Yes / In this paper we study the determinants of the strength of patent enforcement in 43 member countries of the World Trade Organization (WTO) between 1998 and 2011, a period after the signing of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. We do so by building on and expanding the seminal work of Ginarte and Park (1997) on the pre-TRIPS determinants of patent rights in the years 1960-1990. We find that in the years after TRIPS was signed, the strength of patent enforcement of a country is positively determined by two variables that signify the usage of the patent and intellectual property system, and the number of patent and trademark applications. We also find that the level of research and development expenditure, the quality of human capital, and the level of development of a country have positive effects on the strength of the enforcement of patent law in practice. Intellectual property rights enforcement is one of the key investment-related policies included in the United Nations Conference on Trade and Development (UNCTAD) Investment Policy Framework for Sustainable Development. Identifying the determinants of strong patent systems will help policymakers at the national and supranational levels to design and implement effective policies that strengthen national patent systems, thereby enhancing economic benefits such as greater levels of commercialization of intangible assets and greater levels of international trade and investment.

Yes / We study the role of the strength of Intellectual Property Rights (IPR) law protection and enforcement in influencing horizontal productivity spillovers from inward FDI to domestic firms in host countries. While most WTO countries adopted strong IPR legislation due to exogenous pressure resulting from the signing of the Trade-Related Aspects of IPR (TRIPS) agreement, public IPR enforcement strength continues to vary significantly between countries. We meta-analyse 49 studies and find that public IPR enforcement strength has a direct positive effect on horizontal productivity spillovers from inward FDI to domestic firms and a negative moderating effect on the relationship between IPR law protection strength and horizontal productivity spillovers from inward FDI to domestic firms.

La contrefaçon est un phénomène de dimension internationale qui constitue aujourd’hui plus qu’hier un véritable fléau. Il apparaît que les principaux pays de provenance des contrefaçons saisies dans l’Union Européenne sont les pays d’Asie,notamment la Thaïlande. Cette recherche a pour but d'étudier les problèmes juridiques relatifs à la contrefaçon des droits de propriété intellectuelle. Ceci nous amène à poursuivre la recherche suivant deux axes. La première partie a pour but de mettre en évidence la comparaison de la définition de la contrefaçon en France et en Thaïlande. Elle se décompose en deux sous-parties, la première s'attachant à décrire la qualification de l’atteinte constitutive de contrefaçon selon les droits concernés (le terme « contrefaçon » en lui-même, tant en France qu’en Thaïlande, désignant différentes formes d’atteintes à un droit patrimonial de propriété intellectuelle). Pour identifier les atteintes constitutives de contrefaçon, notamment l’élément matériel, nous mettons l’accent sur 4 points: l’existence de la création, la diffusion de la création, l’usage de la création et la participation à l’action contrefaisante. S’agissant de l’élément intentionnel de contrefaçon, il semble présenter de multiples facettes. La seconde définit la preuve de la contrefaçon. On observe alors les moyens de preuve de la contrefaçon : la loi prévoit deux séries de mesures principales que nous pouvons regrouper en moyens de preuve en matière civile et pénale. Par ailleurs, il y a des moyens de preuve alternatifs entre les deux régimes. Ce sont des procédures douanières.La seconde partie a pour objet la prise en considération de la répression par les juridictions civiles et pénales. Elle se décompose donc en deux sous-parties : la première concerne les sanctions prononcées par les juridictions pénales. Nous avons déjà étudié la procédure pénale et les sanctions applicables à la contrefaçon. Il se trouve que la situation en Thaïlande est totalement différente de la situation française, notamment concernant la jurisprudence en matière pénale. Il semblerait que la majorité des décisions soient des sanctions prononcées par les juridictions pénales. La seconde sous-partie concerne quant à elle la réparation des atteintes à la propriété intellectuelle. Nous constatons que le préjudice subi, en France tout comme en Thaïlande constitue en un gain manqué . En outre l’évaluation du préjudice en France et en Thaïlande est difficile (préjudice subi en matière de marque, préjudice moral et fixation de l’indemnisation de peine privée). / Counterfeiting is an international problem. It appears that the main countries of origin of counterfeit goods seized in the European Union are the Asian countries, including Thailand. The research explains concisely the entire key factors to this whole problem. The research is divided into two parts; in the first place, I will outline pointly the definition of Intellectual Property Rights law (IPRs law) infringement between French and Thailand. Firstly, we focus on the structure of IPRs infringement. The term "counterfeit" in himself both in France and Thailand indicating different forms of an intellectual property rights liability conception. To identify violations constitute infringements, including the material element, we focus on four points, the existence of the creation, dissemination of the creation, use of creation, participation in the infringing action . With regard to the intentional element of infringement, iconcerned the intention of counterfeiter by the civil and criminal aspects as well as the objectives of my research would analysis on two components. First, the application of substantive issues embodies in the civil action. The second is the criminal action. The intention of counterfeiter are also intersect into two parts of action. The secondly,, we research to the proof of infringement. There provides two measures of proof in civil matters and evidence incriminal matters. In addition, there are a customs procedures as an alternative measure of proof . In the second place, we mainly concerned the IPRs law enforcement: Firstly we concerns the penalties imposed by criminal courts. We have already studied the criminal proceedings. In addition, we studied the penaltiesfor counterfeiting. We find that the criminal proceedings in Thailand is totally different from the criminal proceedings in France. In addition, we studied the penalization of IPRs law. We find that the situation in Thailand is totally different from a France, especially in criminal jurisprudence. It seems that the majority of decisions are the penalties imposed by criminal courts. Secondly were search about categories of damages and criteria for proof of damages. We find that the damages, in France as well as in Thailand, is the recovery of profit. Also the difficulty of assessing the damage, in France as well as in Thailand, are the damage of Trademark law, moral right damage and punitive damage.

