Principles of International IP Law

Question 1

What is National Treatment?

Answer 1

Works originating in one of the member states must be protected in each member state in the same way that such state protect the works of their own nationals

is one of the main principle of two pillar of international IP : PC and BC. the work which is … in one state must be protected in each Member state in the same way as in their own national. NT provides an equal national and foreign works, PC and BC provides the same equal treatment to anyone form member states. E.g. if British come to France for protection. France must provide the protection of his ip rights.

Question 2

What is the territoriality principle ?

Answer 2

Each country decide where and how they protect IP on his own territorially and local protection.

if a work is protected in Switzerland it is not protected automatically in France. France need to decide itself how to protect it.

Question 3

What is well-know trademark?

Answer 3

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Question 4

What is exhaustion?

Answer 4

Exclusive right of the right-holder to the first commercialization (distribution) of a good (materializing his IP rights) is exhausted once the product is placed on the market (first sale doctrine)

Conditions:

• products sold to a third party
• By the right-holder or with its consent
• Exhaustion only in relation to the product sold, but not to other products or other IP rights

Effect the product (acquired by a purchaser after the first commercialization) can be freely resold.

National exhaustion:

• commercialization right exhausted by the sale of the product in a national territory
• in favor of the rightholder: may control each national market (differentiated price)
• respect of the territoriality principle: the relevant commercialization right and exhaustion principle is the one conferred by the law where the product has been sold.

International exhaustion:

• commercialization right exhausted by the sale of the product in the national territory as well abroad
• detrimental to the right-holder: stimulates intra brand competition
• Trademark remains with its function, despite the importation by a third party without authorization (company of the right-holder still identified).

Treatment of exhaustion in EU
- Regional exhaustion (free movement of Goods within the EU territory)
+ art 7 al.1 Directive 89/104/ECC on trademark: The trademark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent

+ art 4 al.2 Directive 2001/29/CC on copyright: “The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the right holder with his consent.

Case law: Silhoute, Laserdisken, Davidoff, Pharmon, Allposters

Each country decides the regulate it on their own, to limit or regulate

Question 5

What types of exception to protection?

Answer 5

• Exhaustion is the exception to it (when it put on the market it become this right of commercialization is exhausted)
  exception to the exhaustion’s exception is depends on the geographical scope of the exhaustion, if it is the regims, like national, regional, and international. national exhaustion it means respected only to one jurisdiction.

Mr. business wants to do a business with patented product. patent rights usually national exhaustion so the right is only with respect to one jurisdiction, if the product put in the market of country A, Mr business may buy this product, and resell it in the country A because the right is exhausted to the respect to the country A but may not resell this product in the country B, C, D, etc. because in all those countries right is not exhausted so thats why you need to start to say there is an exclusive right of commercialization. Exhaustion is an exception to that because the product on the market is exhausted, exception to the protection. But exception to the exception it can be only nationally exhausted not worldwide.

Question 6

what is the freedom of the idea?

Answer 6

idea its self is always free, and in public domain.

e.g when coca cola did his own giant is not infringement of any ip law, but if they used the mechanics how the giant moves and work it can be counts as infringement materialization of this idea.

Question 7

IP History

Answer 7

IP does not grant IP protection as such.

Knowledge is no protects
freely you give freely you receive.

there were a machine which provides a coping a machines
and there was not a copyright protection.

only authors started to claim that we need a protection of copyright. than were provided some regulation.

inventions where not protected as such as well.

that time there was not global or international patent protection.
the same story invention asked to grant the protection on their invention. they complain that they lose profit on their investment.

Question 8

what are the pillars of international IP system?

Answer 8

essential pillar of international IP system is a Paris Convention of protection Industrial Property. (trademark, innovation, design)

and the second essential pillar is Bern Convention on protection literary and artistic works. (copyright)

Question 9

What is the objects of protection under Paris convention?

