Saturday, 11 September 2010
Friday, 10 September 2010
Interested in participating in the Advanced LL.M/MSc programme of combined Intellectual Property Law and Knowledge Management?
- World Intellectual Property Organisation;
- World Trade Organisation; and
- European Patent Office.
Monday, 30 August 2010
I was invited to by the National Commission for the Supervision of Business Competition on 30 August 2010 to act as an expert resource person in their discussion on the interpretation of the rules on abuse of dominant position.
This particular area of law is quite broad. One of the topics to be discussed relates to intellectual property. One of the key rules of Indonesian competition law is the prohibition of abuse of dominant position, pursuant to which enterprises may not abuse their dominant positions by way of, inter alia, restricting (access to) the market and restricting technology advancement. I agree with this and will discuss this somewhere below.
One sentence in their proposed outline that has intrigued me reads: IP rights holders may not abuse their IP rights.
I believe that this proposition is too far-reaching. In my opinion, IP rights holders may do whatever they want with their IP rights, because IP rights are the so-called "rights in the production of the soul" - I have invented this English translation for the German term "Rechte an den Produkten des Geistes" and the Dutch term "rechten op de voortbrengselen van de geest". I don't know whether this English term is known in IP Law.
Intellectual Property rights are the rights in the production of the soul and no one can be deprived of their rights in the production of the soul, as IP rights are also human rights - vide Article 27 of the 1948 United Nations Universal Declaration of Human Rights. However, there are balance of rights of obligations and there are also rules on exceptions and limitations in the areas of IP.
A trademark owner has an absolute right to manage and dispose of his/her/its trademark. He/she/it may exploit his/her/its trademark commercially to the fullest extent and a trademark is always renewable. Therefore, a trademark owner can always prevent anyone else from using a trademark which is similar in substance or in entirety with his/her/its own trademark, and if necessary, in the worst battle before the court, to defend his/her/its rights. In the area of trademark law, there are nos such things as compulsory license.
Likewise in the area of Geographical Indication law. It is nonsense to condemn owners of GI rights for exploiting their rights to the fullest extent. GI belongs to the society or a group of companies in a certain geographical territory. GI rights are perpetual and there are no such things as GI licensing.
The exercise of these absolute rights should be viewed as not protecting IP owners only, but also protecting the consumers because:What the law mandates is that in exercising these absolute rights, IP rights owners must take the needs of the community into account. Therefore, there are rules on compulsory licensing in the area of patent law and, in accordance with the Annex of the Berne Convention, which is also embodied in our Copyright legislation, for educational purposes, local peoples may be given a license by the government to have foreign-language books translated and reproduced only for the purposes of meeting the academic needs. Compulsory licenses are not exclusive, but commercial licenses are.In my opinion, there are no such terms as "abuse of IP rights by IP rights owners", but it is possible that IP licensees (who are not the real IP rights owners) who will likely have the chance and opportunity to abuse their dominant positions as exclusive licensees, by restricting (the access to) the market and restricting technology advancement. If licensees are given rights equal to those of patent rights owners, for instance, then licensees may prevent others from making technology advancement. This is something that has been disliked since 1948.IP licensees are not IP rights owners and cannot exercise their rights excessively as if they were the real IP rights owners - European Court of Justice ruling in the case of Konstanz und Grundig [PS: I forgot the case number]. That's what I learned as an LL.M student in the Netherlands, back in 1998.What do you think?
Thursday, 3 June 2010
Thursday, 2 April 2009
What makes me think of the link or correlation between intellectual property and human rights?
First of all, from the legal point of view, the term "intellectual property" refers to "copyright" as opposed to "patent", "trademark", "industrial design" and "trade secret" which are classified as "industrial property" (Paris Convention of 1883 on the Protection of Industrial Property).
Article 2 paragraph 1 of the Berne Convention of 1886 for the Protection of Literary and Artistic Works, Paris Act 1971 as amended on 28 September 1979, reads as follows:
"The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramaticomusical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography,topography, architecture or science."
It is clear that the Copyright, which legally means intellectual property (as opposed to Patent, Trademark, Industrial Design and Trade Secrets, which are classified as industrial property), protects every production in the literary, scientific and artistic domain.
Now, how can I say that intellectual property, which legally means Copyright, constitute human rights, or at least is related to human rights? This is the answer.