Magister Legum - LLM / Access to medicines is an essential component of the basic human right to health and a key determinant of the importance attached to the health care system of a country. It essentially entails the availability and acceptability of the essential medicines on the market and the ability of patients to afford such medicines when needed. Globally, countries face access to medicine challenges partly because of patents which undoubtedly accounts for excessive pricing of medicine. As such, efforts have been made to ensure the accessibility of medicines through the Trade-Related Aspect of Intellectual Property Rights (TRIPS) flexibilities of the World Trade Organisation (WTO). Beyond these interventions, it is incumbent on Members of the WTO to domesticate the flexibilities of the TRIPS Agreement before their utilisation because by their very nature, they cannot be self-executed. With an estimated population of 29.6 million, about 310 000 people in Ghana are living with HIV. The country’s health facilities record 40 per cent of outpatient visits each year and about 14 550 per 100 000 of the population are infected with tuberculosis with cancer on the rise. These diseases require medicines which are mostly patented yet Ghana has access to medicine problems despite the existence of a national health insurance system. Ghana has however not fully incorporated the TRIPS flexibilities in its national legislations and therefore unable to fully utilise the flexibilities as an option to access essential medicines. Questions therefore remain as to why and how Ghana can utilise the flexibilities to improve access to medicines. Based on an examination of the WTO’s patent system and legislations of Ghana, this mini- thesis contends that, the extent of incorporation of the flexibilities are inadequate due to the existence of lacunas in the Ghanaian legislations. Furthermore, a comparative assessment with South Africa supports an understanding that conditions are not ripe for full utilisation of all the flexibilities. It further argues that the utilisation of the TRIPS flexibilities by Ghana has been rendered ineffective due to administrative, political, economic and social challenges which adversely affects the full utilisation of the flexibilities incorporated and those yet to be incorporated. It is therefore important that Ghana adopts holistic approaches taking into consideration best practices if the TRIPS flexibilities must be effectively utilised. This mini-thesis concludes that, the TRIPS flexibilities are necessary for accessing essential medicines in Ghana to promote the right to health and that a review of Ghana’s current legislations to fully incorporate the TRIPS flexibilities and addressing other non-legal challenges are the required linchpin for effective utilisation of the TRIPS flexibilities.

