Session 8 - Trade Related Aspects of Intellectual Property Rights
on Selasa, 14 Mei 2013
Course : Law in International Business
Lecturer : Dr. Shidarta, S.H., M.Hum.
Date : 7 May 2013 (Session 8)
Topic : Trade Related Aspects of Intellectual Property Rights (TRIPs)
Method : F2F (Face to face)
Background :
·
TRIPs
= Trade
Related Aspects of Intellectual Property Rights
·
The birth of the TRIPs agreement in the Uruguay Round [GATT],
in essence, is the impact intrenasional trading conditions increasingly widespread and knows no national
boundaries.
·
State who first proposed the birth of
TRIPs is the
United States, in anticipation of the opinion that the WIPO
[World Intellectual Property
Organization] under the UN,
is not capable of protecting IPRs in the
international market which will result in a
negative trade.
The World Intellectual Property
Organization (WIPO) is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative
activity, to promote the protection of intellectual property throughout the
world.
What is WIPO?
WIPO mission is to promote innovation and
creativity for the economic, social and cultural development of all
countries, through a balanced and effective international intellectual
property system.
WIPO promote the development and use of the international IP
system through:
|
WIPO weaknesses are:
1.
WIPO is an organization where members are limited [not
much], so that the WIPO provisions can not be enforced against non-members of
WIPO.
2.
WIPO does not have a mechanism to resolve and punish
any violation of IPR.
3.
Besides that WIPO could no longer adapt changes in the
structure of international trade and changes in the level of technological
invasion.
The purpose of TRIPs :
ü Increased protection
of IPR of products
traded
ü Ensure the implementation
of the IPR procedures that do not impede trade
ü Formulate the
rules and discipline of the
implementation of the protection of
IPR
ü Develop the
principles, rules and mechanisms for international cooperation to
deal with trafficking counterfeit goods or
piracy results on
IPR
TRIPs Principles :
o Free to Determine
o Intellectual Property
Convention
o National Treatment
o Most-Favored-Nation-Treatment
o Exhaustion
The requirements of TRIPS :
TRIPS
requires member states to provide strong protection for intellectual property
rights. For example, under TRIPS:
- Copyright terms must extend at least 50 years,
unless based on the life of the author.
- Copyright must be granted automatically, and not
based upon any "formality," such as registrations, as specified
in the Berne Convention.
- Computer programs must be regarded as
"literary works" under copyright law and receive the same terms
of protection.
- National exceptions to copyright (such
as "fair use" in the United States) are constrained by
the Berne three-step test
- Patents must be granted for
"inventions" in all "fields of technology" provided
they meet all other patentability requirements (although exceptions for
certain public interests are allowed and must be enforceable for at least
20 years.
- Exceptions to exclusive rights must be limited,
provided that a normal exploitation of the work and normal exploitation of
the patent is not in conflict.
- No unreasonable prejudice to the legitimate
interests of the right holders of computer programs and patents is
allowed.
- Legitimate interests of third parties have to be
taken into account by patent rights.
- In each state, intellectual property laws may not
offer any benefits to local citizens which are not available to citizens
of other TRIPS signatories under the principle of national treatment. TRIPS also has a most favored nation clause.
Many of the TRIPS provisions on copyright were copied
from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were modeled on the Paris Convention for the Protection of Industrial Property.
Intellectual property rights
Property arising
and birth because of intelectual capabilities [or if brain think] human
Right to enjoy the economics result of an intellectual human creativity without interference from other parties.
Intellectual property rights :
ü Copyright and Related Rights
ü Industrial Property :
§ Patent
§ Trademark
§ Geographical Indication
§ Industrial Design
§ Layout Design of Integrated Circuit
§ Trade Secret
§ Plant Variety
License : permission granted by the
rights holder [Copyright,
Trade Secret, Industrial Design, Layout Designs of Integrated Circuits, Patents] to another party through an agreement
based on the
granting of rights [not transfer
the rights] to enjoy
the economic benefits of the Copyrights,
Trade Secrets , Industrial
Designs, Layout Designs of Integrated Circuits, Patents are granted a protection for a specified period and certain
terms.
