Exceptions and Limitations to Intellectual Property Rights with Special Reference to Patent and Copyright Law

This thesis entitled Exceptions and limitations to intellectual property rights with special reference to patent and copyright law.The study on the limitations and exceptions to copyright and patent was mainly characterized by its diversity and flexibility. The unique feature of limited monopoly appended to intellectual property was always a matter of wide controversy.The historical analysis substantiated this instrumentalist philosophy of intellectual property.the study from a legal space characterized by diversity and flexibility and end up in that legal space being characterized by homogeneity and standardization. The issue of flexibility and restrictiveness in the context of TRIPS is the next challenging task. Before devising flexibility to TST, the question to be answered is whether such a mechanism is desirable in the context of TRIPS.In conclusion it is submitted to reorient the intellectual property framework in the context of the noble public interest objectives.

Copyright exceptions beyond the Copyright Act 1968 (Cth)

Exceptions are an important part of the Australian copyright law landscape due to the role they play in delineating the extent of the rights held by copyright owners and, correspondingly, the permitted activities of users of copyright materials. The nature and scope of copyright exceptions has been examined in several reviews of copyright law and are again being considered by the Australian Law Reform Commission (ALRC) as part of the ‘Copyright and the Digital Economy’ review which is currently underway. The ALRC’s terms of reference require it to examine, inter alia, ‘whether the exceptions and statutory licences in the Copyright Act 1968, are adequate and appropriate in the digital environment.’ While the ALRC inquiry focuses on exceptions provided under the Copyright Act 1968 (Cth) (“Copyright Act”), there are several copyright exceptions in other Commonwealth statutes which are of relevance and which should not be overlooked.

Copyright exceptions and contract in the UK: the impact of recent amendments

In June and October 2014 a number of amendments to the Copyright, Designs and Patents Act 1988 came into effect, introducing new copyright exceptions and amending several existing exceptions. Whilst following recent judicial review the private copying exception has been quashed, many of the remaining new exceptions significantly alter the relationship between copyright exceptions and contract, making contractual terms unenforceable where those terms restrict users from taking advantage of an exception. This paper explores the rationale for the UK amendments and considers whether the changes, as implemented, prevent rightsholders from contracting out of exceptions and whether they increase the clarity of the copyright system.

The Trans-Pacific Partnership, Copyright Law and Education

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join. Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.) So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.

New laws for author's rights: adequate for digital preservation?

Introduction. Besides technical and economic-organisational problems, digital preservation also faces legal issues, especially regarding copyright legislation, since all digital preservation strategies involve copying materials and/or using software which is typically copyrighted. The purpose of this paper is to ascertain the extent to which current copyright laws meet the preservation requirements of library materials..Methodology. A cross-sectional analysis of recently updated national copyright laws as well as the impact of the other two protection methods: contractual and technological.Results. Even after the latest updates current copyright legislation is almost useless for digital preservation activities since the opportunities provided by WIPO Copyright Treaty to adapt and extend copyright exceptions and limitations have been used to the full.Conclusion. We need a legislation reform that will make it possible to carry out all required copying and communication activities and software use, even if circumventing technological protection is needed. But that is not enough for licensed works. The best solution for this kind of work is to include specific clauses in the licences that facilitate preservation activities. Thus, cooperation between both parties, libraries and rights' holders, is essential.

Why Cherry-Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under Directive 2001/29/EC

The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look at three examples of limitations that have led to legislative changes at the Member State level as express measures towards the implementation of the Information Society Directive, that is, the limitations for the benefit of libraries, for teaching and research, and for persons with a disability. These exceptions and limitations were later on also identified by the European Commission as key elements in the deployment of a digital knowledge economy. The analysis will show that the implementation of the provisions on limitations in the Information Society Directive did not, and probably cannot, yield the expected level of harmonisation across the European Union and that, as a consequence, there still exists a significant degree of uncertainty for the stakeholders regarding the extent of permissible acts with respect to copyright protected works.

