AIPPI
• Whether the term should incentivise online ‘commercial providers’ in addition to authors, creators and the general public;
SOME OF THE KEY CHALLENGES ARE DEFINING THE CONTENT AND SCOPE OF TRADITIONAL KNOWLEDGE, AND WHETHER ANY PROTECTION SHOULD BE POSITIVE (GIVING HOLDERS REMEDIES AGAINST MISUSE) OR DEFENSIVE.
• Whether a fixed optimum term can be quantified; and
• Whether economic analysis alone should be the driver for addressing these questions.
Relief in IP proceedings other than injunctions or damages
Te availability of relief for infringement is fundamental to the protection of IP rights. AIPPI has studied injunctive relief and damages, but not the full scope of remedies available against acts of infringement.
including across the food, medical, agricultural, pharmaceutical and industrial sectors. Some of the key challenges are defining the content and scope of TK, and whether any protection should be positive (giving TK holders remedies against misuse of TK) or defensive (enabling the custodians of TK to continue practising it in the context of any IP rights that may be acquired). While acknowledging that the specifics require further study, AIPPI resolved that defensive protection is to be encouraged.
AIPPI resolved that a harmonised definition of TK is desirable, and by its resolution seeks to provide guidance as to the concepts to be included in any definition.
Acknowledging the existing and ongoing work in relation to TK at both international and national levels, AIPPI resolved that international and national laws should promote a comprehensive regime for TK, providing legal certainty for all stakeholders while aligning with the principles of existing IP systems. In particular, AIPPI resolved that steps should be taken to implement an international recordal system for TK to address cross-boundary issues and the risk of third parties obtaining or exercising illegitimate IP rights over TK.
Future work
Te Seoul meeting provided the forum to refine the proposed issues for study in 2013. Reports on the following thought-provoking issues are now being prepared.
Grace period for patents
Tis question recognises that alignment of national and regional laws relating to the grace period is a key requirement in realising international harmonisation of substantive patent law, and will consider such issues as:
www.worldipreview.com
• Te types of disclosures that should be covered by the grace period;
• Te length of the grace period; and
• Whether a declaration by the applicant should be required to invoke the grace period.
Relevant public for determining the degree of recognition of famous marks, well- known marks and marks with a reputation
Te key issue is whether the general public at large or a relevant sector of public is the relevant ‘public’ in determining the knowledge, recognition or fame of a mark. In some legal systems, the relevant population is the public that is concerned with the products or services covered by the mark in question, ie, a niche market. In other jurisdictions, the relevant population is the entire consuming public of the country.
AIPPI will study both qualitative and quantitative aspects of the relevant public.
Term of copyright protection
Te limited term of copyright protection is the most striking element which distinguishes copyright as an IP right from a tangible property right. International obligations provide for a two- pronged term: a term based on the ‘life of the author’ plus 50 years for the majority of works, and a fixed term for making, or making available to the public, for selected categories of works such as cinematographic works, photographic works and works of applied art. Tere are no international prescribed upper limits of these terms.
AIPPI will explore the issue of the adequacy of existing terms. For example:
• Whether in the digital/information age the growing transiency of some protected works calls for a term that is technology/ age appropriate;
Other forms of relief include seizure of
infringing goods, delivery up and destruction of infringing goods, rectification, publication of the court’s judgment and declaratory relief. In addition, there are forms of monetary relief other than damages, such as an account of profits, monetary reparation for moral tort or awards based on unjust enrichment law. Tere are also fact-specific forms of relief, such as alteration of goods or packaging, workarounds to modify technology and corrective advertising.
As these topics show, AIPPI has an important ongoing role in facilitating the harmonisation of IP laws in line with the continuing development of today’s knowledge-based economies.
Sarah Matheson is a deputy reporter general of AIPPI. She can be contacted at:
Sarah.Matheson@
allens.com.au.
Sarah Matheson is an Australian qualified lawyer and a partner at Allens’ intellectual property group. She practises in IP litigation, IP commercialisation and IP aspects of broader commercial transactions. Allens has an integrated alliance with Linklaters.
World Intellectual Property Review e-Digest 2013
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