Legal framework for protecting computer programs in the ambit of intellectual property : a comparative study between Iraqi law (civil law) and English law (common law)

PhD ThesisThe purpose of this thesis is to test the ability of Iraqi law to protect right holders of computer programs and the programs themselves. Comparison is made between Iraq’s Author’s Right Act 1971, as amended in 2004, and English law- especially Copyright, Designs, and Patent Act 1988, as amended. Examining the effectiveness of the rules in both laws for protecting CPs entails four main areas: the nature and legal status of computer programs, the scope of copyright protection guaranteed for computer programs by the legislation, other legal ways of protecting programs and harmonisation between European Union copyright laws and Iraqi author right law. The methodology is mainly doctrinal /comparative. Accordingly, this study has been divided into six chapters. Chapter One contains the general introduction and covers the main features for Iraq as a developing country and the study’s background; its importance, aims and goals, and methodology. Chapter Two examines the nature and legal status of computer programs. Many questions are raised in relation to their nature: are computer programs tangible or intangible things? goods, services, or something else? Should property subsist and if so which kind of property, if programs do not fit recognised kinds of private property, can they be deemed a sui generis? Finally, evaluation the ability of “property” as a way to protect the investment of CPs in Iraq. Chapter Three, test the provisions of copyright and author’s right in English law, Iraqi law and references other laws - US, French, and Egyptian. Iraqi law and the UK law deem computer programs to be a literary works, protected by author’s right/copyright. Iraqi law has started to be consistent with the WTO and TRIPs Agreement. Questions arise regarding the sufficiency of copyright/author’s right to protect computer programs. If not adequate, would other methods provide preferable protection? Chapter Four examines other techniques for protection: patents, contractual terms, trade secret law and trade marks. Chapter Five aims to make harmony between Iraqi laws, international laws and European Directives, to link Iraq with the communities which preceded it in the area of intellectual property. As well as legislation, there is scope for judicial harmonisation using s1 (3) of Iraqi Civil Code. Finally, Chapter Six presents the main results and conclusions and makes recommendations as to for improving the current legal situation.Iraqi Governmen

A legal solution to a real problem: the interface between intellectual property, competition and human rights

This thesis argues that the existing laws of competition and human rights can be combined to limit the rights of owners of intellectual property (IP). The need for this thesis arises from concerns about the impact of enforcement of IP rights, say on patients needing essential medicines or students seeking to obtain important material from the internet. Some steps have been taken to address these concerns, with the World Trade Organization Doha Declaration on the TRIPS Agreement and Public Health and the One Lap Top Per Child project. Yet the owner of a national IP right can still object to a valuable project if it comes within the scope of that IP right, say the supply of providers of emergency services with the only communications technology which will work in extreme conditions in air ambulances. IP law should not be viewed in legal isolation, however, and concerns about the impact of enforcement of IP can also be framed in terms of human rights and competition. This work argues, with a focus on the jurisdictions of the United Kingdom (UK) and on patents, that courts considering patent actions can and must, without the need for any legislative or policy change, combine the UK Human Rights Act 1998 (HRA), the European Convention on Human Rights (ECHR), the UK Patents Act 1977 (PA) and article 82 EC Treaty such that in some limited cases there will be no finding of patent infringement. A Human Rights Emphasis is proposed as a means of evaluating what is meant in a particular case by compatible or incompatible with Convention rights in sections 3 and 6 HRA, given that the potentially conflicting rights to property, life and expression could be engaged in a patent action. The Human Rights Emphasis is then applied to the results of a creative yet legitimate approach to interpretation of the infringement provisions of the PA, to determine whether there should be a finding of infringement. It is also argued, combining the Human Rights Emphasis and a broad approach to abuse of a dominant position and its relationship with IP, that it can be a prohibited abuse of a dominant position to raise an infringement action when the technology the subject of the patent is a market in itself. Finally, the arguments of this work are considered to be consistent with the existing obligations of the UK, and other countries, under the ECHR and the Agreement on Trade Related Aspects of Intellectual Property Rights, and as such of potential application outside the UK