Policy Options for Improving the Functioning and Efficiency of the Digital Single Market in the Field of Copyright. CEPS Special Report No. 121, 19 November 2015

This study explores the existing policy problems and the possible options for reforming the EU copyright framework as provided by EU Directive 29/2001 on Copyright in the Information Society (InfoSoc Directive) and related legislation, with a specific focus on the need to strengthen the Internal Market for creative content. We find two main policy problems: i) the absence of a Digital Single Market for creative works; and ii) the increasing tension between the current system of exceptions and limitations and the legal treatment of emerging uses of copyrighted content in the online environment. Without prejudicing a future impact assessment that might focus on more specific and detailed policy options, our analysis suggests that ‘more Europe’ would be needed in the field of copyright, given the existing sources of productive, allocative and dynamic efficiency associated with the current system. Looking at copyright from an Internal Market perspective would, in this respect, also help to address many of the shortcomings in the current framework, which undermine legal certainty and industrial policy goals.

The Biodex Isokinetic Dynamometer for knee strength assessment in children : advantages and limitations

Objective: To critically appraise the Biodex System 4 isokinetic dynamometer for strength assessment of children. Methods: Appraisal was based on experiences from two independent laboratories involving testing of 213 children. Issues were recorded and the manufacturer was consulted regarding appropriate solutions. Results: The dynamometer had insufficient height adjustment for alignment of the knee for some children, requiring the construction of padding to better fit the child within the dynamometer. Potential for entrapment of the non-testing leg was evident in the passive and eccentric modes and a leg bracket restraint was constructed. Automated gravity correction did not operate when protocols were linked or data was exported to an external device. Conclusions: Limitations were noted, some of which were applicable to knee strength testing in general and others which were specific to use with children. However, most of these obstacles could be overcome, making the Biodex System 4 suitable for assessment of knee strength in children.

Trading spaces : on the lore and limitations of latent semantic analysis

Two decades after its inception, Latent Semantic Analysis(LSA) has become part and parcel of every modern introduction to Information Retrieval. For any tool that matures so quickly, it is important to check its lore and limitations, or else stagnation will set in. We focus here on the three main aspects of LSA that are well accepted, and the gist of which can be summarized as follows: (1) that LSA recovers latent semantic factors underlying the document space, (2) that such can be accomplished through lossy compression of the document space by eliminating lexical noise, and (3) that the latter can best be achieved by Singular Value Decomposition. For each aspect we performed experiments analogous to those reported in the LSA literature and compared the evidence brought to bear in each case. On the negative side, we show that the above claims about LSA are much more limited than commonly believed. Even a simple example may show that LSA does not recover the optimal semantic factors as intended in the pedagogical example used in many LSA publications. Additionally, and remarkably deviating from LSA lore, LSA does not scale up well: the larger the document space, the more unlikely that LSA recovers an optimal set of semantic factors. On the positive side, we describe new algorithms to replace LSA (and more recent alternatives as pLSA, LDA, and kernel methods) by trading its l2 space for an l1 space, thereby guaranteeing an optimal set of semantic factors. These algorithms seem to salvage the spirit of LSA as we think it was initially conceived.

Submission to the ALRC copyright exceptions review issues paper

Australia should introduce a transformative use exception. Transformative use is an important part of the copyright balance: it provides a mechanism through which to balance the rights of past authors against the interests of future authors. In the interests of promoting creativity and innovation, the impact of copyright law on the ability of Australians to create new works should be minimised. The scope of a transformative use exception should be based primarily on demonstrable harm to the direct licensing interests of copyright owners – the core of copyright. Importantly, however, there are unresolved questions about fairness that need to be more clearly addressed before the appropriate scope of a transformative use exception can be determined. This submission does not directly address the desirability of introducing a broader fair use right. It is likely that an open ended fair use exception is required to provide a more adequate balance between copyright owners and non-transformative users of copyright. If a broad fair use style exception is introduced, it would likely be desirable to include transformative uses within that exception. This submission, however, takes the more limited position that regardless of whether a fair use exception is introduced, an exception that permits unlicensed transformative uses is required in Australian copyright law.

