This thesis is a comparative study analysing the development of intellectual property (IP) harmonisation in the EU and ASEAN. The purpose of this study is to investigate whether there is a need for ASEAN to harmonise its IP laws at a regional level and, if there is the need, what would be a feasible way for ASEAN to achieve a greater level of IP harmonisation and further develop a harmonised regional IP system. ASEAN had a strong commitment to deepen and broaden economic integration through the establishment of the ASEAN Economic Community (AEC), which enables the free flow of goods, services, capital and workers. The establishment of the AEC in 2015 is considered to be a milestone in ASEAN’s history of moving towards a highly integrated community. Consequently, a harmonisation of the IP laws of the ASEAN members has become more necessary in order to ensure a well-functioning common market and a move towards a highly competitive economic region. IP harmonisation has been prioritised as one of the essential tasks that needs to be accomplished. Notwithstanding, due to the disparities of the member states’ backgrounds, especially in economic, social, and legal aspects, standardising the IP laws of the member states remains challenging. To examine the prospect of ASEAN achieving a higher degree of IP harmonisation, and thereby be able to propose an appropriate solution for ASEAN to develop a regional IP regime, a comparative approach is required and inevitable, while using the EU as a point of reference. The major factors which are impeding and delaying an IP harmonisation process in ASEAN, the disparities in IP standards among the ASEAN members, the development gap between the older and newer members, and ASEAN’s practice and institutional structure, are discussed. At the end, a strategic plan providing a framework for developing an ASEAN regional IP system is proposed. Firstly, it is suggested that the traditional ‘ASEAN Way’ should be modified in order to serve as facilitator of regional cooperation. Secondly, more assistance from well-off countries in helping less developed members to catch up with the rest of ASEAN is needed to promote prosperity of the region as a whole. Thirdly, national IP laws of the member states should be approximated to be in line with international standards. Fourthly, an ASEAN-wide IP system should be incrementally developed through the combined use of hard and soft laws. Finally, a regional IP court should be established to move towards a more rule-based organisation. This would help ASEAN finally move towards achieving its goals of establishing a well-functioning common market and deepening regional economic integration.

An Introduction to Land Law and Estate Management is given through a consideration of the major legal concepts affecting the control of land use and development - interspersed, at varying stages in the development of the law, with comment on the land management implications for, inter alia, the Strict Settlement and the Lease. This is followed by a brief reference to the influence of the 'land-based' torts and a chronology of public health, housing, planning and environmental legislation. The Central Theme pursues an analytical, historical, 'case-based' approach to the evolution of the law concerning Restrictive Covenants affecting freehold land, with emphasis on the 'building scheme', illustrating the concern of the courts to keep the concept in check whilst at the same time developing and adapting it to meet the social and economic ethos of the times. This is followed by a critical examination of the way in which the statutory mechanism for the discharge or modification of Restrictive Covenants has operated in practice, with emphasis on 'planning and environmental issues', first in the era of the Official Arbitrator and later in the jurisdiction of the Lands Tribunal, highlighting the efforts to attain adaptability to achieve practical relevance to meet changing circumstances and needs. A selective commentary on Planning Control, post the 1947 Town & Country Planning Act, charting its interface with restrictive covenant control, precedes a Conclusion which examines the relevance of the restrictive covenant in an area dominated by comprehensive planning control in a 'plan-led' system, considers proposals for reform, makes comparison with United States proposals for servitude law reform and ends with a brief 'vision' for the future.

This thesis deals with the issue whether multimedia products can be made to fit in one of the existing categories of copyright works. This thesis focuses on the 2nd generation of multimedia product, which feature integration and interactivty at a highly advanced level. The exercise is undertaken specifically in relation to literary works, compilations, databases, audiovisual works and computer programs. For those countries that do not consider classification a necessary prerequisite of copyright protection the issue whether and how multimedia products can be protected under the general category of copyright works is also examined. In this exercise of qualification the various consistencies as well as inconsistencies between multimedia products on the one hand and the existing categories of copyright works, their nature and their existing regimes of protection, on the other hand, are examined both at national (UK) and at international and comparative level. The conclusion is reached that, although primitive forms of multimedia works can be protected either as databases or as audiovisual works, this is not always the case with the advanced forms of multimedia products. In relation to the latter there is a clear, absolute and immediate need for new legislation, which will take into account their particularities (especially the fact that they combine vast amounts of different expressions and data, integration (transformation) of this data and interactivity) and which will offer them a regime of protection tailored to their specific needs. This regime of protection is described as a mixture of the regime of protection for films and the sui generis regime for databases. The latter should, however, only apply to those multimedia products that are not capable of attracting copyright protection.