Answer 9

art 1 PC

• patents
• utility models
• industrial design
• trademarks
• service marks
• trade names
• indications of source
• or appellations of origin
• repression of unfair competition

Question 10

What is the object of protection under Bern Convention?

Answer 10

art 2 BC
- Literary and artistic works :
+ books,
pamphlets and
other writings;
lectures,
addresses,
sermons and other works of the same nature;
dramatic or dramaticomusical
works;
choreographic works and entertainments in dumb show; musical compositions with or
without words;
cinematographic works to which are assimilated works expressed by a process analogous to
cinematography;
works of drawing, painting, architecture, sculpture, engraving and lithography;
photographic works to which are assimilated works expressed by a process analogous to photography; works
of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography,
topography, architecture or science.

• Derivative works :

 Translations, 
adaptations, 
arrangements of music 
and other alterations of a literary or artistic work
- Official texts:
official texts of a legislative, administrative and legal nature, and to official translations of such texts 
- Collections:  
encyclopedias 
and anthologies

• news

Question 11

What is common provisions of PC and BC?

Answer 11

• Objects
• Union of countries
• Territoriality
• Minimum Rights.

Question 12

what is WIPO ?

Answer 12

World Intellectual Property Organization - is united agency international intergovernmental organization (183 Members States; 915 staff; from 94 countries; 24 Treaties administered)

Mission: promote the protection of IP rights worldwide and extend the benefits of the international IP system to all member States (art 3 Convention establishing WIPO 1967)

• Areas: all IP rights :
  + Protecting IP through Services
  + Resolving Disputes
  + Norm Setting

Question 13

WTO

Answer 13

• International intergovernmental organization
• provide “ the common institutional framework for the conduct of trade relations among its Members” (art. 2 para.1 of the Marrakesh Agreement establishing WTO 1994)

Three ares (regulating “Multilateral trade Agreements”

• Multilateral Agreements on Trade in Goods (Ann. 1A)
• General Agreements on Trade in Services (Ann. 1B)
• Agreement on Trade-Related Aspects of IP Rights (Ann 1C)

Question 14

What is ROMARIN database ?

Answer 14

WIPO provide database for all the trademark registered.

Fees for 10 protection. We looked to all the data base and there is not similar trademarks.

Question 15

Looking for trademark protection multination jurisdiction.

Answer 15

go to national office, get official national basis, and then he can go to WIPO and grant multinational protection.

Question 16

Development agenda ?

Answer 16

evolution of WIPO, norm setting, defiance difference levels of protection which depends on developing of the country.

Question 17

Difference between ADR and national legislation?

Answer 17

ADR its more private agreement, great for businesses who wants to keep discreetly sue a party.
national legislation has more enforcement decision.

Question 18

TRIPS

Answer 18

• TRIPS very well structure
• part 2 standarts of protection
• part 3 enforcement of the protection
  dispute settlement body - decision is binding among the member states.

TRIPS incorporate both BC and PR

TRIPS excludes moral rights from BC but all other is included.

Moral right BC art 6bis

• paternity right (to be named as author of work)
• integrity

why its excluded from TRIPS agreement?
- trade related deals and not with moral rights, US delegate they do not recognize such protection. moral right granted to companies to private entities but not to individuals.

Question 19

Summary chronology (to check)

Answer 19

1883 PC
1886 BC 
1891 Madrid 
1893 United International Bureaux for the Protection of IP (BIRPI) Berne
1925 Hague Agreement (design)
1967 BIRPI => Geneva
1970 Convention establishing WIPO 
1974 Patent Cooperation Treaty 
1989 WIPO => UN agency 
1995 Madrid Protocol (trademark)
2004 WTO/TRIPS 
2011 ACTA
2016 TTIP 

PTC - brings to WIPO 80 -90% of profit.

Question 20

NT under TRIPS

Answer 20

Each Member shall accord to the nationals of other Members treatment no less favorable than that it accords to its own nationals with regard to the protection of intellectual property.

Question 21

NT under PC

Answer 21

Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals.

