Would the current ambiguities within the legal protection of software be solved by the creation of a sui generis property right for computer programs?

Legal context: Software is an anomaly in the traditional sphere of IP, andits problematic nature has been manifest in the confused findingsof courts on both sides of the Atlantic. This article considersthe reasons for the confusion, where things might have beendone better, and how the law could develop considering the realitiesof the industry. Key points: Software protection at present favours the multinational corporations,while the interests of smaller companies and the Free and OpenSource Software community are prejudiced greatly. The currentregime is not fundamentally incompatible with software, however,and as such features of it could and should be retained in thecreation of a sui generis IP right. Practical significance: Much of today's software industry is driven by the efforts ofsmall enterprises and the Free and Open Source Software community.Their interests are not recognized in the current protection-biasedframework, and as a result innovation is being stifled by thethreat of litigation. IP law in this area is preventing thevery thing it is designed to foster—enterprise and innovation.     

Sui generis database protection: a new start for the UK and Ireland?

LEGAL CONTEXT: The decisions of the ECJ in William Hill and Fixtures Marketingconstitute setbacks for rightholders seeking to protect thecontent of databases from unauthorised use by others. This developmentis keenly felt in Ireland and the UK because of the absenceof any overlapping protection in the form of unfair competitionrelief against parasitical activities by competitors. Ironically,post-Feist US copyright law, in the form of the Montgomery CountyRealtor case (1995), when contrasted with the recent Dutch ZAHdecision (2006), shows that US copyright law affords a greaterlevel of protection than is available in the EU under the DatabaseDirective. The ZAH decision also builds upon earlier Germancase law, virtually eliminating liability for linking to websitematerial made available to the public. KEY POINTS: In ZAH, the Dutch Court's interpretation of the Directive andcriteria to be met before content may be copyright protectedwas very restrictive, in stark contrast to the approach of mostCommon Law judges. The result is a very different one to thatintended by the drafters of the Directive, a point reinforcedby the European Commission's own 2005 assessment of the Directive. PRACTICAL SIGNIFICANCE: The Directive has been a disaster from every perspective. Lawmakersin the UK and Ireland may feel that the time is right to consideradopting national measures to produce a more balanced protectivemeasure in respect of commercial databases and an effectivemeans of stimulating investment by following unfair competitionprinciples, rather than the quasi-copyright model of the suigeneris right. ZAH demonstrates that until the European Commissiontackles the critical issue of a common originality standard(which is very unlikely) national differences will be inevitablewithin EU copyright law.     

The cornerstones of plant variety protection in India

Traditionally, India—with a high proportion of small farmers—hasbeen cautious in granting IP rights in food and living matter.As India is one of the fastest developing countries, both interms of industry and in its population, the plant breedingand farming industry in India may be expected to play an importantrole in coping with these problems, as the government has realized.For this reason and in order to comply with its obligationsunder Article 27 of the TRIPs Agreement, in 2001 India passedthe Plant Varieties Protection and Farmers' Rights Act (PVPAct). The constraint arising out of a market situation which is determinedmainly by traditional rights of farmers, by the size of thefarms and the dependency of a significant section of the availablerural area, requires a system     

印度宪法中的环境保护原则

印度宪法中的环境保护原则属于第四编“国家政策的指导原则” ,它是 1976年第 42修正案增设的内容。在对环境保护原则的性质、缘起和内容进行介绍的基础上 ,着重分析它的法律效力 ,并谈了个人看法。     

Legal Protection Against Domestic Violence in India: Scope and Limitations

This paper deals with the scope and limits of legal measures to curb domestic violence against women in India. The Indian state has enacted several laws in the past to address the issue and recently a new comprehensive law is added to the list. The new law has become an alternative to many urban victims. Yet, a review of the performance of the old and new laws on domestic violence proves that legal measures to curb domestic violence have serious limitations. They could neither guarantee any reduction in the extent of such violence, nor could they expedite the justice delivery system in India. Much remains to be done to ensure gender justice in a patriarchal society. Discussion here is based on secondary data and supplemented by field data collected through qualitative research informed by feminist epistemology in the district of Burdwan, West Bengal.     

A Primer to Traditional Knowledge Protection in India: The Road Ahead

Liverpool Law Review - As India moves ahead in the twenty-first century to be a global player, it must take a balanced and inclusive approach. Marginalized and vulnerable tribal communities make...     

