Intellectual Property and Human Rights

Town "The terrible situations affecting many states and peoples around the world should be a key element that mobilizes the discussions in this forum … it is unfortunate we could not see a little more flexibility or humanity in these discussions and make IP a constructive tool." Delegate from Ecuador at the WIPO Development Agenda discussions, 29 June 2006. 1 6 See particularly United Nations Committee on Economic, Social and Cultural Rights (CESCR) General comment 14: The right to the highest attainable standard of health (Article 12

The patent system exists to encourage the development of new products from which society will benefit. The strength of protection awarded to patented products is a policy decision, allowing states to balance the monopoly rights of patent-owners against the inherent social costs of monopoly protection. The effective policy space within which states may establish domestic patent policy is increasingly circumscribed by international rules prescribing minimum protection levels regardless of local circumstances or consequences. In international negotiations, developing states have attempted to resist policy space curtailment using arguments that rely on foundational principles of the intellectual property system: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; its opponents counterargue that stronger patent protection achieves the same ends. This dissertation examines the resulting circular discussions at the 2001-200...

The concept of moral rights-that is, whether an author has personal rights over his work that go beyond property rights-created tensions between the European Union and the United States during the negotiations of international intellectual property agreements. This paper examines that conflict through the prism of international copyright and trade law, specifically the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). As trade relations have been subsumed by international copyright law, the time seems appropriate to revisit the French-born legal notion of moral rights. Although it has been excluded from the TRIPS agreement (much to the United States' relief), this issue has resurfaced in today's globalized and digital world, as authors may acquire rights that they do not have at home by crossing borders. This paper delves into the power imbalance between economic and personal rights and the legal and political ramifications of these rights on the international stage.

The concept of moral rights - that is, whether an author has personal rights over his work that go beyond property rights - created tensions between the European Union and the United States during the negotiations of international intellectual property agreements. This paper examines that conflict through the prism of international copyright and trade law, specifically the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). As trade relations have been subsumed by international copyright law, the time seems appropriate to revisit the French-born legal notion of moral rights. Although it has been excluded from the TRIPS agreement (much to the United States’ relief), this issue has resurfaced in today’s globalized and digital world, as authors may acquire rights that they do not have at home by crossing borders. This paper delves into the power imbalance between economic and personal rights and the legal and political ramifications of t...

While the right to health has gained significant momentum in international law over the past two years, there is little clarity on what it means for States to comply with this right in times of COVID-19. Taking Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights as a starting point, our article follows an approach guided by the rules of treaty interpretation under the Vienna Convention on the Law of Treaties to suggest how right to health obligations to prevent, treat and control infectious diseases should be interpreted in relation to COVID-19, and how these obligations interact with general obligations of immediacy, progressive realisation, minimum core and international assistance and cooperation in this context. This article makes a novel contribution to clarifying the right to health during COVID-19, thus enhancing capacity for the oversight of this right; its incorporation in global health law; and the understanding of its corresponding o...

Global disparities in access to COVID-19 vaccines have brought back into focus questions about whether the right to medicines has assumed any level of binding legality within international law. In this paper, we attempt to answer this question by considering if there is evidence of subsequent state agreement and practice to read the right to medicines into the rights to health and science protected in the International Covenant on Economic, Social and Cultural Rights. We adopt the interpretive framework in the Vienna Convention on the Law of Treaties and the International Law Commission's 2018 report to analyze the work of the United Nations Committee on Economic, Social, and Cultural Rights relevant to medicines, and its relationship to the content and voting in successive resolutions of the United Nations General Assembly. We find that these resolutions provide some evidence of state agreement that the rights to health and science, as enshrined in the International Covenant on Economic, Social and Cultural Rights, include access to affordable medicines. Yet the legal implications of this right remain highly contested, particularly when it comes to trade-related intellectual property rights. The negotiation of a pandemic treaty offers possibilities for codifying this right beyond these discursive instances, while political opposition remains likely to continue to undercut this emerging legal norm.

