The music and film content providing industry asserts that unauthorised widespread Online Service Provider (OSP) enabled use of their works has played a large part in the factually evident decline in unit sales of the industry’s essential products such as CDs and DVDs, and has thus also allegedly diminished revenue and profits. In this regard, content providing industry legal recourse against OSPs takes two forms. The first is to claim primary copyright infringement, and the second to establish third-party copyright liability for the infringing acts of an OSP’s users. The choice is dictated by the specific facts in individual cases. The latter important and complex case law based category, which applies to a spectrum of OSP connections to infringements, some more direct than others, is specifically treated in this thesis. This thesis examines the, it is argued, inadequate case law based operation of UK third-party copyright liability. By firstly comprehensively studying UK copyright law as it pertains to OSPs, including primary liability as well as exceptions and limitations, UK third-party copyright liability is suitably extrinsically defined. Its intrinsic operation is then analysed. Severe deficiencies having been found and explained in this regard, a basis for reform is sought by conducting a similar examination of US third-party copyright liability, said law being more developed. Thus, a mirrored approach to the preceding UK analysis is taken in the analysis of US copyright law; carefully defining third-party copyright liability and ensuring overall systemic compatibility. Having established the need for reform and having provided a second compatible but more developed source, both strands of third-party copyright liability are compared and contrasted and entirely novel changes to the UK concepts are proposed for legislative adoption. The reformulations allow for apposite future risk analysis by market actors, resulting in greater legal certainty for all parties concerned.

The reconciliation of patents within the Taiwanese Law of Things has received negligible attention from legal scholars. The primary reason for this is the hesitation, by courts and scholars alike, to construct a new property paradigm, referring instead to treat patents under the existing rules on physical things. This dominating stance has had an impact on the manner in which Taiwanese courts adjudicate on the nature of patents, and dealings therewith. The aim of the thesis is to show that this stance is theoretically illogical. The underlying issue is the different classification of patents within the civil and common law systems. The study employs a historical and comparative law methodology in order to inform an intra-law solution to the problem of how to overcome the classification dilemma. It does this by critically analysing the evolution of patent categorisation as personal property in common law and, by employing this foundation, seeks to distinguish the substantial differences in the concept of property between the common and civil law traditions. In light of these differences, and to establish a consolidated way of reconciling patents into the current Taiwanese legal framework, the thesis further analyses the similarity of the property notion under English common law and Taiwanese customary law, both of which are shaped by exclusion rules. The hypothesis is that ownership of land within these two systems, in similar with that of patents, was not an absolute and outright ownership of land governed by inclusion rules, but was instead a freehold which granted intangible rights that could be divided by the duration of the holding. It is suggested that a theoretically more coherent property model can be achieved by adopting this approach, and analogising patents to the tenure systems that existed within both English common law and Taiwanese customary law. To this end, the thesis proposes to contextually rebuild the property model for patents within Taiwanese law by the insertion of five new reform clauses into the Patent Act and the Civil Code.

The Moral Dimensions of Intellectual Property Rights explores the various aspects of IPRs in which moral evaluation and claims play a role. According to R M Hare, moral concepts and reasoning are characterized by the universalization of prescriptions. Universalization links the various dimensions in a way that rationally forces us to revise the moral basis of the various claims we make for, about and of IPRs, and ultimately provides grounds for their reform. The method of reflective equilibrium is focused in the first place on Hare’s meta- ethics, to derive a reformulation which is herein called fundamental prescriptivism. This requires a foundational set of moral principles to work. Our expectation that moral principles and values must serve to guide us, and resolve conflict between us, with objective rational force, provides the basis for adopting such a set of fundamental prescriptions. These sum up in the equal right to freedom and well- being as the ultimate basis for moral evaluation of our institutions. An implication of this right is that property in IPR systems must be balanced with participation rights (moral and legal) of the public to a public domain which allows individuals to have access to, and use, objects of intellectual property. When, in seeking reflective equilibrium, this is applied to the various aspects of IPRs, the result is an exploration of the inter-connectedness of following: justification of IPRs based on this equal right to freedom and well-being; explanation of the function of, and justification for, the presence of moral concepts and terms in national and international IPR rules; the commitments implied by use of these moral ideas for our obligations in respect of the way we enjoy, exploit and enforce our IPRs, and, ultimately, our duty to reform of IPRs in ways that respects the participation rights implied by this principle.