Question 22

Nt under BC

Answer 22

Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

Question 23

Article 5, p2 equal treatment,

Answer 23

Under article 5 p2 BC, if you are the foreigner in the US where there are exist formalities regarding registration of copyright, than for under this article for foreigners do not need to follow this step and go directly to the court related copyright matter.

e.g Louis Armstrong form country B where is the protection 15 year and he seeks for protection from country A where the protection is 25 year. there is an exception under BC article 7 p8 where states that the term shall not exceed the term fixed in the country of origin of the work.

reciprocity principle - legislation shall be provided the same as in country A or B only if the country recognize of reciprocity principle .

France recognize but Swiss not recognize resales right.

if Swiss artist comes to France and claims resell rights (royalties), but because in Swiss there are not recognize (what ??? I do know) reciprocity right the France will not recognize this, and will not grant such protection.

Swiss not grant this right because they do not regains so France will not give the same right to Swiss, because France will not get the same write if they will ask Swiss.

term of protection and resales right there is NT unless there is reciprocity

Question 24

MFN

Answer 24

Any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other members

Question 25

Chaplin Gold Rush case (NT principle)

Answer 25

here is national treatment principle under BC.

issue: silent movie, was showed in US and Canada
After was adopted into talking movie. 1962 the defendant adopted a new talking with staging without asking Chaplin’s authorization in Switzerland.

is the Chaplin work is protected under the Swiss Copyright act ?

Chaplin wanted to claim the copyright infringement.

court accepted copyright infringement, but they did not rely on Swiss Copyright Act SCA, but on the Bern Convention.

What the reason to rely on BC and not on SCA?

could not be claimed under SCA because the Chapin was not the citizen of Switzerland.

SCA states to protects only nationals not the foreigners.

under NT of BC provides an equal treatment to authors to Union Member.

Chaplin is from UK, based (resident) in US.

why he can not rely on the bilateral agreement between Swiss and US?
- bilateral agreement provide only Swiss or us nationals but not British. thats why Chaplin relies on BC.

you rely on the notion of the first publication, but why do we need to look there ?

it need to be publish first in the Union Member of the Convention. (under art. 3 BC )
because it is the exactly the system of BC

eligibility of protection. art 3 p1.
1) art 3 criteria of eligibility
you need to be a national or first publication on the country of Union

art 3p3 one single publication in the theater is not enough but after they publish worldwide.

what does it mean to be publish simultaneously art 5

US he resident Canada first publication.

art 5 p1 n3

how Chaplin can object to the film, what he can claim?
- right of integrity art 6 bis BC

Question 26

Moberg case (NT principle)

Answer 26

• online publication

he created a fashion photos and displayed first posted on german website for fashion. and 3 years later some french posted this picture on US website.

Whether Moberg could object and claim damages ?

copyright not subject of any formality and do not need a registration. But in US you need to have this right register or you can not go court.

so it was a foreign work and it was relied on the BC.

BC applies but claimant need to argue because it was a foreign work so he do not need a registration, because his work was published he has protection automatically under BC art 5 p2.

risk to be local not have the litigation because your work is not register!

Outcome: publication without authorization, copyright infringement.

Question 27

territoriality principle

Answer 27

is protected to the country where it is registered.

local they have their now regulation regarding each ip issues.

Question 28

territoriality principle

Answer 28

art 5 p2 of BC

art 6 p1 of PC

Question 29

Trademark (Trip Trap case)

Answer 29

Claimant Swedish company register a trademark in Switzerland.

Defendant used a sign in Switzerland for very similar cases. so he copied a trademark.

he sue for infringement of trademark.

is exceptional to territoriality principle. well known trademark is exception where provided under art 6bis

you can grant the protection even the mark is not register in the country of seeks the protection.

Why should rely on Well Know Mark but not on Swiss law?

He was claiming in Switzerland where he had a Swiss registration of trademark.

its a more difficult to prove that it is a Well Know Trademark

obligation of use of well know trademarks

no use of trademark what will be the outcome?

Defendant there are no more use of trademark.