Intellectual property includes several areas of regulation which govern access to and uses of knowledge, information and technology. In addition to having many cultural and social benefits, knowledge, information and technology are key building blocks of an innovative economy. The central and perpetual challenge of intellectual property law and policy is to ensure that there are both adequate incentives for innovators and creators to generate these building blocks, and that those incentives do not overreach so as, in fact, to inhibit innovation. This description, however, no longer tells the whole intellectual property story. This article discusses the emergence through trade and investment agreements of a changed approach to the objectives of intellectual property protection, and the challenges that approach presents for knowledge-based and innovation development of New Zealand interests.

Commenting on an article by J.H. Reichman is much like commenting on my own thoughts, for I agree so wholeheartedly with all that he says. I too am concerned about the expiration of the transitional phases set out in the TRIPS Agreement:? the close of the period given developing countries to comply, 2 and the end of the moratorium on nonviolation complaints. 3 For the fast-paced technological communities that were largely responsible for promoting the adoption of rigorous international intellectual property standards, five-or-so years probably seemed like an eternity to wait for full compliance. In the evolution of law, however, it is far from it. It is not enough time for an emerging nation to absorb the world's knowledge base and develop a creative communitythat is, to acquire the assets needed to capture the benefits of strong intellectual property rights and offset the costs of recognizing, examining, monitoring, and enforcing them. Indeed, it is not enough time for any society to come to terms with radically new policies, especially those that are externally imposed. Accepting new ideas is a gradual process. It is particularly difficult to imagine how any nation that is committed to democratic government could, in only half a decade, persuade its electorate to reallocate rights in such important matters as informational and cultural property. Most important, the moratorium set by the Uruguay Round is too short a time for those charged with administering the Agreement and adjudicating the disputes it engenders to formulate positions on what the document states expressly, no less to decide what it might legitimately imply. Fairly extravagant claims about what constitutes a nonviolation complaint are being bandied about and, as Reichman notes, there is real danger that this sort of confrontational rhetoric will backfire, spurring * Pauline Newman Professor of Law, NYU School of Law. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Annex IC, LEGAL INSTRUMENTs-RESULTS OFTHE URUGUAY ROUND vol. 31; 33 I.L.M. 81 (1994) [hereinafter TRIPS Agreement]. 2 Id. art. 65. As Reichman notes, there are several grounds for extension of the compliance period. 3 Id. art. 64.

The Declaration on Patent Protection is a welcome addition to the Max Planck Institute’s work on the flexibilities available under the TRIPS Agreement. Like the previously published Copyright Declaration, it improves on the WTO’s interpretations of the three-part open-ended exceptions provisions of the TRIPS Agreement. Furthermore, it attempts to clarify the other regulatory options that are retained under TRIPS. Here, we contend, the Declaration makes three mistakes. First, its aggressive interpretations of certain provisions undermine its credibility, making it a less useful resource than a document prepared by such notable scholars might be. Second, the options, if adopted in toto, would significantly undermine incentives to invent. Yet the Declaration does not provide guidance on which options a state that is intent on encouraging innovation should adopt. Third, the Declaration’s focus on the provisions in TRIPS that maintain sovereign regulatory authority misses the Agreement’s...

This paper discusses the role that emerging economies could play in rendering intellectual property law and lawmaking more responsive to changing conditions. At present, neither the North nor the South is likely to challenge the accommodations made in the TRIPS Agreement. In the North, the politics of change is complex; the South largely lacks expertise. But emerging economies have the political will to improve access to the world's intellectual output on behalf of their poorest citizens. At the same time, they have growing creative sectors and thick legal and political cultures, capable of striking new and imaginative balances between proprietary and access interests. Because the goals of these economies are best served by partnering with least-developed countries and members of civil society interested in IP issues, these nations also have an incentive to improve another type of access norms-norms of participation, fairness and transparency in international lawmaking. These nations are, in other words, in a unique position to contribute to the reforms that are the cornerstone of the global administrative law agenda.