In the online culture of the 21st century, people worldwide re-create and disseminate works by using existing works. Facilitated by the Internet and digital technologies, 'online re-creations' have become much more common, more widespread, and more sophisticated than ever before. Online re-creations are new works created based on pre-existing copyright protected materials: they are for instance fan fiction, parody, mash-up, fanvid, machinima and virtual world. Due to the difficulties to obtain authorisation from right owners of the original works, online re-creations are potentially infringing the rights of copyright holders. Infringements are usually assumed to occur despite the uncertain legal status and the various nature of online re-creation. Nevertheless copyright and online re-creations are both essential. Re-creations and their online culture are beneficial to individuals and the society at large due to the three principles i.e. creativity, freedom of speech and the public interest. This thesis finds that copyright law that should encourage creative expressions has restrained and discouraged creative re-creations. Besides, the existing copyright exceptions are insufficient and ineffective to safeguard the rights of the re-creators and the interest of the public in accessing and reworking from copyright protected works. It is therefore vital to reconcile the conflicting interests: the exclusive rights of the copyright owners, the rights of re-creators and the interest of the public. To achieve a fair and reasonable balance between the conflicting rights and interests, this thesis proposes that everyone should have a right to use existing works in making creative re-use of such works without infringing copyright. The 'right to re-create' will be granted to the person whose re-creation meets all specified criteria.

Digital Rights Management systems (DRM) are frequently used by rightsholders in order to protect their works from the, very high indeed, possibility to be copied, altered or distributed without authorisation by users who take advantage of available state-of-the-art copying techniques. Because DRM are legally protected by anti-circumvention legislation both in the United States and in Europe, a debate goes on more than a decade now regarding their impact to the notion of “balance” among copyright stakeholders that traditionally underpinned copyright law. In this context, this study examines, in turn, the philosophical underpinnings of analogue and digital copyright law focusing of copyright exceptions, the development of a notion of a minimum of lawful personal use for the digital environment based on existing copyright exceptions and users’ expectations of personal use, and the impact of the use of DRM and of the introduction of anti-circumvention legislation to this notion. While the European Information Society Directive 2001/29/EC (EUCD) is the main legal instrument analysed and criticised, the role of other Directives is also examined to the extent they address the relationship between lawful personal use and anticircumvention legislation. Legal developments in the United States could not have been absent from this discussion since anti-circumvention legislation was introduced there much earlier than the EUCD and important case-law and legal commentaries have developed since. Following the identification of problems regarding the operation of a minimum of lawful personal use in digital settings, the proposal to introduce a right to engage in self-help circumvention afforded to users of DRM-protected works for Europe is put-forward. Such a right would not undermine rightsholders incentives to offer works online and develop new business models but would acknowledge the users’ interest to interact and tinker with digital works taking full advantage of the new possibilities offered by digitisation.

Intellectual Property (IP) is becoming an increasingly important source of collateral in debt-based financial transactions. This thesis will show that IP and financing are intrinsically linked. They both can be used to drive company growth. When the two interact a virtuous growth spiral can form. It will be shown that IP can be used to obtain financing which allows for company growth and the creation of more IP rights. The new IP rights then allow the IP owner to obtain more financing. The pattern of growth can continue in this pattern. However, due to the legal complications the formation of such a growth spiral is hindered. The thesis examines how security interests in intellectual property right are treated in secured finance law and IP law in the US and the UK. It will show that there is a conflict between laws particularly in the perfection and priority of such security interests. The conflict between the two sources of law makes it difficult to determine where a security interest must be registered in order to be perfected. The conflict also creates conflicting registers for such interests. Due to conflicting registration provisions it is also difficult to determine the priority of conflicting security interests in an IP right. Additionally, IP laws are often inadequate for determining issues on perfection and priority. The thesis will offer suggestion on legal reforms which will best alleviate the legal problems of taking security in an IP right.

Thesis (LL. M.)--McGill University, 2001. / Includes bibliographical references (leaves 1-11 (2nd set)).

