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Kshitij Kumar Singh

The biotechnology sector in India has been shaped by legislative and policy initiatives with significant institutional developments. India has long valued the potential of biotechnology to make significant contribution in the health sector, agriculture sector, environmental sustainability and economic progress. The legislative initiatives to promote and regulate biotechnology include legislation regarding IP, the environment, agriculture and related regulations. The regulatory framework involves a number of regulatory bodies operating through a complex web of legislation. Government policies have been pushing the biotechnology sector, with remarkable initiatives including tax deductions, fund raising and special schemes for start-ups, MSMEs and academic and research institutions. These initiatives have shaped biotechnology as an organised sector with well-defined sub-sectors such as biopharmaceuticals, bio-agriculture, bio-services, bio-industry and bioinformatics. Biopharmaceuticals has remained the most dominant sub-sector of biotechnology, catering for the medicinal and health needs of the people and contending with the great challenges of accessibility and affordability. Though the results produced by almost all the sub-sectors have been well received by the public, in the bio-agriculture sector however public perception largely governs the decisions as to the regulatory approval of GM food crops, and many a time it has been backed by a non-scientific opposition involving numerous farmer organisations, NGOs and other activists.

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Kosgei Kembol Alvin

There are ongoing efforts under the auspices of the World Intellectual Property Organization (WIPO) to craft a global framework for the protection of traditional knowledge. These efforts are being undertaken by the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore which was established by the WIPO General Assembly in 2000. This chapter critically assesses the justifications for the push for a sui generis regime. It relies on the theories of the global political economy, the Commons and the inevitability of pluralism to suggest that a soft law instrument other than a legally binding treaty will be better placed to address the concerns of the indigenous populations around the world. The example of the progress made by Kenya is used to illustrate how national governments can help realize the goal of comprehensive protection of cultural intellectual property. The chapter pursues a practical approach to the quest for a global regime.

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Mayuree Sengupta

“Folklore is one of these three: a body of knowledge, a mode of thought, or a kind of art. These categories are not completely exclusive of each other.” When folklore juxtaposes with intellectual property, the knowledge resource that emanates is unparalleled in stature and aids in understanding the wisdom of Bengal, a land steeped in ancient history, cultural legacy, political patronage, colonial hegemony and a weary independence at the cost of being partitioned. It would be prudent to reflect that political uncertainty after close to two hundred years of colonial subjugation led to a lull in appraisal of local lore and the assemblage of credible intellectual property in Bengal. My writing consolidates the folklore across Bengal and links it with intellectual property in all its glory. Based on this premise, the chapter undertakes an in-depth study pertaining to three case studies concerning the folklore and intellectual property of Kohitoor, Muslin and Rosogolla from Bengal, embarking on a journey from pre-British regime of the Nawabs in the seventeenth century to the current democratic dominion of twenty-first century.

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Forgotten Intellectual Property Lore

Creativity, Entrepreneurship and Intellectual Property

Edited by Shubha Ghosh

This innovative book explores forgotten disputes over intellectual property and the ways in which creative people and sovereigns have managed these disputes throughout the centuries. With a focus on reform, it raises important questions about the resilience of legal rules and challenges the methodology behind traditional legal analyses. Focusing on lore and traditions, expert contributors incorporate contextual understandings that are rooted in history, sociology, political science, and literary studies into their analyses.
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Shubha Ghosh

While Justice Holmes’ intellectual property opinions are established canon, long forgotten are his intellectual property related opinions authored while on the Massachusetts Supreme Court. Such neglect is perhaps justified as intellectual property law is a matter of federal, not state law. Except in some narrow areas, what relevance does Holmes’ state court opinions have? However, his state court opinions should not be forgotten. His experiences with intellectual property in state courts foreshadow the fundamental approach guiding the better known Supreme Court canon.

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Zvi S. Rosen

In 1879, the US Supreme Court famously struck away federal trademark law in the Trade-Mark Cases, leading Congress to leap into action and pass a new trademark statute within two years. Much less famously, though, the same thing happened again 24 years later in a largely forgotten case, Warner v. Searle & Hereth, leading to the passage of the 1905 Trademark Law within two years. This is the story of how a commercial dispute between two early pharmaceutical companies led to the first American trademark law of the twentieth century.

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Arpan Banerjee and Dana Beldiman

For German manufacturers with a global footprint, a regrettable fallout of the First World War was the loss of lucrative business in Britain, along with associated industrial property rights. The vast size of the British Empire at the time meant that this automatically translated into identical consequences in many British colonies. In one instance, one of the well-known German trade marks of the time, ‘Sanatogen’, was appropriated by a British company. After the War, the original owners of the mark attempted to reclaim it, based on provisions in the Versailles Treaty. This led to a significant trade mark infringement case at the Bombay High Court in British India, undoubtedly the largest and most important colony within the British Empire. The litigants in the case were the original German makers of Sanatogen (trading as AJ Wülfing) and an Indian firm distributing the British variant, also using the Sanatogen mark. This chapter looks back on this forgotten but fascinating case, unusual for interpreting trade mark law principles in accordance with provisions of the Versailles Treaty.

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Edited by Shubha Ghosh

What is intellectual property lore? It is accepted wisdom and understandings about doctrines and policies. The chapters in this volume revisits many accepted wisdoms and understandings about copyright piracy, trademarks during wartime, plagiarism, human rights, and more.

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Emmanuel Kolawole Oke

The objective of this chapter is to critically re-examine the 1996 decision of the Constitutional Court of South Africa with regard to the constitutional status of intellectual property rights in South Africa in the light of the current debates on the relationship between intellectual property and human rights in South Africa. The chapter equally questions the view of those who contend that intellectual property rights fall within the scope of the constitutional protection of the right to property in South Africa. This will be done by critically assessing some of the cases in which South African courts have dealt with the interface and tensions between intellectual property rights and other human rights. Furthermore, the chapter contends that, even if one takes the view that intellectual property rights fall within the scope of the constitutional protection of the right to property, this should not constitute an impediment to the implementation of measures aimed at protecting the public health, such as measures relating to the plain packaging of tobacco products in South Africa.

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Robert Spoo

No negative space of which I am aware is as impressive for its historical longevity and social impact as the copyright vacuum that existed for foreign works in America in the nineteenth and early twentieth centuries. Rather than forgo the opportunity of reprinting the latest transatlantic titles - works by Charles Dickens, George Eliot, Walter Scott, and many other popular authors - American publishers learned to live in the immediate moment, to extract quick profits through first-mover tactics. They planted agents in England to watch for the latest publications; engaged lightning-fast typesetters, printers, and distributors; and had the grit and resilience to face the inevitable prompt competition for the same work and to move on when rivals swallowed up the early advantages. To regulate competition for free foreign works, publishers agreed among themselves to treat these resources as if they were protected by copyright. These informal “courtesy” norms still existed when James Joyce became the target of lawful piracy.