Professors Dinwoodie and Dreyfuss's recent book, A NEOFEDERALIST VISION OF TRIPS, is an important and exciting new addition to debates about international intellectual property governance. In this book, the authors take on one of the field's most central questions: is the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) in fact an intellectual property "code"? The authors argue that TRIPS is commonly misconstrued, both by rights holders and academics, as a supranational code that tells members of the World Trade Organization (WTO) "what they must do and when and how they must do it" (p.5). Although many have argued that TRIPS imposes only minimum standards, Dinwoodie and Dreyfuss provide in this book the most thorough and decisive refutation of the "code" view of TRIPS to date. The authors contend that TRIPS is not a code but a "neofederalist" regime that imposes basic substantive expectations in order to promote coordination but which nonetheless preserves considerable member state autonomy.

Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have mobilized to challenge the contours of intellectual property (IP) law. Very recently, some from these groups have begun to develop a shared critique under the umbrella of "access to knowledge" (A2K). Existing accounts of the political economy of the field of IP have suggested that such a mobilization was unlikely. This Article takes the emergence of the A2K mobilization as an opportunity to develop a richer and less deterministic account of the contemporary politics of IP. It draws upon "frame mobilization" literature, which illuminates the role that acts of interpretation play in instigating, promoting, and legitimating collective action. The frameanalytic perspective teaches that before a group can act it must develop an account of its interests and theorize how to advance these interests. These acts of interpretation are both socially mediated and contingent. Ideas can be a resource for those engaged in mobilization, but one that is not fully in their control. Frames thus can lay the scaffolding for a countermovement even as they pave the way for a movement's success. Law is a key location for framing conflicts because it provides groups with symbolic resources for framing, and because groups struggle within the field of law to gain control over law's normative and instrumental benefits. Law thus exerts a gravitational pull on framing processes. Engagement with law can influence a group's architecture, discourse, and strategies, and can also create areas of overlapping agreement andas importantly-a language of common disagreement between opposing groups. The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities. A UT H OR. This Article has benefited greatly from the suggestions of more readers than I can thank here. I owe a special debt of gratitude to my colleagues at U.

to pursue a new temporary waiver 8 of certain obligations under TRIPS in order to give governments a wider range of options to address the COVID-19 pandemic ("TRIPS waiver"). 9 The initial proposal for a broad-scope TRIPS waiver was tabled 10 at the WTO in October 2020. Almost two years later, at the 12th Ministerial Conference in June 2022, a significantly different outcome emerged in the form of a consensus Decision on the TRIPS Agreement. 11 As well as waiving obligations under Article 31(f), the Ministerial Decision implementing the waiver clarified existing options under the TRIPS Agreement in the context of the pandemic response, in order to facilitate and streamline measures enabling the diversification of vaccine production without the consent of rights holders. Up until the 12th Ministerial Conference, an extensive debate between governments, 12 and amongst analysts and scholars, 13 on the need for, and likely effectiveness of, a TRIPS waiver dominated discussion about IP rights in the pandemic context. By contrast,

This article explores the implications and the impact of the composition of trade dispute panels on decision-making on global trade at the World Trade Organization (WTO). The main questions raised are: • Would it influence the panels' decision to have adjudicators with or without a Law background? • How much is the WTO Secretariat influencing the case-by-case analysis and outcome of adjudications? The article focuses on International Trade Dispute Settlement Adjudicators, who do not possess a Law degree. Special emphasis is given to members of ad-hoc panels and the Appellate Body (AB), which are dispute settlement mechanisms in place within the WTO Dispute Settlement System (DSS). These panel members are appointed in accordance with the Rules and Procedures of the WTO DSS set out in the framework of the Dispute Settlement Understanding (DSU). Panel and AB decisions, respectively, are not considered awards, and produce no res judicata effects, and are not meant to establish any kind of compensation. The settlement procedure is followed to establish whether there was a breach of the WTO Agreements, and nothing else. These decisions are merely reports, which contain recommendations to be adopted by the Dispute Settlement Body (DSB), formed by the representatives of all WTO Member States.