Pooled biological specimens for human biomonitoring of environmental chemicals : opportunities and limitations

Biomonitoring has become the ‘gold standard’ in assessing chemical exposures, and plays an important role in risk assessment. The pooling of biological specimens – combining multiple individual specimens into a single sample – can be used in biomonitoring studies to monitor levels of exposure and identify exposure trends, or to identify susceptible populations in a cost-effective manner. Pooled samples provide an estimate of central tendency, and may also reveal information about variation within the population. The development of a pooling strategy requires careful consideration of the type and number of samples collected, the number of pools required, and the number of specimens to combine per pool in order to maximize the type and robustness of the data. Creative pooling strategies can be used to explore exposure-outcome associations, and extrapolation from other larger studies can be useful in identifying elevated exposures in specific individuals. The use of pooled specimens is advantageous as it saves significantly on analytical costs, may reduce the time and resources required for recruitment, and in certain circumstances, allows quantification of samples approaching the limit of detection. In addition, use of pooled samples can provide population estimates while avoiding ethical difficulties that may be associated with reporting individual results.

Is there an app for that? A case study of the potentials and limitations of the participator turn and networked publics for classical music audience engagement

The participatory turn, fuelled by discourses and rhetoric regarding social media, and in the aftermath of the dot.com crash of the early 2000s, enrols to some extent an idea of being able to deploy networks to achieve institutional aims. The arts and cultural sector in the UK, in the face of funding cuts, has been keen to engage with such ideas in order to demonstrate value for money; by improving the efficiency of their operations, improving their respective audience experience and ultimately increasing audience size and engagement. Drawing on a case study compiled via a collaborative research project with a UK-based symphony orchestra (UKSO) we interrogate the potentials of social media engagement for audience development work through participatory media and networked publics. We argue that the literature related to mobile phones and applications (‘apps’) has focused primarily on marketing for engagement where institutional contexts are concerned. In contrast, our analysis elucidates the broader potentials and limitations of social-media-enabled apps for audience development and engagement beyond a marketing paradigm. In the case of UKSO, it appears that the technologically deterministic discourses often associated with institutional enrolment of participatory media and networked publics may not necessarily apply due to classical music culture. More generally, this work raises the contradictory nature of networked publics and argues for increased critical engagement with the concept.

Paradigm shifts : global copyright politics and disability rights

Governments around the world need to take immediate coordinated action to reverse the 'book famine.' Disability rights don't conflict with 'normal exploitation' but copyright owners have been wary about all of the possible solutions to providing greater access. The Marrakesh Treaty promises to level out some of the disparity of access between people in developed and developing nations and remove the need for each jurisdiction to digitise a separate copy of each book. It is one of the only international agreements to mandate positive exceptions and may be the start of a pardigm shift in global copyright politics, made all the more remarkable in the face of heated opposition by global copyright industry representatives. It's not a legal problem, but one of political will. Resistance comes from a conflict with ideology: exceptions should be limited and international law should set only minimum standards.

A fair use project for Australia: Copyright law and creative freedom

This essay provides a critical assessment of the Fair Use Project based at the Stanford Center for Internet and Society. In evaluating the efficacy of the Fair Use Project, it is worthwhile considering the litigation that the group has been involved in, and evaluating its performance. Part 1 outlines the history of the Stanford Center for Internet and Society, and the aims and objectives of the Fair Use Project. Part 2 considers the litigation in Shloss v. Sweeney over a biography concerning Lucia Joyce, the daughter of the avant-garde literary great, James Joyce. Part 3 examines the dispute over the Harry Potter Lexicon. Part 4 looks at the controversy over the Shepard Fairey poster of President Barack Obama, and the resulting debate with Associated Press. Part 5 of the essay considers the intervention of the Fair Use Project as an amicus curiae in the ‘Column case’. Part 6 explores the participation of the Fair Use Project as an amicus curiae in the litigation over 60 Years Later, an unauthorised literary sequel to J.D. Salinger’s The Catcher in the Rye. Part 7 of the essay investigates the role of the Fair Use project in disputes over copyright law and musical works. Part 8 investigates the role of the Fair Use Project as an advocate in disputes over copyright law, fair use, documentary films, and internet videos. The conclusion has main three arguments. First, it contends that Australia should establish a Fair Use Project to support creative artists in litigation over copyright exceptions. Second, it maintains that Australia should adopt a flexible, open-ended defence of fair use, and draw upon the rich jurisprudence in the United States on the fair use doctrine. Finally, this paper argues that support should be given at an international level to the proposal for a Treaty on Access to Knowledge.