Por que a indústria editorial está empreendendo a difusão do livro digital quando esse padrão tecnológico perturba o regime de proteção e enforcement do copyright? Se a duplicação da criação intelectual e sua transmissão simultânea por meio de um arquivo digital inviabiliza o aparato coercitivo que ampara o enforcement do copyright, emerge daí um paradoxo. Por que precisamos dessa proteção jurídica? A questão central desta dissertação busca responder como a alocação de recursos na indústria editorial revela as escolhas estratégicas específicas para apropriação de lucros. Este trabalho é conduzido como uma pesquisa exploratória multidisciplinar por meio dos referenciais da economia histórica, economia do conhecimento, economia neoinstitucional, sociologia econômica e estratégia. Após a introdução, o trabalho foi desenvolvido em cinco partes. Os quatro capítulos iniciais desenvolvem quatro ensaios teóricos correlacionados em que, por diferentes perspectivas, busca-se elucidar o efeito resultante (positivo ou negativo) da proteção da propriedade intelectual sobre bem-estar social e sobre os mecanismos contratuais e estratégias empregados pelos agentes econômicos em reação ao delineamento jurídico copyright. O último capítulo encerra o trabalho com três pesquisas empíricas. Com o intuito de capturar os efeitos de diferentes ambientes institucionais é feita uma análise institucional comparativa entre quatro países (Brasil, Estados Unidos, França e Reino Unido) no período entre 1999 e 2010, buscando compreender como as organizações alocam recursos para apropriar lucros. A partir dos principais determinantes desta mudança tecnológica as características da regulação de copyright norte-americana e seu peso e influência no comércio internacional de bens intelectuais, na ação estratégica de dois agentes poderosos, a Amazon , Apple e Google e, finalmente, na existência de valor econômico representado pelas obras públicas existentes em domínio público que podem ser capturadas e ofertadas no formato digital - conclui-se que antes de almejar lucro, a indústria editorial busca acordar uma nova organização setorial para a criação e a distribuição de excedentes que vai impactar em uma nova forma de especialização e coordenação da produção. O presente estudo desenvolve uma abordagem de business history, colocando-se como uma interface entre a economia da propriedade intelectual, a análise institucional e a organização da firma e dos mercados / Why is the book business adopting and diffusing the digital book technology when this standard is supposed to disturb the enforcement of the copyright regime? If the digital reproduction of intellectual work is also followed by simultaneous and ubiquitous distribution and making it even harder to enforce the mechanisms that bounds the copyright a paradox emerges as a consequence. Why is this legal regulation necessary? We pursue to investigate the research question how the publishing business resource allocation strategy is correlated to profit appropriation. This dissertation is developed as a multidisciplinary effort based on the theoretical pillars within economic history, knowledge economy, neoinstitutional economics, sociology economics and strategy. After introduction, the work is divided in five chapters. The four initial chapters develop four correlated theoretical essays, with different lenses, aimed to search how the system of intellectual property rights affects, positively and negatively, the welfare and the strategic and contractual mechanisms carried by the economic agent as a reaction towards the copyright legal system. The final chapter concludes the research with three empirical investigations. Four different institutional environments - Brazil, France, United Kingdom and United States are comparatively evaluated in order to capture the effects of the industry resource allocation strategy and its relation to profit appropriation. The conclusion is that the main drivers of technology change - the special features of the North American regulation and its major importance on international trade, the strategic impact of major players, Amazon Apple and Google, and the large number of works available in the public domain to be captured - it is argued that the publishing business is not necessarily seeking to make a profit in the short term but gearing into a new production and distribution arrangement which is going to result in a new system of rent creation and distribution. This research is developed as a business history narrative, positioned within the fields of economics of intellectual property rights, institutional analysis and the study of firm and market organization.