Defendant used in different way.

Court said there is really not Swiss protection.

So its time to rely on Well know Trademark on PC

How to access the criteria of Well know trade mark?

WIPO recommendation which provide the criteria:

Question 30

Buhara case ( trademark)

Answer 30

it was Indian restaurant.
it was restaurant in US and in India
but they needed to close in US in New York.
former employees opened a restaurant
they had similar logos, design, menu.
and after closure of restaurant in US defendant opened very similar restaurant Buhara grill, with similar style and etc.

trademark infringement, they were register us trademark. and they asked to stop using this restaurant.

Court found they did not use the trademark and they lost right to this trademark.

so claimant start to rely on well know trademark.

unfair competition unfair behavior.

unfair to take all the design and menu.

they lost any way because they did not have any eligibility.

Question 31

Ralais de l’entrecote case (trademark)

Answer 31

claimant won the case
and received the injunction to stop doing the business.

but the restaurant just changed the name, so there is not confusion in name, menu different and there was no question to unfair competition any more.

Question 32

What could happen if minimal protection for TRIPS agreement?

court reject copyright protection even so the PC provides a protection?
- is it compliant with international obligation ?
there is no compliance with international obligation.

• is it possible to claim not compliance

art 2 of PC

if there is not compliance with Bern or Paris Convention, your country can go

Answer 32

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Question 33

Exhastion prinsiple

Answer 33

its the exception to protection
where the owner can control the right of distribution

right of resell. right of commercialization.

Mr business bought a product

if someone has patent to a product and he puts a product to another market this right is exhausted. first right of commercialization.
he exhausted his right

each right holder has a right to decide when to put on the market first time but when they put it on the market it is exhausted.

he exhausted his right, thats why Mr business can buy his product and resell it further.

Condition:
- always tangible and original product (not counterfeited product)

• the product should be put on the market with consent or by the right holder itself
• related to the product sold but not to any other product with IP rights

patented product x put on the market by the right holder with his consent and the right of exhaustion only for this patented product, for a specific patent not to any ip rights that he might to own.

the effect can be obtained by any purchaser and resell it or to to do another stuff.

Question 34

National and international exhaustion

Answer 34

international exhaustion, one country can a put a product on the market and when it purchased it can resold worldwide.

National exhaustion
is exhausted in one single territory when in international is exhausted worldwide.

Question 35

What is parallel importation?

Answer 35

A parallel import is defined as the import of an original product purchased at a lower price in another country. These products can then be sold domestically at a cheaper price in direct competition to the manufacturer. If the products imported into Switzerland are protected by a patent, the system of exhaustion decides whether or not parallel trade is permissible under patent law.

A patent grants its owner the right to exclude others from commercially using the invention. It can prevent third parties from putting the patented product on the market, from importing it or from selling it. This right lapses as soon as the patent owner puts the patented product on the market for the first time. The “lawful acquirer” of the product can then freely determine how he or she wants to use it or whether to resell it.

If the first time the product is placed on the market occurs abroad, the domestic system of exhaustion determines whether the patent owner’s right of exclusion is exhausted and the patented product is open to parallel import without his or her consent.

Question 36

Does Switzerland law exhausted for patent internationally?

Answer 36

Swiss law provide international exhaustion for copyright, trademark and design but not for patent.
Kodak case, Kirkla

Question 37

Kodak case

Answer 37

• Kodak is an international company who owns various patent and products such as cameras negative films.

Jumbo markt decided to by negative films in UK and resell them in Switzerland, because it was cheaper that in Switzerland.

Kodak sued Jumbo because Kodak has patent in Switzerland for that product and Jumbo prohibited to buy it in UK and resell it in Switzerland.

Court was discussing about the exhaustion regims

What plaintiff could argue in the court ?

Kodak is right he should prohibit Jumbo to buy and resell it.

the right to protect domestic market.

we will protect with national exhaustion the producer not a consumer

it is the effect which increase the price.

it allows for producer to control the price on the market and to provide various prices regarding each jurisdiction.

it protect right holder.