Article 27 of the 1948 United Nations Universal Declaration of Human Rights reads as follows:
- Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Continue to read PART TWO.
Monday, 30 March 2009
In the world of intellectual property, the most important historical time-line where intellectual consolation follows commercial isolation can be described as follows:
- Year 1440: The Printing Press was created by Gutenberg.
- Year 1557: Queen Mary I of the House of Tudor promulgated the Statute of Mary, pursuant to which the Stationer's Company had enjoyed monopoly to buy manuscripts from authors but once purchased, would have a perpetual monopoly on the printing of the work. Authors themselves were excluded from membership in the company and could not therefore legally self-publish, nor were they given royalties for books that sold well.
- Year 1710: The first-ever copyright legislation in the world was promulgated by Queen Anne of the House of Stuart, repealing the Statute of Mary. The Statute of Anne vested authors rather than printers with the monopoly on the reproduction of their works. It created a 21 year term for all works already in print at the time of its enactment and a fourteen year term for all works published subsequently. It also required that printers provide nine copies to the Stationer's Company for distribution to the Royal Library, the libraries of Oxford, Cambridge, St. Andrews, Glasgow, Aberdeen, Edinburgh, Sion College and the Faculty of Advocates in Edinburgh. When Ireland united with Great Britain in 1801, the Trinity College and Kings' Inns in Dublin were added as two further depositories. Interestingly, the Statute of Anne's long title was: "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".
- The term "intellectual property" did not exist until 1767 in the Blackstone's commentary on the Books of Law. The only reason why it took 3 (three) centuries since 1440 for the term "intellectual property" and the idea of copyright to come into existence is that it took that long for literacy to spread and grow enough for printing books and selling them to become a good business proposition. The change was gradual, but it accelerated in 1700s with the quickening rise of commerce and the middle classes.
- Year 1783: In his book titled "Ueber den Büchernachdruck", Christian Sigmund Krause, a German philosopher wrote (as translated into English):
"No, no, it is too obvious that the concept of intellectual property is useless. My property is exclusively mine; I must be able to dispose of it and retrieve it unconditionally. Let someone explain to me how that is possible with ideas. Just let someone try taking back the ideas he has originated once they have been communicated so that they are, as before, nowhere to be found. All the money in the world could not make that possible."
- Year 1883: The Paris Convention on Industrial Property (Patent, Trademark, Industrial Design, Trade Secret), which supports commercial isolation, was signed.
- Year 1886: The Berne Convention for the Protection of Works in Literary, Artistic and Scientific Domain, which supports intellectual consolation, was signed.
Sunday, 29 March 2009
- IDLO Intellectual Property Resource Person for Indonesia: IP Licensing and IP Audit;
- IDLO Director of Anglophone Department and Intellectual Property Specialist: Legal Arguments in IP Disputes - How to Win IP Cases.
- IDLO Intellectual Property Resource Person for Indonesia: International Intellectual Property Law and Civil Procedures;
- Official from the Attorney-General Office: Criminal Procedures
- Official from the Customs Office: Border Measures
- IDLO Intellectual Property Resource Person for Indonesia: International Intellectual Property Law;
- Mrs. Erna Letty Kusoy (Hadiputranto, Hadinoto & Partners - Baker & McKenzie): Cancellation Action and Infringement Action
- Mrs. Elijana Tansah SH (Former Judge of the High Court of Jakarta, Ad-Hoc Judge of the Commercial Court, Expert Staff of the Minister of Law and Human Rights): The Role of the Commercial Court in IP Disputes
- Mrs. Karen Mills (KarimSyah Law Firm): The Role of Arbitration in IP Disputes and Domain Name Arbitration
The training workshop had the main topic: "Intellectual Property Law in Practice: How to Protect and Enforce IP Rights" and saw the contribution of the following experts:
- IDLO Intellectual Property Resource Person for Indonesia: International Intellectual Property Law;
- IDLO Head of Anglophone Department and Intellectual Property Specialist: Industrial Design;
- Dr. Cita Citrawinda Noerhadi: Patent and Trade Secret
- Mr. Henry Soelistyo Boedi SH LL.M: Copyright
- Mr. Gunawan Suryomurcito SH: Trademark
Click here to read the entire article.
Click here to read the IDLO Intellectual Property Resource Person for Indonesia's thought of the Statute of Anne, 1710 and Christian Sigmund Krause's Philosophical Concept of Intellectual Property (in Indonesian).