A licensor may grant a license under intellectual property laws to authorise a use (such as copying software or using
a (patented) invention)
to a licensee, sparing the licensee from a claim of infringement brought by the
licensor. A license under intellectual property commonly has several
components beyond the grant itself, including a term, territory, renewal
provisions, and other limitations deemed vital to the licensor.
Reflection :
TRIPs have many requirement,purpose and principle.
WIPO is one of TRIPs organization. From this material we can conclude that in
Law of International Trade we need to consider about the intelectual property
right and license. There are many step and requirement to get our own right.
There are a complicated step in Indonesia to get our own property right, it
need 48 days only to get a patent. Meanwhile in another country like singapure
they are only have 3 days to make a patent. So we need to work hard to make our
inovation get the intellectual property rights.
Reference :
PowerPoint from binus maya by Agus Riyanto, SH, LL.M
Session 7 - United Nation Convention on Contracts for the International Sale of Goods(CISG)
on Senin, 13 Mei 2013
Course : Law in International Business
Lecturer : Dr. Shidarta, S.H., M.Hum.
Date : 16 April 2013 (Session 7)
Topic : United Nation Convention on Contracts for the International Sale of Goods(CISG)
Method : F2F (Face to face)
United Nations Convention on Contracts for the International Sale of Goods (CISG) is s a treaty that is a uniform international sales law. CISG 1980 is a work of the United Nations Commission on international trade (UNCITRAL) as an effort to harmonizing trade law between countries which entered into force on 1 January 1988.
Reservations
- Signer countries may make a reservation
- Exclude certain parts of the convention
- Exclude validity on one or some states ( for federal states )
- International contract CISG allow a verbal contract ( oral contract of sale )
The purpose of CISG is preparing or promoting the adoption of new international conventions, model laws and uniform laws, and promoting the codification and wider acceptance of international trade terms, provisions, customs and practices, in cooperation with appropriate organizations operating in this field.
Validity of CISG
Requirement:
· The parties ( the sale ) are in different countries
· The country become a participant of CISG convention
· In validity contract of CISG not obstructed by choice of law
Modifications in the contract
The parties can avoid modification by making the clause “Four Corner Clause”
the scope of the CISG:
·
Based on the nature of transaction :
1. Consumer Contract
2. Sales by Auction
3. On execution
· Based on the nature of good :
1. Sale of securities
2. Sale of ship and planes
3. Sale of electricity
Fundamental breach of contract
A brench of contract is fundamental if the damage it causes to the other party is so substantial that he is entitled to expect under the contract.
The requirement of the contract agreement :
- coercion
- Fraud
- misguidance
- Undue Influence
CISG Binding Power
CISG actually has no force of law, CISG’s article 95 said that “any state may declare when delivered up the instrument of ratification… that the state was not committed themselves to article 1 paragraph ( 1 ) ( b ) this convention.” Article 6 CISG allow parties override the validity of CISG either whole or in part. Thus, the parties could design a clause option of law sets law as options, a country but ignoring CISG as a whole.
Rights and Obligations of The Seller
Provisions CISG only regulate specifically about obligations of the parties as dictated in chapter II about liability the seller and chapter III in CISG that enumerates about liability buyer. In reciprocal can be inferred that an obligation the seller is the right of the buyers similarly contrarily.
Conclusion :
Through these lessons, we could understand that CISG is a work made by United Nation to harmonize law of trade between countries. We are also can know and understand the requirements, validity, scope, exception and others in CISG.
Reference :
Wikipedia
aafandia.wordpress.com
Session 5 - Sources of International Trade Law
on Rabu, 08 Mei 2013
Course : Law in International Business
Lecturer : Dr. Shidarta, S.H., M.Hum.
Date : 9 April 2013 (Session 5)
Topic : Sources of
International Trade Law
Method : F2F (Face to face)
There are many sources of international trade law, such as:
1. International Agreement
Binding international trade agreements based on the agreement of the parties who made it. This, because of international trade agreements will only be binding on a country if that country agreed to sign or ratify it.
Means must be ratified into national law as part of the domestic law of the country.
However, the treaty does not allow the state to apply or exclude some settings or article of the treaty. Or conversely, an international agreement did not allow the existence of such reservation.