Another argument in favor national exhaustion:

• to stimulate on the innovation in the country
• may control parallel imports

Could kodak prevent parallel import? yes

Why Switzerland do not use equally regarding all IP rights?

patent takes a lot of investment but have only 20 years of protection.

what will be in favor of international exhaustion?
How Jumbo will argue ?

protect the costumer, if i buy a product, im the owner of this product, thereoticly I can resell it. ownership of tangible good. and there is ip protectuan

Question 38

Kierscang

Answer 38

US decision:
Thai student who studied in US a math. he asked his parents to send a books form Thai, and after his studies he sold them, and kept the margin.

the outcome:
the publisher claimed prohibit him to sell the books.
It should be allowed because they decided there were international exhaustion.

what is in favor of international exhaustion for copyright goods?

poor student will be allow to buy a cheaper books.
it can be apply for copyright but can be difficult for patent?

there are different characters of IP.

the access to the information.

in the public interest there is the need to information even they bring freedom of expression. artistic freedom.
you apply for national copyright then every market will be limited to one single jurisdiction and the consumers we will be a limited to the access to the information, freedom of the expression.

it is a really issue. books freely circulated around the world, artwork in museum, one work comes from one country to another, library also wants to benefit form international exhaustion to circulate the books and technologic companies (there are many product such as computer, mobil phones, tablets which contain copyrighted software programs and these goods if you are apply national exhaustion that there is not free circulation of these goods. automobile can not to be resold from one country another country because apply national exhaustion on all copyrights, copyrighted products, software and components within the car could prevent parallel import.

its very serious issue to plead in favor to national exhaustion we need international, so its more practical economic problem.

• freedom of speech
• fundamental right
• rights of economical aspects
• careful interpretation
  legislator do not want to apply international exhaustion so we are free to decide on our own

Decision:

Question 39

§

Answer 39

• eu
• Swiss

patent is a subject to national exhaustion
trademark is a subject to international exhaustion

parfume has design, trademark, and patent for spay it out mechanism.

Question 40

Parallel improt

Answer 40

is to allow for the importation of original product placed on one market to bring them back to another market, to make a parallel import, of course, the exhaustion regime that may limit the parallel import as we said various times.

Mr. Business buys a patented product in the country B he may not resell it in the country A for 30 CHF because under patent law its regional exhaustion regime. So right holder may prohibit the parallel import of Mr. Business.

Despite international exhaustion regime how right holder prevent the parallel import of trademark products.

E.g Ralf Lauren is trying to find a specific distribution in the specific country and indicated his distributors that you are not allowed a parallel importing you need to sell in this and this shops, they wanted to avoid the shop like coop or Migros.

you can prevent parallel import through the distribution network. in Switzerland we have a international exhaustion for the trademark the right holder despite international exhaustion are trying to prevent parallel import they try to build a distribution network.

here you have the chart of typical distribution network Switzerland and EU.

we make a difference within lawyers, between exclusive and selective distribution network. is the network of distribution that focuses on the one jurisdiction country e.g
Ralf Lauren will deal with one distributor in country A Switzerland, B UK, C France. etc and they do exclusive distribution agreement while selective distribution network RL will deal with various distribution in Switzerland but only select one based on the natural quality of the shops. so I mention RL certainly trying to select in Switzerland various exclusive distributor and they select Manor, Globus… while they try to exclude coop, Migros etc

right holder tries and to do limit the international exhaustion distribution network, however, this contracts allowed to exist but limited by competition law so any right holder may act with any distribution network, distribution agreement however to certain extent competition law may bring some limitation to this agreement. this limitation of competition law to say its possible to do exclusive or selective distribution agreement and prevent distributors to do active sell to other third parties but it’s not allowed to prevent distributor to do passive sell to third parties. active sells mean that distributors would do publicity and advertisement and keep in touch with many other third parties and offer we have that product are you interested? - it is an active sell. contract prohibit them to do it but not prohibit for passive sell.

