(2004) 1:1 SCRIPTed 1—226
Issue DOI: 10.2966/scrip.010104
Volume 1, Issue 1, March 2004
Welcome to the first issue of SCRIPTed. The list of contents is:
- Welcome Message
Professor Hector MacQueen, p.1-2
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- Why SOL?
Andrés Guadamuz, p.3-4
- Comparative Aspects of Personality Rights: Research Project and Case Studies
Dr Charlotte Waelde, p.5-11
The AHRC Research Centre for Studies in Intellectual Property and Technology Law is currently undertaking a five-year study of personality rights. This is a comparative analysis of the measures instituted in a variety of jurisdictions to protect different aspects of the human personality, such as image, identity, personal privacy, dignity and related economic interests. As part of this project, co-directors have devised a series of case studies, the purpose being to discover not only if there is a commonality in the ethic underlying the protection of personality, but also to ascertain at what level the public interest might operate to restrict or define the scope of the rights. The Centre has developed a web-based resource of cases that highlight the range of issues that can arise and the different means used to protect the underlying interests. This is a dynamic resource which is being developed on an on-going basis. The Centre welcomes visitors to the site and contributions both on the cases contained therein and on other issues or cases from legal systems around the world.
- Global pharmaceutical patents after the Doha Declaration – What lies in the future?
Erik Alsegård, pp.12-45
The purpose of this article is to analyse how developments after the Doha Declaration went wrong; how developing countries can best be helped by IPR legislation; and whether such help can be achieved without taking away the incentives for industry to develop medicines. It is submitted that a legal framework maintaining the global protection of IPRs is needed, especially in developed countries, but that such a framework must allow for compulsory licensing in separate, regional “generic markets”, and must further create effective barriers for (re-)import into other countries than those targeted by the compulsory licence. This proposal would create a large market currently unused, in which pharmaceuticals could be produced and sold more cheaply, while protecting developed countries from importation of generic drugs. This way, compulsory licensing should work as a tool to promote innovation whilst also protecting public health globally.
- Illuminating European Trade Marks?
Abbe E L Brown, pp.46-57
An analysis of recent developments in European trade mark law and a consideration of the future for trade marks and harmonisation of trade mark law in Europe, with particular reference to less conventional trade marks.
- Traditional Knowledge and the International Context for Protection
Johanna Gibson, pp.58-82
This paper traces the relationship between traditional knowledge and biodiversity and examines the current discussions towards achieving such protection through the international intellectual property system. This paper will concentrate on the particular cultural and legal problems associated with the protection of indigenous intellectual property, specifically in terms of medicinal and agricultural knowledge and the impact of the Trade Related Aspects of Intellectual Property Rights Agreement and the Convention on Biological Diversity. The apparently conflicting relationship between these two international instruments will be addressed. In reviewing attempts to acknowledge the role of indigenous and traditional communities in the management and sustainable development of biological resources, this paper argues for authority and capacity with respect to resources to vest in the community. This is maintained in recognition of the significance of this relationship of community to its resources, to the facilitation of community development through appropriate assurance of traditional resource relationships, within an international legal system of obligations towards biological and cultural diversity.
- Are ‘Agent’ Exclusion Clauses a Legitimate Application of the EU Database Directive?
Jimi Groom, pp.83-118
This article explores the implications of the implementation of the European Database Directive in the area of autonomous agents and the use of exclusion tools in the part of database owners to stop agents accessing their works.
- A Turn-up Down Under: McFarlane in the Light of Cattanach
Prof. J K Mason, pp.119-135
The current position as to recovery of damages for the upkeep of a healthy child born as the result of a negligent sterilisation has been disturbed by the decision of the High Court of Australia in Cattanach v Melchior. The High Court rejected the recent ruling of the House of Lords in McFarlane v Tayside Health Board and decided in favour of recovery by a majority of 4:3. This paper reviews the antecedent litigation and analyses the conflicting opinions of the seven-judge bench in Cattanach. The likely effect on the common law within the Commonwealth is considered in anticipation of the imminent House of Lords decision in Rees v Darlington Memorial Hospital NHS Trust.
- Open Source Software: Why is it here and will it stick around?
Kimmo Nikulainen, pp.136-159
This paper discusses the details behind the Open Source Software development scheme by looking at some of the most prevalent licences, and then by asking the question of whether Open Source will survive the legal battles that are starting to affect it, in particular the SCO v IBM case.
- Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan Consensus in Publicity Rights?
Olaf Weber, pp.160-204
This article is concerned with the commercial appropriation of human personality and its regulation in different legal systems. Where accepted, so called “publicity rights” allow for the exclusive commercial exercise of a persona’s publicity values. A tradable worth can be found in many personal characteristics such as voice, signature or pseudonym. Predominantly, however, it accrues to one’s name and likeness. It is argued that such potential rights are inherent in every human being.