3D CAD (Computer Aided Design) software is widely used in engineering industries to design products and manage their lifecycles. It is crucial to the economy as it records vital design information and knowhow on all engineered products in the developed and developing worlds. The industry is oligopolistic with few suppliers and while efforts have been made to standardise data transfer formats by the promulgation of standards there are formidable interoperability issues. Once users have purchased a particular brand of software they are essentially “locked in” and the industry has all the elements associated with a lack of interoperability, namely network effects, lock-in, and proprietary software and interfaces. Intellectual Property Rights in software are granted to incentivise innovation but cause a lack of interoperability. The ideas and principles which underlie software interfaces are not protected by copyright but there is no such exemption for patents. Interfaces are similar to standards and their indirect effect amplifies their impact and value and distorts the intended intellectual property protection. As the machine code which is distributed to users is not readable, reverse engineering is permitted to enable interoperability, subject to restrictions, including prohibiting the sharing of interface specifications, which is tantamount to making the information a statutory trade secret. Using legal doctrinal research of primary and secondary materials including case law, previous research alongside industry documents and interviews with experts in the industry, this thesis makes original and significant contributions to knowledge. Firstly, the research provides an assessment of the legal regulation of lock-in in an oligopolistic market and identifies the inability of competition law to provide a remedy. It had previously been assumed that competition law would provide a remedy of last resort to require disclosure of interface information. Secondly, considering the indirect function of control of interfaces the justification for patents in interface standards is critically evaluated. Thirdly, with reference to the normative framework of balancing control and openness of interfaces, the ability of the studied market to achieve an optimum balance is evaluated, taking account of the impact of market conditions including the lock-in of the users’ proprietary data, the software’s functional nature and the need for data integrity. Fourthly, with reference to this research and intellectual property law principles and practice existing proposals are critically evaluated including the reduction of the term of protection which will harm vertical interoperability of complementary software. The argument that the time and cost of reverse engineering has a purpose in protecting first comers is countered and it is proposed that reverse engineering of interfaces should be easy and effective. Recommendations are made to improve the dissemination of interface information to allow markets to move towards an optimum balance with minimum regulatory interference. The regulation of interoperability is a balancing act between control by rightsholders and openness of interfaces and this thesis builds on existing research to refine and expand the criteria that identifies the ‘pivot’. Recommendations with least intervention and encouraging efficient market solutions are made with an emphasis on improving reverse engineering’s effectiveness, particularly in the openness and dissemination of interface specifications.

Today, a trade mark may signify not only the commercial origin or the quality features of the products bearing it but also a brand image that consumers might wish to be associated with. Some trade mark owners have been investing in the creation and development of a brand image through advertising and other marketing techniques in order to attract consumers to their trademarked products. In order to safeguard the investment by trade mark proprietors, the protection given to trade marks under Article 5 (1) (a) of the Trade Mark Directive (TMD), which used to protect merely the origin and quality guarantee functions under the essential function theory, has been expanded to cover the communication, investment or advertising functions (so-called “modern” functions) through the judgments of the Court of Justice of the European Union (CJEU). This expansion was not met with universal approval and resulted in an ongoing debate that had a direct impact on number of areas within the European trade mark law. On the other hand, there is a long-recognized conflict between the exercise of the exclusive rights associated with trade marks and one of the main principles of the European Union (EU), namely the free movements of goods principle. This principle, which aimed to integrate the economies of member states, requires that traders should be free to move their goods within the European Economic Area (EEA), without any “artificial” obstacles such as the territorial nature of trade marks and their associated exclusive right. The case law of the CJEU resolved this conflict through recognizing the principle of European exhaustion which later was implemented by Article 7 (1) of the TMD. According to this principle, the rights of trademark holders are exhausted in relation to goods which have been put on the market under the trade mark within the EEA by the owners or with their consent. However, there is an exception to this general provision. According to Article 7 (2) of the TMD, the rights of trade mark owners will not be exhausted if the owners have a legitimate reason for opposing the further commercialization of the goods in order to ensure that their trade mark can continue to perform its functions. This thesis examines the expansion of trade mark protection under Article 5 (1) (a) of the TMD and it is impact on the rights given to the trade mark owners under Article 7 (2) of the TMD to oppose the further commercialization of their branded products in the context of parallel importation.