Passive sell is third parties come to them and ask to buy such product.

Again, active sales its to do business with third parties. (find contacts while passive you just accept third parties offer)

Competition law allows distribution agreement with active sell but not with the passive sell.

E.g: contract distribution network. contract terms provided by authorized and appointed as a distributor of the product within one territory. exclusive distribution agreement, distributor accept such appointment then here comes a trick distributor shall only active sell the product within the territory. so the right holder limits distributor with respect to active sell to one territory and then you see the trick of the competition law.

However, the distributor appointment is exclusive. nothing shall prevent the distributor from accepting unsolicited orders and passively selling the product outside the territory.

typical example LR tries to do distribution network with Manor and Globus and then they have a gross selling by doing business with manor and Globus selling to the consumers the agreement with LR may prohibit to do active sell so here it is prohibited to do …

this is in Europe with LR, distributor prohibited to do advertisement and active sell to the Swiss distributor but he may accept to sell to Swiss distributors comes itself to him.

So if you have to deal with the agreement in your career be aware with that limitation in your career, be careful to draft the clause carefully or you may be sanctioned by competition authorities.

we saw how right holders can prevent despite international exhaustion, and they do that vair to the distribution network.

we saw that passive sell may not be prohibited so as the result of international exhaustion where passive sale shall be authorized third parties dealing with a product and dealing with him. the question of the Migro and Coop. They may come to RL distributor and ask them to sell the product, and they may really sell them at coop and Migros. but the next question is how right holders will prevent these sell and in particular coop or another third parties do the advertisement. for example on the website they can state that they sell RL t-shirts, perfumes. even they are not distributed they still do advertisements and notify that they have this product in their shops.

and the whole question is how right holder can prevent that?

the reflex beyond the contract and distribution agreement that we saw you need to have a reflex always of thinking of unfair competition. the unfair competition is also a strong tool another legal text that allows the right holder to prevent any commercialization. as may you know unfair competition prevent mainly unfair behaver of the third party if this third party to influence the market. so unlike the IP right which is an exclusive right of the protection, unfair competition grants only under specific circumstances right sanctions third parties to their behavior.

free use which is limited to unfair competition to the specific circumstance when the parties behave in an unfair way. so the question is to know under unfair competition right holder may prevent import for the followings situations. e.g: if the product is sold in the various jurisdiction with different characteristics e.g perfume may have a specific language, specific indication on packaging in Switzerland, and this characteristic will be different in France, may right holder prevent for this situation?

let’s say the product has different characterization in the different country is it possible to prevent parallel import due to that?

the outcome of that, there are various decision on that, the right holder may not prevent parallel import even the products sold with different characteristic if this characteristic is unsellarry necessary legislation to each county because it does not affect the distinctiveness of the trademark do not effect the market informative questions so there is no problem on the trademark and on unfair competition its allowed to do so.

the defective and expired product the same questin? lats say Mogros is buying perfume at distributor Loreal and perfume has expired Migros still selling this product. There is still the problem, unfair competition or smth else

It is reputation damage, it affects the company so the parallel import may be prohibited.

what about modified product e.g if the important delegation the trademark on the product Coop selling RL but the remove the logo of LR, is it allowed?

it will be an issue of trademark,

what is the function of the trademark? - disctivness of the trademark

so when this logo is removed it can not be distinctiveness, when we remove the trademark. Imported can delete the trademark logo.

is it allowed to remove the logo? their won’t be a reputational damage.

repackaging the product is it allow?

trademark problem: - not a packaging is not related to trademark because it is not included in trademark registration.

unfair competition: - it will be a problem, which affects the reputation of the right holder.

