Comparison between Iran and Australia Intellectual Property Law - Research Paper Example

Order#377324 Topic: Comparison between Iran and Australia Intellectual property Law Introduction Intellectual property is a wide idea that constitutes a number of lawfully recognized rights originating from some kind of intellectual innovation. Usually, Intellectual property covers two broad aspects including copyright and related rights and industrial property. In Iran, there are various legislations and Acts of parliament that protects copyright and related rights. The principal legislations that provide protection on copyright and related rights include the law for Protection of authors, composers and artists’ rights which was enacted in 1970 and the law of Translation and Reproduction of Books, Periodicals and Audio Works which was enacted in 1973 according to1. On the internet, Iranian copyright and related rights are protected by Electronic Commerce Act which was enacted by Iranian parliament in 2003. Unlike Australia, Iran has not agreed to various international treaties such as Berne and Rome Convention on copyright and related rights protection. Therefore, the above mentioned laws cover only the works originating from Iran and do not cover works from outside. For this reason, there a number of lacuna and converse regulations with international treaties in Iran legal system in respect to Intellectual property Law. For Iran to become member of World Trade Organization (WTO), it ought to comply with Berne Convention or comply with Articles 1 to 21 of this treaty. Unlike Australia, Iran industrial property law is derived from several agreements, acts of parliament and treaties of which it has seceded including the Paris Convention for the Protection of Industrial Property, Stockholm that became effective in 1967 and 1979, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, Madrid Convention and Protocol, Bilateral investment treaties as well as Regulations for the Execution of the Patent and Trademark Registration Act 19582. The Iran Industrial property law also stems from Patent and Trademark Registration Act 1931, Islamic Penal Code of 1998 and Appellation of Origin Act of 2004. The Electronic Commerce Act for the protection of some industrial property in E-Commerce of 2003 and Software Act of 2000 also play a significant role in Iran industrial property law. The government of Iran has complied with several other international treaties. At the moment, a team of experts on intellectual property law is working an Act on the Protection of Patents, Industrial Designs and Trade marks and names Compiled by WIPO which is to be submitted to the Islamic Consultative Assembly for approval. The government of Iran has also realized the benefits of accession to the WTO. Though United States of America has strongly opposed her membership to WTO, there is a possibility that Iran will accede to WTO membership in the near future. In order to join WTO, Iran ought to meet several obligations. One of these obligations includes her membership to WIPO as quoted in3. After being a member to WIPO, Iran will be able to join the Rome and Berne Conventions and the Treaty on Intellectual Property in Respect of Integrated Circuits. She will also be able to join the Agreement on Trade Related Aspects of Intellectual Property Rights. How Importation of law from the West under the Pahlavi’s rule affected Iran Intellectual property Law Reza Shah nicknamed Pahlavi who toppled the last ruler of Qajar dynasty, Ahmad Shah Qajar was determined to modernize Iran. Pahlavi was ambitious to develop large-scale industries, implement key infrastructure projects and build across-country railroad system. He was also ambitious in establishing a national public education system as well as improving health care delivery system in Iran. He also wanted to improve judiciary which at that time was full of laws that were basically traditional religious laws. Pahlavi had the idea that a sound well established centralized government run by educated personnel could help him carry his plan of modernizing Iran. For this reason, Pahlavi government sent Iranians including his son to the west for training. This in essence led to importation of laws, particularly intellectual property law from England to Iran. Pahlavi ruled Iran for 16 years, from 1925 to 1941. It was during this period when Iran transformed into urbanized State. For one, public education system advanced rapidly and led to hundreds of Iranians being educated and left traditional religious rituals and activities that are key barriers to modernization. Secondly, new and new social classes developed whereby a professional mid- class and an industrial working class emerged4. Perhaps, it was due to that modernization spirit during the Pahlavi’s rein in Iran that led to the enactment of the Iranian Law of Registration of Marks and Patents of 1931. This is because; Iran at that period was modernizing and as such needed laws to regulate unfair competition among manufactures of goods and services. Under this law, a trademark is defined as any kind of logo, design, picture, number, letter, word, seal or wrapper among others that is used to identify and differentiate goods and services5. This law allows for registration of a number of chosen marks to identify industrial, commercial or agricultural goods and services. The key element is that the mark to be registered has to be unique. Under this law, the victim can obtain a court injunction. He can also seek compensation for damages as a result of violations