The rapid development of the ‘New Economy’ on a global scale has brought new issues of competition law, one of them concerning the licensing of standard essential patents (SEPs). Standardization allows interoperability and compatibility and thus enhances not only static but also dynamic efficiency. However, the procedures in standard setting organizations (SSOs) may not be used to unduly restrict competition. In Asia, for example, most competition regimes have highlighted their focus on fair and free competition, making clear that the field of SEP is no exception. Recently, the competition authorities in Korea and China have concluded that a breach of ‘fair, reasonable and non-discriminatory (FRAND)’ commitments may constitute violations of their competition rules, apparently taking inspiration from the case law in the EU. Therefore, it seems overdue to look at recent developments in competition law and policies on SEP and FRAND worldwide and to enquire into the divergence and convergence of competition law in selected jurisdictions. Despite considerable differences, a common feature of all competition regimes discussed in this article is that their goal is to keep markets in the information and communication technology sector as open as possible, including – and especially – with respect to standard-setting procedures.
Yo Sop Choi and Andreas Heinemann
During the past decade, China has learnt from the experience of the United States and developed a series of legal instruments to address the digital challenges of massive copyright infringement. These efforts have established a joint tort liability system under which network service providers (NSPs) share joint liability with direct infringing users under certain conditions. Under this system, NSPs bear aiding or abetting liabilities which correspond to the United States’ contributory and inducement liabilities. However, when facing peer-to-peer (P2P) technology, the fault-centred approach manifested in knowledge is not only difficult to prove but also overlooks objective factors. Moreover, general tort law principles are sometimes set aside in adjudicating cases concerning indirect copyright liabilities.
This article examines authorization liability in the United Kingdom, finding that this approach is underpinned by traditional tort law theory and more integrated in adjudicating P2P cases. It requires a spectrum of consideration consisting of two-step analysis: conceptual analysis and multi-factor analysis. This research proposes that while maintaining the current dichotomy framework of copyright liabilities, the UK authorization liability approach provides a valuable lesson, especially in regulating P2P technologies in China.
Gustavo Ghidini and Giovanni Cavani
The aim of this paper is to define the scope of protection afforded to ‘marks with reputation’ under EU Directives and Regulations. The authors argue that the protection granted to said marks also in relation to ‘not similar’ goods requires that, having regard to all the circumstances of the specific case, the consumer could be induced to reasonably suppose that the trade mark owner is somehow (industrially or commercially) connected with the circulation of products bearing an identical or confusingly similar sign. If this possibility cannot be assessed, it should be denied that the use of that sign either brings an unfair advantage to the third party user, or is detrimental to the distinctive character or the repute of the renowned trade mark. In sum, the thesis here submitted states that the protection afforded to renowned trade marks, even ‘extra moenia’ (ie beyond the risk of confusion in a strict sense between the products), anyway presupposes that a misleading message is conveyed to the consumer, inducing her/him to ‘transfer’ the reputation of the latter's products to those of the third party user's products, with the effect of altering the consumer's purchasing choices.
Edited by Johanna Gibson
Luis Felipe Beltrán-Morales, David J Jefferson, Ileana Serrano Fraire and Monica Alandete-Saez
In this article, we evaluate an initiative recently launched by the national government in Mexico to create ‘Patenting Centers’ in various universities and research institutions in diverse regions of the country. We focus particularly on elucidating how the installation of these Patenting Centers has augmented the number of national filings for intellectual property (IP) protection, and how the Centers have contributed to increasing the quality of IP applications. Furthermore, we analyze how the Mexican Patenting Centers have qualitatively contributed to fostering local cultures of innovation, for example through capacity-building activities directed towards scientific researchers. We also attempt to understand how the Patenting Centers have supported processes of technology transfer and commercialization, which we evaluate by examining a case study from the Northwest Biological Research Center (CIBNOR). Our findings indicate that the Mexican Patenting Centers have contributed to increasing IP protection activity in various regions of the country, and that they have augmented interactions between public research institutions and the productive sector. We conclude with suggestions for how the Patenting Center model may be further assessed in the future, to ensure that the government's mission of fostering endogenous innovation and the creation of a knowledge-based economy may continue to be realized.
Zhigang Wang and Mark Wing
The gradual increase in the output of China's online literature industry and strengthening of the copyright development chain has yet to result in any standardization of copyright management. This article provides an analysis of discrimination against online literature writers, as their writing is usually considered less creative than conventionally published work. This paper then analyses the rampant piracy and plagiarism plaguing online literature in China and the difficulty authors encounter in protecting their rights. After examining this environment, the article discusses the reasons behind the dysfunctional copyright ecology facing online literature writers. It focuses on the position of the online literature platform, namely the potential capital advantage of the platform and associated weakening of the ‘elite’ label applied to certain online literature writers following from the freemium business model. Unclear management from the government is also addressed.