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Journal of Intellectual Property Rights (JIPR)

  • Title: GATT Final Act: Patenting of Inventions Present and Future Position

    Authors: Subbaram, N R

    Abstract: Summary-This paper discusses
    about the establishment of World Trade Organisation including the Agreement on
    Trade-related Intellectual Property Rights (TRIPS). It also covers the requirement
    of TRIPS Agreement in the GATT Final Act.

    Page(s): 87-90 2013/07/13 - 17:36
  • Title: Protection of Computer Software/Algorithm

    Authors: Gupta, V K

    Abstract: Summary - This
    paper discusses the salient issues relating to the protection of

    computer software. The issues
    regarding the copyright protection of computer software have been considered
    the related provisions of Indian Copyright Act have been
    described. The current development relating to protection of software under patent laws are
    reviewed and the critical aspects of
    particularly, mathematical algorithms have been analyzed.

    Page(s): 76-86 2013/07/13 - 17:36
  • Title: International Conventions, Agreements & Treaties for the Protection of Intellectual Property

    Authors: Gupta, R K; Subbaram, N R

    Abstract: Summary - This
    paper gives a broad view of the various international treaties and conventions
    on intellectual property rights of the numerous conventions, treaties
    and agreements. It also covers all the treaties, conventions and agreements
    administered by World Intellectual Property Organisation (WIPO), one of the
    specialized agencies of the United Nations. Important treaties which
    are not administered by WIPO are also discussed.

    Page(s): 67-75 2013/07/13 - 17:36
  • Title: The Copyright Eclipses

    Authors: Majumdar, S.

    Abstract: The protection of inventions, creative works, industrial designs and logos have over the years been governed by the laws of Patents, Copyrights, Designs and Trademarks, collectively referred to as "Intellectual Property Laws". These are independent codes administered by different authorities. What is common to these laws is that the subject matter of protection under these laws are basically products of human mind or intellect.'These laws have very distinct applications and provisions which are contrary to each other but due to the common origin of the subject of protection these different IP laws are dealt with under the common umbrella of Intellectual Property Rights. Even the judiciary has accepted composite actions based on these laws. While the various IP laws have come closer and share a lot of common areas there are certain specific overlapping zones in these laws which overlap and are capable of causing serious anomalies. More often than never these overlaps have created problems in the course of enforcement of rights under these laws. The author defines these areas particularly with reference to Copyright Act and demonstrates the loose ends and also gives a few practical suggestions to tackle problems in these areas.

    Page(s): 307-315 2013/07/13 - 17:36
  • Title: U.S. Chemical Patents Issued during 1984-94

    Page(s): 286-289 2013/07/10 - 06:25
  • Title: Patenting Activity in Asian Region during Late Eighties*

    Abstract: Patents and patenting trends of Asian countries are analysed. Technological importance of these patents is also discussed. Patenting activity in several Asian economies highlights the rapid technological growth that took place during the late 1980s.

    Page(s): 275-285 2013/07/10 - 06:25
  • Title: Are Markush Structures Matters of Chemistry and Law or Just Figments of the Imagination?*

    Authors: Ustinova, EA

    Abstract: Markush disclosures caused problems for
    both database producers and users. Also there was the necessity for such claims
    expressed by the patent attorneys, especially in the pharmaceutical area. The authors
    of this paper looked at this problem paying particular attention to the requirements
    of patent law and to the needs of chemistry as a science. Account is taken of
    the views expressed in previous publications in the area. It is argued that the
    so-called "nasties" and "super-nasties" arise because the basic
    principles of science and of patent law are being ignored.

    Page(s): 227-240 2013/07/10 - 06:25
  • Title: Intellectual Property Rights in Commercialization of R&D and Transfer of Technology

    Authors: Gupta, V K

    Abstract: This paper gives in detail the ways and means
    of exploiting patented inventions/knowhow. The salient aspects that should
    be taken into account while negotiating and drafting a patent license or knowhow
    agreement are described. A brief mention has been made of the provisions that
    relate to patent licensing and transfer of technology in the Indian Patent Act.
    More importantly, the current concerns of harmonizing the intellectual property
    laws have been pointed out in the context of the international-patent system. Some
    of the essential pre-requisites for the management of intellectual property
    rights and the importance of patent information in commercialization of R&D
    and transfer of technology are described.

