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1 – 10 of 352Traditional cultural expression (TCE) includes music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives or…
Abstract
Purpose
Traditional cultural expression (TCE) includes music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives or many other artistic or cultural expressions [World Intellectual Property Office (WIPO)]. To constitute TCEs, the expressions must form part of the identity and heritage of a traditional or indigenous community and need to be passed down from generation to generation (Kuprecht, 2014). This paper aims to analyse the protection of TCE in Malaysia by focusing on the Mah Meri tribe. This paper examines copyright over TCE, recordation as a means of preserving a dying tradition and customary practices and native law.
Design/methodology/approach
Information is drawn from personal discussions with the weavers and carvers of the Mah Meri tribe, and a focus group discussion with subject matter experts. As a way of comparison, a personal visit has been made to Sarawak Biodiversity Centre, Sarawak Native Courts, the Dayak Iban Association and Dayak Bidayuh Association.
Findings
The research found that copyright law has no specific provision for the protection of TCEs. Customary practices of the indigenous people and the native law of Sarawak have limited effect outside their traditional domain. Recordation and documentation of TCEs are the prime initiatives, but the documents or the recordings do not carry any legal status.
Research limitations/implications
The research is limited only to the Mah Meri tribe with a comparison drawn to the Dayak Iban and Dayak Bidayuh tribe.
Practical implications
The research examines the practical implications of copyright and recording and documentation of cultural expression in Malaysia.
Social implications
The research sets to unearth and highlight the ideation process in a tribal setting and how that clashes with the formal creation setting in a modern intellectual property system.
Originality/value
This paper was presented at the IAITL Congress 2013. It also appeared in the Conference Proceedings edited by Slyvia Kieerkgard, but it has not been published in any journals.
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This research aims to examine a number of legal sources for evidence that US marketers were interested in protecting their brand identities in the 1800s.
Abstract
Purpose
This research aims to examine a number of legal sources for evidence that US marketers were interested in protecting their brand identities in the 1800s.
Design/methodology/approach
The research examines historical legal records including registrations for commercial prints and labels, design patents and trademarks as well as other legal records. The work discusses the evolution of the concept of brand identity by examining various legal methods that were used to try to protect brand identity from imitation.
Findings
The research suggests that marketer interest in the development and protection of brand identity preceded the US Civil War and confirms that this interest was led by marketers of patent medicines, tobacco and liquor. However, the study also demonstrates strong interest by marketers of many other types of products from disposable products to durable manufactured items.
Research limitations/implications
Many original records were lost in the 1836 Patent Office fire or have been simply lost. Some of the databases examined are too large to be comprehensively examined.
Originality/value
The examination of legal records from this period of uncertainty shows how the practice of brand identification led to the concept of brand identity: the legal data examined offer a wealth of information for marketing historians.
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The purpose of this paper is to discuss how interlibrary loan practice and access to electronic resources in Canada are affected by copyright law, copyright collectives, and…
Abstract
Purpose
The purpose of this paper is to discuss how interlibrary loan practice and access to electronic resources in Canada are affected by copyright law, copyright collectives, and license agreements.
Design/methodology/approach
The author summarizes the current Canadian copyright laws and copyright collectives governing interlibrary loan practices, reviews the terms of typical electronic resource license agreements, describes how copyright laws in the USA are often imposed upon Canadian libraries through their various license agreements, and discusses the confusion created by these often conflicting obligations.
Findings
Although the current state of Canadian copyright law creates confusion for libraries, the promise of new legislation and future Supreme Court rulings may help resolve some thorny issues.
Originality/value
The paper provides a thorough review of Canadian copyright law as it pertains to interlibrary loan practices. It should be of great interest to any interlibrary loan practitioner who is interested in copyright issues, licensing agreements, and their combined impact upon the future of resource sharing.
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Copyright law has been oft-criticized for its unintended consequences. This paper retells three “tales of the unintended” concerning the 1976 Copyright Act, the present U.S…
Abstract
Copyright law has been oft-criticized for its unintended consequences. This paper retells three “tales of the unintended” concerning the 1976 Copyright Act, the present U.S. copyright statute. The first tale focuses on fair use, the second on statutory damages, and the third on formalities. From these three tales, the paper draws five different morals that provide insights into the ongoing process of copyright reform. These insights will enable policymakers and commentators to rethink the ongoing and future development of copyright law.
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The paper aims to examine whether the panel and parties of China – Intellectual Property Rights could have applied the general principle of necessity developed under Article XX of…
Abstract
Purpose
The paper aims to examine whether the panel and parties of China – Intellectual Property Rights could have applied the general principle of necessity developed under Article XX of the General Agreement on Tariffs and Trade and Article XIV of the General Agreement on Trade in Services. This paper specifically seeks to examine applicability of the general principle of necessity in the World Trade Organization (WTO) tribunal's analysis of the provisions of the Berne Convention, which is incorporated by Article 9 of the Trade‐related Aspects of Intellectual Property Rights (TRIPS) Agreement.
