The Agreement on Trade – Related Aspects of Intellectual Property Rights has almost universal application due to the large number of signatories from the World Trade Organization member states. 149 countries signed the TRIPS by 1994. Therefore, the TRIPS Agreement has also become a valuable tool for the protection of special intellectual property rights under the term geographical indications. GIs have current relevance in the world market to consumers who are healthy and quality conscious. The legal protection of GIs is due to their economic value to many countries where the producers are in rural areas. This is because most GIs are based on traditional methods of production which have earned goodwill. The TRIPS came in to prevent fee riding of such rights by producers who do not conform to the standards and rules of production. The TRIPS Agreement requires member states to harmonise their legal systems to provide legal means of protecting GIs to the standard stipulated therein. Malawi joined the WTO on 31 May 1995 which means that the obligation above mentioned is applicable from then on. Therefore, this study is an investigation of whether Malawi has complied with the obligations in article 1.1 of the TRIPS especially in so far as geographical indications rights are concerned. / Dissertation (LLM)--University of Pretoria, 2013. / Centre for Human Rights / unrestricted

There is extensive literature in several areas of academic study (marketing, international business, law, business finance, etc.) regarding brand names and trademarks. Different fields of study have analyzed the nature, applications and effects of brands and trademarks on firms and societies through their own unique perspective. But although brands and trademarks play a crucial and vital role in economic matters related to firms and societies, there does not exist a strong literature from the economic field approaching important issues related to them. Of special interest to us are the effects brands have on the strategies firms create and follow in order to address competition and get an advantage in specific markets, the role trademark creation plays in the economic development of a country and the spillover effects such development has on the aggregate world economy, and the protection patterns and strategies firms use in order to maximize the value of trademarks as economic assets and the economic benefit derived from the use of this form of intellectual property (and other brand related activities). With this dissertation we seek to contribute to the existing literature and to the better understanding of brands and trademarks from an economic point of view. In order to address the questions above, we formulated an economic model, used econometric tools and also performed an in-depth analysis of empirical data related to brands and trademarks. From our research we found that brands and trademarks play a major role in different aspects of the economic spectrum; they could give the firm an upper hand in a market, they could be a vehicle for economic advancement of societies when trademark protection is fostered and lastly that firms follow an idiosyncratic pattern of IP protection in order to generate and defend the value of these assets and in order to maximize the economic benefit of activities that are related to brands and trademarks. From our overall research we conclude that brands and trademarks are a powerful duality of tremendous potential for firms and countries that need to be protected and fostered and that additional research from the economic field is needed.

This thesis argues that international copyright law should play a stronger role in the implementation of authors’ and users’ international human rights. In international human rights law, authors’ and users’ human rights are two sides of the same coin: both derive from human dignity and contribute to the development of the human personality. Authors have a set of moral and material interests that entitle them, as a minimum, to an adequate standard of living, to be (or not to be) associated with their intellectual works, and to object to any distortion or mutilation of those works. These entitlements receive a viable back up protection from authors’ human rights to freedom of expression and property. At the same time, users have human rights in culture, arts, and science that entitle them to access, use, and share intellectual works. Also, their human rights to freedom of expression and education reinforce these entitlements. Authors’ and users’ human rights are reciprocal, mutually-reinforcing, and mutually-limiting. Thus, their balanced implementation—by means of legislation or adjudication—depends on three rules: authors’ and users’ human rights are limited, they are not hierarchal, and they are interdependent on and indivisible from other human rights and freedoms. On the other hand, despite its practicality and predominance, the exclusive-right system of international copyright law does not necessarily enable authors to achieve an adequate standard of living, and TRIPS has explicitly overlooked their moral interests. Similarly important, the nature and nurture of international copyright law do not give due weight to users’ human rights. International copyright law includes very few mandatory exceptions and limitations, which are supposed to address users’ rights by granting them some liberties or immunities when using intellectual works, but states’ ability to devise new exceptions and limitations is curtailed by the three-step test. Overall, international copyright law fails to meet the balance requirements of international human rights law since it creates a set of hierarchies between the rights it regulates, sometimes fails to recognize the limited nature of authors’ rights, and is inattentive of copyright’s impact on the whole corpus of international human rights. The thesis suggests that international copyright law should become clearer— and more interested—in implementing the international human rights of authors and users of intellectual works. It can do so by incorporating as an objective the implementation of authors’ and users’ human rights in a balanced manner. This objective can function as a ground rule on which further measures necessary for the implementation of authors’ and users’ human rights may rely. In addition, it can provide normative support to some scholars’ proposals for reforming international copyright law. The new objective of international copyright law may become part of the regime through amending TRIPS, interpreting its provisions by the WTO panels and Appellate Body, or establishing a new international copyright instrument.

