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Peter K Yu

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system's three phases of development. It discusses the system's evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

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Edited by Peter K Yu

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Jan Klabbers

This article, first delivered as the keynote at the ‘Transforming Institutions’ conference, discusses the increasing relevance of relations between different international organisations. It provides a discussion of what sort of forms these relations can take, and of the relevant legal questions that arise, relating to the form of instruments, treaty-making powers and procedures, accountability for joint activities, and related issues. It concludes by providing a preliminary assessment in light of some of the relevant theoretical literature.

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Edited by Lan Nguyen, Niall O'Connor, Darren Harvey and Darragh Coffey

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Edited by Johanna Gibson

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Jani McCutcheon

Photographs of cultural collections are an essential means of disseminating art and democratizing access to culture. This article reviews the policies of five major Australian galleries on access to their collections. It finds they tend to claim copyright in photographs of their collections, including of public domain works. This reflects a perceived entitlement to control access to their digital collections, often bolstered by a misstatement of copyright exceptions, restrictive quasi-copyright contract terms, licensing practices, and physical property rights in photography's appurtenances. This curbs the emancipatory potential of digitization, generating a conflict between the property interests of cultural institutions and the public interest in enhanced access to culture. The problem is particularly acute with respect to images of public domain art, exclusive control over which diminishes the public domain. This article considers the novel question of whether copyright subsists in photographs of two-dimensional art under Australian law, arguing that such photographs lack the originality indispensable to copyright subsistence. This conclusion significantly undermines cultural institutions’ licensing models and challenges misconceptions of property rights in the photographic surrogates of two-dimensional cultural objects. The article urges cultural institutions to liberate the digital surrogates of public domain art to enhance access to cultural capital.

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OVERVIEW

Law and Practice

Jeffrey Belson

Certification and collective marks are special forms of trademarks that ab initio are for the use of multiple sources, subject to the proprietor’s authorization. These marks engender particular issues of law and policy that are related to but distinct from the law and policy of ordinary (or ‘individual’) trademarks. A certification mark indicates that certain characteristics of the marked goods or services conform to particular standards. Collective marks attest primarily to membership of the individual source of the marked goods or services in a particular association such as a trade association. The ensuing chapters explore the historical development of both these types of marks, the connections between them, pertinent trademark law and practice, certifiers’ and membership associations’ liability, legal and commercial significance, use in regulatory and technical standardization frameworks, and emergent sui generis forms of certification, namely ecolabels and electronic authentication marks in digital content. Key words: certification mark; collective mark; law; policy

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EXTENDED CONTENTS

Law and Practice

Jeffrey Belson

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Qian Zhan

A consumer survey, as an instrument used to gather data on the beliefs and attitudes of consumers towards trademarks or products, is considered to have vital influence in trademark litigation. In recent years, courts have come to rely increasingly on the results of surveys conducted by one or both litigants in trademark lawsuits. The practical issue for trademark litigants is determining whether, when and how to develop survey evidence, given the cost, time, and other constraints. To shed light on this specific issue, we undertook a statistical analysis of trademark infringement cases in China. By examining 17 836 cases decided by China's courts over a 16-year period from 2001 through 2016, this article presents an empirical study assessing the statistical relationship between the presentation of survey evidence and case outcomes. The goal of our study is to help trademark litigants to determine the importance and value of presenting consumer surveys in trademark infringement case and make more informed decisions about their litigation strategies.

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Edited by Johanna Gibson