Intellectual Rights 24. Volume 1

Intellectual Rights 24. Volume 1

Intellectual Rights 24. Volume 1


When reviewing the articles in number 24 of “Intellectual Rights”, our flagship publication, the following words come to mind: Youth and democracy. Youth, because most of the articles contained in the two volumes were written by young members of the association who with their curiosity and interest illustrate in these pages about the various issues that concern them. Democracy, because the essays published in this book cover almost the entire spectrum of intellectual property, from classic topics such as trademark protection and copyright to artificial intelligence through traditional knowledge, genetic resources, law to the personal image, the use of mediation to prosecute crimes against intellectual property and criminal liability of legal persons. If the basis of democratic states is legal security and the existence of clear rules of law, all of our collaborators help us to better understand the current regulations on intellectual property.

- Elisabeth Siemsen

Indicaciones Geográficas: interpretación del artículo 24.4 del Acuerdo sobre los Aspectos de los Derechos de Propiedad Intelectual relacionados con el comercio (ADPIC) por Ray Meloni García y Claudia Daniela Orihuela Tejada

This article begins with a brief historical review of the creation of the World Trade Organization and the TRIPS Agreement, from the Havana Charter to the Uruguay Round. In addition, the link between intellectual property and international trade is analyzed. In a next stage, the regulation of geographical indications under the TRIPS Agreement is developed, as well as in other international instruments such as the Paris Convention, the Lisbon Agreement concerning the protection of appellations of origin and its International registration and the Madrid Agreement concerning the repression offalse or misleading indications of origin in the products. Finally, the exception contained in Article 24, paragraph 4, of the TRIPS Agreement linked to geographical indications is analyzed.

Vino nuevo en odres viejos: la creación a través de algoritmos de inteligencia artificial y el derecho de autor por Marcelo García Sellart

The article addresses the impact that the intervention of technological means that emulate human thinking has on intellectual property rules. The article starts from the premise that the law and its institutions have been developed in a human scale and that is especially noted in the field of copyright law. The author takes in consideration some examples of the application of artificial intelligence for the creation of copyright works as triggers for reflecting about how copyright law applies to said works. From that perspective, the article analyzes issues like the concept of author and work, originality, moral rights, protection terms, plagiarism and civil and criminal rights. Finally, the author compares whether is more convenient to use an approach based on droit d’auteur or copyright for dealing with works created by artificial intelligence.

Obras en dominio público: posibilidad de apropiación por terceros a través del registro de marcas en Cuba por Lisset Castro Caballero

Public domain of works allows free use for mankind, therefore it helps to reinforce culture access and to increase cultural heritage. Consequently it is relevant to achieve an adequate regulation around this legal system. Nevertheless there are different ways of appropriation of said works and to monopolize new rights based on those works which are already under a public domain system. One of those ways of misappropriation is to obtain a brand register based on them. Cubanlegislation has the legal tools for denying those kinds of trademarks in order to protect the general interest of the society.

La conducta de los inventores independientes y la propuesta del “Qhapaq ñan de la innovación” por Alexander Trujillo Oré

The independent inventor is a rare human being, who finds his main motivation to investigate in everyday problems. He confronts society, the state and the business community, who often criticizes and exclude their proposals. This article aims to describe the heart and mind of that person, male or female, shredding their decisions and analyzing how they influence the generation of successful inventions. In the end, a proposal called the “Qhapaq Ñan de la Innovación” is included, aimed at supporting inventors who face problems in their ventures.

Acceso a conocimientos tradicionales (CC.TT.) asociados a recursos genéticos (RR.GT) y comunidades indígenas en el Protocolo de Nagoya por Martín Michaus Romero

Several Latin American Countries as providers and users of genetic resources are members of the Nagoya Protocol. Traditional knowledge linked to genetic resources, was one of the main purposes of the negotiation of the Biological Diversity Convention of 1992, and the Nagoya Protocol of 2010. The latter provides the mechanism to the parties for Access to the Genetic Resources through the Access and Benefit-Sharing (ABS) principles. There is an interaction of different legal fields: human rights, cultural rights, environmental intellectual property protection and the indigenous rights. Several indigenous and local communities are providers of genetic resources. Under the 169 Convention and the Declaration of Indigenous Rights of the United Nations, as well as different Constitutions of the country members, recognized such rights as well as the right of consultation, as a condition to obtain their previous and inform consent. Nevertheless, the rights of the indigenous and local communities has not been correctly taken into consideration and in many countries as in Mexico, has affected and interrupted the implementation process of the Nagoya Protocol. There has been some progress in some other Latin American countries, but the rights of the Indigenous and local communities continue to be an issue to be considered, in order to conclude such process.

Recursos genéticos: desafíos del Ecuador para la correcta repartición de los beneficios monetarios y no monetarios por Mario Ruiz Fernández

This paper aims to analyze the regulation and practice of access to genetic resources in Ecuador. The national and international norms that regulate the subject, the doctrine and some specific cases, allow the author to propose the application of some guidelines that would allow the State to be more efficient, to distribute the benefits resulting from the access contracts more equitably and to follow them up.

Críticas y propuestas al sistema de propiedad intelectual 176 por Natalia Tobón Franco

The author argues that some criticisms of the existing intellectual property regime make sense and that it is pertinent to think of certain legislative changes wherever they are deemed necessary because history operates like a pendulum: Whenever something is exaggerated (in our case the excessive protection), there is a tendency to return to the previous state (zero protection). It is proposed to shorten the terms of protection of software, protect databases through contracts and laws of unfair competition, verify the legislation on three-dimensional marks and avoid evergreening. After all, intellectual property, looking into perspective, is only a legal fiction that, although serves to recognize and encourage inventors and artists to create more and better works and inventions, it also has as its fundamental mission to enrich the “public pool of knowledge”.

El derecho a la imagen personal en Colombia por Camilo Reyes Arango

This article is the result of an investigation, comprising all the case law issued by Colombia´s Constitutional Court in matters of publicity right. This article also shows how regulation in other branches of the law, such as copyright, unfair competition and the right to privacy (personal data) has impacted publicity right. The article addresses the concept, scope, content and limitations of publicity right in Colombia and explains the legal requirements to grant its use on behalf of third parties, even when the license is granted after the right holder has passed away.

El uso de la mediación para resolver delitos contra la propiedad intelectual: el caso paraguayo por María Gabriela Talavera García

Access to justice through a due process is of paramount importance to guarantee the social rule of law and the economic activity of a country. Judicial authorities have the difficult task to manage justice, encourage knowledge of the law and build trust and credibility of the litigants, in the course of an efficient, equitable and accessible system. Alternative dispute resolution (ADR) mechanisms and among them mediation, are indispensable for this commitment, since they serve to relieve the burden of courts when disputed technology goes beyond current legal structures. It is also beneficial to construct new business opportunities and strengthen the liaison between the parties. With regards to offenses that attempt against intellectual property rights, there is a general tendency to foster the use of ADR´s and specifically mediation as appropriate media to resolve those types of disputes.

Responsabilidad penal de la persona jurídica en el delito contra la propiedad intelectual en Ecuador por Nicolás Ricardo Muñoz

This paper analyzes the figure of the criminal responsibility of the legal person in the crime against intellectual property in Ecuador. It seeks to establish whether its classification, which revolves solely around copyright and product brands, has some basis, since the criminal rate was not originally included in the Organic Comprehensive Criminal Code – COIP – in 2014, but had to be incorporated through reform in 2015.

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