Intellectual Rights Volume 23
La Propiedad Intelectual −PI− es una disciplina que abarca múltiples esferas del saber, y se nutre de todos los avances sociales, económicos y políticos que revisten nuestro día a día. Ante esta realidad, cada vez es más imperante estudiar, trabajar y analizar todos los temas de forma multidisciplinaria. El profesional de PI debe avanzar a pasos escalonados, a fin de ir a la par con la constante y acelerada innovación que posee esta materia. ASIPI, como entidad propulsora del estudio constante de PI, aboga desde sus inicios por el fomento del pensamiento y análisis crítico. Es por esto que me enorgullece presentarles el volumen No. 23 de “Derechos Intelectuales”, que es una publicación de circulación anual que contiene diversos estudios sobre signos distintivos, nuevas creaciones, derechos de autor y otros temas de punta, elaborados por miembros de ASIPI. - María del Pilar Troncoso
The two reforms of 2018 to the LPI of Mexico constitute a transcendental transformation of the Industrial Property System. Both are the result of multilateral negotiations and seek to standardize the provisions to international standards. An example of them are the reforms in the field of industrial designs, the main reason for this study. The challenge for Mexican jurists, from now on, will be to define concepts such as “designer”, “independent creation”, “significant degree”, “informed user”, “designer freedom”, “irrelevant details” and others, helped by the experience of the Courts, particularly European Courts, to give legal certainty and reliability in this new stage of the Mexican Legal System of Industrial Property.
The objective of this article is to determine the scope of the legal protection of videogames in the countries of the American region. To this end, the following topics will be analyzed: a) the protection regime for videogames, which includes its legal nature, type of work, elements protected by intellectual property, authors and owners; b) the underlying rights in videogames, including moral rights, patrimonial rights, compensation systems for creators, rights in favor of the user, limitations and collective management; c) the assignment of rights and / or licenses in videogames, such as presumptions, applicable transfer regimes, licenses for the organization of tournaments and competitions by third parties; d) the adjacent protection for videogames, including right of publicity, right of privacy and protection of personal data; e) other issues related to videogames, establishing additional regulations, and relevant jurisprudence on videogames and intellectual property.
Essential Patents, throughout the so called patent pools, can constitute an attractive alternative to offer licensing of standard technology in a simpler way to licensees, but in turn can lead to adverse effects contrary to free competition. In this article we pretend to analyze essential patents issues, some basic concepts of this field and case law on the subject.
Diseño industrial, características técnicas, funcionalidad.
Abstract: The present article deals with the issue of the prohibition of the protection of functional features in the context of design rights. Both functionality and its prohibition may impact on the eventual validity of a design, as well as on its scope of protection. Obviously, most designs include functional and ornamental elements, reason why it is of the highest importance to determine how functional features are addressed. In this context, the multiplicity of forms thesis has been the most recurring one. However, other theses have recently gained ground. Today, the situation in Europe draws the map of the European Union Intellectual Property Office (EUIPO or The Office) appearing to be more on the side of understanding that the analysis shall focus on the examined design and its particular features, regardless the existence of alternative forms which may serve to solve the same function, whilst some courts seem to be anchored in the multiplicity of forms thesis. On 8th, March, 2018, the European Union Court of Justice (EUCJ) issued a preliminary ruling in Case DOCERAM GmbH v. CeramTec GmbH C-395/16 (DOCERAM) clarifying the criteria to be followed within the EU in this regard.
The objective of this article is to analyze the different ways in which authors’ rights can be transferred in the light of the new regulations included in the Law 26.994 of Argentina, which approved the new Civil and Commercial Code. To do so, the text studies the new regulations and compares them with former ones.
Additionally, it shows the forms in which rights can be assigned –both through “inter vivos” and ‘mortis causea”– focusing on the transfer through the dissolution of the conjugal partnership, due to the new classification of authors rights as acquisitions. Finally, the article analyzes the conflict that can emerge between the holders of the moral rights of a work –especially, derivative holders, who obtain those rights “mortis causae”– and the community, highlighting the importance of the so-called goods of collective incidence.
The author of this article analyzes the Ecuadorian legislation regarding intellectual property rights and traditional knowledge. It studies the provisions of the Andean regulations regarding the correct administration, total recognition, access, defense, protection and distribution of the benefits of traditional knowledge, both for its legitimate owners, and for society in general.
The text is based on the study of the two different contractual systems that currently exist in copyrights, in order to highlight the differences and similarities between the Dualistic System and the German System and then apply it in Mexican legislation, in order to determine in which contractual system Mexico is located or if it has its own system. It is intended to confirm whether the current legal provisions are actually applicable to the contractual system through the compared study with the foreign doctrine and legislation on which our Federal Law of Copyright, International Treaties, country-specific legal instruments, have been based, as internal legislation, national and international doctrine related to the matter, as well as the criteria that the Authorities have conceived through their resolutions and judgments, which help us understand the legislation in a better way. A harmonious interpretation of the Law is also proposed to define, according to the contractual system, the extent to which the moral and economic rights that make up the copyrights are assigned or transferred in the conclusion of the contract itself, and in that sense, to demonstrate the lack of legal technique of the legislator.
The objective of this article is to analyze the civil legal relationship between the musical representative and the performer in Cuba. This is a legal relationship of a complex nature in which not only rules of civil law, but also of intellectual property and labor law intervene. In Cuba, this relationship has peculiarities in its configuration and development, which affects the role of managers in the career of musical artists. The article is divided into two fundamental parts, the first is directed to the study of the particularities of voluntary representation in the cultural field of music in Cuba, while the second has the purpose of studying the representative legal relationship of the music manager, with special interest in the management contract as the cause of the representative relationship and its content. These elements determine the role of the manager in the activities of administration and management of the career of the artist, as well as in the defense of the rights and interests of the latter.
The protection of traditional knowledge and traditional cultural expressions is a subject that has a close relationship with intellectual property and has become relevant in some countries, in the last few years, especially due to cases of misappropriation and unauthorized exploitation. In Guatemala, the issue was recently analyzed by the Constitutional Court derived from an unconstitutionality action, in which said Court resolved to urge the Congress of the Republic to issue ad hoc legislation.
The trademark law is one of the most dynamic markets because it has to adapt to the appearance of new products, new marketing forms in digital environments, and more markets that are competitive. The non-traditional marks evidence these changes because they seek an impact to the consumer senses and more distinction in respect to their competing products and/or services. Non-traditional marks have breathed fresh air into trademark law making it more vigorous, entertaining, and contemporary.
This work originates in the activity performed by the Copyright Committee of ASIPI and its members for period 2015-2018. It includes information on rules, regulations and requirements for the assignment or transfer of authors´ economic rights in the various Latin American countries. The work covers issues such as whether the total and definitive transfer is admissible, whether there are differences between assignments and transfer, and the required formalities. In addition, it considers whether legislation foresees certain particular features in regard to specific types of industries, such as software, audiovisual and music. It also comprises issues such as whether it is possible that in service labor or civil agreements, economic authors´ rights are deemed as transferred, and the formalities or legal presumptions therefor. As regards works performed by employees, whether there exists any type of right to an additional remuneration besides the salary.