philosophers, such as Grotius, helped develop the natural law upon which the HRtWS was founded. 5 In addition to its philosophical origins, the HRtWS also has theological roots based on religious scripture and sacraments. 6 Christian scripture mentions the importance of drinking water in several passages. 7 Other religions have stories that depict the importance of drinking water to deities and specific situations, such as bathing, sacrifices and purification. 8 These perspectives helped set the stage for crafting the HRtWS. Following Mar del Plata, the next mention of HRtWS principles came within the 1986 Declaration on the Right of Development. 9 Article 8 established that there should be an equal opportunity to access "basic resources." 10 Alhough Article 8 does not explicitly specify drinking water and sanitation as "basic resources," later rhetoric did correlate drinking water and sanitation as essential resources that should be enjoyed by all. 11 Next, the 1992 International Conference on Water and Environment ("Dublin Conference") concluded with a new view on drinking water. 12 At the Dublin Conference, four fundamental principles were established, which aim to emphasize affordability and the economic value of water. 13 The first principle establishes that freshwater is a finite resource essential to support life and the environment. 14 The second principle commemorates the importance of public participation in decision-making processes regarding 5. See generally EVELYNE FIECHTER-WIDEMANN, THE HUMAN RIGHT TO WATER: JUSTICE. .. OR SHAM?: THE LEGAL, PHILOSOPHICAL, AND THEOLOGICAL BACKGROUND OF THE NEW HUMAN RIGHT TO WATER (Andrene Everson trans., Pickwick Publications, 2017). 6. See generally JAMES SALZMAN, DRINKING WATER: A HISTORY (2nd ed. 2012). 7. Water is mentioned in the Bible 722 times. The importance of drinking water is illustrated in the Bible within, for example, Revelations 22:7: "The Spirit and the bride say, 'Come.' And let everyone who hears say, 'Come.' And let everyone who is thirsty come. Let anyone who wishes take the water of life as a gift." The Biblical importance of water is also emphasized in John 4:14: "but if anyone drinks the living water I give them, they will never be thirsty again. For when you drink the water I give you, it becomes a gushing fountain of the Holy Spirit, flooding you with endless life!"

While pluralism and minimum harmonisation may have advantages concerning substantive requirements for IP protection there is an argument to be made in favour of establishing further harmonisation concerning rules and principles for legal interpretation of international or regional IP treaties, conventions and other legal instruments. Increasing autonomy of IP Law as a legal discipline and the development of specialisation whiting different IP areas have resulted in different layers of sources of law, comprising specific scopes, validity and enforceability mechanisms. Specialised international, regional and national institutions are creating a body of ‘case-law’ following a specific set of interpretative logic, rules, principles or praxis.This paper reflects on policy options between pluralism and harmonization in two separate levels: (1) the desirability of establishing, or not further harmonization of interpretative rules, criteria and praxis in IP law; (2) whether internal harmoni...

This version updates that chapter and introduces substantially new material, occasioned by the more active role played in recent times by the African Committee of Experts on the Rights and Welfare of the Child in fulfilling its mandates. 1 UN General Assembly 44th Session, UN Doc A/Res/44/25 (1989).

It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this paper contributes to the growing body of literature on developing a robust but flexible global intellectual property system. The paper argues that the trade-based approach to global intellectual property law undermines the apparent gains made in this area because it promotes a utilitarian economic view of intellectual property law while minimizing other values. Trade-based intellectual property als...

The Declaration on Patent Protection is a welcome addition to the Max Planck Institute’s work on the flexibilities available under the TRIPS Agreement. Like the previously published Copyright Declaration, it improves on the WTO’s interpretations of the three-part open-ended exceptions provisions of the TRIPS Agreement. Furthermore, it attempts to clarify the other regulatory options that are retained under TRIPS. Here, we contend, the Declaration makes three mistakes. First, its aggressive interpretations of certain provisions undermine its credibility, making it a less useful resource than a document prepared by such notable scholars might be. Second, the options, if adopted in toto, would significantly undermine incentives to invent. Yet the Declaration does not provide guidance on which options a state that is intent on encouraging innovation should adopt. Third, the Declaration’s focus on the provisions in TRIPS that maintain sovereign regulatory authority misses the Agreement’s...

