other developed countries, to provide easy access to the medicines. The paper concludes by exploring other options available during public health emergencies and otherwise.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 3","pages":"428-445"},"PeriodicalIF":0.7,"publicationDate":"2024-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142642321","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":"Impacts of changes to Canada's Plant Breeders' Rights Act","authors":"Stuart J. Smyth,&nbsp;Peter W. B. Phillips,&nbsp;Diego M. Macall,&nbsp;David Castle","doi":"10.1111/jwip.12303","DOIUrl":"10.1111/jwip.12303","url":null,"abstract":"<p>On February 27, 2015, as part of the Agricultural Growth Act, amendments to the Canada's Plant Breeders' Rights (PBRs) Act came into force, making Canada compliant with Union for the Protection of the New Varieties of Plants (UPOV) 91. One objective of adopting UPOV 91 was that it would encourage increased investment in plant breeding, giving Canadian farmers greater access to new and innovative plant varieties that enable them to be more globally competitive. To assess whether the adoption of UPOV 91 impacted crop variety investments, a survey of Canadian public and private plant breeders was undertaken in 2021–2022. Results indicate that the length of research grants play a significant role in plant breeders' perspectives. Previous research indicated that the adoption of UPOV 91 provided minimal incentives to increase investments. Results of this survey indicate that 52% of respondents, either agree or strongly agree, that the amendments to the PBR Act have provided an incentive to increase plant breeding investments.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 3","pages":"397-409"},"PeriodicalIF":0.7,"publicationDate":"2024-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12303","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140976155","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":"Intermediary safe harbour from copyright infringement in India—Alternative to the interpretative conundrum","authors":"Sumeet Guha,&nbsp;Shreya Matilal","doi":"10.1111/jwip.12305","DOIUrl":"10.1111/jwip.12305","url":null,"abstract":"<p>The Information and Communication Technology (ICT) platforms that allow copyright owners to reach a large number of users and increase their economic fortune, contritely; enable the potential infringers preferring free-riding to upload and distribute copyrighted materials. Under various theories of direct and secondary copyright infringement, the platforms now loosely called intermediaries are likely to become liable for copyright infringement. Like other jurisdictions, Indian law contains specific provisions to protect the intermediaries from such unanticipated liability. However, this intermediary liability and immunity law got muddied by inconsistent interpretations of the two operating statutes. Taking clues from the cross-jurisdictional insights, this paper looks at the interpretative conundrum. Furthermore, the paper contends how the preferred interpretation is incompatible with the Berne Convention and Agreement on Trade-Related Aspects of Intellectual Property Rights recommended three-step doctrine for creating copyright exceptions. Ultimately, this paper advocates for a legislative intervention to clear the clouds of confusion in view of India's endeavour to enact a new law on ICT.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 3","pages":"379-396"},"PeriodicalIF":0.7,"publicationDate":"2024-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140981383","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":"Patenting of agriculture biotechnology in Iraq: Widening the gap between the country's development needs and food security","authors":"Nihaya Khalaf","doi":"10.1111/jwip.12306","DOIUrl":"10.1111/jwip.12306","url":null,"abstract":"<p>In Iraq, plants and biological processes for their production and plant varieties are patentable Under Order (81/2004) in Iraq and later its amendment Law (58/2015). This paper attempts to critically review patent rules related to agricultural biotechnology. It specifically questions the extent to which Iraq's developmental needs were considered when far-reaching plant related patent protection was granted, The motivation for this study lies in its aim to examine the shift to restrictive exclusionary rights over plant genetic resources, and the implications this shift could have on sustainable agriculture and food security in the country, particularly Iraq lacks technological, institutional and financial capacities that can be directed towards the development of the biotechnology industry in the country.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 3","pages":"366-378"},"PeriodicalIF":0.7,"publicationDate":"2024-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12306","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140986341","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":"Video kills the radio star: Copyright and the human versus artificial creativity war","authors":"Francesca Mazzi,&nbsp;Salvatore Fasciana","doi":"10.1111/jwip.12304","DOIUrl":"10.1111/jwip.12304","url":null,"abstract":"<p>This article contributes to the dynamic debate surrounding the intersection of artificial intelligence (AI) and copyright law, offering a fresh perspective that builds upon interdisciplinary analyses. Focusing on the cognitive processes underpinning creativity in both human and AI contexts, the study draws a detailed parallel between Vincent Van Gogh's iconic “Starry Night” and its AI-generated counterpart generated through DeepDream technology. Central to the investigation is the application of psychological and neuroscientific theories to understand and compare the creative processes in humans and AI. Based on such exercise, the article first examines whether art generated with AI, devoid of human emotions and motivations yet capable of mimicking human creative cognitive processes, qualifies