TABLE OF CONTENTS FOREWORD Page Fair Use of Copyrighted Works in the Digital Age Khanh Pham and Shushik Mkhitaryan ……………………… 1 Collective Management of Copyright and Related Rights in Music: A Case Study of the United Kingdom and Ghanaian System Alfred Kumi-Atiemo …………………………………………… 21 Technological Protection Measures for Digital Works: A Legal Analysis Márcio Mello Chaves ………………………………………… 43 Fashion Forward or Fashion Victim: Intellectual Property Protection in the Fashion Industry Layne Randolph………………………………………………… 65 Economic Implications of Patent Claim Scope Eno-obong Usen ……………………………………………… 81 The Interface between Intellectual Property and Competition Law: Is the Refusal of a Patentee to License Anti-Competitive? Fanny Koleva ………………………………………………… 107 - v - Patent Ownership in view of Technology Transfer in Government- Sponsored Research Dragan Ćorić ……………………………… ………….……… 127 Extraterritorial Technology in a Territorial Regime: Challenges after Cardiac Pacemakers v. St. Jude Medical Emily J. Zelenock …………………………………………………..… 141 The Legal Aspects of Technology Transfer Offices in Arab Public-Funded Universities Ahmed Abd Eltawab Elsisi and Shaikha Nasser Ali Al-Akzam … 159 The Optimal Scope of Patent Protection in Common Law and Civil Law Countries Zhao Wenhua and Zhang Zhu …………………………………..… 179 The Madrid Protocol for Trademark Registration: Would it be Convenient for Bolivia? Pablo Kyllmann …………………………………………….……… 207 A Comparative Study of Well-Known Trademarks Protection in Italy, Pakistan and Uzbekistan Saad Nusrullah, Luigi Mastroianni and Djakhagir Aripov … 221 Color and Combination of Colors as Trademark Chiara Gaido and Giselda Metaliaj …………………………..… 263 - vi - Can the Owner of a Mark Registered for Toy Cars Prohibit the Manufacture and Sale of Toy Cars which constitute Naturalistic Reproductions of Real Cars on which the Owner’s Mark appears? John Graziadei and Angela Saltarelli …………………………… 287 Analysis of the Geographical Indications (GIs) in the United States of America-Colombia FTA and Choice of Forum in Adjudicating a Geographical Indication’s Dispute Sofia Rodriguez-Moreno …………………………………….……. 319 Geographical Indications: A Review of GI Protection in Switzerland Larisa Thommen …………………………………………………… 333 The Patent Rights Enforcement in China Feiyu Lei ……………………………………………………………. 351 The Protection of Intellectual Property Rights (IPRs) in the Pharmaceutical Market after Patent Expiration. An Analysis of the Reverse Payment Settlements in Light of Competition Law Karoline Brandi and Federica Lorenzato …………………….… 367 Interplay between IPRs and Competition: Case of Information and Communication Technology Standards (ICT) Standards Larysa Kushner ……………………………………………………… 397 Challenge(s) of Access to Patented Technologies Incorporated in Information andCommunication Technology Standards: Application of Competition Law and Policy Simon Z. Qobo ……………………………………………………… 413 - vii - IPRs Infringement on Trade Exhibitions in China: In Search of a Practical Solution Hua Yu, Qing Yang ………………………………………………… 433 Access and Benefit Sharing System under Thai Plant Variety Protection Act 1999 Setthabut Ittithumwinit ……………………………………………. 451 The Public Domain and Traditional Knowledge: Friends or Adversaries in the Quest for Development? Ewan Danny Anthony Simpson …………………………………… 463 Creative Commons of Indigenous People: An Appraisal of the Public Domain Tensions and Customary Practices Yewande Gbola-Awopetu …………………………………………. 475 LIST OF PARTICIPANTS ………………………………………………. 487 - viii - FAIR USE OF COPYRIGHTED WORKS IN THE DIGITAL AGE by Khanh Pham and Shushik Mkhitaryan ABSTRACT Copyrights have been granted with the objective of providing more incentives for creative activities. However, as the ultimate goal of copyright legislation is not only protecting the right-holders but as well the interest of the public at large, certain exceptions and limitations (including fair use) to those exclusive rights have been introduced since the dawn of copyright. In the digital age, along with the modernization of the traditional copyright system, the copyright-holders also have sought for supplementary protection from technological measures and contract law. This has resulted in changes in international and national legislation as well as case law. These changes help to reassure the ―survival‖ of copyright system in the new context but also threaten to restrict the fair use doctrine. The scope of fair use as well as the interaction between ―fair use‖ and ―contracting around‖ in the digital era is not yet decided. Nevertheless, in order to protect the legitimate beneficiaries of fair use, copyright legislators in the U.S. and EU have codified certain exceptions for the protection of technological measures and some courts have given pro-―fair use‖ rulings. Based on this analysis, certain recommendations regarding anti-circumvention rules and the treatment of fair use doctrine v. contract doctrine for two developing countries, namely Armenia and Vietnam, is also one of the expected contributions of this paper to the broad topic. 