The Effects of Intellectual Property Conventions

Transcription

1 The Effects of Intellectual Property Conventions Kourosh Safarkopaieh Abstract: In general view, conventions originally is not any treaty, it is a sort of treaty law so the effects of both of them is similar to each other but Treaty law is more general rather than convention. Intellectual property regulations originated of two important Conventions, Therefore in the first step, this paper prefer to begin of them. Treaties and conventions mean an international agreement concluded between states in written form and governed international Law. Therefore the state responsible for an internationally wrongful act is under an obligation to compensate for damage caused thereby also related organizations shall respect to their obligation. The effects intellectual property convention is direct or indirect to their organs even conduct dependent person or group which are under the control of them, unless exceptions remove the effects of these conventions Keywords: Intellectual property, international Law, conventions 1. Introduction A convenient starting point for discussing intellectual property conventions is the Vienna convention on the law of treaty 1969, came into force on 27 January 1980, Article 2(i) (a) of it defines a treaty for the purposes of conversations as international agreement 1 between two parties in the respect to a treaty as a result of agreements 2. In general view, conventions originally is not any treaty, it is a sort of treaty law so the effects of both of them is similar to each other but Treaty law is more general rather than convention. in this line of argument, What is more? Intellectual property regulations originated of two important Conventions, Therefore in the first step, this paper prefer to begin of them. Treaties and conventions mean an international agreement concluded between states in written form and governed international Law 3. With difference in details, in other words, convention is an international community, whenever establishing a new organization or system such as convention establishing the intellectual property organization for Constituting. 1 - R. M.M. Wallace, International Law, Fourth Edition, London, Sweet & Maxwell, 2002, P M. Akehurst, A Modern Introduction to International Law, Sixth Edition London, Unwin Hyman, Boston / Sydney / Wellington, 1987, P Article 1 of Vienna convention Bern and Paris conventions for creating a new legal system which are established two substantive Unions as like as others. For protection of copyright, patents, trade names and marks and Allied rights that are named intellectual property conventions. Any state which is a party to Paris or Bern conventions may become a party to other related agreements or protocols also intergovernmental organization where every member of Unions are adopting decisions, the program and budget of them 4. Conventions enter into force in such manner and upon such date as it may provide as soon as consent to be bound for all the negotiating states 5 ; Also when the consent of a state to be bound on the date after the convention has come into force. So such conventions create legal obligations (rights and duties) for objectives of international law. States are in charged with performing and fulfilling the obligations of intellectual property conventions based on principles of free consent and of good faith and pacta stunt servanda rule during in respect to previous treaties and conventions 6. Of course, Intellectual Property conventions may be between two states or organizations or among them as bilateral or multilateral treaties for better performing that 4 - Article 1 of Vienna convention WIPo, Intellectual property handbook, policy, P I. Browline, Principles of public International Law, Fifth Edition Oxford, Clarendon press, 1998, P.P