One of the other ways the state to be bound to a treaty is through subjugation quietly. That is, without expressly bind themselves through the signing and ratification, a state can be joined to the charge by adopting an international treaty into domestic law.
The state provision should be expressly so requires or, if the charge of the treaty gave the rights (concessions) specific to the member states, and not to non-members.
GATT, for example, is a trade and tariff agreements umu. Who were the members should first negotiate with member countries of GATT the concessions that will be given before it can take advantage of the 38th chapter of the GATT.
The GATT has been the backbone of international trade law throughout most of the twentieth century. It contains rules relating to "unfair" trading practices.
Whats in the Agreement:
1) Trade liberalization: countries removed the obstacles that may hinder the smooth transaction.
2) Economic integration: this is done by the countries customs unification efforts, free trade area and economic unity.
3) Harmonization of Law: states seek uniformity or the intersection of the principles that are fundamental.
4) Legal Unification: unification includes the removal and replacement of a system of business law with a new legal system.
5) Model Law and Legal Guide: countries will be able to refer the charge rules of law or legal models to guide it in its national law.
International standards
are the norms to exist
in the treaty,
which is a fairly important requirement in
the international economic order,
as well as a requirement
for countries to participate in international economic transactions.
The basic requirements are:
1. Minimum- standard or equitable treatment, basic rules that must be adhered to in order to take part in international trade transactions
2. Most-favoured nation clause, clause requiring non-discriminatory treatment of one state against another. One of the countries provide special treatment or preference to a country, then the treatment should also be given to other countries
3. Equal Treatment, participating countries in a stipulated agreement anxious to give equal treatment to each other
4. Preferential Treatment, this principle of a nation can give special treatment more favorable to a country other than the country.
2. Customary International Law
Customary international law was born from the practices of the merchants who made repeated such that the repetitive habits with a relatively long time it becomes binding.
A habitual practice to be binding must meet the following requirements:
(1) A repeated practice performed and followed by more than two parties (state practice), and
(2) the state practice accepted as binding (opnio iuris sive necessitatis).
Provisions of the law merchant [Lex Mercatoria] can be found in the custom-developed in
international trade contracts, for example in the standard contract clauses raw, or contracts in the field of transport (maritime).
Contracts or contract clauses which are usually designed by a trade association or trade organization (eg by the ICC, FIDIC, etc.) and followed by members of the organization or association.
Trade practices have a very important role in international trade transactions in something. For example, the habit codified in the construction contract or the delivery of goods, FOB, CIF etc..
3. General Legal Principles
The legal source will start to function when the law of treaties (international) and customary international law does not give an answer to something matters. Therefore, the principles of common law is seen as an important source of law in an effort to develop the law, including, of course, international trade law.
The basic requirements are:
1. Minimum- standard or equitable treatment, basic rules that must be adhered to in order to take part in international trade transactions
2. Most-favoured nation clause, clause requiring non-discriminatory treatment of one state against another. One of the countries provide special treatment or preference to a country, then the treatment should also be given to other countries
3. Equal Treatment, participating countries in a stipulated agreement anxious to give equal treatment to each other
4. Preferential Treatment, this principle of a nation can give special treatment more favorable to a country other than the country.
2. Customary International Law
Customary international law was born from the practices of the merchants who made repeated such that the repetitive habits with a relatively long time it becomes binding.
A habitual practice to be binding must meet the following requirements:
(1) A repeated practice performed and followed by more than two parties (state practice), and
(2) the state practice accepted as binding (opnio iuris sive necessitatis).
Provisions of the law merchant [Lex Mercatoria] can be found in the custom-developed in
international trade contracts, for example in the standard contract clauses raw, or contracts in the field of transport (maritime).
Contracts or contract clauses which are usually designed by a trade association or trade organization (eg by the ICC, FIDIC, etc.) and followed by members of the organization or association.
Trade practices have a very important role in international trade transactions in something. For example, the habit codified in the construction contract or the delivery of goods, FOB, CIF etc..
3. General Legal Principles
The legal source will start to function when the law of treaties (international) and customary international law does not give an answer to something matters. Therefore, the principles of common law is seen as an important source of law in an effort to develop the law, including, of course, international trade law.
Some examples of common law principles, these include
the principle of good faith, the principle of pacta sunt servanda, and replace
loss. These principles are recognized in almost all legal systems that exist in
the world, and there is also the law (trade) internationally.