Intellectual property law theory is premised on a utilitarian justification granting limited time monopolies for encouraging creation, innovation and its dissemination to society. However, in the last several decades, scholars have been mounting empirical evidence to show that in some industries, creativity and innovation exist outside the contours of intellectual property law and thrive despite their lack of reliance on the laws. Instead, what they uncovered is that creators in these industries follow norms that mitigate issues surrounding some kinds of copying. Intellectual property protection for fashion design in Canada is fragmented across a complex legal landscape that entails several different laws, unique in scope, eligibility requirements and rights. This complex framework is not unique to the fashion design industry but is similar for design industries generally. Navigating through these laws can be daunting and thus inaccessible for the some segments of the design industry that are small to medium sized enterprises (SMEs) that have limited resources to expend on legal advice and registration. Using grounded theory methodology and qualitative and quantitative methods, this research explored the use of intellectual property law and social norms by the independent fashion design segment in Montreal and in Toronto and the contours of copying and the public domain. What the empirical research reveals is that independent fashion designers do not use the law to protect their designs and instead, use mechanisms that centre on the negative copying norm. Negative copying is copying that is negatively perceived. It is not necessarily legally infringing or economically harmful, although it can be both. Further, it can apply to subject matter that is not the subject matter of intellectual property law. This norm against negative copying is supported by extra-legal prevention and enforcement mechanisms that have been developed by individuals within the segment in order to mitigate the issue of copying. The empirical research also reveals that in addition to the economic incentives to create, there are also a number of non-economic incentives such as identity and reputational interests that drive creativity and help reinforce the norm against negative copying. Using grounded theory enabled me to draw on literature from a number of disciplines in order to help contextualize these findings and approach the analysis from the perspective of intellectual property theory, policy and law, social norms (sociology and psychology) as well as economic geography, and design.

This diploma thesis examines evaluation of damages according to the law Nr. 221/2006. Industrial rights, whose damages are enforced according to the law Nr. 221/2006, are described. Analysis of laws and judicial decisions in relation to the enforcement of damages and analysis of the law Nr. 221/2006 are made. The thesis examines sequences, important problems and aspects in relation to each method of the evaluation of damages. At the end of the thesis a study of a hypotetical case is carried out to show basic solutions of problems with the evaluation of damages.

Diploma thesis deals with trademarks and licensing agreements for trademarks. The work evaluates and assesses the effectiveness of the legislation in connection with its application by the conclusion of license agreements in practice. The first chapter of the work focuses on the international and the community sources of legislation which are the basis for national adaptation. Another part is devoted to analysis of the constitution of the trade marks legislation significant for the conclusion of license agreements and to the assessment of their effectiveness, clarity and understandability in relation to practice. The third chapter assesses the constitution of the Commercial Code governing the licence agreemants and points to the frequent types of violations of licensing. It is a recommendation for the consclusion of licensing agreements for the mark without any problems.