of the rights secured under this patent. For cases involving forgery and unfair competition, the offender faces prosecution under this law. Under article 30 of this law, the creator or inventor whose certificate is valid outside Iran may apply for a patent in Iran. However, if an individual or an organization employed the invention or innovations in Iran before, the foreigner’s application or the applicant does not have the right to stop the utilization of this invention. In Australia, creators and inventors of new thinking are protected by Australian copyright law of 1968. Unlike Iranian Law of Registration of Marks and Patents of 1931, the Australian copyright law of 1968 is based on international convections and agreements6. As such, the Australian copy right law stipulates the legally enforceable rights of inventors and innovative works in accordance to Australian law and its scope is defined in the Australian parliament Act of 1968 and is applied throughout Australia. Unlike Iran, Australian copyright law is derived from the Australian Constitution and hence it’s a federal law created under an act of parliament. Traditionally, this law was based on British copyright law but with time the Australian copyright law of 1968 has been amended to reflect international standards. Unlike the Iranian law, the Australian copyright law is derived from Berne Convention for the Protection of Literary and Artistic Works and International copyright convections and multilateral treaties7. In the recent past, the law was reviewed to include standards in the United States-Australia Free Trade Agreement. The Australian copyright law was amended in 2006 to meet standards required by the Trade Agreement. Specifically, this reinforced anti-circumvention laws and effectively made it illegal to circumvent technical measures employed by the patent owners to protect access to their works. This in essence has improved the measures which count as technological protection measures which may not be avoided. Religious attitudes and the Intellectual property law under Khomeini and afterwards A critical examination at the connection between laws and religious sentiments of the Muslim world is vital to understanding how religious fundamentalists in those territories have employed this link to usurp power. In Iran, Khomeini is a good example of individuals who used this bond to their advantage. The same concept can enable us to understand why democracy and liberalism have failed to replace religious forces in the Arab world. In other words, religious institutions have considerably affected the national laws, particularly the standards which intellectual property laws should adhere to. The only option that can counter fundamentalism is a civilised and democratic Islam which rejects the link between their religion Islam and state for both political and economical purposes as noted by8. A closer look at the history of the Islam world reveals that religious practices and beliefs have been interlinked with politics. This in essence determines the standards that are used to form laws in countries where the masses practice Islam. Scholars hardly ever find a political idea that has not been affected by the traditional religious culture. All previous intellectual trends that aimed to eradicate Islam from the politics of Muslim world were not able to advance their reach beyond small intellectual circles. This singular feature of Islamic world reflects the particular demands of the masses and their picture of the ideal world. Iran offers a clear example. During the Iran’s anti-monarchic revolution of 1978 to 1979, researchers found that majority of Iranians wanted for the revival of Islamic attitudes and beliefs in the world. Of importance is that when researchers asked their particular demands, they generally gave the same answers suggesting that they all wanted democracy, realization of their human rights as well as technological and economic development. All claimed that their religion Islam will provide for these demands. Similarly, anti-government activists in Iran even to date give the reason for their call of Islam as the only solution9. The distinction nevertheless is that for a long period, Iranians have gone through an agonizing process of disenchantment with Khomeiniism and its demagogic assurances, medieval ideology, administrative ineffectiveness and reign of terror. Paradoxically, while Khomeini, his followers as well as his intransigent philosophy are held in deep contempt by nearly all Iranians, his type of Islamic fundamentalism still have effects in Muslim world far away from Iran’s borders10. Many Iranians follow people like Khomeini oblivious of their evil decrees such as those against Mojahedin. They instead portray Khomeini as a model of Islamic virtue. Khomeini was, certainly not the first leader in the history of Islam world to take benefit of Islam to justify his totalitarian dictatorship. Most of tyrants and tyrannical sultans used the clergy to legalize their repressive rule and justify their exploitive policies. Khomeini was one of the rulers to suggest that religious leaders take political power and definitely the first one who really seized power. This in essence influences the types of laws that are formed in the Islamic States like Iran. For one, this has influenced Iran accession to international treaties and convections. This has in turn barred it from improving its intellectual property laws to match with those of international bodies. Australians on their side are not significantly influenced by any religious