May the third parties have the right to do a publicity (advertisement) of RL?

its allowed to the extent to if there is not the association between important and preexisting trademark and to extend to the informative use trademark, however it is prohibited for distribution to make any likelihood confusion may a consumer to think there is any association typically like the classical distributor.
Trademark:
Unfair competition:

online shops they benefit form this international exhaustion, they buy this product abroad and they resell them online abroad, and they allowed to do so because there is international exhaustion in Switzerland, those online shop always ask the lawyer what extent they can do advertisement to do and we as counsel always need to tell them, to be a careful the way you do the advertisement, you may reuse the brands trademark, but you can put disclaimer that there is not association, you may not put one single logo on t
your website, because it make a customer to think that there is some connection with this brand, so its always limited allowed to do.

deleting the trademark there is no issue of trademark , no infridgment because you remove the trademark and that how it function to have distictivness, the question od distictivness is desepears.

product control and repackaging it all depend on extend significant for the sale of the product mainly to the repackaging and significant it may be an issue to the unfair competition.

translation of the use of the product all laws states that there is not the problem regarding this question. it is informative question, it is the need for different jurisdiction to protect customer rights.

Exceptions to the protection:

private iterest of privete right holder to have an affective protection and from another side public interest, publict need to have the access to information. that may reuse this information, its the key of IP.

there should be a balance to promote the innovation and fuel science and art. and this delicate balance to IP.

protection of IP right to the certain period of the time and after the time expires we have a free use.
e.g copyright 50 years BC
most of countries provide 70 years after the death of the author. then we have a free use.
How it is regulated
International level 3 steps test:

art 9p1 BC exclusive right of the copyright owner(copyright owner has copyright protection to any literary works)
art 9p2 BC some uses can be used without permision of the owner,if only in special cases noconflict with normal expectaition with work and there is nounresonable prejedice to the author and BC provides this guildlines to the courts which always they need to look to those 3 steps test and assess each situation wheather those three criterias fulfiled. if yes the use should identified the list of deemed to be fair.

art 10:1 list of act which already deemed to be fair, educational use, research purposes examples list that are fair this is.

it is a minimum standard but each country provide their own term protection.

fair use in the US and in Civil family they have a close model of exception, our civil law regulation provides a catalog exhaustive list of exception. as an user i need to have a look at this catalog if any use comply with my use. closed module.

the various exception is private use. for family and friend we can copy a work, a do not have any permission but once I put them on facebook for instance we make them allowed beyond the private use.

happy birthday, the song is still protected.

right of qoutation any third partu may reuse the preexisting work if it for quotation purposes. e.g books case. sb writing a book and he use so preexisting books or articles to incorporate them in a new book. e.g if the work in the public domain, any momunament or fontain if it in permanent public domain.

it was a work in public domain but there exist a work from a public domain, after the death of author 50 years.

fair use, of reuseing a rhied party rights and the way how they incorporated to the TRIPS agreement,
us copyright act indentify that there shoud be any use that be fair and the mentioned that criticizeme and research and teaching then the court gave the factors which shall be assess in each situation whether the use is fair or not.

• the use should be fair then there is not copyright protection!

every situation should be assess base on purpose and the caracter of the use, did the user did non profit or educational use. or he did the do the transfermating use like modifing the prexisting work and to add the message to the society that the purpose.

preexisting work has a core of copyright protection e.g roman, music songs, arts work, historical book is less copyrighted work.

also is important to bear in mind what kind and how the portion of the work which was of the use of the scale of the work

the effect of potential market how new use affect the market of the preexisting right holder.

on each situation the court and will asses.

Roy Robinson the song Pretty Women new work done by the rapper,

fair use analysis:

is it educational use? - no
Is it not profitable use? no

is it transformative use? yes
they did it for commercial use
is it for commercial use? yes

1) parody is under fair use allowed
2) music song copyrighted work

is it essential, they took whole lyrics but its acceptance for parody,

parody use cases, Barbie and the court said not protection because of the parody

google book where digital them and put them only, you can see only some extension of the book but you can not copy paste it.

it is transformative use because Google has used a new work, new message to society, and its increased the sells of the publisher.

Trademark:

TESCO sued Greenpeace because they used the logo.
there was a critic and parodic use of trademark which is accepted.

the pharmaceutical company wants to protect their work, but they can not protect form universities and research. etc.