This thesis provides an insight into the current position of moral rights of authors and outlines the perspectives of the doctrine of moral rights in international copyright regime of the 21st century. Such survey is particularly urgent at a time when the doctrine of droit moral, one of the most contentious and controversial issues in copyright, is now in an international spotlight again. The recent decade has seen two contradictory trends in the field of international copyright. The 1994 Uruguay Round saw the emergence of new global intellectual property regime, embodied in the TRIPs Agreement, which elevates copyright into a new stage of development by linking it for the first time with international trade and technology and by substantially widening the scope of its governance. However, this new instrument is almost exclusively concerned with protecting the rights belonging to owners, endorsing the 'sanctity of property', but practically eliminating the protection of the original creators' non-economic, moral rights. Against this background, the 1990's have witnessed an unprecedented commitment to the protection of artist's moral rights in countries that in the past were the strongest opponents of any such notion within their copyright regimes. The question of moral rights has always been considered an issue where a wider international consensus is impossible due to the traditional rift between civil law's authors' rights and common law's copyright philosophies. However, in a world where the protection of intellectual property is increasingly viewed on an international basis - of necessity, because of technological and economic developments - a global consensus on this issue is inevitable. By reviewing the justificatory schemata underlying the doctrine of droit moral and by analyzing the recent statutory developments in several common law jurisdictions in this arena, as well as the concession made by moral rights-devout civilian jurisdictions, this thesis shows that the gap between the two systems is no longer insurmountable. The analysis reveals that despite the underlying philosophical differences, a substantial degree of convergence of copyright and author's rights is occurring, and outlines the sites of consolidation which can serve as a basis for a possible future international agreement on this issue. / Law, Peter A. Allard School of / Graduate

One of the key international policy challenges in the intellectual property (IP) regime is the issue of traditional knowledge (TK) protection. TK has a bearing on debates around biodiversity, food, agriculture, health, expressions of folklore, trade and development, and human rights. In the policy and academic debates around TK protection, a critical gender perspective is often underdeveloped. Guided by feminist legal methodology, an approach founded on women’s experience of exclusion, and using two feminist methods of gender impact assessment and qualitative interviews, the thesis makes a case for mainstreaming gender in TK law and policy. In most Indigenous and local communities around the world, women play a significant role in the generation, transmission, and use of TK. There are different contributions by Indigenous and local women to the TK system, and there is also differential impact of TK misappropriation on these women. Critical evidence to support the importance of gender as an influential factor in TK protection is based on in-depth examination of two case studies, namely Persian handwoven carpets and saffron. My fieldworks in Kashan, “the city of handwoven carpets”, and Khorasan, “the province of saffron” enabled me to examine the role of Iranian local women and their TK in handwoven carpet and saffron production. Iran is the undisputed centre of saffron production, where the tradition dates back over 3,000 years. The superiority of Iranian saffron comes not only from the climatic conditions but also the rich heritage of TK in growing and processing the crop with Iranian local women as the main performers in different stages of saffron production. Persian hand-woven carpet as an icon of Iranian culture, dating back about 2000 years, is another illuminating example of products in which women and their TK play a major role. From carpet weaving workshops to saffron farms, I found one common theme: the invisibility of women’s TK that is taken for granted while it is the very basis of production. Lack of proper attention to women’s TK in these sectors and its potential for women’s empowerment, has led to many local women and most of the younger generation losing their interest in carpet weaving and saffron production, which in the long run can put the TK in danger of becoming forgotten. Moreover, with the rural outmigration due to lack of employment opportunities, the knowledge of the older generations in handwoven carpet and saffron production is often no longer passed on to the younger generation. Therefore, if women’s TK is to remain alive and deliver its potential for empowering Indigenous and local women, which indeed should be among the main objectives of any TK instrument, these women should be incentivized through gender-responsive TK law and policy to continue practising their TK. Building on the fieldwork results, this research reconceptualizes the TK issue as a gender issue to which TK law and policy fora should respond with gender-sensitive instruments, implementation plans, and adequate resources. The objective of the research is to call for and contribute to a policy change in the realm of TK by translating fieldwork insights (as a knowledge-based gender advocacy) into policy recommendations for a gender-responsive alternative approach to TK laws and policy. More specifically, the thesis provides recommendations for gender mainstreaming in both the process of crafting, and the contents of legal modalities for TK protection.