attitudes like Iranians and that is why their intellectual property laws have met the required international standards. Iran’s Tradition of religious law and its contemporary Intellectual property law As discussed elsewhere, traditional religious attitudes play important part in the law forming authorities of Muslim societies. For this reason, Iran’s Intellectual property laws as a whole have been affected considerably by traditional religious attitudes. Religious law is derived from religious ideologies. For Iran, the Sharia law that translate to the path to be followed by Islam followers has negatively impacted her ability to accede to international and bilateral agreements such as Berne Convention for the Protection of Literary and Artistic Works and International copyright convections. This has effectively barred its amendments of its intellectual property laws to meet international standards like those of Australia. Frequently, the difficulty of religion for law is its un-alterability. This is because the word of God can not be modified or legislated against by courts or governments. Nevertheless, a methodical and detailed legal system usually needs human elaboration. For example, holy book of Islam, the Quran has a number of laws which normally form basics for other laws via interpretation, reasoning by analogy, consensus and guidance11. This is principally found in a body of law and jurisprudence refereed to as Sharia law and Fiqh law respectively. Until late 18th century, un-codified Sharia law was exercised all over Muslim world. The Ottoman Empire’s Mecelle code was the first attempt to codify a number of elements of the sharia law. Over the years, efforts have been directed toward putting the Sharia law in line with modern conditions and ideologies. Currently, majority of Muslim states’ legal systems rely on civil and common law traditions and Islamic law and custom as observed by12. Some Muslim Countries even recognize Quaran in their constitutions and as such obliging policy members to adhere to Sharia law. For instance, Saudi Arabia has Quaran in her constitution and is governed in accordance to Islamic law whereas Islam is the state religion in Egypt. Since the anti-monarchic revolution of 1979, there has been gradual come back of sharia law in Iran’s legal system. Over the past two decades, the world has witnessed resurgence of the fundamental features calling for restoration of sheria Law in the Iran’s legal system. This call has raised hot debates across the globe and as such affected the world politics. Unlike Australia, Amendments to the Iran’s intellectual property law has experienced strong opposition mainly due sharia law. Some of the principles in the sharia law are not accepted internationally and international bodies such as WTO disqualify some countries on this basis. That is why Iran’s accession to WTO has been somewhat complex and unfruitful since it has to adhere to internationally agreed conditions for it to accede to WTO. Some of these international conditions do not go well with her tradition of religious law and the country is at cross-road on which direction to follow. In order to succeed, Iran needs to review its legal system to go in line with international standards and not merely base it with sharia law. An overview of Iran’s intellectual property law In Iran, the industrial intellectual property protection is provided by Paris Convention which covers objects such as patents, utility models, industrial designs, trademarks, service marks, trade names among others. In addition to the provisions under the Convention, Iranian laws provide particular legal rules in regard to some of the objects. Unlike Australia, the Iranian laws do not cover all the objects of the industrial intellectual property and thus Conventions and other international treaties should be incorporated to fill the gap. In Iran, Patents are protected by article 26 of the Patent and Trademark Registration Act of 1931. It is provided that under this act, the inventor is entitled an exclusive right. So as to enjoy the protection provided by the act, patent must be registered with the Industrial Property Registration Office. Among other requirements for registration, there should be novelty of the discovery as per article 27 of the act. But, no patent registration is acceptable if the subject of the patent is a financial plan or a discovery that is dangerous to the society13. After application, patents are granted through official procedure regulated by some legislation. The application is examined by registration office to ascertain its authenticity. Contrary to Australia, the Registration Office in Iran does not ascertain whether the grant of a patent is justified on substantive ground. The Registration Office lacks the required equipments and technical personnel to carry out substantive examination. For this reason, Iran industrial and enterprise sectors must be vigilant so as to make sure that their patent rights are not hindered as opposed to what is practised in Australia. Upon registration of the patent, the Act provides the owner exclusive right on how the patented discovery is to be used. The owner has the right to transfer the ownership of the patent to another person or firm. Moreover, he has the right to bar others from exploiting his invention as provided for by article 33 of the Patent and Trademark Registration Act of 1931. As a result of this, any kind of breach of patent rights whether intentional via pirating or unintentional by coming up with a similar invention through another