    Page(s): 181-190 2013/07/10 - 06:25
  • Title: Entertainment Network v Super Cassette Industries: Compulsory Licensing in the Copyright Demystified

    Authors: Singh, Himanshu Raman; Singh, Preetesh Raman

    Abstract: Compulsory licences
    are exceptions to the exclusive rights of the copyright holders. If
    monopolistic conduct or exclusionary conduct of the licensor is observed, then
    it will create anti-competition in the market and kill potential. If these
    copyright holders by the exercise of their right refuse to communicate or
    withhold their work from public then it will affect public interest. India is a
    developing country, her economic, social and educational developments have to
    be accelerated and not retarded. Public interest cannot be put on stake just
    for the profit of one person. The Supreme Court’s decision in Entertainment
    Network (India)
    Ltd v Super Cassette Industries Ltd1 can be rendered as
    an epoch-making case in the field of intellectual property. The case became
    all the more important as it involved wide ranging issues like interpretation
    of Section 31 of the Copyright Act and the purposive interpretation placed on
    it treading on a thin line balancing the public interest with commercial
    interest. The radio industry in India
    is one of the booming sectors. Out of 139 music companies around 69 are private
    radio stations.2 This paper reviews and critiques the decision in
    the case alongwith the law prevailing in other countries. This paper makes two
    important contributions bringing aspect of compulsory licences to the fore and
    providing step by step discussion on the above judgment. The paper also highlights
    anxiety of the industry and further suggests the way out of this.

    Page(s): 201-211 2013/05/27 - 06:58
  • Title: Forward-Looking Valuation of Strategic Patent Portfolios Under Structural Uncertainty

    Authors: Collan, Mikael; Kyläheiko, Kalevi

    Abstract:   Strategic patent portfolios are
    intangible assets that technology oriented companies hold to secure their
    competitive advantage in the future. Traditionally, valuation of
    forward-looking strategic patent portfolios is more an art than a science,
    nevertheless, they play an important role in the future competitive advantage
    positioning of high-tech oriented companies.

      This paper
    discusses forward-looking strategic patent portfolios and presents some new
    ideas on how numerical valuation methods could be used in framing the valuation
    of these portfolios. The basis on which the forward-looking far away from
    exploitation strategic patent portfolios are valued is crucially different from
    the valuation of ‘in production’ patents or already existing licensable IPRs,
    since future strategic patents must be based on vague information with
    structural uncertainty about the future. The authors show how flexible tools
    and analysis using the pay-off method can be used to solve these complex
    problems faced by companies; and illustrate the same using a numerical example.

    Page(s): 230-241 2013/05/27 - 06:58
  • Title: Reputation Building to Reduce Risk of IP Litigation and Infringement Allegation

    Authors: Qinghai, Li; Sizong, Wu; Chen, Shouming; Junzhe, Ji

    Abstract: This paper explores why Chinese firms are
    easily subject to litigation and accusation of IP infringement, and how they
    can reduce these associated risks. The finding suggests that the negative
    reputation of IP abuses, penetration in high value-added area in terms of
    branding and R&D, entry in developed countries with sophisticated products,
    and passive response to litigation and allegation, are important reasons.
    Accordingly, a framework is proposed to stress well-intended reputation
    building for avoidance of litigation and allegation. Three strategies are
    recommended to build reputation: getting technology and IP with joint venture
    and acquisition, getting technology and IP with R&D and patent application,
    and toughness against litigation. Five Chinese case firms are used to
    illustrate these strategies. It seems to be the first study to incorporate
    reputation into IP defensive strategies, and therefore has great implications
    for firms from emerging economies which attempt to upgrade from
    labour-intensive to R&D and brand intensive enterprises.

    Page(s): 259-271 2013/05/27 - 06:58
  • Title: TRIPS Agreement and Public Health: The Post Doha Crises

    Authors: Agitha, T G

    Abstract: Though
    the Doha Declaration on TRIPS Agreement and Public Health has clarified that
    public health has predominance over private commercial interests, the victory
    of public health over trade interests appears to be momentary. The big
    pharmaceutical industries and the developed countries, using trade sanctions,
    effectively prevented developing countries from making full use of the
    flexibilities in the TRIPS Agreement procured by the Doha Declaration.
    Ultimately free trade agreements are made use of by developed countries to
    impose TRIPS plus obligations on developing countries. These developments once
    again ascertain that trade forum has its limits in protecting public health interests
    against trade interests.

    Page(s): 287-293 2013/05/27 - 06:58
  • Title: Minors' Rights under Intellectual Property Rights Laws: A Myth or Reality?

    Authors: Lukose, Lisa P

    Abstract: In principle and practice there exists a
    clear divide between legal competence of minors and majors. A minor’s agreement
    being void is wholly devoid of all effects: creating no contractual obligation
    and right. In this paper it is argued that the contractual incapacity attached
    to the minor is detrimental to him as far as the exploitation and enforcement
    of his innovative, creative and intellectual talents are concerned. The
    contractual incapacity averts him from commercially exploiting the fruits of
    his intellectual labour. The Indian laws on intellectual property rights do not
    debar minors from acquiring intellectual property rights. However, the
    contractual incapacity creates impediments on minors in exploiting the IPRs by
    entering into licenses or assignments.