1. WHAT IS COPYRIGHT? Copyright is a bundle of exclusive moral and economic rights of the author to his works. The granting of copyright is considered as a constitutional policy of promoting the progress of science and the useful arts.1 Works which qualify for copyright protection shall be the unique outcome of a creative activity in the domain of science, literature and art. Copyright protection provides two types of rights in the work: moral rights and economic rights. Moral non-economic rights of the author are his intellectual and personal ties to the work, granting the author the so called ―right of paternity‖ and ―right of integrity‖. Moral rights are not transferable and not subject to exhaustion. Along with moral rights the author has economic rights. Economic rights provide the economic interests of the author giving the author an exclusive right to authorize or to prohibit the use of his work or copies thereof. The right of receiving remuneration is an incentive for creation. In the contrary to moral rights, economic rights are transferable and are subject to exhaustion. It is with economic rights, that the concept of exceptions and limitations to copyrights arose. 1 See, for example, Art I of the U.S. Constitution states that Congress shall have the power ―to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.‖ 2 Fair Use of Copyrighted Works in the Digital Age ________________________________________________________________________________ 2. FAIR USE AND OTHER LIMITATIONS TO COPYRIGHT Protecting authors‘ rights had been the main reason of the existence of copyright law, which however is not the ultimate objective of copyright law; it is as well a method to achieve the purpose of ensuring the public‘s access to copyrighted material and promoting the public welfare.2 Therefore, copyright owners‘ rights are not untrammeled; they are subject to important exceptions and limitations or, as it is called in the American system, the ―fair use‖ doctrine. Fair use is traditionally defined as ―a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.‖3 Nowadays, it means that the use of a work shall be allowed without the consent of the author and without remuneration, however with the obligatory mention of the author's name and the origin of the work, provided that it is not of prejudice to the normal exploitation of the work and legitimate interests of the author to his work. As the original source of the term, the Anglo-American approach highlights more the idea of free use and freedom of speech. Some infringements are regarded as worthy of protection because they promote the free discussion about the quality of the work (e.g. criticism, review), or they enhance the general public understanding of literature or the art (e.g. parodies, satire).4 The purposes of copyright exceptions are various. The author‘s consent to a reasonable use of his copyrighted works has always been implied by the courts as a necessity to reach the objective of promoting the progress of science and the useful arts, since a prohibition of such use would prevent subsequent authors from attempting to improve upon prior works.5 The exceptions and limitations may be used to serve some public interests of more significance than the private benefit of the copyright owner. In this case, the realization of copyrights should not be dependent on the latter‘s consent. Some exceptions that reflect these wider interests include education, news reporting, efficient public services or the protection of the rights of the disabled.6 Another justification for the existence of ―fair uses‖ is that copyrights must come to an end somewhere. The rights should not extend into the regulation of wholly private or non-commercial activities, to over-protect the right holder‘s interest. Exceptions should cover common and socially beneficial uses of copyrighted works where formal permission requirements would impose excessively burdensome transaction costs on all parties.7 2 L. Luo, Legal Protection of Technological Measure in China, in EIPR Issue 2. 2006, 101. 3 F.M. Abbott, T. Cottier and F. Gurry, The International Intellectual Property in an Integrated World Economy, Aspens Publisher, New York, 2007, 423. 4 E. Barendt, Freedom of Speech, Oxford University Press, 2005, 255. 5 F.M. Abbott el.