Commission on Intellectual Property Rights Country Case Study for Study 9



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The position of IP Administration in Liberia is slightly improved compared to Eritrean situation. The IP legislation in Liberia dates back to 1864 and is somewhat similar to the IP Legislation which existed in United States of America in the early 1880s. The reason being that Liberia had ties with the United States of America being a state founded for freed black slaves. However, although US has developed its IP laws, Liberia has lacked behind.
The status of IP Administration is described in the Report Commissioned by the World Intellectual Property Organisation (WIPO). Up to June 2001, the situation regarding IP laws and IP Office remained the same, as no changes have taken place. The detailed Report is submitted as ANNEX TWO.
It will be observed that IP Administration in the three countries namely Zambia, Eritrea and Liberia is far from satisfactory compared with small Industrialised Countries of the developed world.
Zambia, has a relatively advanced IP Administration compared with most African countries, whereas Liberia has nothing to talk about and Eritrea has nothing completely. This is the situation in most African Countries, yet the TRIPS Agreement expects these states to at least comply with the minimum standards in terms of protection of IP Rights.
Is it realistic to expect these countries to comply with the provisions of TRIPS Agreement? Could one say that the playing field is level? Is it morally right for the Developed Countries to apply sanctions if the Developing Countries fail to provide the protection to IP Rights belonging to owners of Developed Countries?
The Developed Countries and owners of IP Rights must address these issues and find lasting solutions which will not burden the poverty stricken Developing Countries. The rich must learn to share with the poor, since the world has become one global village.


  1. TRIPS AGREEMENT AND IP ENFORCEMENT IN SELECTED COUNTRIES

The TRIPS Agreement consolidated several international agreements and standards into a single undertaking which is backed up with enforceable dispute settlement measures. Its provisions requires the World Trade Organisation (WTO) Members to provide a high level of minimum protection to a wide range subject-matter such as inventions, industrial designs, trade secrets, test data, trade marks, geographical indications on goods, plant varieties, integrated circuit topographies, computer programmes, data bases, encrypted programme-carrying satellite signals, phonograms, and creative works such as films, books and musical works.


The level of protection under the TRIPS Agreement goes beyond what is provided in the Paris Convention especially in the areas of industrial property, where it also establishes obligations on the features of intellectual property such as subject matter to be protected, minimum term of protection and rights conferred upon right –holders.

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The Agreement also spell out in detail the procedures and remedies available to the right-holders and imposes an obligation on WTO Members to ensure that the IPRs are protected by ensuring that the necessary infrastructures, civil and judicial processes are put in place for speedy enforcement of the rights.


It is urged that the protection of IP is of little use if the rights cannot be effectively be enforced. The TRIPS Agreement negotiators paid much attention to the issue of enforcement, and as a result it contains provisions which takes care of the domestic procedures and remedies that WTO Members have to comply with in order to enable right holders to enforce their IPRS effectively.
The provisions require that WTO Members must provide in their legal frame work the following:-


  1. The procedures for effective action against infringement of IPRs under the Agreement;




  1. The procedure should provide expeditions remedies and prevent infringement, so as to deter others from further infringements;




  1. The recourse to judicial remedies should be fair and equitable;




  1. The procedure should not be a barrier to legitimate trade and must provide safeguards against abuse; and




  1. The procedure must not be unnecessarily be complicated or costly or entail unreasonable time limits or unwarranted delays.

Whereas, the special obligations under the TRIPS Agreement require that WTO Members must have the following provisions in their domestic law so as to enable IPRs owners to invoke:-





  1. enforcement provision regarding submission of proof of evidence to a claim which is in the hands of opposing party by judicial authority;




  1. The Judicial procedure to grant an injunction to restrain the infringer of IPRs;




  1. The Civil and Judicial procedures to award damages, and order the infringers to inform IPRs owner of the identity of third party persons involved in the infringement;




  1. The Judicial procedure to obtain an order to destroy infringing goods outside the commercial channel in order to avoid harm caused to the IPR owner and minimize further infringement.

WTO Members are obliged under the TRIPS Agreement that their national laws provide for remedies for IPR infringement which should include the following:-





  1. imprisonment or monetary fines;




  1. Seizure and forfeiture, and destruction of infringing goods and materials; and




  1. Injunctions, damages and account for profit.


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The enforcement of IPRS by national authorities requires adequate infrastructure, financial and human resources, such as :-




  1. IP Laws which are TRIPS Compliance;




  1. IP Office- which examines and grants these rights;




  1. Strong Judicial System regime, which will deal with disputes of these rights both in civil and criminal offences;




  1. Strong Customs Authorities – Knowledgeable in IP issues, especially where Copyright and Neigbouring Rights are concerned.

The IP regime in Zambia is contained in the following statutes:-




  1. The Patents Act, Chapter 400 of the Laws of Zambia.




  1. The Trade Marks Act, Chapter 40 of the Laws of Zambia.




  1. The Registered Designs Act, Chapter 402 of the Laws of Zambia.




  1. The Copyright and Performance Act, Chapter 406 of the Laws of Zambia, and




  1. The Competition and Fair Trading Act, Chapter 417 of the Laws of Zambia.

The Patents and Companies Registration Office (PCRO) is charged with the administration of industrial property aspect of IP and the Copyright and Neighbouring Rights is administered by the Registrar of Copyright in the Ministry of Information and Broadcasting. The IPRS are derived by complying with the requirements of the concerned Act. The IPRS are enforced in a court of law (i.e. the High Court of the Republic of Zambia), which has unlimited jurisdiction.


The Litigant in IPR action is entitled to all such relief by way of injunction, damages, inspection, account of profit and the Court may make any order it deems fit.
The Zambian situation is such that it has a reasonable established legal system and the IP office. Nevertheless, the resources for implementation and compliance of the TRIPS Agreement, would not be available for the simple reason that Zambia’s foreign debt and the level of poverty is very high. Zambia is also affected by the HIV/AIDS problem, it is very unlikely that extra resources would be made available for the purpose of ensuring that it complies with TRIPS Agreement at the expense of the said problems.
The position regarding enforcement in Eritrea and Liberia is as at now non existence since the two countries have no infrastructures, no IP regime to speak about, no manpower and indeed no financial resources. Both countries have just come out of wars and the levels of poverty are alarming.

No reasonable, compassionate person would expert the Governments of the State of Eritrea and Liberia to spend their meager resources on IPRs at the expense of health, education, shelter etc.



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