    Page(s): 174-180 2013/03/27 - 04:38
  • Title: A Relook at Inventors’ Rights

    Authors: Wardhan, Prerna; Manchikanti, Padmavati

    Abstract: The Leahy-Smith America Invents Act, 2011 brought
    in significant changes that transformed the very basis of the patent system;
    this included the shift from first-to-invent system of priority to
    first-to-file system, and the elimination of inventor’s oath and declaration
    and the best mode defence. These changes are expected to achieve harmonization
    and simplify the patent administration system. This paper attempts to analyse
    whether administrative simplicity justifies protection of inventor rights under
    the current law. In the new system, the
    incentive/credit to inventors would be affected and the invention disclosure
    process rendered ineffective.

    Page(s): 168-173 2013/03/27 - 04:38
  • Title: Technology Development and Legislation Progress: Third Party Liabilities of Internet Service Providers in China Tort Law

    Authors: Li, Wei; Xie, Xue-Kai

    Abstract: This paper discusses
    about historical transitions of third party liabilities of Internet service
    provider (ISP) in Tort Law and Copyright Law of China. In the emerging period,
    drawbacks such as strong administrative legislation, limited valid duration of
    stipulations and unclear civil legislation characteristics existed in
    legislation, and the adjustment way in aspect of public law neglects civil
    remedy for the infringed. In the forming period, the legislation adjusts
    information network dissemination rights of copyright owners, performers, video
    & audio producers by transplanting system design highlights of DMCA. As a
    legislation model in the fusing period, Tort Liability Law (TLL) is featured in
    improving legal ranks, expanding adjustment scopes, updating legislation
    thoughts and balancing conflicts of interest. Where TLL § 36 is applicable, it
    should be clear that the § 36(1) does not classify ISP, and § 36(2),(3) are not
    applicable for parts of civil rights; the ‘notice’ is just a component of
    requirement of liability, whereas ‘take-down’ measures are not limited to those
    stipulated in the article, and all that are able to stop tort information
    dissemination should be deemed as reasonable ‘take-down’ measures; TLL § 36(3)
    is the subjective element for ISP to bear third party liabilities, and ‘know’
    should be interpreted as ‘knew or should have known’.

    Page(s): 133-142 2013/03/27 - 04:38
  • Title: The Inevitable Connection between Intellectual Property and Competition Law: Emerging Jurisprudence and Lessons for India

    Authors: Raju, K D

    Abstract:   The laws on intellectual property rights (IPRs) and competition have
    evolved historically as two separate systems. The traditional role of
    competition law has been to promote efficiency in the market and thereby
    prevent market distortions whereas the role of IPR has been the promotion of
    innovations by granting protection and rights over inventions. The general
    perception is that there is an inherent tension between IPR and competition law.
    Proof for this is the rise in the number of intellectual
    property related competition cases in the recent past across jurisdictions. India
    too has had her share of litigations in the matter.

      The present study addresses the nexus between IPR
    and competition law in general with a focus on India. It also proposes to
    deliberate upon and discuss judicial decisions and policy measures undertaken
    in different jurisdictions so as to understand the nature of real-time disputes
    in other countries and to help formulate concrete guidelines for the effective
    working of Indian competition authorities and the patent offices.

       In conclusion, the study argues that the
    present Indian Competition Act, 2002 (as amended in 2009) is not equipped to
    deal with the interplay between competition provisions and intellectual
    property protection. It reflects on the lack of sufficient rules along with the
    deficit in sufficient case laws which makes the issue more complex and suggests
    that the Competition Commission of India (CCI) should come out with IPR and
    competition specific guidelines in order to deal with those cases.

    Page(s): 111-122 2013/03/27 - 04:38
  • Title: Patent Enforcement Strategies in the United States: An Integrative Framework

    Authors: Lo, Chih Cheng; Lu, Shih-yun; Hsieh, Wei Her

    Abstract: Growing international commerce in high technology products has
    increased the potential for cross border patent disputes. However, there is no
    consensus regarding the nature, structure and change of patent disputes in the
    context of international competition. Although patent protection is intended to
    promise a unifying measure of commercial protection, entrepreneurial practices
    may influence its efficiency. Investigations into how patent enforcement functions effectively and
    what drives competitors’ decision to litigate are called for. This paper develops theories concerning the theoretical evolution
    of strategic management in patent enforcement from a firms’ strategic
    international context.