This brief Essay summarizes, updates, and integrates work I have done elsewhere in order to suggest, first, why cost-benefit analysis is not used in dispute settlement, second, how to evaluate substitute formulae that are available for use within dispute settlement, and finally, how dispute settlement and treaty-making relate to one another in this field. This Essay considers the role of international discipline by dispute resolution bodies, in comparison to multilateral treaty-making or other legislation. Treaty-making or other legislation may take the form of harmonization to one degree or another, or importantly, may take the form of agreed rules of prescriptive jurisdiction, such as mutual recognition or national treatment.

T HE World Trade Organisation (WTO) 1 forms the centrepiece of intergovernmental trade relationships. It has replaced and expanded upon the intergovernmental rights and obligations that had previously been established under the General Agreement on Tariffs and Trade (GATT). 2 From the legal perspective, the GATT/WTO system is both a significant achievement and an invaluable means to analyse the nature and effectiveness of international law and international legal institutions. In any sphere of international relations, the central debate for lawyers is to what extent rules and legalist attitudes may assist in furthering the goals of an international regime. Where trade regimes are concerned, strength may be drawn from the knowledge that legal rules and institutions are necessary in any domestic market-based economic system. Such laws create and protect property rights and voluntary exchange. These are the building blocks of commerce. They are supported by adjudicatory systems and enforcement mechanisms. These aim to promote compliance with obligations and aid in the resolution of legitimate disputes where they inevitably arise. While these are important elements of domestic systems, there are problems and challenges in determining the extent to which they can and should be

12. This is a derogation to Article 31(f) of TRIPS, which provides that products manufactured under a compulsory license must be "predominantly for the supply of the domestic market of the Member authorizing such use." TRIPS, supra note 1, art. 31 (f).

text/chapter_17.html (allowing for limited exceptions). 16. See TRIPS Agreement, art. 26.2 (providing limited exceptions to protect industrial designs while considering legitimate interests of third parties); id. art. 30 (providing limited exceptions to the exclusive rights conferred by a patent while considering legitimate interests of third parties). 17. See generally DANIEL GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND ANALYSIS 274-79 (4th ed. 2012) [hereinafter GERVAIS, THE TRIPS AGREEMENT] (outlining related WTO Dispute Settlement cases); CARLOS M.

Intellectual property (hereinafter IP) is a legal field that refers to creations of the mind such as musical, literary, and artistic works; inventions; and symbols, names, images, and designs used in commerce, including copyrights, trademarks, patents, and related rights. Intellectual Property Rights is a right that is had by a person or by a company to have exclusive rights to use its own plans, ideas, or other intangible assets without the worry of competition, at least for a specific period of time. The general objective of this research is to understand the relations between human rights and intellectual property rights. Secondary sources have been used in the research. The article is mainly based on UDHR, ICESCR, TRIPS agreement and other legal instruments, books, articles of prominent researches, newspaper reports and websites. The study revealed some issues such as; for decades' human rights and IP rights developed in virtual isolation from each other; human rights are one kind of rights also Intellectual Property rights are another one. Establishment of both rights basically depends upon the recognition of these rights by the various legal instrument which is recognized internationally or nationally; both rights are interrelated etc. Additionally, this paper also tries to give some suggestions to dissolve the confusion regarding the relationship between human rights and intellectual property rights.

Trade in health-related services, such as hospital, medical professional and sanitation, have potential to improve health outcomes for Countries. Yet, health-related services are least liberalised services sector under GATS. Reluctance of WTO members can be attributed to the scepticism that GATS restricts the public health policies and their ability to protect, promote and fulfil their right to health obligation as signatory to ICESCR. Examining the specific interaction between the right to health and public health exception in GATS, this paper demonstrates that WTO members can raise public health exception to justify trade-restrictive public health policies aimed at fulfilling the right to health. It argues that good faith and harmonious interpretation of the public health exception in GATS taking into account the right to health not only brings complementarity between international human rights and international trade law regimes but further advances systemic integration and (de)fragmentation of public international law.

