Authors


Agarwala, Aditi (India) and Prasad, A. (India): Patents versus Patients: Reflections on this Blatant Patent Regime

Agu, Chukwuma (Nigeria): Port Inefficiency and Nigeria’s Participation in ECOWAS Common External Tariff: Addressing the Human Factor

Agu, Chukwuma; Achike, Anthonia and Amaeze, Uchenna (Nigeria): Does Multilateralism Crowd Out Intra-Group Trade? Evidence from some developing regions.

Avny, Amos (Israel): From Egalitarianism to Uniqueness : Exploring the Equality-Inequality Dichotomy

Banerjee, Priyadarshi and Choudhuri, Prithwiraj (India): Lacunae in the Effective State Regulation of Corporate Advertisements - Need for a fresh relook at the corporate compulsions versus larger social interests!

Birnhack, Michael (Israel): Soft Legal Globalization: The EU Data Protection Directive as an Engine of an Emerging Global Regime

Bonnici, Jeanne Pia Mifsud and Choong, Kartina (UK): Access to the Health Records of Deceased Patients: Why the Law is in Need of Review

Chan, Zhao (China) and Minhu, Ma (China): Transfer of Software Copyright License

Cheung, Anne S.Y. (Hongkong): Too Little Freedom or Too Much Speech? – A Study of Cyber-bullying of Chinese Netizens and ISPs’ Liability ______________________________________________________________

 

Patents versus Patients: Reflections on this Blatant Patent Regime by Aditi Agarwala and Akhil Prasad, Gujarat National Law University, Gandhinagar, India.

 

 

 

 

 

Aditi Agarwala is a student pursuing B.Com. L.L.B.(Hons.) course from Gujarat National Law University, Gandhinagar, India. Her areas of interest include Business Law, Intellectual Property Law and Criminal Law. She has gained work experience under various  leading Law Firms such as Khaitan & Co., S. Majumdar & Co., Nanavati & Nanavati Advocates and had a rare opportunity to carry out a research project for Dr. [Prof.] Prabuddha Ganguli [Advisor of VISION-IPR & Consultant to WIPO] and the Union Govt. of India. She has attended a number of Conferences and has a number of publications to her credit. She has various achievements in public speaking, dramatics and art. She was awarded the Best Speaker in the Mock Parliament organized by Govt. of Gujarat and has bagged awards in debate, extempore speaking, etc. She has also directed two documentaries on socially sensitive issues, one on ‘Drugs Awareness’ and the other on ‘Terrorism’. She was elected as an Official, heading “Literary and Debating Committee” 05’, 06’ for the University and held the position of Vice- Secretary for SPIC-MACAY 03’ (Society for Promotion of Indian Classical Music and Art amongst Youth). She was the team Captain of “Kaleidoscope” – Charitable Program for the rehabilitation of Gujarat Earthquake victims and worked as a Social Worker at Prem Dham (Old Age Home) and CHESHIRE Home. She has a number of achievements in the area of Sports, Mass Communication, Designing and Cartooning.

 

 

 

 

 

Akhil Prasad is a student pursuing B.Com.L.L.B.(Hons.) course from Gujarat National Law University, Gandhinagar, India. His areas of interest are IT Law, Intellectual Property Law, Constitutional, Corporate and Commercials laws. He has gained work experience under reputed Law Firms and Organizations specializing in Intellectual Property Rights and Corporate laws such as Fox Mandal Little (currently India’s largest Law Firm), S. Majumdar & Co., IndoJuris Law Offices, etc. & legal luminaries including Dr. [Prof.] Prabuddha Ganguli (CEO, Vision IPR and Consultant to WIPO). He has also carried on various research projects, one of the recent ones being for the Central Govt. of India focusing on ‘Global Trends of Death Penalty’. His research paper was selected for presentation at the prestigious National Workshop on Intellectual Property Rights organized by Indian Institute of Technology (IIT), Kanpur where he was awarded the Best Presentation Award. He has represented the University and won prizes in various legal and academic events such as Client Counseling, Mock Parliament, Lexpired Conversation, Moot Court, Debates and Essay writing competitions. Currently, he is undergoing various courses on IP, E-Commerce & Medical laws from renowned institutes and international organizations.