4. Judgments of the Court Bureau & Doctrine
Court decisions in international trade not have such a strong force in the law system of Common Law (Anglo-Saxon).
Status is more or less the same as in the existing legal system in Continental (Civil Law), namely that the earlier court decision just to be considered. So there is a kind of obligation is not binding for the court agencies to consider court decisions existing prearranged (in disputes related to international trade).
Doctrine
The opinions or writings of leading scholars (especially in this case in the field of international trade law). The role and function is quite important in explaining something of international trade law. Even the doctrine can be used to find the law.
5. Contract
Sources of international trade
law which actually
is the main source and the most important in
the agreement or
contract made by the
vendor themselves. As can be seen, the contract is
"the Law" for the parties
who made it.
Traders or the stake-holders in international trade law in the conduct of international trade transactions, they will put it into written agreements (contracts). Therefore, the contract is very essential. Because it acts as a source of contract law and the need to make their first important reference in carrying out their rights and obligations in international trade.
Contract restrictions:
First, freedom is not contrary to law, and in particular standards, public order, morality, and decency.
Second, the status of the contract itself. Contracts in international trade is nothing but a national contract no foreign element. That is, the contract, even though the field of international trade, a lot of little bow and constrained by national law (of a particular country).
Third, according to Sanson, other limitations are also important and binding agreement of the parties is-deal or availability "normality" of the previous trading done by the parties
concerned.
4. Judgments of the Court Bureau & Doctrine
Court decisions in international trade not have such a strong force in the law system of Common Law (Anglo-Saxon).
Status is more or less the same as in the existing legal system in Continental (Civil Law), namely that the earlier court decision just to be considered. So there is a kind of obligation is not binding for the court agencies to consider court decisions existing prearranged (in disputes related to international trade).
Doctrine
The opinions or writings of leading scholars (especially in this case in the field of international trade law). The role and function is quite important in explaining something of international trade law. Even the doctrine can be used to find the law.
5. Contract
Traders or the stake-holders in international trade law in the conduct of international trade transactions, they will put it into written agreements (contracts). Therefore, the contract is very essential. Because it acts as a source of contract law and the need to make their first important reference in carrying out their rights and obligations in international trade.
Contract restrictions:
First, freedom is not contrary to law, and in particular standards, public order, morality, and decency.
Second, the status of the contract itself. Contracts in international trade is nothing but a national contract no foreign element. That is, the contract, even though the field of international trade, a lot of little bow and constrained by national law (of a particular country).
Third, according to Sanson, other limitations are also important and binding agreement of the parties is-deal or availability "normality" of the previous trading done by the parties
concerned.
6.
National Law
Actual role of national law is broader than simply regulate international trade contracts. The significant role of the national law was born from the jurisdiction and authority of the state. Its authority is absolute and exclusive. That is, if there are no other exceptions, then the rule can’t be rescinded.
Jurisdiction or authority is the authority of a state to regulate all,
(a) legal events, (b) the subject of law, and (c) objects that are within its territory.
This set includes the authority to make laws (national) that are either public law or civil law.
Actual role of national law is broader than simply regulate international trade contracts. The significant role of the national law was born from the jurisdiction and authority of the state. Its authority is absolute and exclusive. That is, if there are no other exceptions, then the rule can’t be rescinded.
Jurisdiction or authority is the authority of a state to regulate all,
(a) legal events, (b) the subject of law, and (c) objects that are within its territory.
This set includes the authority to make laws (national) that are either public law or civil law.
So, before someone or some company conduct in
international scale trade they must deal with the rules and restrictions first.
These rules and restrictions are made to make the trading environment to become
fair and some rules are not perfect, which means that there are some advantage
and disadvantage that the actors of trade can get. But in my opinion the most
important source is the “Contract” between two sides or more that is made by
everyone involved in that contract and agree about it. The contract itself
contain about the agreement and their own obligations, which must be done just
as planned by the people who signed it on their own will and consciousness.
Sources:
Encylopedia Britannica
Wikipedia
Google
Slide Session 5 Inter Trade
Encylopedia Britannica
Wikipedia
Slide Session 5 Inter Trade
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