The Plant Breeder’s Right (PBR), also known as Plant Variety Protection (PVP), is a form of intellectual property afforded to breeders of newly bred plant varieties. In South Africa, intellectual protection of new plant varieties is afforded through the Plant Breeders’ Rights Act, 1976 (Act No. 15 of 1976) as amended in 1996. / The writer has been Registrar: Plant Breeders’ Rights since November 2007. Over the years the writer has interacted with several stakeholders with interest in plant breeders’ rights, including breeders, farmers, patent attorneys, growers, plant breeders’ rights administrators from other countries and civil society organisations. Although South Africa has had Plant Breeders’ Rights legislation since 1976, it has been observed that this piece of legislation is relatively unknown and often misunderstood even by the users of the system. In engagements with various stakeholders, it has been established that there are conflicting views amongst the stakeholders on pertinent issues related to the plant breeders’ rights system. There are views, among others, include: that the plant breeders’ rights system is only relevant and benefits breeders from big multinational companies such as Monsanto and farmers can never benefit in such a system; that the Plant Breeders’ Rights Act is synonymous with genetically modified organisms; that indigenous plants are neglected, and that the system only promotes protection of foreign varieties. The most contentious issue is however around the impact of plant breeders’ rights on the tradition of farmers to save, sell and exchange seed. / Very little is documented on the South Africa plant breeders’ rights system, more so from the administrator’s perspective. This study explored some aspects of the plant breeders’ rights system that may need policy interventions and legislation amendments, such as matters around the plant breeders’ rights system in relation to farmers’ rights, possible dual protection of Genetically Modified varieties in terms of the Plant Breeders’ Rights Act 1976 and the Patents Act 1978, as well as the participation of indigenous ornamental crops in the plant breeders’ rights system. / On the issue of the farmers’ rights: results of this work show that the current provision in the Plant Breeders’ Rights Act deals with Farmers’ Rights in a narrow sense, i.e. with the rights of farmers to save seed. It was established that this provision is inadequate for both the breeders and the farmers. A survey was also conducted among smallholder farmers from four provinces, namely Eastern Cape, Free State, Limpopo, and Western Cape. The interesting finding was that although there is so much debate around the impact of the plant breeders’ rights system on farmers’ rights, the majority of the farmers from this study group have never heard of the Plant Breeders’ Rights Act. There are farmers who are continuing with the practice of seed saving; however some farmers have indicated that they do not save seed they believe that this practice lowers yield. Those who do save seed mostly save their traditional seed, i.e. locally adapted seed lacking formal crop improvement as opposed to modern commercial seed. Some farmers have indicated that they do develop varieties through their own selections and believe that their varieties could qualify for protection in terms of the Plant Breeders’ Rights Act. It is evident that both government and the civil society organisations need to do more to educate smallholder farmers about laws and policies that impact their livelihood. Based on this study, a proposal was made to have the farmers’ privilege provisions in the current Plant Breeders’ Right Act amended to allow the Minister responsible for Agriculture to prescribe among others: the crops in which this provision will apply; the category or categories of farmers that would benefit; the circumstances under which royalties should be paid. This proposal was welcomed by most stakeholders and has since been incorporated in the draft Plant Breeders’ Rights Bill. It is envisaged that specific details around these factors will be included in the Regulations to the Act after extensive consultations with all relevant stakeholders. / There is a gap in policy and legislation with regard to the recognition of Farmers’ Rights as envisaged in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). As such there are calls from some stakeholders including the civil society organisations that legislation on plant breeders’ rights must address these gaps and/or an alternative sui generis (of its own kind) system should be explored as the International Union for the Protection of New Plant Varieties (UPOV) system is not tailored for developing © University of Pretoria vii countries. In South Africa, legislation dealing with some aspects pertaining to Farmers’ Rights is spread over different government departments, e.g. Department of Agriculture, Forestry & Fisheries dealing with intellectual property protection only in as far as plant breeders’ rights; Department of Trade & Industry being custodians of intellectual property laws in South Africa and administrators of, among others the Patents Act; Department of Environmental Affairs dealing with Access and Benefit Sharing matters; Department of Science and Technology