The Journal of World Intellectual Property

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  • Free and Open Source Software and FRAND‐based patent licenses

    In the context of digital transformation, both standards and Free and Open Source Software (FOSS) can be seen as key to success for innovation. However, the increasing role of FOSS in the ICT sector has provoked the question of interplay and compatibility between FOSS and standardization processes. The goal of this article is to provide an overview of the different licensing regimes, FOSS licenses and fair, reasonable, and non‐discriminatory (FRAND)‐based licenses, and to shed some light on the current debate by analyzing possible tensions between some of the most prominent FOSS licenses and their interaction with FRAND‐based patent licenses. The article will begin with an overview of the history and context of FOSS licenses and FRAND‐based licensing regimes, continue with a legal review of the actual language of prominent FOSS licenses, and provide further thoughts on future opportunities and challenges for the interaction between FOSS projects and standard processes, with a particular view on FOSS implementations of standards.

  • Trends in prelicensing negotiations of standard‐essential patents

    Prelicensing negotiations play a crucial role in determining the fate of the terms that govern licensing of standard‐essential patents (SEPs). There have been a number of judgments from all around the globe that suggest the best practices that parties, that is, the SEP holder and the technology implementer should follow to safeguard their respective positions. To begin with, the Huawei framework and later on a number of decisions in Germany did reflect on the framework under which an SEP holder may ask for an injunction in matters relating to infringement of essential patents. Similarly, these cases also suggest the expectations bestowed upon an implementer to ensure early completion of a negotiation process. Under similar circumstances, the Indian courts do offer overall guidance to the stakeholders. In the context of prelicensing negotiations and existing best practices, this article delves into the transition from the  Huawei to the post‐ Huawei framework, investigates the unresolved issues, and further reflects upon the existing situation in India.

  • The future of information under the CBD, Nagoya Protocol, Plant Treaty, and PIP Framework

    The United Nations’ Convention of Biological Diversity (and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization), the Food and Agriculture Organisation of the United Nations’ International Treaty for Plant Genetic Resources for Food and Agriculture, and the World Health Organisation of the United Nations’ (WHO) Pandemic Influenza Preparedness Framework all set out schemes for access and benefit sharing (ABS) some biological materials. This article addresses the apparent conflict between the general obligations in these agreements to disclose and exchange information and dealing with information as a resource derivative within the ABS transaction. This latter dealing is a closed domain for information under the ABS schemes where information is a resource derivative that is a part of the ABS transaction. Treating information as a resource derivative within the ABS transaction is likely to impose unnecessary and inefficient burdens on ABS transactions. After reviewing the recent developments, the article postulates a risk framework for valuing information as a part of the ABS transaction, or alternatively, a charge, tax, or levy to externalize the costs so that information remains available to be disclosed and exchanged promoting more and better science and research.

  • Shielding internet intermediaries from copyright liability—A comparative discourse on safe harbours in Singapore and India

    Without intermediaries that provide access to, host and link content, the internet will not be the vibrant place it is today. Yet with the rising number of online copyright infringements, right holders have increasingly shifted their focus to intermediaries in their efforts to curb infringements. This has led to internet intermediaries being increasingly exposed to copyright liability. In light of this, safe harbours that provide certain classes of intermediaries with conditional immunity play an important role in maintaining a healthy balance between the interests of right holders and third parties. In the copyright context, the Digital Millennium Copyright Act 1998 (DMCA) enacted in the United States was the first instance where such a safe harbour was afforded to internet intermediaries. During the two decades of the DMCA's operation, it has been used as a blueprint to shape safe harbours in other jurisdictions. This article focusses on two such jurisdictions—namely, Singapore and India—and provides a comparative and in‐depth analysis of the safe harbour frameworks in the said jurisdictions, while mapping out how they compare with the DMCA. In the process, the article highlights a number of features in the DMCA that have been remodelled in Singapore and India.