印度商业秘密的法律保护、变革及启示

基于文化传统和经济发展现状,印度保护商业秘密的法律制度有其独有特点。比较而言,我国和印度在商业秘密保护方面都缺乏适当的法律框架。对此,印度已经开始了统一立法保护商业秘密的尝试。我国应加强商业秘密的法律保护,尽快制定专门的商业秘密法,统一保护标准、保护内容、保护手段,为我国经济的快速发展以及增强在世界经济中的竞争地位提供＂燃料＂。     

European Court of Justice rules on the protection of databases under the Database Directive (96/9/EC)

The European Court of Justice has ruled on the circumstances in which databases may be protected by the Database Directive. In a decision that renders the protection of databases a narrow concept, the ECJ appears to have introduced a new requirement that a database must comprise its author's “creative ability” in order to qualify for protection as a copyright work.     

The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?

India is one of the first jurisdictions to have embraced an environmental right, and 'fostered an extensive and innovative jurisprudence' on it. The Indian Supreme Court has held the principles of precaution, polluter pays and inter-generational equity as well as the public trust doctrine as integral to the corpus of Indian law. There is, however, many a slip between the cup and the lip, and this article explores some of these slips in detail. It argues that the constitutionally guaranteed environmental right is poorly defined, and therefore offers little guidance in making difficult judgments central to an exercise of this right. After an analysis of relevant case law, it finds that at least some of the principles intended to guide the actualization of the environmental right do little more than create a smokescreen, which renders application and implementation difficult, and obfuscates the hard questions. It also argues that the judicial discretion available to judges in public interest environmental litigation, in combination with the proliferation of imprecise rights, allows the judiciary's preferences for certain rights and certain modes of argumentation to prevail. It concludes however that, notwithstanding these concerns, the Indian Supreme Court deserves credit for having delivered a vast number of environmentally sensitive decisions, and for its willingness to embrace innovative and progressive conceptual tools in the service of environmental protection.     

特许经营中的商标权保护——以特许人权利保护为视角

特许经营的发展是以知识产权的集中许可和使用为其基本特征，商标权是特许经营权的核心内容之一。以商标权为核心的知识产权在特许经营中体现了重要的价值功能。由于特许人的维权意识不足，国内相关立法不够完善，经常发生针对特许人商标权的侵权行为。针对以上情况，结合具体的案例，分析特许人商标权遭受侵权的表现形式和原因，提出特许人维护其商标权的应对策略。     

Protection of genetic data in Spain. Analysis based on the general principles of personal data protection]

The genetic data is Spain is not regulated specifically, rather, we must look at the regulation on the protection of data of a personal nature. This is turn, establishes a series of general principles to apply to any type of data. Analysing this with other regulations that are dispersed both in the national and international regulations, we can deduce the rights and obligations in this field. This highlights the fact that one can't dispose of the genetic data in the same manner as the personal data.     

Content based information retrieval in forensic image databases

This paper gives an overview of the various available image databases and ways of searching these databases on image contents. The developments in research groups of searching in image databases is evaluated and compared with the forensic databases that exist. Forensic image databases of fingerprints, faces, shoeprints, handwriting, cartridge cases, drugs tablets, and tool marks are described. The developments in these fields appear to be valuable for forensic databases, especially that of the framework in MPEG-7, where the searching in image databases is standardized. In the future, the combination of the databases (also DNA-databases) and possibilities to combine these can result in stronger forensic evidence.     

Electronic databases: Protecting your investment – An analysis of the legal rights in electronic databases under UK law

Electronic databases are an important part of the information economy. They are now one of the key platforms for the distribution of information and other contents. The European Court of Justice, in November 2004, gave its first rulings on the scope of database right, introduced by Directive 96/9/EC on the legal protection of databases. These rulings significantly curtail the scope of that right, and limit the protection afforded to database producers under that Directive. The UK courts, in January of last year, handed down a judgment which has important implications for the copyright protection afforded database structures and to “look and feel” elements of database application software, and the scope of Section 50D of the Copyright, Designs and Patents Act 1988 (which sets out certain statutory permitted acts in relation to database use). This article looks at the implications of these judgments, it analyses some of the key legal rights that can apply to electronic databases, and the increased importance that rights of confidentiality and contract are likely to have on the commercialisation of electronic databases in light of these rulings.