Made available in DSpace on 2016-03-15T19:34:26Z (GMT). No. of bitstreams: 1 Henrique Romanini Subi.pdf: 1009215 bytes, checksum: 5ca95369df8dd46db7fb1f12851fa832 (MD5) Previous issue date: 2015-08-13 / Intellectual property rights have been object of expansion in recent decades, when they began to be recognized on things and innovations hitherto immune to private appropriation, like living organisms, business methods and even the human genome. We live, as well, a second "enclosure movement" of the property, led by high-tech industry rooted in developed countries and aims to ensure the highest possible financial return on their investments in R&D. The extension of these rights creates situations of abuse that, besides diverting their purpose, cause damage to other principles applicable to the market, such as free competition and free enterprise. International treaties play an important role in this reality, with the TRIPS Agreement as the main one and that, despite his attempt to prevent such abuses, turns out to be too open in their terms and indirectly empower them and give them legal lair. / Os direitos de propriedade intelectual vêm sendo objeto de ampliação nas últimas décadas, quando passaram a ser reconhecidos sobre coisas e inovações até então imunes à apropriação privada, como organismos vivos, processos de negócios e até o genoma humano. Vivemos, assim, um segundo movimento de cercamento da propriedade, capitaneado pela indústria de ponta radicada nos países desenvolvidos e que visa a garantir o maior retorno financeiro possível aos seus investimentos em pesquisa. O alargamento desses direitos gera situações de abuso que, além de desviarem sua finalidade, causam prejuízos a outros princípios caros ao mercado, como a livre concorrência e a livre iniciativa. Os tratados internacionais têm participação importante nessa realidade, sendo o Acordo TRIPS o principal deles e que, a despeito de sua tentativa de evitar tais abusos, acaba por ser demasiadamente aberto em suas cláusulas e indiretamente os autoriza e lhes dá guarida jurídica.

<p>The development of software was considered until the beginning of the 1990th as a cathedral like product development in closed companies. This way of development changed in the last decade. Open source software (OSS) development challenged this consideration significantly. OSS is produced in co-operation by skilled people, distributed and used by many moral agents. The result, the software itself, can be studied and modified. Herein is the main incentive for people to develop the software. In such a mode of production the freedom to access knowledge and information (=source code) is a necessity to produce the artifact (software).</p><p>Software is a digital entity. The main difference in comparison to natural resources like oil, land, minerals is that it can be used and reproduced without losses. It lacks the capacity of getting naturally scarce. Contemporary intellectual property rights assume implicitly that goods might getting scarce one day. Imbedded in the term intellectual property is also an idea of "fencing" objects. In this thesis I will argue that anartificial"encing"of digital objects might cause unintentional bad consequences for the society. An other quality intellectual property rights are claimed to have is that they serve as an incentive for inventors/authors to produce new inventions and ideas. The practice of OSS development works without such an incentive provided by intellectual property rights.</p><p>The moral conflict, which I attempt to unravel in this work deals with the question to what extend the application of intellectual property rights in software is necessary and how restrictive particular property rights in digital objects should be - if there should be any at all. Knowledge as the factor of production is of the same value in knowledge societies as land was for agrarian societies. The difference is in the mode of production and the un-limitless availability of digitalized knowledge. I argue that the"protection"of knowledge, and software is knowledge, has to be carefully revised in so called knowledge societies.</p>