After briefly examining the history of trade marks and establishing the theoretical framework of trade mark functions, an analysis from the perspective of semiotics is conducted, viewing the trade mark as a sign. This analysis serves as a tool for the suggestions and conclusions drawn in relation to the role of trade mark law today. The issues of trade mark registration, use and protection are examined, as main facets of the trade mark functions. An analysis of the legal provisions, legal doctrine and case law on trade mark registration and use in Greece, before and after the entry into force of the First Council Directive on the Harmonisation of trade mark laws in Europe 89/104/EEC is undertaken, so as to denote the effect of the European harmonisation on these issues. The Court of Justice case law is examined, in juxtaposition to the Greek case law on the respective implementing provisions. The similarities and differences are noted and analysed. Throughout, examples from a common law jurisdiction, namely the UK, are taken into account. The issues of risk of confusion and dilution are analytically examined at a national (Greek) and European level. In comparison to the Court of Justice jurisprudence, the national legal framework and case law of Greece on these issues is analysed. Examples from other European jurisdictions are taken into account. The theory of dilution in the context of the European trade mark framework is further analysed against developments in the USA. The controversial doctrine of trade mark dilution, introduced by Fr. I. Schechter, is of primary interest in the course of the thesis and suggestions are made for a new perspective of the theory. The controversial doctrine of Schechter is seen, in view of the above, under a new light.

Thailand’s plant protection regime presents a unique sui generis plant protection system, which is used as a model by several developing nations. The current Thai Plant Variety Protection (PVP) law has attracted some criticism, and whether or not farmers and breeders actually benefit from the system is in doubt. The questions this situation raises are: has Thailand adopted clear, coherent, and workable rules for plant variety protection in response to the needs of the nation? Is the introduction of intellectual property rights (IPRs) in agriculture via a PVP regime a desirable and contributory factor to the development of Thailand? More precisely, how might such an IPR regime be made compatible with Thailand’s development needs, bearing in mind the obligations the country has accepted through its membership of the WTO and adherence to the TRIPS Agreement? This thesis attempts to address these questions. By highlighting the salient features of the Thai plant protection regime, this thesis addresses the major concerns of the rights of farmers, local communities, and plant breeders. It is suggested that the protection of plant varieties is vital to Thailand, considering the fact that agriculture represents a fundamental economic activity and the livelihood of a large section of the total population; therefore, introducing IPRs in agriculture via the PVP regime is critical to the development of agriculture in Thailand. Thus, a new developmental approach to the IP protection of plant varieties is desirable to ensure the unique needs of the nation the validity of national legislation, and the long-term promotion of agricultural development and sustainability in Thailand. Thailand can provide a more coherent framework for plant variety protection by carefully calibrating the PVP provisions and establishing a coherent set of rules in the form of a new legislative framework. It is concluded that a number of possible elements are available from a variety of instruments that exist in international law, notably the TRIPS Agreement, the UPOV Convention, the CBD, and the ITPGRFA. Lastly, the proposed regulatory reforms suggest that Thailand’s PVP provisions should be amended in three major areas, including (1) provisions for the rights of farmers and local societies, (2) legal protection for plant breeders’ rights, and (3) institutional apparatus governing plant protection issues in Thailand.

The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) administered by the World Trade Organization affects a wide range of domestic public policies and industry practices in biotechnology. With the advent of global patent protection for biotechnology, Brazil faces a significant dilemma. It is necessary for Brazil to comply with international intellectual property (IP) standards while simultaneous protecting its local industry and stimulating local innovation. To this end, this thesis investigates whether or not the current IP rights-dependent business models prevailing within Western industry deprive scientists, especially in the developing world, of equitable access to biotechnology techniques, and hinders their participation in research and development by restricting access to research techniques. Drawing on the case study of Brazil, the thesis identifies key issues relevant to biotechnology, IP rights and Open Scientific Innovation (OSI) as an approach to the management of IPRs. Based on an understanding of the international and Brazilian post-TRIPS scenario, the thesis specifically addresses one central question: Is OSI feasible and desirable in the Brazilian context? It is intended that the research findings contribute significantly to the body of knowledge in relation to innovation policies. Overall, it is hoped that the findings of this thesis will promote innovation in the Brazilian biotechnology sector.