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This study sets out to investigate Egyptian implementation of international intellectual property (IP) obligations, in the context of Egypt's legislative and juridical history, particularly considering post-colonial implications. It examines the extent to which the effects and experience of colonialism may continue to shape the Egyptian response to unwelcome international pressure to reform its domestic law. It further considers whether Orientalism can help to explain some external perceptions of Egypt's approach to the protection of IP. The study (while it does not offer a comprehensive analysis of the law) examines the historical context in which Egypt's IP law has emerged, identifies aspects of the current IP law that have attracted controversy and attempts to uncover explanations for controversial aspects of the law. The investigation is largely conducted through an examination of relevant literature and black letter analysis of the law but, additionally, summer 2008 was spent immersed in an Egyptian law firm to update current awareness, collect documents and conduct a small number of elite interviews. The study finds that external explanations of Egypt's approach to IP do appear to have been distorted by Orientalist interpretation and (focusing mainly on the patent and copyright provisions) that Egypt's IP law reflects postcolonial tensions in its attempt to satisfy irreconcilable demands. Egypt has experienced a period of major social and political upheaval since 2011, with many unresolved consequences. Eventually, the question of IP reform will be raised again. Issues raised here will likely be relevant to future developments in Egyptian IP law.

No description available.

Access to justice remains uneven and elusive for indigenous peoples dispossessed of their lands. The Forest Rights Act of India (2006) promises land security for forest peoples displaced from ancestral lands by the combined forces of colonial forest resource extraction and contemporary free-market economic development, which have disregarded customary indigenous land rights. This research challenges the assumptions: land rights legislation necessarily contributes to access to justice, and governments serve the interests of citizens in a democratic system such as India. I posit that justice is subverted by: a legal chronology of land expropriation during colonial occupation; contemporary neoliberal policies; and administrative injustice. These issues encouraged legal violations and exacerbated land dispossession. Socio-economic and gender inequalities and marginalization of mobile indigenous peoples compounds their land dispossession, and economic, social, legal disenfranchisement. Against this backdrop of disenfranchisement, the Forest Rights Act revolutionizes the potential of challenging land dispossession, and substantive rights become a metaphor for indigenous empowerment. Offering evidence that indigenous peoples have inadequate access to justice, I contend that economic policies need to collaborate with and reinforce political and judicial aspects. Triangulating scholarships on 1) access to justice, 2) economic policies, 3) forest governmentality, 4) gender discrimination and 5) legal literacy, this study seeks to reconcile these scholarships with empirical data on expropriation of forest land and the effects of the Forest Rights Act on indigenous access to justice in India. This research seeks to establish a new analytical framework which contextualizes control of indigenous forest rights through access to justice.

International analysts tend to view China as a major beneficiary of the TRIPS Agreement, particularly concerning the effects of the stronger patents of TRIPS on local innovation. Chinese policymakers were also motivated to adopt TRIPS IP reforms by the expectation that stronger patents would stimulate China’s development and improve its ability to match the performance of developed countries more rapidly. Yet, due to the lack of empirical studies, these assumptions remain theoretical. This research investigates empirical evidence to test these assumptions and determine actual impacts on China’s pharmaceutical innovation. It seeks to answer two main questions: (1) how has the TRIPS legal framework affected China’s ability to formulate a pro-development patent policy for pharmaceuticals? (2) how has China’s patent policy affected domestic pharmaceutical innovation? The investigation adopts a public health perspective, through comparative legal analysis and statistical study. The empirical assessment was built on country-level data collection. The legal evaluation has revealed that China has adopted a pro-patent policy for pharmaceuticals, in implementing TRIPS, Chinese policy-makers did not balance intrinsic industry interests in strong patent protection against wider socio-economic interests and issues under Chinese law and legal practices. This research has found that China’s pro-patent policy has had multifaceted economic effects on innovation. Whereas, positive effects of patent strengthening were indentified empirically through innovation indicators, including patent applications and grants, R&D expenditure and ITT inflow, the study also revealed various problems and challenges. Local innovation remains imitation-oriented, little R&D is devoted to researching cures for major 4 diseases, more MNC patents control leading and upstream technologies, and patent litigation has greatly increased. These developments do not augur well for China’s ability to approach developed countries in pharmaceutical innovation. The Chinese experience revealed in this thesis contrasts with conventional expectations of the effects of TRIPS, at least in the Chinese pharmaceutical industry.