国际知识产权法案例分析英文版.docx

1、国际知识产权法案例分析英文版IfUcnMikMl IntelImJuul Pcxpcrtj O emx and CurrcnlWUHAN UNIVERSITY SCHOOL OF LAW INTERNATIONAL INTELLECTUAL PROPERTYLAW:OVERVIEW AND CURRENT ISSUESLectured by Professor Sam RicketsonMelbourne University Law SchoolTAKE HOME EXAMINATION - SEMESTER 1, 2012Major: International Economic LawN

2、ame: LinYaoNumber: 2011201060201Date: 2012. 11. 23IntroductionDuring the period of November 2012, I took InternationalIntellectual PropertyLaw: Overview and Current Issues” as an important foreign electivecourse.The course is structured around overviews and frontier problems on IP rights. Based on t

3、hose classic convention systems research and class discussions about current issues, I lifted knowledge and sharpened my linguistic skills. In Strict Accordance with the requirements and schedule, I ve completed the task through my own efforts as a study feedback.Thanks for Professor Sam Ricketson a

4、nd Professor Niejianqiang worked on imparting knowledge and let me enjoy the wonderful journey ofInternational Intellectual Property Law. Look forward to your suggestion and correction.ALL MY ANSWERS ARE AS BELOW:PART AQuestion One - 40%Dear Justine:You have asked me for advice on Draft Tempuran Int

5、ellectual PropertyCode. Thank you for trusting me, and I will try to give some suggestions.All the suggestions are under TRIPs Agreement, the Berne Convention for the Protection of Literary and Artistic Works, the Paris Convention for the Protection of Industrial Property, and the WIPO Copyright Tre

6、aty, which will be inherit by Tempuran.(a)A. Copyright(1)The draft Code defines the author is a citizen of Tempura orhas beenhabitually resident in Tempura for a period of no less than 5 years . But asBerne Convention provides: Authors who are not nationals of one of thecountries of the Union but wh

7、o have their habitual residence in one ofthem shall, for the purposes of this Convention, be assimilated to nationalsof that country. ” That means the time standard of 5 yearsshould not beset.(2)The provider only the work is first published in Tempuran or in countriesJPthatgive equivalent protection

8、 to the works of Tempuran authors shouldbe protectedand even the further condition for protection go against tonational treatment.(3)About the duration of protection, the convention provider the term shall bethe life of the author and fifty years after his death and give permanentprotection for righ

9、t of personality. 100 years after the first publicationand will prejudice the author * s right, personality right should not belimited in author s lifetime.B. DesignsInitial registration, and each renewal of registration, of atrademark shallbe for a term of no less than seven years.C. Trademarks(1)

10、According to the TRIPs Agreement, of registration, trademarkmeans thatsigns be visually perceptible. Therefore, cautious attitude shouldbe hold tosmell” can be a kind of trademark.(2) *Through evidence of extensive market use that has alreadyoccurred atthe time of application” may be a suitable cond

11、ition for well-knowntrademark application, but too strict with common trademark.D. Patents for inventions(1) About the problem of foreign priority.The periods of priorityshall betwelve months for patents and novelty wont lose despite ofapplication orpublishing in other Union members.(2) Patents can

12、be taken advantage to meetfair use for theeducation necessary,not limited in colleges or higher educational establishments.(3) The patents right holder shall be paid adequate remuneration inthecircumstances of each case, taking into account the economic value of theauthorization under compulsory lic

13、ense, also the patentee who hasitsprincipal headquarters outside of Tempura.Application of CodeThe Code should be retroactive, ambit of industrial property rights protectionmay expand to expand to the works come into existence before or after the commencement date of the Code.(1) Traditional ideas t

14、hat,every country insists on the territorial character ofintellectual property rightin establishing the rules of applicationThe strict Region principledecides domestic law has noof law.extraterritorialeffect in principle. But Tempura is a highly industrialized countryJPwith aIuictiuiliomI Intcllpiiu

15、al and furrvnl IsmicsI JlUUts TWriHAII KniFSm i.large services sector, that means abandon extraterritorial jurisdiction isadverse for IP rights protection as an technology exporting country.(2) Subject matter jurisdiction contributes to the establishment ofindependentand unified legal system. Extrat

