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Oğulcan Ekiz

The starting point of this article is a short documentary film that I and five colleagues produced in the course of the Business of Film module at Queen Mary University of London's Intellectual Property Law LLM Programme. During the process of production, we faced some borderline issues regarding our unauthorized uses of others’ copyright works. When we put ourselves into the copyright's author's shoes, three problems arose regarding our use of possible limitations and exceptions: the lack of guidance; the fear of liability; and the unharmonized status of limitations and exceptions at an international level. This article examines these problems from a copyright policy perspective and invites documentary festivals to undertake a mission of guiding new documentary directors through the complex, unharmonized world of copyright limitations and exceptions.

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Ling Yu

Chinese law has adopted the safe harbour principle from American law which emphasizes that Internet Service Providers (ISPs) do not have a general obligation for monitoring. However, in judicial practice, the courts have put forward the requirement of duty of care. This paper analyses the Chinese courts’ judgments since 2001, when legislative protection of the ‘right to network dissemination of information’ was introduced. It intends to analyse the specific contents of the duty of care of ISPs and related impact factors in judicial practice, including the link model, link content, and whether to obtain economic benefits.

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Eskil Ullberg

This article is concerned with the producer market in patented technology, and whether price differentiation based on field-of-use – a common strategy adopted by businesses with high fixed costs – is economically efficient. The focus is on the licensing of Standard Essential Patents (SEPs) on Fair, Reasonable and Non-Discriminatory (FRAND) terms and conditions, including also the Internet of Things (IoT) applications, and the economic growth in the digital economy, especially for small and medium sized enterprises (SMEs). The central argument proposed is that the absolute difference in the value between usages of essential standardized technologies determines whether a single price for all usages or specific field-of-use prices are economically efficient. A small difference in value should result in a single price and a large difference in different prices. Pricing policy is critical to create a world-wide sustained technology development including contributions from, and applications for, emerging markets and developed markets, thereby growing the digital economy.

In this literature review, three evaluation angles of the literature are used: a market analysis under neo-classical assumptions of price-taking agents and marginal (incremental) value; an expanded market analysis where the willingness to pay (WTP) replaces marginal cost as criteria for what price should be paid for licences; and an analysis of market designs with similar characteristics as the SEP market in terms of risk, using experimental economics (behavioural) and auction theory. All analyses angles investigate the principle of field-of-use licensing, established already in the first known patent law in 1474.

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Cheng-Yuan (Kevin) Cheng and Ling-Chieh Kung

Innovation can enhance the usefulness of products and services, but technological innovation may be hindered by many potential barriers. One important potential barrier is patent infringement litigation. In this study, we review the relationship between US patent features and US patent litigations, identify potential patent risk factors, and quantitatively evaluate patent infringement litigation risk. We find that certain factors do have significant impacts. By identifying these risk factors, we may manage product development strategies and patent application strategies to avoid being litigated by competitors. The difference between patents filed before and after the Leahy–Smith America Invents Act is also reported.

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Jamil Ddamulira Mujuzi

Case law from Singapore shows that one of the ways in which intellectual property rights holders have protected their rights is through private prosecutions. This is the case although the relevant pieces of legislation on patents, copyright and trade marks are silent on the issue of private prosecutions. The question of who is entitled to institute a private prosecution in intellectual property rights infringements remains unclear to some people. The purpose of this article is to discuss the issues of locus standi to institute a private prosecution in intellectual property cases and the measures to minimize abusing the right to institute a private prosecution.

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Huang-Chih Sung

In the current copyright law and technology environment, two prominent problems must be considered when enforcing and executing copyrights: (i) the difficulty of proving authorship/ownership of a copyright; and (ii) the difficulty of conducting copyright transactions. The invention of blockchain technology has made it possible to solve these two issues. First, the use of blockchain technology with the InterPlanetary File System (IPFS) is an excellent mechanism for copyright authentication and document preservation. This mechanism allows authors (copyright owners) to prove authorship of their works and copyrights ownership. However, this mechanism for copyright authentication and document preservation may not be applicable in the future primarily because the computer software currently used may be upgraded in the following years. Second, the combination of Ethereum Blockchain and smart contracts can reduce transaction costs and enhance the efficiency of copyright assignments and licensing transactions. However, many legal problems regarding smart contracts have yet to be addressed. These problems include identifying the contracting parties in the anonymous blockchain network, dealing with scenarios where both contracting parties want to amend the implemented smart contracts, explaining code-based smart contracts and setting up an internal dispute resolution mechanism. Unlike the traditional transmission control protocol/Internet protocol network, where any activity is traceable, users on blockchain technology remain anonymous and their activities on the blockchain are hardly traceable. Although the blockchain itself is unlikely to become a hotbed of copyright infringement, the combination of the Ethereum Blockchain, the IPFS and smart contracts may make the entire process a hotbed of copyright infringement. Therefore, this situation poses considerable worries regarding copyright infringement on the blockchain. When the decentralized and anonymized blockchain and peripheral technologies mature, they will have considerable influence on copyright protection. This problem must be addressed by the copyright legal system in the current wave of blockchain technology implementation.

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Moshood Abdussalam

The thesis of this paper is that the prevailing model governing the computation of patent lost profits damages in Commonwealth jurisdictions does not align well with the true nature of the patent system and is therefore apt to derail the social welfare intendments of the system. The article makes this argument based on two principal considerations. The first is that the current model encourages judicial speculation on patentees' compensatory entitlement, thereby creating room for inherent lottery or windfall effects for patentees. The second, which advances the first, is that the prevailing model flies in the face of both the contemporary state of innovation and the social welfare objectives of the patent system. The submission of this paper is that to correct this state of affairs, where patented goods have perfect and imperfect market substitutes, then reasonable royalties alone are sufficient as a monetary remedy. However, where patented goods have ‘zero’ market substitutes (ie where the infringer could not have competed without infringing), only then would it be proper to apply lost profit damages.

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N Cansin Karga Giritli

The Court of Appeal delivered its eagerly awaited judgment in the appeal filed against Birss J's judgment in the Unwired Planet v Huawei case on 23 October 2018. Birss J's judgment included an analysis of some of the most controversial issues related to standard essential patents (SEPs) and particularly the fair, reasonable and non-discriminatory (FRAND) concept. The Court of Appeal reviewed these issues and handed down a judgment (together with Birss J's judgment) that has the potential to become a legal foundation for SEP-related disputes in England. It is highly likely that these judgments will also provide a guidance to courts in other jurisdictions and shape the practice in this highly dynamic and developing area. The judgments also represent the English courts’ unbiased view towards SEP owners.

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Edited by Paul G. Harris