Design/methodology/approach
The paper performs a series of documentary/archival research and case studies of the jurisprudence and interpretative methods of the WTO adjudicative bodies.
Findings
The general principle of necessity in WTO jurisprudence is applicable when a measure taken by a WTO member is inconsistent with WTO provisions, the measure is highly relevant to the sovereignty of the WTO member, the WTO member seeks to justify the measure by applying one of the exceptions articulated in the WTO Agreements, and the relevant language of necessity exists in the exception provisions. If these requirements are met, the general principle of necessity would be applicable to other provision of WTO Agreements, including Article 17 of the Berne Convention incorporated by Article 9 of the TRIPS Agreement, provided that the parties of the dispute raise the defense in their arguments.
Originality/value
By examining the application of the general principle of necessity and its relevance to sovereignty in one of the most recent disputes in the WTO, this paper analyzes a decision that could have considerable impacts on the jurisprudence of future disputes regarding enforcement of intellectual property rights in the WTO regime.
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This paper argues that the revolution in intellectual property rights is not forward-looking, but backward looking, and that it is not consonant with the purposes of the patent and…
Abstract
This paper argues that the revolution in intellectual property rights is not forward-looking, but backward looking, and that it is not consonant with the purposes of the patent and copyright clause. It is animated by the theory of common law copyright, which deliberately reconceptualizes social relations in order to recast them as property, and which has been with us for centuries. This paper investigates the “mythology of common law copyright,” showing how this reconceptualization has worked both historically and in the present day to push the law in a direction that is ostensibly author-centered, but is actually focused on the rights of intermediaries.
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Natali Helberger and L. Guibault
This article seeks to deal with the fundamental conceptual differences between consumer law and copyright law that render the application of consumer law to copyright‐law related…
Abstract
Purpose
This article seeks to deal with the fundamental conceptual differences between consumer law and copyright law that render the application of consumer law to copyright‐law related conflicts difficult.
Design/methodology/approach
Following a normative approach to copyright and consumer law based on an analysis of the relevant literature and case law, the article examines in which situations consumers encounter obstacles when trying to rely on consumer law to invoke “privileges” granted to them under copyright law, such as the private copying exception.
Findings
Research shows that most difficulties lie in the fundamental conceptual differences between consumer law and copyright law regarding the objectives and beneficiaries of each regime, as well as diverging conceptions of “property”, “user rights” and “internal market”. Such discrepancies undeniably follow from the fact that each regime traditionally never had to deal with each other's concerns: consumers never played a role in copyright law, whereas copyright protected works were not seen as consumer goods.
Originality/value
By identifying the main conceptual differences between the two legal regimes, the article contributes in an inter‐disciplinary manner to the discussion on the place of the digital consumer under European law.
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The expansion of copyright and the shrinking of the public domain did not begin with the Internet, but the Internet has exacerbated the problem. The threat posed by digital…
Abstract
The expansion of copyright and the shrinking of the public domain did not begin with the Internet, but the Internet has exacerbated the problem. The threat posed by digital technology has led industries to obtain increasingly absolute protection over their “property.” In this paper I will argue that developing a vibrant public domain is essential for resisting the overextension of copyrights and patents. Developing the public domain as a counterpoint to copyright and patent law is vital to an energized public sphere and by extension a democratic system.
“Companies, particularly those which sell goods or services direct to the public, regard their trade marks (whether brand names or pictorial symbols) as being among their most…
Abstract
“Companies, particularly those which sell goods or services direct to the public, regard their trade marks (whether brand names or pictorial symbols) as being among their most valuable assets. It is important therefore for a trading nation such as the United Kingdom to have a legal framework for the protection of trade marks which fully serves the needs of industry and commerce. The law governing registered trade marks is however fifty years old and has to some extent lost touch with the marketplace. Moreover it causes some of the procedures associated with registration to be more complicated than they need be.” This introductory paragraph to the Government's recent White Paper on “Reform of Trade Marks Law” indicates that reform is in the air. The primary pressure for reform has emanated from Brussels with the need to harmonise national trade mark laws before the advent of the Single European market on 1st January 1993. To this end the Council of Ministers adopted a harmonisation directive in December 1988 which must be translated into the national laws of member states by 28th December 1991.
Josephine M. LaPlante and Beth Walter Honadle
In this introductory essay, the authors describe a new public finance characterized by enduring revenue constraints; mounting budgetary claims from accruing liabilities for…
Abstract
In this introductory essay, the authors describe a new public finance characterized by enduring revenue constraints; mounting budgetary claims from accruing liabilities for post-retirement benefits for government employees, rising health care costs, and an aging population; and uncertainty about future budgetary demands and resource limitations. The new public finance is described as a convergence of economic and demographic forces with past practices that increased the fiscal vulnerability of states and local governments. The authors explain that states and local governments will not overcome challenges by relying upon traditional ways of thinking about and conducting business but instead must revamp frameworks for practice. Symposium papers are described as tackling several of the most pressing issues facing governments today with an eye towards rethinking customary approaches.