      This paper begins
    with a literature review and discussions of previous empirical studies dealing
    with patent enforcement strategies and a framework is proposed. Cross-border
    trade disputes are highlighted and insights from various empirical studies are
    synthesized into an integrative framework that addresses the cost of
    litigation, characteristics of patentees, value of patent and innovation
    activities, and the development of six testable propositions.

    Page(s): 56-66 2013/01/31 - 18:15
  • Title: Delineating the Scope of Protection for Technological Protection Measures in an Equitable Way: Approaches of US & EU - A Frame of Reference for China’s Legislation

    Authors: Liu, Wenqi; Gu, Zheng

    Abstract: Technological protection measures (TPMs)
    widely used by content holders to control the access and the use of their
    content in the digital environment have been recognized by several important
    international treaties and the national laws of their member states. Due to the
    absence of a uniform definition of the scope of protection for TPMs, different
    implementation regimes have evolved. The approaches by the US and EU
    indicate the importance of striking a balance between the interests of
    copyright holders and that of the public and consumers in designing the
    implementation regime. It is sensible to develop an equitable system to achieve
    the comprehensive objectives of protecting copyright, increasing consumer
    welfare, promoting information dissemination, and encouraging fair competition.1
    The experience of the US and
    EU is also a frame of reference for China’s legislation.

    Page(s): 28-38 2013/01/31 - 18:15
  • Title: Local Working of Patents - Law and Implementation in India

    Authors: Reddy, G B; Kadri, Harunrashid A

    Abstract: Inventive activity is supposed to result in
    innovation, which further leads to technological advancement, industrial
    development and economic welfare. This is possible through local working of
    inventions. When it comes to patented pharmaceutical drugs, local working
    requirement becomes more crucial for it is concerned with health issues.
    Historically, patents in England
    have been granted with an intention to encourage local application of the invention
    through industrial establishment. In recent years, particularly after TRIPS,
    tremendous growth in patent activity has been seen. Local working of patents
    has been the most efficient way of transfer of technology which itself is one
    of the primary objectives of the patent system. However, it is noticed that
    these patents are not necessarily worked locally. This paper aims to examine
    the legal framework of local working requirement, its implementation and
    feasibility in India.
    This paper argues that, though there are favourable conditions for investment,
    patents are not worked in India
    on a commercial scale. The present trend of non-working of patents in India indicates
    that patenting is attractive merely due to the high economic gains from the
    large Indian market, and patented products are often imported with no actual
    transfer of technology. It also shows that the present patent system has
    deviated from its ultimate objective of socio-economic welfare.

    Page(s): 15-27 2013/01/31 - 18:15
  • Title: The Sheer ‘Film’ of Protection - An Exercise in Exhaustion

    Authors: Dodeja, Karishma D

    Abstract: The Indian intellectual property rights
    scene has undergone a sea change in the recent past with the country becoming
    an active participant in the field, aspiring to maintain steady but precarious
    balance between the social value and private character of intellectual property.
    Currently, one of the most contentious issues, the principle of ‘exhaustion of
    rights’, has assumed supranational importance with varying levels of exhaustion
    for each kind of intellectual property. With the advent of new mediums to
    record cinematographic films and the increasing popularity/notoriety of the
    ‘grey market’, the issue of the level/kind of protection accorded to copyright
    in this work assumes great significance . A potential starting point towards
    addressing this issue is through an examination of the signal pronouncement of
    the Delhi High Court in
    Warner Bros Entertainment Inc v Santosh V G. This paper is an attempt to
    critically analyse the legal protection accorded to cinematographic films in
    the light of a conceptual understanding of principle of exhaustion of rights,
    an examination of the dictum of the Court and an appraisal of the Copyright
    Amendment Act, 2012. This has been done through a holistic understanding of the
    Indian law in contradistinction with the laws of the United
    States, United Kingdom
    and Europe on the subject matter.

    Page(s): 7-14 2013/01/31 - 18:15
  • Title: Patent Trolls: Legit Enforcers or Harrassers?

    Authors: Yang, Deli

    Abstract: Since the turn
    of the century, ‘patent trolls’ have emerged as one of the most topical debates
    among patent
    holders. However, nearly ten years later, stakeholders are still unable to
    reach consensus as to the ‘right’ or ‘wrong’ of ‘trolls’. Against this
    backdrop, our debates open with the landmark case of Blackberry between RIM and
    NTP to
    provide thoughts as to whether NTP is considered a troll. Then there is a focus
    on some conceptual issues surrounding ‘patent trolls’, and its origin citing
    relevant mini-cases. This column also lays out the fierce arguments for or
    against patent trolling among scholars and practitioners and reasoning for the
    trolling existence. The debates end with some reflections on the implication of
    patent trolling phenomenon on patent systems, particularly the US structure, subsequently,
    proposing some relevant solutions.