  • The copyright reward system and content owners in the creative industry: A study of the Malaysian film and TV industry

    The creative industry is identified as one of the key drivers to move Malaysia into a high income and knowledge‐based economy. Copyright law and complementary policies were used as measures to stimulate the creative industry. However, the industry's growth is far from the expectation. This leads to a two‐prong inquiry. First, the paper attempts to examine the adequacy of copyright rules and provisions in securing the rights of the creators and provide them with the motivation to produce more creative works. The aim is to explore the dynamics between the various copyright beneficiaries in the creative industry in Malaysia to understand what are the actual problems that deprive the copyright owners from reaping the full value of the exclusive rights granted to them. The second objective is to examine whether the copyright provisions are aligned with complementary policies implemented to boost the creative content industry. Our primary contention is that both the legal reforms and complementary policies used to support the industry need to be revisited. The legal reforms must be aligned with the structure and dynamics of power in the industry to give all the beneficiaries an equal bargaining plane to take advantage of the copyright system.

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  • Māori knowledge under the microscope: Appropriation and patenting of mātauranga Māori and related resources

    Since the early 1990s there has been considerable global discussion and debate surrounding biodiscovery activities and the utilisation of both genetic resources (including biochemical derivatives) and associated traditional/Indigenous knowledge (TK/IK). Concerns about misappropriations and biopiracy have often been raised; however it has been difficult to quantify the scale of this problem beyond some common examples and anecdotes. This paper contributes to emerging research in this area (e.g., see Oldham et al. 2013, PLOS One, 8, e78737; and Robinson and Raven, 2017, Aust Geogr, 48, 311) and seeks to quantify patent utilisation of specific GRs where there is documented TK. A patent landscaping approach was undertaken with a focus on plants with associated mātaraunga Māori (Māori knowledge) from Aotearoa New Zealand. We explain our methodology and highlight 77 patent families of interest identified through our search. Although the findings are not definitive about misappropriation without additional analysis of the patents’ specifications and claims, and sources of mātauranga Māori, the data we outline may be useful for drawing out cases of misappropriation and biopiracy. These findings might also be useful for considering the potential implications of these for Māori claims under the Waitangi Tribunal Wai 262, potential access and benefit‐sharing (ABS) systems, and intellectual property regulations or reforms.

  • China engages with the global intellectual property governance: The recent trend

    As China becomes the second largest economy in the world, there have been increasing domestic demands requesting China to engage with the global governance of various issues more closely. In intellectual property (IP), China has recently engaged with global IP governance both responsively and actively. This paper answer the questions (a) how did China respond to the global IP up‐ratchet which sets higher IP standards; and (b) how did China actively promote its agenda for the global IP governance. This paper argues that China has a clearer and more consistent position in its responsive engagement than in active engagement. In other words, China is more affirmative in making defensive coalitions opposing TRIPS‐plus standards proposed by developed countries than promoting its own IP initiatives regionally or plurilaterally. China's positions in these defensive coalitions are the classic pro‐development, developing country positions. Its active IP engagement is more diversified. Specifically, China keeps a low profile and does not attempt to take the lead in IP negotiations at the Regional Compressive Economic Partnership. By contrast, China has emerged as a model exporter, focusing on IP capacity building in its IP arrangements in the Belt and Road Initiative (BRI) and BRICS.

  • A re‐evaluation of the framework for the protection of patents, women’s health in Nigeria and the issue of accessing pharmaceutical innovation in Africa: Designing strategies for medicines

    The objective of this study is to make a case for Nigerian women to have access essential medicines in light of patent protection of pharmaceuticals. Consequently, this study argues for an improvement of women's access to medicines within the context of patent law and rights, the available flexibilities in the international IP regime of the Trade Related Aspect of Intellectual Property Rights (TRIPS) Agreement and Nigeria's national patent system. Towards this goal, the article makes the point that patent law and its exclusive rights, both the TRIPS Agreement and national law of Nigeria, do not exist in a social welfare vacuum. The legal text of patent law, which confers rights on inventors when enforced, translates to many other things outside the sphere of property rights; indeed, it can be a matter of life and death. It is argued in this regard that patent right could, in effect, interfere with access to medicines and therefore, the right to health and prospects for human development. This study adopts a doctrinal methodology to examine, analyse, and evaluate the issues that have arisen in the context of patent protection of pharmaceuticals and its effect on access medicines. It concludes that while the hindrances to accessibility of essential drugs in Nigeria are multifaceted and demand a multidimensional approach for a lasting solution, the TRIPS flexibilities are significant means for addressing the challenges of affordable access to important health treatments within the context of patent law. However, it is emphasised that utilising the flexibilities will require that Nigeria's patent system is strategically designed to take full advantage of the available exceptions, safeguards, and options.

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