2 sometimes there is no clear distinction between law making and others. While was accepted supplementary treaties for complete fulfilling new agreements, imagine TRIPs agreements for commercial aspects of Intellectual property conventions. These international demands pay attention to treatment of parties for respect to other states rights and performing their obligations unless they must step for non observance of their obligation or may be non performing right because of respect to human rights about their followers. However shall distinguish non observance of Intellectual property conventions from international responsibility but for excellent understanding of it should consider international responsibility in consequences of non observance or other illegal measures. Therefore, there is two notions, performance and non performance the obligations by objectives, in first face is positive measures according to international law but in the second notions is against the demand of international community. There was an early difference of opinion over definition of legal relationship arising from it, first arising from binding bilateral relationship, second is from the compulsory legal order but third view hold that the consequences of it cannot be limited to reparation or sanction that may give rise to various types of legal based on circumstances 7. So conditions required to establish the existence of internationally wrongful act of the state are attributed act based on subject or breach obligation based on objective. Whenever parties to conventions as objectives of international law accept the provisions of a treaty based on counter consent, it enters into force so every treaty in force is binging upon the parties and must be performed by them in good faith 8 unless different intentions appear from the treaty or is established Article 1 Of The draft Articles On Responsibility Of States For Internationally Wrongful Acts with Communitarians, Article 24 / 26 of Vienna Convention, Article 28 of Vienna Convention, 1969 Also when all the parties to the earlier treaty are parties to the later treaty, but the earlier treaty is not terminated 10. However, member states are obliged to submit the treaty to their organs and competent authorities for enactment of conforming to domestic legislation. The conduct of any state organ shall be considered an act of that state under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the state, and its character as an organ of the central government or of a territorial unit of the state also an organ includes any person or entity which has that status in accordance with the internal law of the state 11, Because of it states are the first principal of attribution for the purposes of state responsibility in international law. Moreover the principle of the unity of the state entail that the acts or omissions of all it's organs should be regarded as act or omissions of the state for the purposes of international responsibility 12. States may be responsibility for unlawful acts of their organs or the acts of an official with apparent authority even for the consequences of acts which are not unlawful 13. Because of, it is impossible for the judges to rule out their doctrines, also these doctrines may have been fair enough at their inception, but many have since proved inadaptable to changed conditions parliament can solve the problems by legislation which modifies or verses the rules 14 based on necessaries of society. Actually the noticeable point is legislation, under some of the fundamental principles. It means following of Intellectual property conventions for legislative about copyright, planet or other related rights is compulsory unless non observance Article 30, Vienna Convention, Article 4 Of The draft. Articles On Responsibility of States For Internationally Wrongful Acts with Commentaries, Report Of International Law Commission On The work of It's Fifty-Third Session, P I. Browline, Principle of public International Law, Fifth Edition, Oxford, Clarendon press, 1998, P G. Eftekhar. A miscellany of Law Text and other Material, yalda publication, Tehran, 1993, Shahid Beheshti University.

3 For them, may be against international demands, even it is possible in by law which rules out by executive system where as sometimes misconducts is look as if, are non observance to states obligation. So it does not mean that regulations do not permit foreigners for using of a right of priority without attention to Paris convention or patent corporation treaty. Article 17 of Bern convention state that the provisions of this convention cannot in any way affect the right of the government of each country of the Union to permit, to control, or to prohibit, by regulation, the circulation, presentation, or exhibition of any work or production in regarded to which the competent authority may find it necessary to exercise that right. Of course, it is not mean that countries cannot grant greater protection. Article 19 of Bern convention states that the provision of this convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the union. Contracting parties may, in their national legislation, provide for limitations of or exceptions to rights granted to the authors of literary and artistic works under WCT (WIPO copyright treaty) in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. 15 An alternation argument for responsibility of home state could be created on the basis of human rights law 16. Executive power is the most organ of states for protection and promote human rights, so protection of rights, who invent or create a artistic work is on of the duties of executive system, based on municipal law is legislated by legislative systems. One of the most important functions of executive power is enforcement of regulations which is ruled out in advance, under the international law, it is possible in intellectual property. Executive system must regard for 15 - Article 10 of WIPo Copyright Treaty 16 - M. Sornarajah, The International Law on the Foreign Investment, Second Edition, Cambridge University press, P 194. protection of industrial property which has patents, utility models, industrial designs, trademarks, service marks, trade names. Indications of source or appellations of organ are as subject matters and the repression of unfair competition. It is impossible unless by establishing organizations or centers that improvement the protective Ways in practice. If inventors want to fill in an application for a patent, this organ must make the best conditions for inventors under by laws. Therefore it is not possible the countries of Union or other members of the patent cooperation treaty determine more period for protection of inventor because it is against rights of nationals of parties treaty or non observance for right of priority nationals of countries inside Unions. In this situation, the distinction between higher and lower officials has no significance for the placing of responsibility on the state 17. In this opinion, convention proved, the government of each country shall be represented by one delegate, and the expenses of each delegation shall be borne by the government which has appointed it, as one of the other obligations. Whatever may be their particular status or rank under domestic law, results in the failure of a notion to perform its obligations under international law, the nation must bear the responsibility for the wrongful acts of its servants 18, so it is not important between the acts. Of superior and subordinate of officials but where the law of a state characterizes an entity as an organ, no difficulty will arise 19 even omissions of armed police for performance of the verdict about infringement of copyright or abuse of patent which belonged to others can create responsibility. The turning point is that the conduct of an organ placed at the disposal of a state by another state shall be considered an act of the former state under international law, if the organ is acting in the exercise of elements of the 17 - I. Browline, Principles of Public International Law, Fifth Edition, Oxford, Clarendon press, 1998, P See above, P The Report of The international Law Commission On The Work Of It's Fifty-Third Session P 42.