    Page(s): 573-577 2013/01/17 - 01:29
  • Title: Has an Agreement been Reached on a Unitary Patent and a Unified Patent Court for Europe, and if so, what is it?

    Authors: Cook, Trevor

    Abstract: At the end of June 2012 the European
    Council, consisting on this occasion of the heads of government of EU Member
    States, agreed on what has been presented as the final step on the long road to
    a unitary European patent and a court system in which it would be enforced.
    Although this agreement brings us closer than ever before to a unitary European
    patent and a single European patent court, the lessons of history are that this
    will not be the final stage in the process. Several hurdles still remain to be
    overcome before the new system is up and running.

    Page(s): 568-572 2013/01/17 - 01:29
  • Title: The Berne Convention and the Iranian Law: Negative Implications of the Differences in the Scope of Application

    Authors: Manghutay, Ahad Gholizadeh

    Abstract: This paper compares Article 3 of the Berne
    Convention for the Protection of Literary and Artistic Works, 1886 with the
    corresponding Iranian provision. The Convention has three criteria for granting
    protection, i.e. nationality, habitual residence and first publication of the
    work in the Berne Union countries; whereas the Iranian law has only one
    criterion, i.e. the first publication of the work in Iran. Further, according to the
    Convention, the performance of a dramatic, dramatico-musical, cinematographic
    or musical work, the public recitation of a literary work, the communication by
    wire or the broadcasting of literary or artistic works and the exhibition of a
    work of art shall not constitute publication. These exceptions and their
    origins in the Convention in conjunction with the Iranian criterion leads to a
    total or partial gap of protection for Iranian authors or artists taking their
    works for first publication in the Berne Union countries.

    Page(s): 559-567 2013/01/17 - 01:29
  • Title: Striking a Balance between Intellectual Property Protection of Traditional Knowledge, Cultural Preservation and Access to Knowledge

    Authors: Andanda, Pamela

    Abstract: Protecting traditional knowledge through the
    intellectual property (IP) regime performs the important function of preventing
    third parties from using the knowledge inappropriately. However, apart from
    being inaccessible to most holders of traditional knowledge (TK), the regime
    does not necessarily guarantee the preservation or safeguarding the knowledge.
    These concerns call for a consideration of avenues that can be used,
    particularly at policy making level, to strike a balance between protecting TK
    through the IP regime and ensuring cultural preservation and access to
    knowledge. This paper highlights the main challenges that are involved in
    striking this balance. Apart from utilizing available literature on these challenges,
    the main suggestions from the World Intellectual Property Organization,
    Intergovernmental Committee on Intellectual Property and Genetic Resources,
    Traditional Knowledge and Folklore (the IGC) are analysed with a view to
    proposing directions that can help improve the manner in which TK is protected
    through IP.

    Page(s): 547-558 2013/01/17 - 01:29
  • Title: Drug Prices - How Much is too Much?

    Authors: Nair, Manu S

    Abstract: Rising healthcare costs have made drug pricing a controversial issue
    worldwide. ‘How much is too much’ is a question that is consistently asked in
    this context. While there are several factors contributing to rising drug
    prices, strong intellectual property (IP) laws and the efforts of private
    sector to monetize such IP are widely blamed for such outcome. Hence, it is important
    to have an open discussion on this topic to analyse whether such blame is
    justified. An effort is made herein to perform a concise business review to
    shed light on the market realities around drug pricing and the important role
    that a strong IP landscape plays in driving innovation, quality and sustained
    growth of healthcare economy.

    Page(s): 497-500 2012/11/05 - 12:31
  • Title: Pharmaceutical Business Strategy: A Generics Perspective

    Authors: Thakur, Vikram Pratap Singh; Ramacha, Supriya

    Abstract: With most blockbuster drug patents facing patent expiries, there is
    the threat of generic equivalents pervading and diluting the innovator market.
    This patent cliff is not only making the market more attractive to the
    established generic drug makers, but is also inviting innovators’ interest in
    generic expansion. This article discusses the generic product entry routes in
    different jurisdictions (US, Europe and India) in the light of the nuances
    in legal provisions. It focuses on the various levels available for the entry
    of generic drug products such as safe entry, at-risk entry or by exploring
    licensing options. The article further discusses some strategies employed by
    innovator companies in order to extend the commercial benefit over a drug even
    beyond the term of the patent or related exclusivity. It discusses various
    business tactics employed by innovator companies such as development of
    follow-on drugs, creation of patent clusters, authorized generics, extensive
    branding and marketing, which help to delay or disincentivise the generic drug

    Page(s): 484-496 2012/11/05 - 12:31
  • Title: IP Strategy for Drug Discovery: A Dedicated Research Firm’s Perspective

    Authors: Radhakrishnan, Vinita

    Abstract: Even though, dedicated research firms rely
    heavily on the strength of their intellectual property (IP) to strike a
    favorable licensing deal, they seldom have the bandwidth to maintain a
    dedicated IP team to strategize the IP in a fashion which would enable them to
    reap the maximum value from the IP generated. The article discusses how to
    approach the issue of designing an IP strategy from a dedicated research firm
    point of view.