route may subject the person causing a breach to court proceedings. The Iranian patent law provides two forms of remedies including civil sanctions and criminal sanctions. These sanctions are aimed at ensuring the respect and deference the patented rights of the owner. All cases of violations are subject to civil sanctions. Iran courts have the capability to issue an injunction stopping those who are committing the infringements from doing so. The court can also award compensation to damages sustained or any form of benefits which the owner of the patent is deprived. Thus, Iran Laws have not clearly specified the criminal sanctions for individuals infringing patent rights unlike the situation in Australia. Perhaps there is no other solution but to turn to normal legal rules14. Utility Models In reference to Article 1 (2) of the Paris Convention, utility models are classified as industrial property; but in Paris Convection Treaty, their protection is provided by patents international system. Unlike Australia, no law in Iran that recognizes Utility models as intellectual property. Since Iran is a member of the Paris Convention, she has the duty to implement Article 11 of the Paris Convention. The article states that: “The countries of the Union shall, in conformity with their domestic legislation, grant temporary protection to … utility models, industrial designs .., in respect of goods exhibited at official or officially recognized international exhibitions held in the territory of any of them”. Iran differs with Australia in that utility models are registered under the patent law. Industrial Designs Even though the Paris Convention to which Iran is partisan has put obligation on the contracting parties to provide protection to Industrial designs using their national laws, Iranian laws are silent on industrial designs as opposed to Australian laws. For this reason, owners of industrial designs in Iran register them as Trademark rather than as an industrial design. Although both have different definitions, registering industrial designs as Trademark has never been objected by Iran registration bodies. Trademarks With reference to the Patent and Trademark Registration Act 1931, a trademark in Iran is defined as a type of marking for the purpose of identifying a specific industrial or agricultural product among other products15. The Act also spells out that a trademark may be utilized to differentiate the product of different business organizations. Under this act, the product’s producer is considered the origin of the product. Under this Act, a mark is defined as any perceptible marking which can differentiate products of natural or legal entities. I think this definition does not provide protection for invisible marks for example sound marks as it only covers the perceptible marks such as pictures and letters16. The acts should be amended to reflect international standards. Iranian law provides protection to trademarks for 10 years and the validity of the trademark is renewable. Failure to renew the trademark leads to expiration of its validity. Service Marks Iranian law refers a service mark as a symbol used by companies providing services such as hotels and restaurants. The act fails to make lucid reference to service marks. In Iran, service marks are protected by the TRIPS Agreement which Iran is part and must therefore conform to it17. Unfair Competition With reference to Article 10 of the Paris Convention, competition that is not in line with general trade is termed as unfair competition. Iranian Law on the protection against unfair competition is loose. This is because the legislation that defines this protection is not clear or not valid at the worst. For one, Article 729 of the Islamic Penal Code 1998 almost cancelled all the provisions of the pre-Islamic Revolution Penal Code (IRPC)18. Article 2 of the above code provides limited civil sanctions for unfair competition. From the above overview, it is evident that filling the existing gaps in Iranian intellectual property law can be very challenging. This is because Industrial property comprises of Trade Secrets and Designs of Integrated Circuits19. Iranian intellectual property law does not have any specific articles which provide protection of these objects. Conclusion Developing countries like Iran have realized the significance of intellectual property rights in their technological development. Iran’s legislature should pay a special attention to incorporate the intellectual property rights policies to entire national technological creativity when formulating policies of its country. A closer look at Iranian Intellectual Property protection shows the significance of the IP’s in her future economic and industrial advancement. The experience with Iran’s Intellectual Property Rights protection has some policy implications which can be seen as a lesson for third world countries with same characteristics. For one, the experience with Iranian Intellectual Property protection shows that policy makers in the country are directing more effort on the importance of intellectual property for the future of Iran’s growth and development in recent times. Experience also indicates that only recently and after more than 70 years ago, the Iranian Patent and Trademark registration Act has been amended. However, it can be argued that Iran lacks proper harmonization among primary actors in the country’s Intellectual Property rights system within its national development system. This can be the driving force for Iran policy makers to design and create an all-inclusive