4 governmental authorities of the state at whose disposal it is placed 20. The activity of judicial organ relates substantially on the rubric, denial of justice, which may affect the responsibility of the state because of non observance for Intellectual property conventions, it means a state has a right to delegate to it's judicial department the application and interpretation of treaties if however the, court commit errors in task or changes enforcement of provisions of treaties responsibility may be generated for the state because of unlawful measures of judicial power as vital part of state 21. The functions of executive and administrative powers are enforcement of law which had ruled out by legislative power according to international law, it means, executive system must obey of international law as like as legislative system 22. Article 34 of the Vienna convention provides as a general rule regarding third states, that is to say, states not parties to a treaty. That a treaty does not create either obligations or right for a third state without its consent, it expresses that a treaty cannot impose rights or obligations for a third states but if the treaty parties intend the provision for establishing the obligations and rights and the third state expressly accepts it so 23. A treaty creates neither rights nor obligations for third states but there are exceptions to this general rule which are laid down in detail in Vienna convention or sometimes happens that a party to a treaty enter into another treaty relating to the same subject matter 24, specialty on modification of treaties because the provisions of both of them are accepting context of each other. But by customary international law a special territorial agreement may produce obligations for the 20 - Article 6 of The draft Article On Responsibility Of States For Internationally Wrongful Acts, With Commentaries, I. Brownline, Principle of Public International Law, Fifth Edition, Oxford, Clarendon press, 1998, P see above, P G. Eftekhar, A miscellany of Law Text and other material, yalda publication, shahid Beheshti University, Tehran, 1993, P M. Akehurst, A Modern Introduction to International to International Law, London, Unwin Hyman, Boston / Sydney / Wellington, 1987, PP 122 / 123. maintenance of international peace and security 25. One of the noticeable conventions is Bern convention for the protection of literary and artistic works. First article this convention provide, the countries to which this convention applies constitute a union for the protection of the rights of authors in their works, at the result of this opinion, the countries that do not accept provisions of Bern convention and they are third states, so there is no obligations and duties for them, also these countries cannot have rights for protection of their works. Of course, we shouldn't forget the counter treatment. It means that if countries non member convention respect to other countries for their works, according to general rule members of Bern contention will regard for non member's works. At the result, according to article 38 of the Bern of connection, the countries of the Bern Union which have not ratified or acceded to this Act and which are not bound by Stockholm Act of this convention may, until a short period, exercise, if they so desire, the rights provided under the said articles as if they were bound by them. So countries shall be deemed to be members of the assembly until the said date of notification. Therefore when do accept the provision of this convention the intellectual property international organizations are formal arrangement transcending machinery to facilitate corporation among members under convention of establishing world intellectual property is expressed two objectives first to promote the protection of intellectual property throughout the world through cooperation among states or in collaboration with any other international organization. Second to ensure administrative cooperation is among the unions. According to article (4) of this convention, there are many functions which attain the objectives described as one of the effects of intellection property conventions. On the other hand, the world intellectual property has rights as like as other organizations, too. It means, organizations have legal capacity privileges and immunities R. M.M. Wallace, International Law, Fourth Edition, London, sweet & Maxwell, 2002, P 124.