    Page(s): 478-483 2012/11/05 - 12:31
  • Title: Does India Need Digital Rights Management Provisions or Better Digital Business Management Strategies?

    Authors: Scaria, Arul George

    Abstract: The Copyright (Amendment) Act 2012 has introduced some
    digital rights management (DRM) provisions in the Indian Copyright law. While a
    comparative analysis of the new DRM provisions with similar legislation in the US and the EU shows a relatively better approach
    that reduces the detrimental effects posed by DRM provisions, the critical
    question that this study poses from a law and economics perspective is whether India really
    needs such legislation. The study argues that the new DRM provisions are
    against the interests of India
    for three major reasons. First, the legislature has adopted the legislation
    without engaging in a proper cost-benefit analysis of the DRM provisions in India. Second,
    the nature of piracy in India
    currently does not warrant such legislation. Third, the new DRM provisions will
    create a para-copyright regime, defeating some of the basic objectives of
    copyright protection. The study argues that the need of the time is better
    digital business management strategies and a better enforcement of the rights
    already guaranteed under the copyright law, rather than adoption of new DRM
    provisions under the copyright law.

    Page(s): 463-477 2012/11/05 - 12:31
  • Title: Exhausting Copyrights and Promoting Access to Education: An Empirical Take

    Authors: Basheer, Shamnad; Khettry, Debanshu; Nandy, Shambo; Mitra, Sree

    Abstract:   In what must rate as a momentous occasion
    in Indian copyright history, the Copyright Amendment Bill, 2012 cleared both
    Houses of Parliament after 12 years of intense debate, discussion and
    politicking. These set of amendments were particularly celebrated for fostering
    social justice through provisions that included a special copyright exception for the disabled and a mandatory
    royalty sharing arrangement for hitherto exploited Bollywood artists.

      However, despite the general euphoria
    surrounding the passage of these highly progressive provisions, there are
    causes for concern. In particular, the abrupt deletion of a clause legalising
    parallel imports, contrary to the suggestion of an expert Parliamentary
    Committee, raised many an eyebrow. It would appear that publisher lobbies
    prevailed upon the government to effect this last minute volte-face. The main
    claim advanced by publishers to effectuate this change of heart was that the
    Indian market was well served with the latest books at affordable prices,
    rendering redundant the very need for a provision legalising parallel imports.

      In this paper, the authors limit themselves
    to empirically testing this claim. The data from three different libraries
    demonstrate that the Indian versions sold by international publishing houses
    are often old and outdated editions. The latest versions are available only
    through imports via websites (or through mainstream distributors) and costs as
    much, or more than their western counterparts. Further, the legality of such
    imports is uncertain under the present copyright regime.

      Based on this
    evidence, the authors argue in favour of retaining Section 2(m) of the Indian
    Copyright Act, 1957. They also argue that legal policy ought to favour free
    market competition, unless the evidence suggests that the gains from such
    competition are outweighed by the harm to the copyright owner and the growth of
    the indigenous publishing sector. As of today, no such countervailing evidence
    has been proffered.

    Page(s): 335-347 2012/07/30 - 17:35
  • Title: Overview of Changes to the Indian Copyright Law

    Authors: Thomas, Zakir

    Abstract: The Copyright Amendment Act, 2012 has been
    enacted by the Government of India bringing changes to the Copyright Act, 1957.
    The amendments make Indian copyright law compliant with the Internet Treaties,
    WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).
    The amendments grant performers’ rights to performers. While introducing
    technological protection measures, the law ensures that fair use survives in
    the digital era by providing special fair use provisions. The amendments have
    gone beyond the limited mandate of WCT and WPPT and made many author friendly amendments to streamline business
    practices, special provisions for disabled, amendments facilitating access to
    works and other amendments to streamline copyright administration. The purpose
    of this paper is to narrate the changes made in the Copyright Amendment Act.
    Wherever possible a brief rationale for the amendment as culled out from the
    Notes on Clauses of the Copyright Amendment Bill and from the Report of the
    Standing Committee of Parliament, is provided.

