中国-东盟知识产权保护与合作机制研究

统一、协调的知识产权保护制度是开展国际贸易的基本环境和条件之一.中国-东盟知识产权保护与合作的进程已经全面启动,但具体的合作机制或制度性安排还有待进一步完善.实现中国-东盟国家间知识产权法律协调的关键,在于建立以政治高层的战略对话为引领,以协调委员会的组织协调为核心,以特别审查机制和执法合作机制为保障的全方位、多层次的知识产权合作机制.     

公法与私法间的抉择——论我国民间文学艺术的知识产权保护

我国非物质文化遗产体系中的民间文学艺术保护工作正在全面展开,知识产权是否能够适用于民间文学艺术的保护仍存有争议.探析民间文艺著作权保护的缘由是厘清选择何种保护模式必要的举措.社会正义是民间文学艺术知识产权保护的价值取向.采用分类保护方式是民间文学艺术保护的优先选择.     

Authorship,Authenticity, and Intellectual Property in Australian Aboriginal Art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists' relationship different to other artists' individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006-8.     

The Woman Victim in a Country in Crisis: A Reading of Tagwira's The Uncertainty of Hope

The article is based on my reading of Valerie Tagwira’s The Uncertainty of Hope as a feminist text that portrays female victimhood in the context of a failing postcolonial state. Tagwira writes about the experiences of a woman against the background of Murambatsvina, officially termed ‘‘Operation Clean Up.’’ The Zimbabwean Operation Clean Up of 2005 was condemned worldwide; and in her novel, Tagwira gives an often-ignored dimension of a woman’s experience of it, in the general context of a country facing serious political, economic and social challenges. For Tagwira, the challenges faced by Onai, as well as those around her, do not have links to their racial identities. Thus, Tagwira redefines the enemyvictim trope of the Third Chimurenga by subverting the state’s interpretation of the struggle discourse of the Third Chimurenga. In the state’s discourse, the victim trope is racial, the state enemy is the former colonial master (in support of the opposition political party) and the victim is the previously colonised black. In my analysis, I have used Susan Wendell’s theory on oppression and victimisation as contained in her article Oppression and Victimization: Choice and Responsibility (1990).     

Innovation and Alliances

Explanations for national success in science and technology typically focus on domestic institutions and policies. However, that line of research has yet to identify any particular set of institutions or policies that explain variation in national innovation rates across cases or over time. This article offers new evidence that the problem with domestic institutions approaches stems from their failure to consider international security factors. Specifically, this article finds a positive effect for U.S. security alliances on innovation. This finding is robust across different specifications and periods of analysis. While countries that ally militarily with the United States are found to realize benefits in economy‐wide, indigenous innovation, such an effect is not observed in military technologies. This suggests that alliances may substitute for being on the frontier in military technologies. Therefore, this article contributes not just to debates over S&T competitiveness, but also to alliance formation.     

试论我国体育冠名权及其法律规制

2008年北京奥运成功举办,国内体育热潮空前高涨;赛后“鸟巢”推出PPP融资模式（Private-Public Partnership）转让冠名权,学界再度关注体育冠名权之法律规制。在体育法学中,冠名权、体育冠名权是一个层级清晰的属种概念链条。而从整个法律体系或权利体系的维度来看,体育冠名权仍是一个较新型的权利。在实践中,权利定性的模糊亦成为体育产业开发和应用的瓶颈,并导致近年来我国体育市场大量冠名纠纷因缺乏充分的法律依据而无法得到有效调整。     

Stealing into the wild: conservation science,plant breeding and the makings of new seed enclosures

Faced with pressing climatic changes, scientific and industrial interests are vying to develop crops that can survive drought, floods and shifting pest regimes. Increasingly, they look for solutions in an unlikely place: the gene pools of wild plants. Crop wild relatives (CWR) – species closely related to crops, including their ancestors – offer breeders the allure of retracing the domestication bottleneck, infusing genomes of modern crops with ‘lost’ genetic variety. Yet wild relatives also confront threats from climate change, urbanization and expansion of industrial agri-food. Thus, CWR, seen as both salvational and threatened, have become an international conservation and food-security priority. It is my contention that, in their common project to harness wild-relative potential, conservation and breeding science are co-evolving to extend seed commodity relations into new spheres. I examine enclosures along two fronts: first within ‘systematic CWR conservation’, where ‘in situ’ approaches, typically regarded as empowering and sustainable alternatives to ‘ex situ’, instead may support a complementary system of value extraction; second, in breeding and biotechnology research, which produces new value for CWR while profoundly shaping upstream conservation priorities. An important finding is that although today’s ‘ex situ-centric’ complementarity favors dispossession, an ‘in situ-centric’ approach could foster democratic renewal of biocultural diversity.     

Beating the bounds: how does ‘open source’ become a seed commons?

In response to ongoing plant genetic enclosures, the Open Source Seed Initiative (OSSI) is creating a ‘protected commons’ for seed. It is a project, I argue, that reflects characteristics of a growing transnational commoning movement. From the Zapatistas to seed wars, such movements draw attention to commons not simply as a resource, but as a dynamic and evolving social activity: commoning. In the US, OSSI includes 38 plant breeders, 48 seed companies and 377 crop varieties. Yet challenges remain for OSSI to gain wider legitimacy for ‘freed seed’, to build trust in a moral pledge, and to establish fair guidelines for which people and which seed can participate in making the commons. Using the metaphor of ‘beating the bounds’ – a feudal practice of contesting enclosures – I ask how OSSI defends the commons in intersecting arenas. The first way is legal, as OSSI negotiates a move from contract law toward moral economy law. Next is epistemic, as an informal breeder network revitalizes farmer knowledge, while proving more structurally able and culturally equipped to lead commoning efforts. Finally, I reflect on the nature of boundary beating itself, aided by Global South movements. Seed sovereignty perspectives suggest room for a pluriverse of commons to grow.     

新时期知识产权保护面临的挑战与对策

以《与贸易有关的知识产权协议》（TRIPS）为中心的知识产权国际保护制度建立以来,国际贸易自由化遭遇知识产权保护制度的挑战。为有效防止知识产权保护制度成为新的贸易壁垒,抑制科技创新与发展,进而成为发达国家掠夺发展中国家的工具,我国应在充分研究TRIPS协议的基础上积极回应,使知识产权保护制度切实为我所用,在国际贸易自由化的大趋势下发挥其应有的效用。     

不争执条款的反垄断法分析

知识产权许可协议中的不争执条款既有阻碍竞争的消极影响,也有其积极的一面。美国、日本、欧盟在认定不争执条款的效力时采用了基本相同的方法,即一般指导原则下的个案分析。它们运用一套以反垄断法为基础的具体规则,将宏观经济背景、技术发展水平、市场结构状态、权利质疑成本等因素类型化、具体化,主要依合理原则进行考量,协调知识产权政策和竞争政策的变化。我国应当甄别性地借鉴国外的成熟经验,不断完善不争执条款的立法和执法。