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Titilayo Adebola

This article discusses the protection of new plant varieties in Africa and the African Model Law through the lens of its key protagonist, Professor Johnson Ekpere. It urges African countries to consult the African Model Law as a guide when designing plant variety protection systems. It is hoped that by offering Professor Ekpere's biography, personal experiences, and first-hand account of the African Model Law, African countries may better understand the Model Law as a significant response to the small-scale-farmer- and farming-community-centred agricultural systems on the continent and embrace its continued relevance.

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Edited by Johanna Gibson

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Tyrone Berger

Virtual or non-physical designs (referred to as ‘graphical user interfaces’ (GUIs) and screen icons) are important design elements in many modern products. The widespread adoption of touch screen technologies, for example, means that software applications running on computer hardware are now used to provide user interface functionality, in some cases even providing an identity for the product. The fact that these visual features are only present when the function is active should not detract from the importance of those features to both the visual appeal and functionality of the device from a user's perspective. In recent years, GUIs and screen icons have been increasingly lodged as registered design applications. However, registrability (in the sense of compliance with substantive design law) is not considered during IP Australia's registration process, and, as such, GUIs and screen icons are appearing on the designs register without undergoing substantive examination. In many cases their status in Australia's designs system is currently uncertain. This article considers the background to this subject in Australia, and suggests how the substantive design law requirements and practice could be recast in light of the increase in non-physical designs being registered. Lastly, some concluding remarks are offered that may go some way towards initiating a broader conversation about the role of design protection in the new ‘experience age’.

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Irene Calboli

This article explores the relationship between national rules on the exhaustion of intellectual property (IP) rights and cross-border trade within regional organizations. In particular, this article compares three distinct approaches adopted by: the European Union (EU); the North American Free Trade Area (NAFTA); and the Association of South East Asian Nations (ASEAN). Based on this comparison, this article concludes that in order to effectively promote the free movement of goods, members of regional organizations need to consistently adopt national policies on IP exhaustion that support, at least, a system of regional exhaustion such as currently found in the EU. However, this article also posits that different regional organizations may decide to adopt a variety of approaches on IP exhaustion. These variations may be based on the different stages of national development of the various members of a regional organization or the size of national markets and economic strategies, including their current level of international trade and whether this trade is primarily with other members of the same organization or with third countries. With time, different national approaches on IP exhaustion may change and lead to a higher level of harmonization to promote a full-scale free movement of goods within a regional organization.

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Liu Xin, Ge Huilei and Chen Guang

As the most innovative and important institutes for the development of science and technology in China, due to various reasons, universities have not effectively achieved the commercialization of employee inventions. As a result, some universities have decided to conduct pilot projects with Mixed Ownership concerning patent rights for employee inventions under the framework of the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements (PTSTA) and Patent Law, namely transferring a portion of the rights to the employed inventors before the inventions are commercialized. The pilot reform has been backed by some local governments in China. This article systematically introduces and analyses this experimental system's theoretical and practical background, legal theory and policy logic. Southwest Jiaotong University (SWJTU) was selected as the subject of a case study to analyse its related progress and issues. This article also puts forward countermeasures and suggestions, such as establishing the comprehensive scientific research work orientation of the researchers in universities, preventing the legal risks of the transformation of employee inventions in universities, improving the capabilities of China's technology transfer institutions, and carrying out legislative practices, thereby providing references for the effective management of universities’ intellectual property and the reengineering of the employee invention system in China.

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Lizhou Wei

Should a trade mark owner have the right to prevent third parties from affixing a trade mark to products intended for export? This problem has attracted less attention in the EU and US than it deserves. In comparison, Chinese courts have had to stand on this issue in the last decades when adjudicating on the cross-border OEM cases. Since the judicial opinion of the Chinese Supreme People's Court has always been in flux with the change of the presiding judge of the IP tribunal, this remains an open question in China. In practice, most Chinese courts are inclined to accept the export exemption rule and deny that OEM activities constitute trade mark infringement. This article questions the export exemption rule and calls for a return to the strong-protection approach. It is proposed that affixing a trade mark to products per se constitutes trade mark infringement irrespective of where the products are to be sold, which is more dogmatically coherent with the legal materials and also in line with the existing policy objectives in China.

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Yahong Li and Weijie Huang

The past three centuries have witnessed copyright owners competing with distributors for the flow of income generated by new technologies. However, users have largely been excluded from this cake-cutting copyright game. The neglect of users’ interests has posed a serious challenge in the user generated content (‘UGC’) age. New technologies have empowered users to create UGC, whereas the existing law entitles copyright owners to block users’ access to source materials and allows UGC platforms to exploit UGC without remuneration. This article proposes a two-pronged solution in attempting to strike a better balance between copyright owners, UGC platforms and UGC creators. The first is an ex-post remuneration rule that confers on UGC creators the legal right to use copyrighted work without asking for permission but imposes an obligation to pay remuneration, both of which pass to future UGC creators. This rule incorporates elements of Creative Commons and compulsory licensing as part of the copyright rules generally applicable to all UGC creators. The second solution proposes a community-based approach, which imposes upon UGC platforms a common-law duty of monitoring infringement and includes some legal standards that ensure fair implementation of the terms of use/service of UGC platforms.

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Edited by Paul Nihoul and Pieter Van Cleynenbreugel