for copyright protection. The analysis suggests that the similarities between human and AI creativity, particularly in their cognitive structuring, could render the work “original” according to different jurisdictional standards and interpretation of copyright law. Second, the article investigates whether AI infringes copyright if protected material is used for its training and processing. This question becomes particularly relevant in light of recent legal actions against AI-artwork generators in California, which raise issues of potential infringement by AI using latent diffusion techniques on existing artworks. The discussion provides an original perspective that can advance the ongoing debate on the use of copyrighted material for AI training. The paper aims to contribute to the ongoing debate about AI and copyright by challenging the traditional human-centric view of authorship in copyright law. The article argues for a nuanced understanding that acknowledges the complex nature of creativity, transcending the binary division between human and artificial sources. This approach is critical in redefining legal frameworks, ensuring they are adaptive to the evolving landscape of AI capabilities. At the same time, the article addresses the implications of AI drawing inspiration from existing art, recognizing the need to balance different stakeholders' interests when drawing policy considerations. Ultimately, the goal is to provide a layered perspective that not only deepens the legal discourse but also respects and fosters the coexistence and mutual advancement of both human and artificial creativity in the digital age, in line with the purpose of copyright.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 3","pages":"341-365"},"PeriodicalIF":0.7,"publicationDate":"2024-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12304","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140996575","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":"Problems and strategies to maintain the existence of domestic registered patents in Indonesia to promote the economic growth","authors":"Muhamad Amirulloh,&nbsp;Helitha Novianty Muchtar","doi":"10.1111/jwip.12300","DOIUrl":"10.1111/jwip.12300","url":null,"abstract":"<p>The number of acquisitions of Indonesian domestic patents is still low, while Article 130 letter d of Law Number 13 of 2016 concerning Patents regulates the abolition of patents due to the patent holder not fulfilling the obligation to pay the annual fee. This provision causes the loss of registered patent rights that have been hard to obtain, while the legal protection is still long, and there is still potential for commercialization value. It is feared that this will become one of the obstacles in the effort to increase the acquisition of domestic patents which in the end will also hamper Indonesia's economic growth. This article seeks to formulate the problems and strategies in maintaining the existence of domestically registered patents to be able to provide adequate protection for the exclusive rights of inventors while at the same time being able to support national economic growth.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"296-313"},"PeriodicalIF":0.7,"publicationDate":"2024-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140663232","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":"Data exclusivity and patent monopoly extension: A view from Australia","authors":"Teddy Henriksen,&nbsp;Simone Henriksen","doi":"10.1111/jwip.12302","DOIUrl":"10.1111/jwip.12302","url":null,"abstract":"<p>Data exclusivity and patents are important to the pharmaceutical industry, and both these regimes coexist in the pharmaceutical landscape. Both data exclusivity and patents provide market exclusivity through monopoly periods. Because data exclusivity and patents can protect the same pharmaceutical, beginning at different times in the pharmaceutical lifecycle and having different durations, these terms may not coincide, and each can extend the effective market exclusivity period of the other. For example, when data exclusivity persists beyond patent expiry for a pharmaceutical, subsequent entrant access to the market is restricted and the period during which originators can charge high prices is extended. This article seeks to eliminate the situation where patent monopolies have expired, but data exclusivity remains in force by proposing a method to ensure that data exclusivity and patent terms expire simultaneously. Further, the proposal maintains the protection to innovators afforded by both data exclusivity and patents, recognising that these regimes protect different things in pharmaceutical development.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"314-338"},"PeriodicalIF":0.7,"publicationDate":"2024-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12302","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140665631","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":"Rethinking copyright exceptions in the era of generative AI: Balancing innovation and intellectual property protection","authors":"Saliltorn Thongmeensuk","doi":"10.1111/jwip.12301","DOIUrl":"10.1111/jwip.12301","url":null,"abstract":"<p>Generative artificial intelligence (AI) systems, together with text and data mining (TDM), introduce complex challenges at the junction of data utilization and copyright laws. The inherent reliance of AI on large quantities of data, often encompassing copyrighted materials, results in multifaceted legal quandaries. Issues surface from the unfeasible task of securing permission from each copyright holder for AI training, further muddled by ambiguities in interpreting copyright laws and fair use provisions. Adding to the conundrum, the clandestine practices of data collection in proprietary AI systems obstruct copyright owners from detecting unauthorized use of their materials. The paper explores the exceptions to copyright laws for TDM in the European Union, the United Kingdom, and