    Page(s): 324-334 2012/07/30 - 17:35
  • Title: Marks and Brands: Conceptual, Operational and Methodological Comparisons

    Authors: Yang, Deli

    Abstract: People
    tend to use brands and marks interchangeably due to their similarities.
    However, they are often non-substitutable to each other. This paper
    systematically examines the similarities and differences of these two terms in
    conceptual, operational and methodological manners
    taking account of history and international dimensions. Such clarification is
    important given the increasing significance of marks and brands for all
    stakeholders (rather than consumers only). The paper starts with the
    definitional understanding about the two terms. It then focuses on the history
    of these two terms to reveal how their evolvement has been. Next, it discusses
    their similarities and differences, including the concepts, operations and
    measurements. The paper concludes with the implications of these clarifications
    for research and education, and for relevant stakeholders, such as managers,
    policy makers and consumers.

    Page(s): 315-323 2012/07/30 - 17:35
  • Title: TRIPS and Access to Affordable Drugs

    Authors: Nair, M D

    Abstract:   It is a
    well-recognised fact that many modern medicines, largely discovered and
    developed by the pharmaceutical industry are in general unaffordable to the
    majority of patients in economically backward, developing countries. Since they
    constitute around 75 per cent of the world’s population, it is a matter of
    great concern for the future of healthcare itself, if for the majority of
    world’s population, access to medicines, which are patent protected, is denied.
    Problems of access to medicines are related to the problems of non-availability
    of disposable income among the population to meet their medical needs as well
    as the high and unaffordable prices of drugs.
      The issue that
    is now being debated is the impact of the TRIPS Agreement on the availability
    and affordability of much needed medicines for the poorer populations of the
    world and if there is indeed a negative impact, what are the possible
    modalities to reduce that impact and make drugs cheaper for deserving
    populations and developing countries?

      Between the flexibilities available in TRIPS
    Agreement and the Doha Declaration on Public Health, can Member Countries
    through appropriate legislative and administrative measures, safeguard the
    interests of their poor populations? Can governments in developing countries
    bring in appropriate legislations to ensure equitable access to medicines much
    like the Patient Protection and Affordable Care Act of Barack Obama approved by
    the US Congress in March 2010?

    Page(s): 305-314 2012/07/30 - 17:35
  • Title: Colour Markability: Registrable in Few Nations, but Debatable among Many!

    Authors: Yang, Deli

    Abstract: Colour marks have
    been equally debatable before and after they became registrable in few
    countries. Before some landmark cases set the broad legal framework for colour
    mark protection, debates centred on the registrability. Nowadays,
    registrability remains an issue, but heightened debates have been surrounding
    the conditions and interpretations of this
    non-traditional mark. With the increasing importance of marks for businesses
    and organizations, colour mark issues have become internationally
    controversial. This Global IP debate thus, opens with two landmark cases: Qualitex v Jacobson and BP v Woolworths. It then focuses on some
    conceptual issues relevant to the colour mark itself, its origin with relevant
    exemplar cases and historical evolvement, to enrich the legal framework and
    accumulate case experience to resolve colour mark disputes. Next, this column
    discusses the debates for or against colour mark registrations by drawing
    arguments and reasoning from scholars and practitioners. The debate ends with
    some reflections and a possible solution.

    Page(s): 246-250 2012/05/17 - 20:18
  • Title: Exceptions and Limitations in European Union Copyright Law

    Authors: Cook, Trevor

    Abstract: Most countries, including all those in the
    EU, provide for exceptions and limitations to copyright by exhaustively listing
    and defining in their copyright laws all such permitted exceptions and
    limitations. The United
    States has been an exception in this
    respect, having instead a so called ‘fair use’ approach which provides four
    parameters for its courts to apply. Some EU Member States, unhappy at the
    inflexibility of their respective approaches to this issue are now starting to
    explore to what extent they can move towards a ‘fair use’ approach. This
    article considers why this issue has become a particular problem in the EU,
    what sort of scope EU Member States have to amend their national laws in such
    circumstances, and where further flexibilities might develop in the case law as
    a result of the courts applying principles from outside copyright law, notably
    on the basis of fundamental human rights.

    Page(s): 243-245 2012/05/17 - 20:18
  • Title: ‘Copyright World’ and Access to Information: Conjoined via the Internet

    Authors: Sebastian, Tania

    Abstract: Access to information, despite
    wide intellectual acceptance, is
    still a struggle for many in various quarters of the world. In today’s era
    there exist constraints in the way information is shared; dividing continents
    based on the way information is accessible to its people. This paper strives to
    understand the underpinning of the accessibility to information in the human
    right perspective, with a special
    mention of the current debate on accessibility of the Internet on the lines of
    concepts which constitute emerging access
    to knowledge coalition. The arguments of the present paper take the
    following form: It begins with an introduction to the oft-debated access to
    information question; goes on to elucidate the view of various scholars on why
    information needs to be free and extends the aspect of freedom of information
    to the human right paradigm; then expounds the activism of ‘access to knowledge’
    advocates for access to information; and finally talks about European Union’s
    legalization of access to information on the Internet as a ‘fundamental right’
    before conclusion.