The first version of the three-step test emerged at the 1967 Stockholm Conference for the Revision of the Berne Convention. With the inclusion of versions of the test in the TRIPS Agreement of April 1994, the two WIPO “Internet” treaties of December 1996, the more recent Beijing Treaty on Audiovisual Performances of June 24, 2012, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty) of June 27, 2013, the test has taken on the central function of allowing and enabling tailor-made solutions at the national level.

The three rather abstract criteria of the test offer room for different interpretations. Various alternative approaches have been developed in the legal literature and applied by national courts, including an understanding of the test’s factors as elements of a global balancing exercise; and a reverse reading of the test starting with the last, most flexible criterion. There are also parallels between factors in Anglo-American fair use and fair dealing legislation and the three step test.

The study herein concludes that the three-step test in international copyright law does not preclude flexible national legislation allowing the courts to identify individual use privileges case-by-case and that the three-step test can serve as a source of inspiration for national law makers seeking to institute flexible exceptions and limitations at the domestic level.

This study considers intellectual property rules contained in the WTO TRIPS Agreement as they might affect climate change regulatory efforts. The TRIPS Agreement rules that are most directly applicable in this context are patents; confidential information, and enforcement of IP rights before national courts. With respect to patents, the Agreement provides rules on subject matter eligibility and compulsory licensing that may affect which climate-related technologies get patented and how they are applied. The rules concerning confidential information are less precise. The Study then considers how a WTO dispute-settlement panel might apply WTO rules (especially TRIPS) to climate change initiatives that a WTO Member might take.

The present publication is the first volume in a series on “Intellectual Property, Practice and Analysis”. It is dedicated to draft guidelines for examination of trademarks in “Sakpatenti”, the National Intellectual Property Center of Georgia, according to European Union Intellectual Property Office (EUIPO) guidelines on European Union Trademarks. The guidelines are designed to bring together, systematically, the principles of practice derived from the jurisprudence of National and European courts, the case-law of Sakpatenti’s Chamber of Appeals as well as EUIPO’s Boards of Appeals. They provide an important source to develop coherent, predictable decisions in the field of intellectual property rights in Georgia, in harmony with EU law.
The accurate enforcement of intellectual property rights is the next stage of the Georgian and EU law approximation process. It is therefore important to acknowledge international approaches and to reflect the general practice of the European Intellectual Property Office (EUIPO). Intellectual Property Rights are emphasized in the Deep and Comprehensive Free Trade Agreement which is an essential part of the Association Agreement between the European Union and the European Atomic Energy Community and Their Member States, Of the One Part, and Georgia, of the other Part (“Association Agreement”). It contains an economic integration mechanism with the EU and opens up the EU market for Georgia. According to the Association Agreement, each final decision taken by Sakpatenti shall be duly reasoned.
The current publication is drafted to ensure that the obligations according to the Association Agreement are met and that the respective trademark registration legislation and procedures in Georgia are transparent, rational and well-grounded. This publication examines one of the absolute grounds for the refusal of trademark applications: namely, public order and the accepted principles of morality. Various cases are analysed in detail, examples are presented and the Guidelines for the investigation of the Georgian law on Trademarks, Article 4(1)(g) are drafted. This norm stipulates one of the absolute grounds of refusal for trademark registration, namely, if a sign or a combination of signs “insults or is contrary to national dignity, religious sentiment and traditions and moral standards”. Consequently, Georgian law as well as EU and international trademark legislation stipulates public order and accepted principles of morality as grounds for the refusal of trademark registrations which shall be assessed according to the EUIPO’s Guidelines for Examination and both National and EU case-law.
The aim of this publication is to raise public awareness about intellectual property rights. It is intended to be used in practice by trademark experts, applicants, trademark attorneys, lawyers, judges and any person interested in this subject-matter.
Insofar as it is the first publication in the series “A Commentary on the Georgian Law on Trademarks”, Sakpatenti would be grateful to receive any comments and suggestions.