The Canadian canola breeding sector met a transition from publicly funded breeding research to large private investments in research and development (R&D). The increasing use of biotechnology tools in the mid 1990s made the assignment of plant ownership technically possible while the legislative safeguards that were put in place during the same period enabled owners to take juristic actions against potential infringers. Today, canola breeding sector is dominated by large multinational firms. The generation of proprietary knowledge in the canola breeding sector has caused a freedom to operate issue. Private and public firms conducting canola R&D are seriously concerned about their ability to gain and preserve access to key technologies in an IPR world. <p>This thesis uses the tragedy of the anticommons framework to analyze the consequences of increased intellectual property protection in the canola breeding sector. Theory suggests that when a common resource is owned by multiple owners, each of the owners has the incentive to overcharge potential users, leading to the underuse of the resource. In R&D, different owners of complementary technologies may overcharge potential R&D firms that want to assemble different technological pieces to produce a new one. The result is forgoing research and development of new products.<p>The results of personal interviews with thirteen canola researchers and IP officers are presented and analyzed. The results suggest that the increase in the intellectual property protection in the last two decades in the canola breeding sector has led to difficulties with canola R&D. These difficulties take the form of reduced access to current, proprietary and public material. With hampered access to research input material, research output is not maximized and potential research may be forgone. Interviewees described how the increase in the intellectual property protection affects their personal and organizations ability to conduct research as well as some the implications of the new IP regime on the canola breeding sector. There is indication that canola breeding sector is moving towards a super-protectionism. Under these conditions, canola R&D firms, private and public, are in search for ways that will open access to enabling technologies and research areas. The creation of platform technologies and collaborations are the most prominent ones and are observed to increase in occurrence world wide.

The development of software was considered until the beginning of the 1990th as a cathedral like product development in closed companies. This way of development changed in the last decade. Open source software (OSS) development challenged this consideration significantly. OSS is produced in co-operation by skilled people, distributed and used by many moral agents. The result, the software itself, can be studied and modified. Herein is the main incentive for people to develop the software. In such a mode of production the freedom to access knowledge and information (=source code) is a necessity to produce the artifact (software). Software is a digital entity. The main difference in comparison to natural resources like oil, land, minerals is that it can be used and reproduced without losses. It lacks the capacity of getting naturally scarce. Contemporary intellectual property rights assume implicitly that goods might getting scarce one day. Imbedded in the term intellectual property is also an idea of "fencing" objects. In this thesis I will argue that anartificial"encing"of digital objects might cause unintentional bad consequences for the society. An other quality intellectual property rights are claimed to have is that they serve as an incentive for inventors/authors to produce new inventions and ideas. The practice of OSS development works without such an incentive provided by intellectual property rights. The moral conflict, which I attempt to unravel in this work deals with the question to what extend the application of intellectual property rights in software is necessary and how restrictive particular property rights in digital objects should be - if there should be any at all. Knowledge as the factor of production is of the same value in knowledge societies as land was for agrarian societies. The difference is in the mode of production and the un-limitless availability of digitalized knowledge. I argue that the"protection"of knowledge, and software is knowledge, has to be carefully revised in so called knowledge societies.

Property rights are the backbone of Western Civilization. Capitalism can only be successful if individuals feel secure about the ownership of their assets. Patents are the property rights granted to the inventor by the government. Without these rights, inventors will find it extremely difficult monetizing their contributions to society. Thus, in an effort to incentivize innovation and commit society to human progress, our Founding Fathers built our country on a strong set of intellectual property rights. At the same time, nothing impedes innovation like a monopoly and, in essence, all a patent amounts to is a monopoly, the right to exclude others from monetizing a specific innovation over an extended period of time. Hence, at the margin, patents increase the incentive to create new patentable knowledge, while simultaneously also stifling the dissemination of that knowledge. A good patent system strikes the right balance between innovation and a government-granted, anti-competitive monopoly. After a 20-year period of an unprecedentedly pro-patent environment in the United States, the value of patents has never been higher. Patents, as opposed to their intended use of incentivizing innovation, are now seen as a form of protection against litigation, and also a weapon to litigate patent infringements to extract license fees and royalty payments from companies who are supposedly in violation of these patents. The pendulum has swung, and patents are now stifling innovation to an extent not conceived of by our Founding Fathers. This thesis will explore the reasons for the extreme increase in the value of patents over the years and will attempt to propose a plan of action to swing the pendulum back where our Founding Fathers originally intended it to be.