5 The organization can establish working relatives and corporate with other intergovernmental organization and make suitable arrangements for consultation and corporation with international non governmental organizations. The second referable point is world trade organization about TRIPs agreement. The second part of this agreement consist of eight sections such as copyright and related rights, trademarks, geographical indications, industrial designs, patents, lay out designs of integrated circuits, protection of undisclosed information, control of anti competitive practices in contractual licenses. A state is only responsible for acts or omissions which can be attributed to it as it own in international law, a state is thus responsible for actions of government or any political sub division of state also any organ, agency official employee or other agent of its government or of any sub division acting within the scope of their employment but a state is not responsible for acts committed by one of its nationals because he is a private individual against a foreigner so he is liable to prosecution in the domestic courts 26 under private international law and sometimes according to breach of a contract related to IP regulations are listed in it. A state can be held liable for conduct of an official even when official competence has been exceeded, provided that is, the officials acted with apparent authority as competent officials or organs and the powers or methods used appropriate to this official authority. It means expropriation is taking of private property by state that including tangible or intangible such as: Industrial, literary and artistic property as well as rights and interest in any property 27. Also act or omission for injuring to properties belongs to aliens. Of course, a contract between a state and alien can be an internationalized, if legislates to abolish or repudiate its contractual obligations. Therefore many notions are possible: As a general principal, the conduct of private persons or entities is not attributable to the state 26 - R. M.M. Wallace, International Law, Fourth Edition, London, Sweet & Maxwell, 2002, P Article 10(7) Of Harvard Draft Convention, under international law but may arise where such it is attributable to the state because There is a specific factual relationship between the person or entity engaging in the conduct and the state 28. But they are acting instructions of, or under direction or control of, that state in carrying out the conduct 29. The conduct of a person or group of persons shall be considered an act of a state under international law of the persons or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority 30. The conduct of a person or entity which is not an organ of state which is empowered by the law of the state such as public corporations, semi public entities, public agencies of various kinds private companies that to exercise elements of the governmental authority shall be considered an act of state under international law an entity can be classified as public or private according to a given legal system also the existence of a greater or lesser state participation in it's capital and the ownership of it's assets moreover is not subject to executive control are not decisive criteria for purpose of attribution of the entity's conduct to the state, even attributing the conduct of parasitical entities to state is considerable which the conduct must concern governmental activity, not other commercial or private activities. Conduct of organs placed at the disposal of a state by another state is another kind's responsibility 31. The words placed at disposal, express the essential condition that must be met in under for the conduct of the organ to be regarded under international law as an act of the sending state which means that is acting with consent of sending state so there are two further criteria, first it must be an organ of sending state, 28 - The Report Of The International Law Commission On The Work of it's Fifty Third Session 29 - Article (6) Of Draft Responsibility Of States For Internationally Wrongful Acts, with Commentaries, Article 9 of Draft Articles On Responsibility Of States For Internationally Wrongful Acts, With Commentaries, The Report Of The International Law Commission On The Work Of It's Fifty Third Session, P 44.

6 secondly it's conduct must involve the exercise of elements of the sending state 32. Moreover conduct of a person or entity empowered to exercise elements of the governmental authority, even if it exceeds its authority or contravenes instructions. It shall be considered illegal act does under international law in that capacity so state cannot take refuge behind to the provisions of its internal law or enforceable actions of its organs, this subject is accepted by international jurisprudence, state practice and writings of jurists, also international court and tribunals have applied the same practice 33. Next is that the conduct of a person or group of persons under the direction or control of states. This refers to the principal of effectiveness in international law. It means, it is necessary to take into account the existences of real link between the wrongful acts of persons be attributable to states which accepted in international jurisprudence. This persons are private individuals so their conduct is not governmental activity but when their conduct is as carried out under direction or control of a state, it will be attributable to state on condition that the control is effective by planning, direction and support even companies are state owned and controlled too, it is clear a state may be responsible by specific. Direction or by exercising control over a group, there is no different between it has authorized an act or has exercised direction or control over it 34. The final point is the conduct carried out in the absence or default of the official authorities 35. Such cases occur during revolution, armed conflict or foreign occupation, sometimes self defense of citizenry in the absence of regular forces with three conditions which conduct must be attribute to state and in absence or default of the official authorities also circumstances must 32 - See above, P Article 7 Of Draft Articles On Responsibility of States For Internationally Wrongful Acts, with Commentaries, The Report Of The International Law Commission On The Work Of It's Fifty Third Session, P 47 / Article 9 of Draft Articles On Responsibility Of States For Internationally Wrongful Acts, with Commentaries, have been such as to call for the exercise of those elements of authority 36. There are other effects for intellectual property convention. The legal consequences of this kind of convention is continued duty and obligation even it is breached in advanced, it is that in some situations the ultimate effect of a breach of an obligation may be to put an end to the obligation itself but it is impossible in intellectual property convention in spite of contract treaties about intellectual property. One of the effects of intellectual property convention is reparation. It means, If a state does internationally wrongful act, must under their obligations make full reparation for the injury which includes any damage, whether material or moral, coursed by states 37. Also, irrelevance of internal law considerable in intellectual property conventions, In deed in some of the articles can find exceptional matters which parties or non parties relevant to their internal law, Where as WIPO copyright treaty provide that duration of the protection of artistic works or limitations and exceptions according to internal legislation 38. In general, Article 27 of the Vienna convention provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty 39. It depends on the obligations of state which may be owed to another state or several states. Therefore, the objectives of international law must accept the effects of IP convention it means, first states of it's organs for legislation Performance and Judicial measures. Second organizations based on their objects and obligations, third entities according to definite obligations. In some case, there are many justifications which the objectives of international law don't have to for the effects of intellectual property. Satisfaction of objectives have main role for removing liquidated and likely damages The Report Of The International Law Commission On The Work of It's Fifty Third Session, P See above, P Article 10 Of WIPo Corporation Treaty The Report Of The International Law Commission On The Work Of It's Fifty Third Session, P 94.

