The adoption of the Arusha Protocol for the Protection of New Varieties of Plants (Arusha Protocol) in 2015 created a harmonized regional legal mechanism for the protection of plant breeders’ rights (PBRs) in the African Regional Intellectual Property Organization (ARIPO) member states. Regrettably, the Arusha Protocol, which is to enter into force after the requisite ratifications, reaffirms the often criticized International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991) in its extensive limitation of the traditional farmers’ rights to freely save, replant and exchange seeds of protected plant varieties, while liberally conceptualizing PBRs. The stated farmers’ rights are essential for the food security of the developing ARIPO member states, as their agriculture is predominantly characterized by impoverished small-scale farmers who rely on informal seed exchanges. On that basis, this article is premised on the view that the legal regime for plant varieties protection established under the Arusha Protocol is inappropriate for ARIPO members as it fails to balance breeders’ and farmers’ rights in a manner that promotes food security. It proceeds to evaluate the appropriate approach that can suitably balance breeders’ and farmers’ rights for the purposes of promoting food security in Africa.
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Tom Kabau and Faith Cheruiyot
This article investigates whether contemporary art can or should be protected by patent law. The investigation commences with a working definition of contemporary art and then examines the way that patent law has treated fine art in the US, UK and Australia, and whether this treatment would extend to contemporary art. A number of examples of patents granted to types of contemporary art are reviewed.
The number of countries joining the WIPO Marrakesh Treaty for the visually impaired has been gradually increasing since its adoption in 2013. This article evaluates the contribution of the WIPO Marrakesh Treaty to the untangling and understanding of the interface of intellectual property law and human rights law. It analyses the significance of the human rights language used in the Treaty as well as its mandatory copyright exceptions. It is argued that the significance of the Treaty mainly lies in its inclusion of human rights principles. This, together with the introduction of compulsory copyright limitations and exceptions, forms the innovative approach of the Treaty that reshapes the contours of the relationship between intellectual property rights and human rights.
Jani McCutcheon and Jordan Leahy
Copyright works are frequently created in breach of one or more laws. These works vary in degrees of wrongfulness and the laws and interests that are impacted by them. The works may contain illegal content, such as child pornography. Laws may also be contravened in the process of creating copyright material, such as a graffiti artist committing trespass. Courts’ remedial responses to these ‘illegal works’ generate important social and policy issues. Granting owners of copyright in illegal works the full panoply of remedies might incentivize or normalise illegal behaviour and effectively reward wrongdoing. And yet, moderating remedies may appoint judges as moral guardians. Focusing on Anglo-Australian law, this article examines whether the unlawfulness infecting illegal works can and should be considered by courts in exercising their remedial discretion in two main contexts. First, it investigates when and why courts have refused to enforce copyright on public policy grounds, and attempts to distil relevant principles from diverse decisions. Second, the article considers the relevance of illegality when courts exercise their equitable jurisdiction, focusing on the remedy of a constructive trust which grants the benefit of copyright to the victim of the author's wrongdoing. The article argues that, in narrow circumstances, courts should have the flexibility to offset the illegality on public policy grounds and by imposing a remedial constructive trust.
Private owners of culturally significant works are legally entitled to refuse to permit third parties, including cultural heritage institutions (CHIs), to access those works. This situation is particularly problematic for CHIs when the cultural works at issue are immaterial works that are supported on unstable physical platforms, such as cellulose acetate film, cellulose tapes or early computer software. Ideally, these cultural works should undergo urgent digital preservation processes in order to preserve and protect the public interest in accessing its cultural heritage.
If property is culturally important, a private owner's ability to withhold it from third party access may conflict with the human right to participate in cultural life, as affirmed in international human rights law. Noting however that human rights law also provides that ‘no-one shall be arbitrarily deprived of his property’, a balance between the property rights of the owner and the public interest in culture is essential. This article proposes amendments to copyright law and domestic trade law as possible ways to provide this balance. This article focuses on New Zealand law and its earliest immaterial cultural works, but the arguments could be extended to other cultural works and to other jurisdictions.
Ashish Bharadwaj and Srajan Jain
The Delhi High Court considered the law and policy issues around standard essential patents in India. While the court adopted a very internationalist approach to the issue it included many unfortunate findings, which are explored here.