Abstract
The paper centers on the “patents versus patients” debate and delves into the challenges facing India’s pharmaceutical sector with the advent of the WTO-TRIPS product patent regime.  Considering the Nation’s commitments on the international soil and the subsequent domestic legislations enacted to keep up the word, it explores the legitimacy behind the unification of intellectual property laws at the global level and questions the “one shoe fits all” regime. The famous Madras High Court decision upholding the constitutional validity of the domestic patent legislation upon challenge by a Swiss pharmaceutical corporation has been discussed. Indeed, it is not easy to manage the challenges of WTO participation where such is the price for innovation. Towards that end, the paper attempts to offer a package of solutions to be collectively administered in order to mitigate the ills of what has now become a harsh patent regime.

 

Port Inefficiency and Nigeria’s Participation in ECOWAS Common External Tariff: Addressing the Human Factor by Chukwuma Agu, University of Nigeria.

Lehloenya

 

 

 

Chukwuma Agu holds a PhD from the University of Nigeria, Nsukka and works with the African Institute for Applied Economics, Enugu Nigeria. His research Interest is in open economy macroeconomics with previous works in such areas as macroeconomic policy reforms, finance, trade and competitiveness. He is also deeply interested in tools of macroeconomic modelling. He anchored the drafting of the National Economic Empowerment and Development Strategy (NEEDS), the economic policy reform agenda of the Federal Government of Nigeria in 2004. At the Institute, he initiated and successfully coordinated the first ever sub national business environment and competitiveness assessment of all states in Nigeria. He is an alumnus of the Economic Modelling School, Brussels, the Cambridge Advanced Programme on Rethinking Development Economics and was visiting scholar at the University of Oxford in 2006. He has published extensively on African macroeconomic, trade and finance issues and is consultant to a number of development partners and economic think-tanks across the continent.

Abstract

As ECOWAS regional integration arrangement becomes more inevitable, trade facilitation challenges also grow. But how well positioned a country is to take advantage of the gains and bear associated costs varies. It does not seem as though Nigerian ports are well positioned for the country’s leadership roles in ECOWAS. Worse still, discussions about regional integration largely ignore this and government compensates for inefficient ports with trade distorting policies. This study therefore sets out to evaluate the state of the Nigerian ports. It found that by both international standards and stakeholder evaluations, Nigerian ports are inefficient. However, the sources of the inefficiency are hardly physical infrastructure as much as it is human and institutional deficiency. It therefore observes that the challenge of getting the ports to work for the good of Nigeria and the regional integration project is the challenge of getting government institutions working in the ports to reform their human capital.

 

Does Multilateralism Crowd Out Intra-Group Trade? Evidence from some developing regions. by Chukwuma Agu and A. I. Achike, African Institute for Applied Economics, Enugu Nigeria and University of Nigeria.

 

 

 

 

Chukwuma Agu holds a PhD from the University of Nigeria, Nsukka and works with the African Institute for Applied Economics, Enugu Nigeria. His research Interest is in open economy macroeconomics with previous works in such areas as macroeconomic policy reforms, finance, trade and competitiveness. He is also deeply interested in tools of macroeconomic modelling. He anchored the drafting of the National Economic Empowerment and Development Strategy (NEEDS), the economic policy reform agenda of the Federal Government of Nigeria in 2004. At the Institute, he initiated and successfully coordinated the first ever sub national business environment and competitiveness assessment of all states in Nigeria. He is an alumnus of the Economic Modelling School, Brussels, the Cambridge Advanced Programme on Rethinking Development Economics and was visiting scholar at the University of Oxford in 2006. He has published extensively on African macroeconomic, trade and finance issues and is consultant to a number of development partners and economic think-tanks across the continent.

