Summary
Adhering to international intellectual property standards is crucial for accession to the WTO. In this context, Jordan substantially revised its intellectual property laws to comply with TRIPs by adding new provisions, covering existing gaps, and effectively enforcing the new laws. This is just the first step in a long and bumpy road to achieve higher level of protection but it is a step in the right direction.I. Introduction
The central concern of this Article is to examine how Jordan fares under the international regimes for protecting intellectual property rights including the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The TRIPs Agreement requires that, at a minimum, intellectual property laws in member countries of the WTO must conform to its terms. The intellectual property regime in Jordan proved to be a stumbling block for Jordans accession to the World Trade Organization (WTO).
Jordan committed in its accession to the WTO to comply fully with the TRIPs Agreement without recourse to any transitional period. The question of Jordans compliance has gained importance, especially given the decision by the USTR to un-list Jordan from the watch list of Special 301 in 1999. Compliance with TRIPs Agreement and the un-listing from the U.S. watch list of Special 301 helped Jordan accede to the WTO.
The purpose of this article is not to exhaustively narrate the history of intellectual property protection in Jordan, but rather to highlight the areas where changes in Jordans intellectual property regime were driven by the TRIPs Agreement. This article will examine the copyright, trademark, and patent laws of Jordan and whether they comply with international standards. Higher priority is attached to copyright, patent and trademark because they have broader application in Jordan when compared with other non-traditional areas such as plant varieties and industrial designs. Section II will delineate the current Copyright Law of Jordan and its management. Section III analyzes trademarks protection in Jordan. Section IV examines patent protection in Jordan with emphasis on compulsory licensing and the Jordanian pharmaceutical industry. Section VI furnish with conclusions and recommendations.
II. Copyright Law
Jordans 1992 Copyright Law did not meet international standards in many significant respects. Jordan did not adhere to any of the international copyright or neighboring rights conventions such as the Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Universal Copyright Convention. However, in 2001, Jordan restructured its copyright law in compliance with the international standards. The following is an examination of the current Copyright Law of Jordan.
A. Subject-Matter of Copyright Law
Jordans copyright law can be primarily found in the Copyright Law of 2001. Under the Copyright Law, the subject matter of copyright protection includes literary, scientific, and artistic works. In the past, computer software was not explicitly covered within the ambit of copyright protection. Now, according to the Copyright Law of 2001, foreign software developers would rely on explicit provisions for protection before licensing their best technologies. Moreover, in the past, Jordans law did not provide any protection for sound recordings. Now, sound recordings are protected. The list of covered subject-matter in the Copyright Law is not at all inclusive, but rather illustrative since the law uses the statement in particular these works will be protected in citing which works to cover.
Prior to Copyright Law of 2001, only Jordanian works or works first published in Jordan benefit from copyright protection. However, the Copyright Law of 2001 changed that so it applies to published or unpublished works of Jordanians and foreigners. The Copyright Law of 2001 removed the mandatory deposit requirement for foreign works. Thus, the Copyright Law of 2001 requires Jordan to extend its protection to nationals of other countries in a non-discriminatory manner. The Copyright Law of 2001 considers a work as copyrighted when it is reduced to writing or other material form. There are no other formalities for copyright to be acquired or as pre-condition for filing a lawsuit. For example, there are no requirements for registration of the work or copyright notice. The Copyright Law of 2001 suggests filing of the best edition of a published work with the Filing Center in the National Library Department. However, filing is not considered a formality for copyright protection . Filing is considered a procedural step and not condition to secure copyright protection.
There are certain works that are excluded from protection under the Copyright Law. Examples include legislations, regulations, judicial decisions, and other official texts of a legislative, administrative or legal nature are not protected. These laws and texts are considered works of the government. However, legislations, regulations, and other official texts can be copyrighted to the extent that they involve innovation in their arrangement or organization.
B. Exclusive Rights
There are two types of rights under the Copyright Law: economic and moral rights. Economic rights allow the author of a work to derive financial reward through licensing. A copyright owner enjoys the exclusive right to do the following with the copyrighted work: (1) copy or reproduce, (2) prepare derivative works, (3) distribute, by selling, licensing or other transfer, (4) publicly perform, (5) and publicly display. The copyright owner also enjoys the right to prevent others from practicing these rights.
