Intellectual Property, Human Rights and Competition
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Intellectual Property, Human Rights and Competition

Access to Essential Innovation and Technology

Abbe E.L. Brown

This detailed book explores the relationship between intellectual property, competition and human rights. It considers the extent to which they can and must be combined by decision makers, and how this approach can foster innovation in key areas for society – such as pharmaceutical drugs, communications software and technology to combat climate change.
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Chapter 2: Problem and solution? Some introductions

Abbe E.L. Brown


The discussion so far has proceeded from an undeveloped presumption that the IP owner does have significant power to control the use of technologies. Is this the case? In its discussion of IP, this book will focus on patents, copyright and trade marks. This is not to devalue the important of other rights (in particular as was seen in the last chapter, the importance of designs in relation to new communications technologies) but these three rights provide a useful spread of the characteristics of IP, and a base from which to explore the questions of access and relationship between fields. It is certainly true that owners of IP rights can exclude others from using the invention, work or phrase, say, which is the subject of the IP.1 Yet for a right to exist (whether by the approval of a national regulator or by the operation of law) threshold tests must be met. The minimum standards for these are now in TRIPS, and they must then be implemented in national and regional laws.2 These tests include: is the invention novel,3 is the artistic work original,4 is the sign capable of being represented graphically?5 There are requirements which can prevent registration, such as the technology involving an invention the commercial exploitation of which is contrary to public policy and morality.6 There are also restrictions on duration7 and territorial scope, with the right to control confined to the country of grant.

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