16、erritorial subject matter jurisdiction mainlyaims at damage to the interests of overseas citizens. So for asovereignachieve judicature to enhanceindependence and development.Althoughto(3) The ownership and contents of an intellectual property rightshall be governed by laws of the place where protect

17、ion is claimed.PART BQuestion Two - 30%The rapid development of the Internet to the network environment ofIntellectual, Property protection has brought unprecedented impact.Cyberspace is a global, interactive and non-jurisdiction of the central features of the network so that the world can not rely

18、solely on a dispute to solve the country, it needs international cooperation and coordination.Internet intellectual property is the derivative combing internet technology with intellectual property. Compared with traditionalintellectual property, the striking characteristics of internetways of infri

19、ngement, difficultinvestigating infringementintellectual propertythe environment basedinfringement cases, diversifiedresponsibilities and imperfect convention systems in internetintellectual property, some measures should be taken to strengtheninternet intellectual property protection by improving i

20、nternationaltreaty-making, perfecting internet intellectual property protectorganism, improving people* s awareness of the law of internetintellectual property protection.For example, at present the Internet domain name plays the role ofequivalent of trademark, but still has not obtained the legal s

21、tatussimilar to trademark. Malicious registering action has already causedproblems, and the solution seems to be giving the legal protection astrademark. However, the sets of conventions forming in the 19th centuryare difficult to completely adapt to the social reality of the 21stcentury.The provisi

22、ons of the present convention is adapted to theindustrial economic condition, but in the era of knowledge economy, therange and speed of informationlie in the existence of intellectual property and on computer network. It therefore has the rules ofdissemination is far from traditional environment, t

23、echnique update cycle becomes shorter, eliminated frequently, intellectual property intangible loss also increases greatly. Therefore, further update for the current international treaties is necessary. Of course, the renewal of the intellectual property legal system will not shake the purpose of in

24、tellectual property rights and basic function, on the contrary, it is to promoteintellectual property system play a better role the inevitable trend.Question Three - 30%Historically, in the international legal system, independent, parallel, and yet there are significant contrasts between the evoluti

25、on of Intellectual Property laws and international human rights law.However, Since the 1990s, western scholars began to pay attention to the complicated relationship between them. This academic research phenomenon relates to Agreement on Trade-Related Aspects of Intellectual PropertyRights (The TRIP

26、S agreement) formulation and implementation.According to Universal Declaration of Human Rights (hereafter referred to as UDHR) and International Covenant on Economic, Social andCultural Rights, (hereafter referred to as ICESCR), Everyone has the right freely to participate in the cultural life of th

27、e community, to enjoy the arts and to share in scientific advancement and its benefits.But as the development of digital age, collision between intellectual property protection and human rights has been rising. The provisions ofTRIPs agreement pose an obstacle to realization of these basic human rig

28、hts. The adverse impacts mainly include: obstruct technology assignment to developing countries： new varieties of plants and genetically modified organisms patents influence adequate food need： medicine patents impact on enjoying good health, etc.However, the IGOs and UN senior officials always keep

29、 cautious attitude toward using conflict” to describe this relationship. They use the word tension” instead.Actually, I think intellectual property is not totally on opposite side to human rights, but the tool for human rights realization.Intellectual property is used to achieve the purpose as follo

30、wing: encourage invention and creation, encourage innovative production spread, encourage development of culture characteristics. Integrity of scientific, literary and artistic works will provide better social services, even create good conditions for realizing human rights.Indeed, strained relation

31、s between human rights and IP rights can not be ignored. There are views that the conflict can be solved by the legislative way. According toarticle 7 of TRIPs, the interests balance spirit reflects each part of human rights areindivisible, this is policy space for WTO members to protect IP rights a

32、nd ensure social public interests at the same time. WIPO also think, exceptions and restrictivecovenants in the article are enough to help ease the tension relationship. Developingcountries can also make use of the flexibility and exception clause(such as compulsory license, patent exceptions, etc.) in TRIPS agreement clause to solve drugs availab