dealing with Indigenous Knowledge Systems and intellectual property protection emanating from publicly funded research institutions. More discussions are needed on South Africa becoming a member of the ITPGRFA as these will pave the way for further discussions and policy interventions addressing Farmers’ Rights in a broad sense. / As far as the Genetically Modified Organisms are concerned, South Africa has approved only three Genetically Modified (GM) crops for commercialization in terms of the GMO Act, 1997, namely cotton, maize, and soybean. This is contrary to some statements made by members of the public that much more crops, including pumpkin, potato, banana and tomato are genetically modified. In terms of intellectual property protection, of the total number of GM varieties protected by plant breeders’ rights per crop: 60% of varieties are GM for cotton, 61% for yellow maize, 34% for white maize and 63% for soybean. Currently there are no GM events used in these crops protected in terms of the Patents Act 1978, which effectively means that there is currently no dual protection for these crops. Dual protection is however one of the most hotly debated issues because of the impact it might have on the rights of farmers to save seed. It has been argued that in South Africa dual protection is possible. Scrutiny of the Plant Breeders’ Rights Act 1976, the Patents Act 1978 and the draft National Policy on Intellectual Property shows that all are silent on the issue of dual protection of plant varieties. The Departments of Agriculture, Forestry & Fisheries together with the Department of Trade and Industry need to initiate discussions around dual protection as well the use of Technology Agreements, between technology holders and technology users, in protecting GM varieties and the impact thereof for all role players in the value-chain in order to come up with the country position in this regard. / This study showed that ornamental plants attract the highest number of plant breeders’ rights applications. Of the applications received between 2000 and 2010 about 20% are of varieties developed from indigenous plants. Of plant breeders’ rights in ornamental plants, 84% are owned by foreign entities. Of the 16% owned by local entities, 12% are privately owned and 4% are owned by public research institutions. Some of the challenges facing this industry include the fact that there is inadequate turnover to allow for breeding programs and research initiatives; this is exacerbated by plant breeder’s rights infringements which lead to further revenue losses. Other challenges the industry face include high labor costs and lack of market information. The national Department of Agriculture, Forestry and Fisheries together with the other relevant departments, e.g. the Department of Labour and the Department of Trade and Industry need to engage more with the floricultural industry stakeholders to discuss the challenges facing the industry and come up with policies that would be conducive for the further development of the industry in order for South Africa to benefit from its unique biodiversity. Literature study has also established that breeders are keen on developing varieties of medicinal plants that are uniform and stable. This would call for domestic legislation on intellectual property protection that is aligned with legislation on Biodiversity and Access and Benefit-Sharing. / This study highlights the importance of engaging stakeholders from both the formal and informal sector and brings attention to gaps in our policies and legislation. This study has already made a major contribution in the draft Plant Breeders’ Rights Bill through the inclusion of the revised provision on farmers’ privilege. This revision is aimed at ensuring that the legitimate interests of the breeder are protected whilst the rights of the farmers are recognized. It is hoped that this study will make a positive contribution to future policy developments and will lay a foundation for future studies pertaining to the plant breeders’ rights system and its impact in the agricultural sector. / Thesis (PhD)--University of Pretoria, 2016. / Department of Agriculture, Forestry & Fisheries / Paraclinical Sciences / PhD / Unrestricted

Generation of designs allow firms to gain more competitive advantages and attract more potential customers over their competitors. This is a reason why design protection is important. Design protection plays an important role in preventing the authorised use of a firm’s designs by their competitors and the number of applications for design rights each year are high. Apart from a solution to the appropriation problem that design protection provides, firms may have other motivations for seeking its use. This study aims to understand financial motivations of having designs protected, and as such examines the relationship between design rights, profitability and performance of Swedish firms. Pooled OLS regression is applied to analyze the design and financial data from 1,735 Swedish firms from 2003 to 2016. It is shown that European and Swedish national design rights are negatively related to subsequent profitability of Swedish firms. However, for only European design rights, they do show a positive relationship with subsequent performance of Swedish firms.