 

Dr. (Mrs.) A. I. Achike is a Senior Lecturer in and former Head of the Department of Agricultural Economics, University of Nigeria, Nsukka. She is a visiting lecturer to Trade Policy Training Centre in Africa (TRAPCA), Arusha, Tanzania and doubles as a Fellow of the African Institute for Applied Economics, Enugu, Nigeria. She holds a PhD in Agricultural Economics specializing in Agricultural Finance and Project Analysis. She has attended a number of specialized trainings organized by such institutions as the Council for the Development of Social Science Research in Africa (CODESRIA), the Social Science Academy of Nigeria and the African Economic Research Consortium. She consults for several national and international organizations and has authored many published journal articles, conference papers and technical reports. 

 

 

 

 

Uchenna Amaeze is affiliated to the African Institute for Applied Economics, Enugu (a leading economic research Institute in Africa) and the University of Nigeria, Nsukka. His research interests are in macroeconomics, Trade and Finance. He has led teams first in the Policy and later in the Business Environment and Competitiveness Benchmarking of Nigerian States and is actively involved in the trade and macroeconomic reforms in Nigeria. He is in the project management team of the National Association of Nigerian Traders, an Advisory Committee to the Federal Government of Nigeria on European Union African Caribbean and Pacific Economic Partnership Agreement (ACP-EU EPA) and other trade negotiations. He is also a member of the Trade Network Initiative (TNI), conducting background research and advocacy to feed into trade policy and negotiations in developing countries. He is a member of the Drafting Team of the Trade and Finance Linkages Committee anchored by the Rethinking Bretton Woods Project of the Centre of Concern, Washington D.C.

Abstract
The literature is ambiguous on the nature of the relationship between multilateral trade negotiations and growth of intra-group trade. However, both the WTO and proponents of liberalization maintain that the relationship is positive and that the WTO supports regional bodies and intra-group trade. But does evidence support this? It is possible that the WTO supports regional bonding, while its existence discourages growth of actual trade and development of institutions within regions. Our findings seem to support this view, particularly for southern countries as shown by trends in intra-group trade captured in this work.

 

From Egalitarianism to Uniqueness : Exploring the Equality-Inequality Dichotomy by Amos Avny.

Lehloenya

 

 

Dr. Amos Avny, a Futurist and a Strategist and currently a retired professor and a senior consultant, deals with Globalization, Human Capital Development, Technology - Society relationships and e-Government issues. Dr. Avny was graduated in 1994 from Virginia Tech (VPI&SU) as PhD in public Administration and Policy, and in 1990 received his M. Sc. in Management & Business from National-Louis University. Prior to this studying period , A. Avny designed, led and managed many development projects all over the globe. Dr. Avny published numerous articles in professional magazines on the above topics.

Abstract
Due to Technological developments, the expansion of Globalization and the spreading out of Democracy, the world of today changes.  This transformation affects most walks of socio-economic life.  It contains moves from Scarcity to Affluent oriented economy, from legitimating Inequality in stead of Equality, from the call for fulfilling basic Needs to promoting extravagant Desires and from Egalitarianism to Uniqueness perception.  This situation also changes the role of the Judiciary, making it more complex while demanding it to be more sensitive.   The Judiciary today becomes the main organ for keeping a social equilibrium within an environment of almost limitless Freedom.  The feeling of Boundriesless Liberty emerges from the feeling that Liberty conquers and Individuality wins while Equality disappears.  However, the balance perspective of the Judiciary must promote Fraternity, combines Freedom with Responsibility and maintains Liberty with social Solidarity.  The renewed role of the Judiciary is therefore, to promote both, individual oriented society and social oriented individuals.

 

Lacunae in the Effective State Regulation of Corporate Advertisements - Need for a fresh relook at the corporate compulsions versus larger social interests! by Priyadarshi Banerjee and Prithwiraj Choudhuri, National Law University, Jodhpur, India.

Priyadarshi Banerjee is a semester V student at National Law University, Jodhpur, India, pursuing a degree in B.A. L.L.B. (Hons.). His interests are diverse ranging from Constitutional Law, Human Rights, Jurisprudence and even spilling over to other disciplines such as Literature, Philosophy and History. In pursuance of his interests he has worked with the State Legal Services Authority, interned at the Supreme Court of India and also at the High Court of Calcutta. He had assisted the Government of India in preparing a research note on the topic of “Abolition of Death Penalty”, wherein a detailed comparative analysis was made about the situation the world over. He has also presented papers at national and international conferences on a variety of topics.