7 The Vienna convention express the consent of a state to be bound by a treaty is expressed by the signature of It's representative and instruments exchanged between parties or by ratification or approval so is not compulsory for non parties convention unless as a customary rule of international law; So on the other hand. Specialty by bilateral agreement, parties of convention can suspend or postpone the effect of treaties due to each other As discussed above, under Article 22 in drafts on responsibility of states, countermeasures in respect of an internationally wrongful act. In the literature concerning counter measures, reference is sometimes made to the application of a sanction or to reaction due to party's convention. Where countermeasures are taken, the underlying obligation is not suspended, of course, as a response to internationally may be justified only in relation to that states 40, According to Article 2 of convention for protection of the national treatment shall mean the treatment accorded by the domestic law of contracting state and shall be subject to the protection guaranteed and limitation provided for this convention. Force majored is one of the legal general principle in municipal and international law, it is irresistible compulsion or coercion this phrase particularly is used in commercial contract to describe of parties, there is three elements for force majored first the act is by on resistible force or unforeseen event second is beyond the control of the state concerned third perforce men is impossible in this circumstance and intellectual property conventions may suspend or postpone because of the force major 41. Necessity, According to Article 25 of draft of responsibility states, may not be invoked by state as a ground for precluding the wrongfulness of an act not in conformity with an international obligations, of course shall distinguish between necessity of distress, the term necessity is used to denote where a state can safeguard an essential interest threatened by grave and imminent peril, perhaps about commercial categories related to intellectual 40 - WIPo Yearbook Of International Law Commission, P Article 23 of Draft Articles On Responsibility Of States For Internationally Wrongful Acts, with Commentaries, property that executive power of a state based on necessity non observance to regulation of copyright for short time. Finally, in spite of contract treaty subjects of international law must observance to international obligation in intellectual property based on previous consent, also third states according to international customary law shall confirm their conditions to intellectual property conventions, of course shall distinguish between obligations due to right and due to duties, it means states can abandon of their rights in condition that respect citizen's human rights. When convention entree into force, subjects of international community must perform their special obligations, where respect to common and normal obligations, on the other hand, there is kinds of agreement in intellectual property with special subject matter attribution to it's categories in details. Whereas non observance for international obligation, about intellectual property may cause international responsibility. Therefore the state responsible for an internationally wrongful act is under an obligation to compensate for damage caused thereby also related organizations shall respect to their obligation. The effects intellectual property convention is direct or indirect to their organs even conduct dependent person or group which are under the control of them, unless exceptions remove the effects of these conventions. References 1. G. Eftekhar A miscellany of Law Text and other Material, yalda publication, Tehran, Shahid Beheshti University. 2. I. Brownline Principle of Public International Law, Fifth Edition, Oxford, Clarendon press. 3. M. Akehurst, A Modern Introduction to International Law, Sixth Edition London, Unwin Hyman, Boston Sydney / Wellington, P Bouzoubaa N, Lachemi M. Self-compacting concrete incorporating high volumes of class F fly ash-preliminary results. Cem Concr Res 2001; 31:

8 5. M. Sornarajah, the International Law on the Foreign Investment, Second Edition, Cambridge University press, P R. M.M. Wallace, 2002.International Law, Fourth Edition, London, Sweet & Maxwell,, P WIPo, Intellectual property handbook, policy, P. 292.