Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 2 OVERVIEW Domain Concepts Methodologies Problematic Issues

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 3 DOMAIN 1 What is intellectual property law 1? –In historic perspective intellectual property law is a 19 th Century Western European legal instrument designed to regulate the national and international trade and exchange of products of the mind (creations, innovations and distinctive signs)

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 4 DOMAIN 2 What is intellectual property law 2? –Extern perspective: intellectual property law is a method for organizing economic and cultural life –Intern perspective: Intellectual property rights are the property rights awarded by society to individuals or organisations principally over creative and innovative products. They give the rightowner the right to prevent others from making unauthorised use of their property for a limited period.

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 5 DOMAIN 3 Rationale of intellectual property law Intellectual property creates a legal means to appropriate knowledge. Amongst academics, notably economists, IPRs have generally been viewed critically. Such rights necessarily involve restrictions on competition which may be to the detriment of consumers and the freedom of trade, and the question is whether these costs are outweighed by the incentives for research and invention. Intellectual property rights should not be seen as an end in themselves, but as means which can contribute to development and reduction of poverty.

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 6 DOMAIN 4 Assessment of intellectual property law In developed countries, there is good evidence that intellectual property law is, and has been, important for the promotion of creation and invention in some industrial sectors, althought the evidence as to exactly how important it is in different sectors is mixed. For developing countries, like the developed countries before them, the development of indigenous technological capacity has proved to be a key determinant of economic growth and poverty reduction. Viewed this way, the issue is whether intellectual property rights can contribute to promoting effective national systems of creation and innovation in principle and, given the wide existing variations in the indigenous technological capacity, how they can do effectively in practice, taking account of the circumstances in particular countries.

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 7 DOMAIN 5 Prominent international sources of intellectual property law –Paris Convention 1883 –Berne Convention 1886 jo WIPO Copyright Treaty 1996 –TRIPS Agreement 1995

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 8 DOMAIN 6 Are intellectual property rights human rights? –27 Universal Declaration of Human Rights (UDHR) 1948 –15 International Covenant on Economic, Social and Cultural Rights (ICESCR) 1976 –II-17 (2) Draft European Constitution 2004

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 9 CONCEPTS 1 Substantive intellectual property law enables right owners to legally fencing their positions on the basis of –Statutory exclusive property rights –Statutory restrictions and limitations to the exclusive property rights

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 10 CONCEPTS 2 Principal characteristics of exclusive rights –Restricted acts (prerogatives) –Third party effect (ultra vires effect) Principal restrictions and limitations –Public domain –Exhaustion (first sale rule) –Fair use

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 11 METHODOLOGIES Pigeonhole philosophy: intellectual property rights are categorised according to mainly the following characteristics –Purpose and function –Subject matter –Regime of protection Industrial Property - Patents - Industrial Designs - Trademarks - Geographical Indications - Trade Secrets Artistic and Literary Property - Copyright - Performing rights Sui Generis Systems - Integrated Computer Circuits - Plant Breeders Rights - Database Protection

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Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 13 Problematic Issues 1 Policy issues under TRIPS Agreement New subject matter Concurrence and convergence of protective regimes

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 14 Problematic Issues 2 Policy issues under TRIPS Agreement –Whether the objective set out in Article 7 that IPRs should contribute to the transfer of technology is achievable, particularly in respect of developing country members of the WTO. –The perceived tensions between Article 8 which allows countries to adopt measures necessary to protect public health, and to prevent abuses of IP rights, provided they are TRIPS consistent, and other requirements in the agreement. These include the requirements to provide patent protection for pharmaceutical products, limitations on the conditions for issuing of compulsory licences (Article 31) and on the scope of provisions providing exceptions to patent rights (Article 30). –The requirement to protect test data against unfair commercial use in Article 39. –The justification for providing additional protection for geographical indications for wines and spirits, (Article 23) and whether this additional protection should also be extended to cover other or all geographical indications. –The extent to which patents should be allowed on inventions relating to living forms, for example microorganisms (Article 27.3(b)), and the requirement to provide IP protection for plants. In that context, the compatibility of TRIPS with agreements such as the Convention on Biological Diversity (CBD) has been raised. –The cost of meeting the requirements of TRIPS for many developing and least developed WTO Members in relation to the administration of IP rights and their effective enforcement. See CIPR, Integrating Intellectual Property Rights and Development Policy (2002), p. 3.

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 15 Problematic Issues 2 New subject matter –Software, databases –Cultural expressions and indeginous knowledge –Business methods and genetic material

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 16 Problematic Issues 3 Concurrence and convergence of protective regimes –Philips / Remington case

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 17 Philips shaver

Dubai Conference May 2004 Molengraaff Institute Center for Intellectual Property Law (CIER) 18 Remington shaver