 

 

Prithwiraj Choudhuri is currently a fifth semester law undergraduate of B.A. L.L.B (Hons.) at National Law University, Jodhpur, India. His research interests are focused on areas in Corporate Law, Arbitration and Criminal Law. He has worked as an intern in the State Human Rights Commission, the Supreme Court of India, and the High Court of Calcutta. Pursuant to his interests he has worked with some of the most prestigious law firms in India. He takes a keen interest in other areas of knowledge specially Political Obligation and Economics. He has also had the opportunity to represent the University at various Moot Court Competitions and debates and is an active sportsperson in the University.
Abstract
Democracy in a capitalist world entails with it a structure of liberalized trade and a ‘free market’. However, it is often to be found that the state machinery is compelled by structural and practical obligations to give in to the sway of corporate entities. Advertisements aimed at children, targeting their lunch-boxes, drive them away from nutritious, healthy food habits, quite against their own interest. The state, due to its compulsions fails to regulate such practices, even though they are evidently against the interest of the vulnerable age group. The dilemma of democracy in juxtaposition with a free trade regime is the focus of the paper.

 

Soft Legal Globalization: The EU Data Protection Directive as an Engine of an Emerging Global Regime by Michael Birnhack, Tel Aviv University.

Lehloenya

 

 

 

Dr. Michael Birnhack is an associate professor at the Faculty of Law, Tel Aviv University. He conducts research, writes and teaches on information law, including privacy and data protection. He serves as the Head of the legal committee of the Israeli Public Council for the Protection of Privacy, participated in an expert committee that reviewed the Israeli data protection laws, and conducts a thorough review of Israel's data protection law for the European Union ("an adequacy assessment"). He currently conducts an empirical research on privacy protection of Israeli web sites (with Niva Elkin-Koren) and a legal research on Unmasking Anonymous Users in the Online Environment. Prior to joining Tel Aviv University, Michael served as a co-director of the Haifa Center of Law & Technology, at the University of Haifa, Israel, where he was a lecture and senior lecture (2000-2007). His other research interests are IP law (especially copyright law) and cyberlaw. He has published on these topics in the U.S., Europe and Israel.

Abstract

The article explores a unique form of legal globalization, in which one jurisdiction induces other countries to adopt similar legal mechanisms, without coercion, taking advantage of ignorance or abusing political power. The 1995 EU Directive on data protection regulates the collection, processing and transfer of personal data within the EU, with the dual goal of enabling the free flow of data while maintaining a high level of protection. It includes a mechanism which addresses the export of such data. Article 25 stipulates that member states should allow transfer of data to a third country only if the third country ensures an adequate level of data protection. Thus, countries that wish to engage in data transactions with EU member states are indirectly required to provide an adequate level of protection.

The article shows that the Directive has had a far greater global impact than thus far acknowledged and that it is the main engine of an emerging global data protection regime. Studying the Directive and its actual impact and comparing it to other mechanisms of legal globalization, I conclude that unlike some American scholars who described the Directive as "aggressive", it is better understood as a non-coercive mechanism of soft legal globalization. This is an attractive model compared to hard legal globalization.

 

Access to the Health Records of Deceased Patients: Why the Law is in Need of Review by Jeanne Pia Mifsud Bonnici and Kartina A. Choong, University of Central Lancashire.




Dr Jeanne Pia Mifsud Bonnici is a Senior Lecturer at the Centre for Law, Information and Converging Technologies at the University of Central Lancashire. She is currently Course Leader for the new LLM in Law, Information and Converging Technologies.  She holds a Doctor of Laws degree from the University of Malta, a Master of Science degree in Cognitive Science from the University of Birmingham and a PhD from the University of Groningen.  Her areas of expertise are data protection, privacy and freedom of information and Internet regulation.

