NISCAIR Online Periodicals Repository Community: Journal of Intellectual Property Rights (JIPR)

Minors' Rights under Intellectual Property Rights Laws: A Myth or Reality?

Tue, 26 Feb 2013 22:58:59 GMT

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

A Relook at Inventors’ Rights

Tue, 26 Feb 2013 22:58:59 GMT

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

Technology Development and Legislation Progress: Third Party Liabilities of Internet Service Providers in China Tort Law

Tue, 26 Feb 2013 22:58:59 GMT

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

The Inevitable Connection between Intellectual Property and Competition Law: Emerging Jurisprudence and Lessons for India

Tue, 26 Feb 2013 22:58:59 GMT

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