Japan, recognizing their crucial role in fostering AI development. The EU has a two-pronged approach under the Directive on Copyright in the Digital Single Market, with one exception catering specifically to research organizations, and another, more generalized one, that can be restricted by rightsholders. The UK allows noncommercial TDM research without infringement but rejected a broader copyright exception due to concerns from the creative sector. Japan has the broadest TDM exception globally, permitting the nonenjoyment use of works without permission, though this can potentially overlook the rights of copyright owners. Notably, the applicability of TDM exceptions to AI-produced copies remains unclear, creating potential legal challenges. Furthermore, an exploration of the fair use doctrine in the United States provides insight into its potential application in AI development. It focuses on the transformative aspect of usage and its impact on the original work's potential market. This exploration underscores the necessity for clear, practical guidelines. In response to these identified challenges, this paper proposes a hybrid model for TDM exceptions emerges, along with recommended specific mechanisms. The model divides exceptions into noncommercial and commercial uses, providing a nuanced solution to complex copyright issues in AI training. Recommendations incorporate mandatory exceptions for noncommercial uses, an opt-out clause for commercial uses, enhanced transparency measures, and a searchable portal for copyright owners. In conclusion, striking a delicate equilibrium between technological progress and the incentive for creative expression is of paramount importance. These suggested solutions aim to establish a harmonious foundation that nurtures innovation and creativity while honoring creators' rights, facilitating AI development, promoting transparency, and ensuring fair compensation for creators.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"278-295"},"PeriodicalIF":0.7,"publicationDate":"2024-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140682952","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":"TRIPS-PLUS provisions in the economic partnership agreements with the EU: The CARIFORUM's experience and lessons for West Africa","authors":"Juliet A. Ogbodo","doi":"10.1111/jwip.12299","DOIUrl":"10.1111/jwip.12299","url":null,"abstract":"<p>Negotiation for the Economic Partnership Agreement (EPA) between the European Union (EU) and six African, Caribbean and Pacific (APC) regions has been ongoing for over a decade. These negotiations are at different phases in the seven APC regions and have faced significant challenges, hindering ratification in most of them. However, the Caribbean Forum (CARIFORUM) is the first regional group to have completed the process. It is currently implementing the EPA. Most significantly, CARIFORUM is the only region to have negotiated and ratified a comprehensive EPA that goes beyond trade in goods to include other elements such as services and intellectual property. This paper seeks to understand why CARIFORUM opted for a comprehensive EPA with the EU. Keeping in mind the downsides of intellectual property (IP) globalization, it fleshes out lessons, particularly on IP rights, that West African countries, and other non-Caribbean ACP regions, can draw from the CARIFORUM's experience to adequately equip themselves in anticipation of negotiations with the EU for their EPAs.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"257-277"},"PeriodicalIF":0.7,"publicationDate":"2024-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12299","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140753361","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 Patents Māori Advisory Committee of Aotearoa New Zealand: Lessons for indigenous knowledge protection","authors":"Evana Wright,&nbsp;Daniel Robinson","doi":"10.1111/jwip.12295","DOIUrl":"10.1111/jwip.12295","url":null,"abstract":"<p>Using freedom of information requests, we examine the operation of the Patents Māori Advisory Committee of Aotearoa New Zealand. The Committee advises the Intellectual Property Office of New Zealand on whether inventions claimed in a patent application are derived from Māori traditional knowledge or from indigenous plants or animals; and if so, whether the commercial exploitation of that invention is likely to be contrary to Māori values. There is limited publicly available information on the operations of the Committee and the decision-making process undertaken in reviewing applications. The requests and our searches identified 13 patents referred to the Committee, of which most (9 of 13) dealt with inventions related to Mānuka (<i>Leptospermum scoparium</i>), a taonga species known for its role in producing unique honey. Only two applications have been found to be contrary to Māori values, and these applications have both since been abandoned. The review of applications found to be ‘not contrary to Māori values’ is instructive, identifying important considerations taken into account by the Committee in reaching a decision, including the importance of benefit sharing and engagement with Māori in considering whether an invention may be contrary to Māori values. The analysis highlights the limitations of the Committee in reviewing only those applications filed in Aotearoa New Zealand and referred to the Committee for advice and identifies the importance of mechanisms such as disclosure of origin to ensure all relevant applications are reviewed by the Committee. The paper concludes by highlighting how the operation of the Committee may inform the development of similar bodies in other jurisdictions, such as Australia.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"222-241"},"PeriodicalIF":0.7,"publicationDate":"2024-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12295","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140372096","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}