Question 41

What is National exhaustion?

Answer 41

The concept of national exhaustion does not allow the IP owner to control the commercial exploitation of goods put on the domestic market by the IP owner or with his consent. However, the IP owner (or his authorized licensee) could still oppose the importation of original goods marketed abroad based on the right of importation.

Question 42

What is regional exhaustion ?

Answer 42

the first sale of the IP protected product by the IP owner or with his consent exhausts any IP rights over these given products not only domestically, but within the whole region, and parallel imports within the region can no longer be opposed based on the IP right

Question 43

What is international exhaustion?

Answer 43

the IP rights are exhausted once the product has been sold by the IP owner or with his consent in any part of the world.

Question 44

What is Exhaustion?

Answer 44

Exhaustion” refers to one of the limits of intellectual property rights. Once a product protected by an IP right has been marketed either by your SME or by others with your consent, the IP rights of commercial exploitation over this given product can no longer be exercised by your SME, as they are “exhausted”. Sometimes this limitation is also called the “first sale doctrine”, as the rights of commercial exploitation for a given product end with the product’s first sale. Unless otherwise specified by law, subsequent acts of resale, rental, lending or other forms of commercial use by third parties can no longer be controlled or opposed by your SME. There is a fairly broad consensus that this applies at least within the context of the domestic market.

Question 45

What is the parallel import ?

Answer 45

Parallel importation refers to the import of goods outside the distribution channels contractually negotiated by the manufacturer. Because the manufacturer/IP owner has no contractual connection with a parallel importer, the imported goods are sometimes referred to as “grey market goods”, which in fact is somewhat misleading, as the goods as such are original, only the distribution channels are not controlled by the manufacturer/IP owner. Based upon the right of importation that an IP right confers upon the IP owner, the latter may try to oppose such importation in order to separate markets. If, however, marketing of the product abroad by the IP owner or with his consent leads to the exhaustion of the domestic IP right, also the right of importation is exhausted and can thus no longer be invoked against such parallel importation.

Question 46

Parallel importation

Answer 46

The term parallel importation refers to goods produced and sold legally, and
subsequently exported. In that sense, there is nothing grey about them, as the English
Patents Court in the Deltamethrin decision2
correctly pointed out. Grey and mysterious
may only be the distribution channels by which these goods find their way to the
importing country. In the importing country, such goods may create havoc particularly
for entrepreneurs who sell the same goods, obtained via different distribution channels
and perhaps more expensively. In order to exclude such unwelcome competition,
intellectual property rights have sometimes been of help. If products sold or imported
by third parties fall within the scope of patents, trademarks or copyrights valid in this
particular country, such sale or importation by third parties is generally deemed
infringing. Owners of products covered by intellectual property rights have the exclusive
right to put such products on the market. there is little doubt that
once the owner of an intellectual property right has put such goods on the market either himself or with his consent, there is little he can do about further acts of commercial
exploitation, such as re-sale, etc., on the domestic market. Even if a car is covered by a
number of patents, once the car maker has put that car on the market, there is a
consensus that he cannot prevent that car from being re-sold, leased-out, etc.

Question 47

Difference between national and international exhaustion?

Answer 47

To simplify, national exhaustion
tends to favour the producer,
while international exhaustion
tends to favour the consumer.

Question 48

What is exhaustion ?

Answer 48

The holder of a
patent for an invention has the right to a payment
when the invention is sold. But when that invention or
product is sold, the patent-holder has no further
rights over the new owner’s private use of the
invention. His or her rights under patent law are
“exhausted” by virtue of the sale and the patentholder’s
recompense. The same is true of copyrights
and trademarks. Once you pay for your iPod, you have
the right to display and refer to its Apple trademark
publicly. And when you buy the latest John Grisham
bestseller, your right over that book includes
displaying it publicly, lending it to your friends and
making photocopies of your favourite pages because
the author’s rights were exhausted with the purchase.