(In Georgian language : ევროკავშირის ინტელექტუალური საკუთრების უწყების (EUIPO) ექსპერტიზის სახელმძღვანელო პრინციპები და საქართველოს პრაქტიკა )

წინამდებარე წიგნში ეროვნული და ევროკავშირის კანონმდებლობის სისტემური, შედარებით-სამართლებრივი მეთოდით ანალიზის საფუძველზე, ასევე, საერთაშორისო პრაქტიკის, კერძოდ, ევროკავშირის ინტელექტუალური საკუთრების უწყებაში (EUIPO) ექსპერტიზის სახელმძღვანელო პრინციპების, ადამიანის უფლებების, ეროვნული სასამართლო და კონსტიტუციური სამართალწარმოების პრაქტიკიდან გამომდინარე, განხილულია სასაქონლო ნიშნები, რომელთა რეგისტრაცია ეწინააღმდეგება ზნეობრივ ნორმებს: საჯარო წესრიგს და მორალის აღიარებულ პრინციპებს; განმარტებულია სასაქონლო ნიშნის რეგისტრაციაზე უარის თქმის ერთ-ერთი საფუძველი, რომელიც განსაზღვრულია „სასაქონლო ნიშნების შესახებ“ საქართველოს კანონის მე-4 მუხლის პირველი პუნქტის „ზ“ ქვეპუნქტით. ზემოაღნიშნული ნორმა გაანალიზებულია საქართველოს კონსტიტუციითა და ადამიანის უფლებათა და თავისუფლებათა ევროპული კონვენციით გარანტირებულ გამოხატვის თავისუფლებასთან მიმართებით, ასევე, საქართველოს სახელმწიფოსა და საქართველოს სამოციქულო ავტოკეფალურ მართლმადიდებელ ეკლესიას შორის დადებული შეთანხმების ჭრილში. ნაშრომში ჩამოყალიბებულია სასაქონლო ნიშნის რეგისტრაციისას ექსპერტიზისთვის სახელმძღვანელო პრინციპები საერთაშორისო სტანდარტების შესაბამისად, რაც სასარგებლო იქნება მოსამართლეებისთვის, საქპატენტის თანამშრომლებისთვის, პატენტრწმუნებულებისა და ინტელექტუალური საკუთრების უფლებებით
დაინტერესებული ნებისმიერი პირისათვის.
© საქპატენტი, ელენე სეხნიაშვილი

It has recently been suggested that the age of human rights is over. The West, itself often not respecting human rights, is said to have abused the concept as a tool to retain control over the developing world. Human rights have remained a foreign construct in Africa, the Near East, and Asia. They have "underperformed," and the level of privation in many parts of the world is more intense than ever. This Article acknowledges elements of truth in these observations, but argues that the battle for human rights is not lost. Using the right to education in Africa as an example, three arguments will be presented to explain how human rights can regain their moral cogency and actually help change a world of misery for the better. First, human rights need to be "domesticized," made "home-grown" achievements with which local populations can identify. Regional human rights institutions need to give specificity to universal norms. These "locally-owned" norms must then be effectively enforced. Second, pure "development goal" approaches to reducing global poverty need to be debunked. Instead, a human rights approach needs to identify clear duty-bearers, including notably the World Bank, who, when they have failed to comply with specified duties, should be considered "human rights violators" and held accountable accordingly. Third, and perhaps most importantly, human rights must be recognized to give rise to extraterritorial state obligations. These are obligations of states, in appropriate circumstances, to respect, protect, and fulfill the human rights of those beyond their own territory. The extraterritorial human rights obligations of states must structure bilateral development assistance and cooperation, the lending operations of the International Monetary Fund and the World Bank, and free trade within and beyond the World Trade Organization (here, meaning the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights).