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Challenging Authority. Kelsen, Hans Kelsen, Hans a. Reine Rechtslehre , 2 nd ed. Vienna: Deuticke. Kelsen, Hans b. What is the Pure Theory of Law? Tulane Law Review , vol. Professor Stone and the Pure Theory of Law. Stanford Law Review , vol. Pure Theory of Law trans. Berkeley: University of California Press. Kelsen, Hans , General Theory of Norms trans. Introduction to the Problems of Legal Theory trans.

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General Theory of Law and State, reprint of ed. New Brunswick, N. Green eds. Oxford: Hart Publishing, Kramer, Matthew MacIntyre, A. The Philosophical Review , vol. Marmor, Andrei Law in the Age of Pluralism. Paulson, Stanley L. Oxford Journal of Legal Studies , vol. Supplementary Notes. Reflections on a Periodization. Notre Dame Law Review , vol. Rejoinders to Robert Alexy and Joseph Raz. In Matthias Klatt ed. Oxford: Hart Publishing. Modern Law Review , vol. Quinn, Philip L. Philosophy and Phenomenological Research , vol. Raz, Joseph Practical Reason and Norms.

Princeton: Princeton University Press. Ethics in the Public Domain. The Authority of Law , 2 nd edition. Scanlon, Thomas M. Being Realistic About Reasons. Schauer, Frederick Positivism Through Thick and Thin. Bix ed. New Essays in Legal Theory pp.

Was Austin Right After All? Ratio Juris , vol. Searle, John Philosophical Review , vol. Simpson, A. The Common Law and Legal Theory. Simpson ed. Smith, M. Tyler, Tom R. Why People Obey the Law. New Haven: Yale University Press. Weinrib, Ernest J. The Case for a Duty to Rescue. Winston, Kenneth I. My discussion of the view will be offered on its merits as a legal theory , whatever its merits as an exegesis of Kelsen. Paulson a, , , This change is imperceptible; but is, however, of the last consequence. Winston Hart Hart , While there is an understandable temptation to equate these fundamental norms with foundational texts of a legal system like the United States Constitution , this equation is at best imprecise.

First, as Kelsen points out, the current foundational text may have been created under the authority of a prior foundational text of the same legal system, so the Basic Norm should refer to the historically first foundational text. Second, there remain questions of how to interpret the provisions of the foundational text, and to determine what priority it has in that legal system in relation to other national and international legal norms.

Brief but thoughtful responses from a well-known legal theorist can be found in Finnis a: , ; c: However, Kelsen writes in similar terms:. The problem that leads to the theory of the basic norm Kelsen emphasis in original. The concept of essential derivation has proved highly controversial in practice, however. In particular, each member state may enact a provision in its national plant variety protection laws permitting farmers to use for propagating purposes "on their own holdings" the product of the harvest which they obtained by planting a protected variety "on their own holdings.

Article 17 of the Act contains a compulsory licence provision similar to that found in the Act. Many developing nations, particularly those in Africa, have resisted ratifying the Act or adopting it as the standard for their plant variety protection laws. The foreign ministers of the more than member Organization for African Unity now the African Union issued a statement at a January meeting calling for a hold on IPR protection for plant varieties until an Africa-wide system has been developed that grants greater recognition to the cultivation practices of indigenous communities.

Machipisa, Tunisia ratified the Act in August , whereas the other two countries are parties to the Act. These and other developing countries are, however, under pressure to ratify the Act as part of bilateral or regional trade and investment agreements. See para. Increasing number of genera or species required to be protected, from five at time of accession, to 24 eight years later.

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Increasing number of genera or species required to be protected, from 15 at time of accession, to all genera and species 10 years later 5 years for member states of earlier UPOV Act. Production for purposes of commercial marketing; offering for sale; marketing; repeated use for the commercial production of another variety. Production or reproduction; conditioning for the purposes of propagation; offering for sale; selling or other marketing; exporting; importing or stocking for any of these purposes.

No such obligation, except for ornamental plants used for commercial propagating purposes.


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Same acts as above if harvested material obtained through unauthorized use of propagating material and if breeder had no reasonable opportunity to exercise his or her right in relation to the propagating material. Allowed at the option of the member state within reasonable limits and subject to safeguarding the legitimate interests of the right holder.

Adopted in as a treaty administered by the WTO, TRIPs is the first and only IPR treaty that seeks to establish universal, minimum standards of protection across the major fields of intellectual property, including patents, copyrights, trademarks, industrial designs, integrated circuits and trade secrets. The following paragraphs briefly address each of these five issues. Subsequent sections devote more detailed treatment to the protection of plant varieties with patents and to the elements necessary to create an "effective sui generis system.

Rather, TRIPs is linked to a larger family of trade-related agreements concerning subjects such as trade in goods and services, agriculture, textiles and health-related restrictions on imports. All of these agreements were adopted within the WTO during the Uruguay Round of trade negotiations held between and As such, TRIPs was part of a global "package deal.

Helfer, , p. Compare this to the 55 nations that were parties to the various UPOV Acts as of the same date, see para. In addition, many states particularly those in the developing world who became bound by TRIPs had not ratified earlier intellectual property treaties and were thus required to make significant changes to their national laws to bring them into compliance with the Agreement.

In addition to its widespread adherence, the influence of the TRIPs Agreement can be traced to its unique provisions relating to the enforcement of IPRs within national laws, the review of those national laws by the TRIPs Council and the mechanism for settlement of disputes between states leading to rulings backed up by the threat of trade sanctions.

Enforcement provisions. Unlike prior IPR agreements, TRIPs does not only specify the minimum substantive requirements for various forms of intellectual property. In addition, it requires WTO Members to adopt "effective" provisions within their national laws to permit the owners of intellectual property products to enforce their rights against those who infringe them. Review provisions. First, the reviews create an incentive for governments to bring their national laws and practices into compliance with the Agreement so that they may present positive information to the Council.

Second, the reviews identify for both the reviewed state and for other WTO Members areas of the law which may not be in full compliance with the treaty. And finally, TRIPs Council reviews provide a critical opportunity to publicize national laws and practices relating to IPRs which might otherwise be difficult to obtain. In the area of plant varieties, the TRIPs Council has gathered and organized a considerable amount of useful information concerning national government practices. In December the Council prepared a detailed list of questions concerning plant variety protection.

It asked WTO Members who were already obligated to protect plant varieties to respond to these questions by indicating the manner in which their national laws provide such protection, with other WTO Members requested to use their best efforts to furnish such information. The Council later received and published responses from 17 states and from the European Communities and its member states.

WTO Job No. In and , the Council reissued these questions and invited WTO Members that had not already done so to provide information on their plant variety protection practices. Additional responses were received from six states. WTO Doc. Dispute settlement provisions. Another significant innovation of TRIPs is its dispute settlement system. Although prior intellectual property agreements, including the UPOV Acts, contained provisions for filing of complaints against non-complying treaty parties before the International Court of Justice, no state ever invoked this dispute settlement option.

It was widely believed that pursuing such a complaint would be perceived as an unfriendly act, would be time-consuming and costly and that states were unlikely to implement decisions of the court. Helfer, , pp. Indeed, the mere existence of such a system creates strong incentives for WTO Members to bring their national laws into compliance with the WTO Agreements, including TRIPs, to avoid the possibility of dispute settlement proceedings. These strong incentives notwithstanding, some countries may not comply. In such a case, where one WTO Member believes that another Member has failed to fulfill its obligations under the Agreement, it may initiate consultations under the Dispute Settlement Understanding with a view to resolving the dispute.

If the parties fail to reach agreement, the complaining state may then request the WTO to convene a three-member panel of experts to review its allegations. Such panels generally issue a decision within six months. If the state fails to do so, the complaining state may then commence an arbitral proceeding to specify the amount of compensation that the defending state must pay to remedy the violation, or in lieu of such compensation the complaining state may seek authorization to impose trade sanctions on the non-complying Member.

TRIPS Review Negotiations

As of July , WTO Members mostly developed nations had commenced 24 dispute settlement proceedings against both developed and developing nations concerning a wide variety of intellectual property issues. WTO Dispute Settlement: Index of Disputes Issues: 15 July Approximately one third of these disputes were resolved prior to a decision by a panel, with the defending state agreeing to modify its laws to bring them into compliance with the Agreement.

In other cases, however, WTO Members complied only after a panel or the Appellate Body had issued a decision against them. And in a few instances, Members that have not modified their laws instead have negotiated settlements involving the payment of compensation to the complaining Member. As of the date of this study, there have been no TRIPs dispute settlement proceedings relating to intellectual property protection for plant varieties. Whether such proceedings will be brought in the future depends on a number of variables, many of which are still uncertain.

Three interrelated reasons suggest that a dispute settlement proceeding concerning plant variety protection is a likely possibility: first, the significant difference of views among WTO Members over the scope of legal protection to be provided to plant varieties discussed in para. Other factors, however, suggest that a complaint over plant varieties is unlikely to be filed, particularly within the next five to ten years. First, the initiation of the Doha Round of trade negotiations in November discussed in Part IV below is likely to cause WTO Members to show restraint in their dispute settlement strategies while the multi-year negotiations are proceeding.

Second, past practice has shown that WTO Members are most likely to file dispute settlement complaints where they are pressured to do so by the owners of intellectual property products. Third, WTO Members are generally reticent about filing complaints where their probability of success is unclear. Therefore, given the uncertain scope of protection for plant varieties currently required by TRIPs, if Members enact some form of plant variety protection in their national laws, other Members are unlikely to challenge those laws unless they can identify a clear violation of the Agreement.

Nevertheless, the potential for dispute settlement proceedings and the trade sanctions they can engender will continue to provide strong incentives for states to enact plant variety protection laws. Article The article states in relevant part:. Members may also exclude from patentability : b plants and animals other than microorganisms; and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.

However, Members shall provide for the protection for plant varieties either by patents or by an effective sui generis system or by any combination thereof. The meaning of this article has been the subject of significant debate among both WTO Members and nongovernmental organizations NGOs with differing views over the propriety of IPR protection for plant varieties.

A detailed review of that debate and an analysis of article For present purposes, two overarching points are worth noting. This omission contrasts sharply with other fields of intellectual property, such as patents, copyrights and trademarks, for which TRIPs expressly requires WTO Members to comply with the standards of protection contained in preexisting IPR agreements, such as the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property.

However, certain "TRIPs plus" treaties do impose one or both of these requirements, see para. Second, article Thus, unlike most other areas of intellectual property protected by TRIPs, article This discretion and the opportunity for divergent outcomes it engenders has significant consequences. This could create significant complexities and uncertainties for plant breeders seeking to market protected varieties in different jurisdictions. Seen from this perspective, article The last sentence of article The review was commenced but was not concluded, largely as a result of disputes between industrialized and developing nations over the scope of the review process.

GRAIN, , pp. Governments submitted additional information and proposals to the TRIPs Council in and , but no formal action was taken. With the launching of the Doha Round of trade talks in November , however, the review of article The EU response calls for the negotiation of "a self-standing disclosure requirement," which, while not functioning as a new eligibility criterion for patent protection, "would allow Members to keep track, at [the] global level, of all patent applications with regard to genetic resources for which they have granted access.

In the decade since TRIPs was first adopted, the United States and the European Community have negotiated a growing number of bilateral and regional trade and investment treaties with developing countries. Many of these treaties contain provisions concerning IPRs. Commentators have referred to these treaties by the appellation "TRIPs plus" because they 1 contain intellectual property protection standards more stringent than those found in TRIPs, 2 obligate developing countries to implement TRIPs before the end of its specified transition periods or 3 require such countries to accede to or conform to the requirements of other multilateral intellectual property agreements.

GRAIN, ; Vivas, As one study recently noted, "[t]o the extent that ["TRIPs plus" treaties] include these additional aspects, they are pushing harmonization forward at a pace that is greater than is apparently possible within the framework of the WTO. Drahos, , pp. Several "TRIPs plus" treaties contain provisions relating to plant variety protection that go beyond the minimum level of intellectual property protection specified in TRIPs. For example, the recently concluded U. The TRIPs Agreement mandates its signatories to provide patent protection for any inventions in all fields of technology, provided that the inventions are "new, involve an inventive step and are capable of industrial application.

For this reason, it may initially appear that governments can ignore patents as they consider how to protect plant-related innovations in their national legal systems. First, extending patent protection to plant-related inventions and innovations remains an option for national governments.

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A number of governments in the industrialized world, including the United States, Japan, Australia, New Zealand, Sweden and the United Kingdom, have capitalized on this opportunity by permitting plant breeders to obtain patent protection in new varieties provided that the eligibility requirements for a patent have been met.

Second, because TRIPs does not require any patent protection for plant-related innovations, it follows as a matter of course that the treaty does not compel WTO Members to adopt any particular form of patent protection. Utility patents are generally granted to "any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof In making this decision, however, it will be useful for governments to understand the traditional elements of patent law and the ways in which they may be varied within the confines of the TRIPs Agreement.

The United States, for example, has enacted multiple plant variety protection laws. It was one of the first nations to adopt, in the Plant Patent Act of , a unique form of protection applicable to asexually reproducing plants. In addition, since the mid s, U. The Wilmot Bill is, as explained by its drafter, Professor Dean, in the accompanying synopsis to the Bill, a considered effort to provide adequate, financially viable, legally enforceable protection for traditional knowledge TK that will: Provide sui generis protection for TK.

Comply with South Africa's international obligations. Safeguard our existing IP statutes from irreparable harm. Establish a more sophisticated system for the protection of traditional knowledge in South Africa that far exceeds the level of protection anywhere else in the world.

Indeed, his oeuvre of jurisprudential work is substantial by any standard. Therefore, by presenting to parliament a workable TK Bill, Dr James has introduced the best alternative to the existing TK Bill anyone could have wished for. Conversely, after refusing to sign the current old TK Bill into law, the President ordered that it be returned to Parliament for consideration by the House of Traditional Leaders on 15 March.

This marked the latest in a series of setbacks for the beleaguered portfolio committee and its ill-conceived Bill. However, the portfolio committee maintains that the old Bill has been appropriately passed and should, therefore, not be re-opened for public comments. It argues that: Sui generis protection for TK is not appropriate because it would not prevent "poaching" of traditional knowledge by means of the existing IP legal system.

Despite its conjured misgivings, the IP legal system already contains a workable system for the economic exploitation of TK and that this system should be employed to exploit TK without more. The cost of implementing the Bill would be less than R million and is, therefore, economically viable because the value chain of Rooibos is estimated at that amount. The Bill should pass into law despite the President's reservations and the serious objections by a majority three out of five of the political parties represented on the committee itself.

South Africa should regulate TK immediately, despite it being unenforceable, and not wait for the guidance of WIPO or any other model law, even though several international organisations have been working exclusively toward a workable solution for developing and developed nations. These facts only scratch the surface of a mass of inadequacies in the work of the portfolio committee, the bullying attitude of the DTI and the festering political objectives that have driven this Bill since its inception. It is riding roughshod over our democracy and blatantly contravening the constitution.

In fact, the latest report by the committee recommended that the Bill should pass into law despite the President's objections and the express recommendation by the Department of Science and Technology that the Bill be halted because it oversteps the mandate of the DTI. Clearly, the committee is prepared to trample underfoot every objection to its problematic Bill and is comfortable with ensuring that TK will never be protected in South Africa. The committee has transformed itself into a giant, so far removed from the real world that no obstacle may remain standing, least of all the foundations of our intellectual property law system.

These are the facts. The old TK Bill, if it goes any further, will introduce a TK system that is guaranteed never to function at all.