 

 

Dr Kartina A. Choong is a Senior Lecturer at the University of Central Lancashire where she is also the Course Leader for the LLM in Medical Law and Bioethics. She holds a PhD in Medical Law from the University of Manchester and Masters degrees in Medical Ethics (Manchester), Applied Social Research (Manchester) and Islamic Studies (Leeds). She was called to the Bar of England and Wales in July 1995 by the Honourable Society of Lincoln’s Inn and obtained her LLB from the University of Cardiff.

Abstract
A glance at the cases that come before the UK Information Commissioner’s Office (ICO) in the period between 2005 and 2008 immediately shows that a consistently high number relate to access to the health records of deceased patients. What accounts for this interesting state of affairs? This paper aims to demonstrate that the law regulating this increasingly important area is a patchwork of case law, statutes and professional guidelines that do not always lend themselves to a congruous and seamless amalgamation (e.g. the Access to Health Records Act 1990, the Freedom of Information Act 2000 and the Guidance on Access to Health Records issued by the General Medical Council and the British Medical Association). This has in turn resulted in the need for creative interpretation and at times legal gymnastics on the part of the ICO and medical professionals. Similar issues can also be traced in different European countries. We argue that in an age where allegations of medical negligence are proliferating (and access to the health records of the deceased could help confirm or dispel suspicions of wrongdoings leading to the death) and where genetic information about a deceased relative could offer valuable support to a living patient’s preventative care and treatment plans, the law regulating access to the health records of deceased patients in the UK can no longer afford to be unclear and confusing. There is, therefore, an urgent need for review.

 

Transfer of Software Copyright License by Zhao Chan and Minhu Ma, Xi’an Jiaotong University.

Zhao Chan is a LLM Candidate at the Law School of Xi’an Jiaotong University. Her research interest are Civil and Commercial Law and Information security law. She is translating the EU information security laws in Chinese .

 

 

Minhu Ma, Professor of law at Xi’an Jiaotong University, China, is the director of Chinese information law seminar, the academician of the World Jurist Association, the adviser of information & network security experts group of Shaanxi Province, the consultant of Xi'an Intermediate People's Court of the People’s Republic of China and the arbiter of Xi'an Arbitration Commission. Professor Ma specializes in intellectual property law, information & technology law, cyber-security law and the issues of information securities.

Abstract
Nowadays, most countries allow copyright  to be transferred partly or totally through copyright license trade.  The issue is whether the  transfer  of the copyright license is  valid  and whether the right of permissive use of software can be transferred as capital contribution and share. This paper will also discuss  the permissive use of software in bankruptcy procedure in China .

 

Too Little Freedom or Too Much Speech? – A Study of Cyber-bullying of Chinese Netizens and ISPs’ Liability by Anne S.Y. Cheung, University of Hong Kong.

Anne S.Y. Cheung is an associate professor at the Department of Law, University of Hong Kong. She received her legal education at the University of Hong Kong (LL.B), University of Toronto (JD), University of London (LL.M) and Stanford University (JSM, JSD).
She specializes in media law, Internet issues on freedom of expression and privacy, socio-legal studies, the study of domestic violence and feminist legal studies.
She is the co-Director of the Law and Technology Centre at the Faculty of Law, University of Hong Kong, and a committee member of the Hong Kong Press Council.

Abstract
When we are confronted with the Orwellian nightmare of the Big Brother overseeing us, many may have overlooked that Little Brothers are everywhere. With the rise of blogs, discussion boards, and Youtube, we may become targets of false allegations or our movements and gestures may have been captured by modern technology at any moment to be broadcast on the Internet for a public trial of millions to judge. In China, netizens have resorted to trigger the “human flesh search engine” to expose details of individuals who have violated social norms one way or another, achieving social shaming, monitoring and ostracism. Individuals concerned have little legal recourse to protect their reputation and privacy facing unwilling exposure in the Internet witch-hunt. Thus, the proposed paper will look at the current legal position in China, and its inadequacy in the area of defamation and privacy violations. It argues for a system of notice and take down on internet service providers in the above two areas.