The right of rental needed clarification in Jordans copyright law. The right of rental is important because technological advances such as digital audio tape made it very easy to copy films or sound recordings by customers of rental stores. The right to control commercial rental practices is necessary in order to safeguard the copyright owners sales market and royalties. Copyright Law of 2001 clearly entertains the right of rental. However, granting the copyright holder authority over how and whether a work is rented in Jordan may affect access and dissemination of the work because renting is cheaper than to buying a work.
Article 8 of the Copyright Law recognizes moral rights. The basis for these rights is the personal linkage between the work and its author. The author has the right to claim or disclaim a work as his own (authorship or paternity) and to safeguard the work from distortion, mutilation, and other amendments which would be prejudicial to his reputation, honor, or integrity. Based on moral rights, an author in Jordan can prevent others from passing off his work as theirs or he can block usage of a work, such as in parody, which he feels will prejudice his honor. Moral rights of authorship and integrity are distinct from the bundle of economic or exploitation rights that are usually associated with copyright. Economic rights of the type mentioned earlier can be transferred or assigned to others in return for royalties. However, moral rights cannot be transferred. Moral rights are inalienable and perpetual.
C. ExceptionsThe Copyright Law of 2001 allows certain exceptions or limitations to the exclusive rights granted to the right holder. These exceptions could be labeled as fair uses and non-voluntary licenses. The difference between the fair use and non-voluntary license is that under free or fair use exploitation of a copyrighted work is carried out without any authorization from the owner or an undertaking to remunerate the owner of copyrighted work for the use. In addition, free use is not applied through governmental authority. On other hand, exploitation under the non-voluntary license is carried out without any authorization, but with the obligation to compensate the right holder.
D. Fair Use Defense
Under the fair use defense of the Copyright Law, individuals are allowed to make a single copy of the work for private personal purposes provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. In Jordan, fair use defenses are limited to published works. It seems that there is a distinction between published and unpublished works for fair use purposes. As such, a biographer or historian may not use excerpts from an unpublished biography.
In stating the fair use defense, Jordan Copyright Law of 2001 does not define the terms normal exploitation and legitimate interests. There is little evidence in the drafting history of Jordan Copyright Law that is helpful. Moreover, no cases have been decided by courts in Jordan regarding the interpretation of these terms. There are certain factors that courts in Jordan take into account when judging whether the case in question involves a fair use defense. These factors could include the purpose of the use, nature of the work used, amount of quotation or use of the copyrighted work, and amount of financial gain, if any. Thus, conflict with normal exploitation refers to such things as massive amounts of photocopying when it is done for economic gain.
E. Compulsory License
The compulsory licenses under the Copyright Law of 1992 were in favor of the government of Jordan, for government radio and television broadcasts, or for government-mandated translations and these licenses did not meet international standards. Now, the Copyright Law of 2001 allows non-voluntary or compulsory license for reproducing a work under certain circumstances and conditions without the authorization of the owner. Therefore, non-voluntary licenses are determined specifically in the law and do not result from the discretion of any authority. The purpose of non-voluntary licensing in the Copyright Law of 2001 is the dissemination of copyrighted works to the public where the national legislature fears that the non-availability of these works could hinder the dissemination and development of knowledge. Therefore, a non-voluntary license is essential to assist in the promotion of national literacy and training.
The Copyright Law presents a number of procedural steps which the licensee must accomplish prior to obtaining a license. Article 11 of the Copyright Law sets out a scheme whereby citizens of Jordan can apply to the Minister of Culture for permission to translate foreign works for teaching, scholarship and research purposes. For example, the Copyright Law determine a three-year period as the shortest period before which a citizen of may obtain a translation license if no translation has been published by the author. Fair compensation must be paid in respect of the use of any work translated or reproduced via a non-voluntary license. There can be no doubts as to the guarantee that the authors would be paid for the use of their works. However, the compensation provision raises the question, how fair compensation is measured. The Copyright Law text is rather vague, stating that compensation should be consistent with standards of royalties normally operating on license contract s freely negotiated between a person in Jordan and a person in the authors country.
iAutoblog the premier autoblogger software
No comments:
Post a Comment