    Page(s): 235-242 2012/05/17 - 20:18
  • Title: Protecting Geographical Indications in Malawi: Current Situation and Future Prospects

    Authors: Uluko, Hankie; Oyewunmi, Adejoke; Mandewo, George

    Abstract: This paper
    examines the challenges and opportunities available for the protection of
    geographical indications (GIs) in Malawi. Like in many countries in
    Africa, there are no statutory provisions for the protection of GIs in Malawi. The
    challenges and opportunities available for GI protection in Malawi were
    determined using the SWOT analysis which included data from consumer preference
    survey, key informants, interviews and desk study.
    The analysis showed that Malawian consumers
    are not only influenced by price but also the place of origin of a product
    (geographical indication) and the quality associated with it. It also showed
    that Malawi
    has limited human capacity, infrastructure and finances to successfully
    implement a sui generis system of
    protection despite having many potential GIs to benefit from. A comparative
    analysis found that the available regime of protection is inadequate in
    protecting GIs. The study concluded that Malawi stands to benefit from GI
    protection of its products which already have local, regional and international
    reputation. This would be achieved by short term revisions of the trademark
    laws and in the long run through a sui
    generis system of protection.

    Page(s): 226-234 2012/05/17 - 20:18
  • Title: Software Protection: Copyrightability vs Patentability?

    Authors: Yang, Deli

    Abstract: The moment software was created was also the starting point of heated
    debates over software protection. During the early stages of protection, the
    debate was around the copyrightability of software protection. Nowadays, the
    focal point is the argument on whether software should be solely protected
    under copyright or dually guarded by both copyright and patent. With the
    development of the software industry across the world, this issue has become
    more and more contentious internationally. This column of Global IP Debate opens with a software patent case and an open
    source case, and then traces the history of software protection to examine its
    protective evolvement. It next focuses on the currently heated debate of dual
    protection on software by laying out both sides of the arguments and reasoning.
    This debate ends with some possible solutions to engage readers’ thoughts.

    Page(s): 160-164 2012/04/05 - 22:53
  • Title: Online Intermediary Liability in the European Union

    Authors: Cook, Trevor

    Abstract: One of the greatest challenges faced by
    legal systems throughout the world in recent times has been how they approach
    the question of the liability of online intermediaries for the infringement of
    intellectual property rights that can take place, without actual knowledge on
    their part, over their networks or on their platforms. Such online
    intermediaries can take a wide variety of forms, but specific types of ‘real-life’ online
    intermediary whose activities have now been the subject of a considerable body
    of litigation, both in the EU and elsewhere, are access providers, search
    engines, the operators of online marketplaces, and those who provide platforms
    for user generated content. In the EU the status of the first three such online
    intermediaries has now been considered by the Court of Justice of the EU

    Page(s): 157-159 2012/04/05 - 22:53
  • Title: Insurance Patents: Indian Scenario

    Authors: Sinha, Rahul

    Abstract: The importance of intellectual property is well recognized in
    various industries but the Indian insurance industry has not yet opened its
    door to intellectual property. Whereas insurance companies world-wide are
    patenting various aspects of insurance products, the Indian insurance industry
    finds excuse in the argument that the Patents Act in India does not allow
    insurance products to be patented.The paper explores various forms of
    intellectual property, with special emphasis on patents, which can be used to
    protect insurance methods and products. It attempts to undo the misconceptions
    about patenting insurance products and suggests by example, that insurance
    products can be protected under computer programs category.

    Page(s): 152-156 2012/04/05 - 22:53
  • Title: Technology Transfer from Higher Technical Institutions to the Industry in India - A Case study of IIT Bombay

    Authors: Arumugam, V; Jain, Karuna

    Abstract: Technology
    transfer from academic institutions to industry plays an important role in
    shaping industrial growth and improving the economy of a nation. Considerable
    research on technology transfer from academic institutions to industry in
    advanced countries is available. This paper aims to investigate on how Indian
    technical institutions manage technology transfer. This paper presents a case
    study of an Indian higher technical institution to show how to develop
    effective technology transfer process to transfer technologies to industry. The
    case analysis clearly supports the critical role played by an intellectual
    property management system in enhancing the effectiveness of the technology
    transfer. The paper also provides qualitative insights to design effective
    technology transfer process for Indian academic/ technical institutions.

    Page(s): 141-151 2012/04/05 - 22:53