Intellectual Property rights protection strategy for the country. Compared to Australia in this context, there are a number of policy implications with respect to Iran’s most recent amendments of Intellectual Property rights system. Having realized that, the protection of Intellectual Property rights as one of the essential elements in reinforcing and promoting creativity in society, policy makers in a number of third world countries are preparing the needed framework for elevation and development of Intellectual Property rights assets at national level. Hence, key actors in Iran should implement strategies that can promote Intellectual Property rights protection as well as harmonization and development of intellectual property assets20. The said approaches should fall within four categories that include: “developing national Intellectual Property rights strategy, creating and enforcing required Laws, offering proper infrastructures and initiating educational programs”. Awareness of various aspects of Intellectual Property rights is also essential to allow the use of global patent information. Regular studies should be conducted to ascertain the status and role of Intellectual Property rights systems in promotion of emerging technological advancement and commercialization. This in essence will lead to a more informed Intellectual Property rights policy-making system at country level. Here, comparing the Iranian Intellectual Property rights system with other third world countries particularly in catch-ups can be of enormous significance in this respect. So as to provide the needed backgrounds for the advancement and development of all Intellectual Property rights aspects, 21advices that Iran should develop a broad strategy for Intellectual Property rights protection in line with the future technological and economic development plans of the country. Among other things, the broad strategy should include plans: “for maximum awareness building about all Intellectual Property rights aspects; for helping the discovers in developing Intellectual Property assets; for increasing global collaboration in all Intellectual Property rights aspects; for revising national Intellectual Property rights laws as well as for enhancing Intellectual Property rights enforcement mechanisms”. Iran can achieve the above goals by developing particular plans for helping inventors and innovative business organizations. The Iran government should also plan to provide advisory services and consultancy institutions for helping public and private initiatives in the area of Intellectual Property rights and knowledge commercialization. The government of Iran should also formulate appropriate programs to demonstrate the significance of Intellectual Property rights for industries. The government of Iran should also establish a specialized Intellectual Property market as a platform for technology transfer and commercialization. It should also develop appropriate initiatives for helping Small and Medium Enterprises in protecting and managing their Intellectual Property assets as indicated by22. It should also develop specialized educational and training initiatives. As it is today, the organizational structure of Iran’s Industrial Property Office is weak and definitely needs some improvements to meet international standards. Putting into consideration the findings on the Iran’s Industrial Property Office organizational structure, it is recommended on temporary basis that this office be separated from the office for Registration of Companies23. New departments including administrative and financial department; planning and education department; policymaking and world affairs department as well as appeal and public relations department should be included in the current organizational arrangements in the Industrial Property Office24. But with time, it is essential to create Intellectual Property rights Policy Commission under the oversight of legislative and executive section of the government. Finally, poor implementation of intellectual property rights is a key obstacle to direct investment. As of now, WTO has officially agreed to initiate accession talks with Iran after the United States withdrew its long-standing sanctions thus increasing the hope for improvement in the intellectual property law in Iran. Works cited Alikhan, S. Socio-Economic Benefits of Intellectual Property Protection in Developing Countries, WIPO publication no.454 (E), Geneva, 2000. Blakeney, M and Ilardi, A. International encyclopaedia of intellectual property treaties. Oxford: OUP, 2004. Cornish, W. R. Intellectual Property: Patents, Copyrights, Trade Marks and Allied Rights. 4th ed. London: Sweet & Maxwell, 2001. Correa, C. Formulating Effective Pro-Development National Intellectual Property Policies, Paper presented in ICTSD-UNCTAD Dialogue, The Rockefeller Foundation’s Bellagio Conference Centre, 2002. Davison, Mark; Ann, Louise and Leanne, Wiseman. Australian intellectual property law. Cambridge University Press, 2008. Gallagher, W. Intellectual Property. Hampshire: Ashgate, 2007 Lall, Sanjaya. Indicators of the relative importance of IPRs in developing countries, Research Policy, Vol. 32. 2003. Maskus, K. E. Intellectual Property Rights in the Global Economy. Washington, DC: Institute for International Economics, 2000. Ronald, Sackville. Legal Protection of Indigenous Culture in Australia, 11 Cardozo J. Int’l & Comp. L. 711, 2003. UNCTAD. Science, Technology and Innovation Policy Review. The Islamic Republic of Iran, UNCTAD/ITE/IPC/2005/7, 2005. Read More