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یک عنوان پایان نامه در سطح دکتری: ترکیبی از حقوق مالکیت فکری و حقوق خصوصی

The Analysis of Intellectual Property Law Foundations within European and Common Law Legal History, Comparing with Iranian Law based on Islamic Sharia Law:
Is There a Way to Implement the Current International Regime?

Dr. Taher Habibzadeh
Assistant Professor
Sharif University of Technology

While the Statute of Monopolies in 1624, about 400 years ago, and the British Statute of Anne in 1710, about 300 years ago, are seen as the origins of patent law and copyright respectively in the West, the history of intellectual property law within Iranian legal system goes back to around 80 years ago, commenced with the enactment of Industrial and Commercial Trademark Act 1930,  and amended by later legislations.
Speaking specifically, in the area of protecting industrial properties, a specific Act titled Inventions and Trademark Registration Act passed in1936, remained in force for over 7 decades and finally revised in 2007 under the title of Inventions, Industrial Designs and Trade Marks Protection Act. In this line, one shining point in Iranian legal system is the adhesion of Iranian State to the Paris Convention for the Protection of Industrial Property 1883, contributing to the global protection of industrial properties; and recently joining the Patent Cooperation Treaty (PCT) 1970 is the final attempt to contribute to the international patent system. However, Iran is not a member state to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994 which is an international agreement administered by the World Trade Organisation (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.
Moving on the artistic and literary works, the main legislation made in 1970 under the title of Authors, Composers and Artists Rights Protection Act, which is in force up-to-day without any further amendments since then. As regards its contribution to the developments made in international level in this area, Iran has not joined the the Berne Convention for the Protection of Literary and Artistic Works 1886, which is an international agreement governing copyright. Still, there are augments between both policymakers and legal writers, and even publishers, as to whether Iran should accept the Convention or not.
Beyond the lines of legal instruments, which normally speak about rights and duties and their ways of application, there is an undeniable layer underlying intellectual property law, that is the historical and legal thoughts and theories based on which this area of law was built over centuries. Generally, without rethinking about the historical background it is not feasible to analyse the initial thoughts and bases of protecting intellectual properties. As any legal system has its own specific literature,  theories, principles and foundations, it is useful to seek the differences and similarities between the philosophy (in a general term) of protecting intellectual properties in the selected legal systems, learn and loan from each other, to build a fair, logical and rational system of protection.
The current research focuses on the said historical and legal thoughts and theories behind protection of intellectual properties. As Iranian law has not accepted some of the eminent international conventions which try to provide global protection of intellectual works, as mentioned above, it seems that there may still be one way to find a way to ask Iranian law to protect intellectual works irrespective of the nationalities of the authors and their countries of origin. This way is the consideration of the legal theories and bases underlying the protection of intellectual properties within Iranian legal system. The core question is whether with taking into account the historical and theoretical background of Iranian law which is based on Islamic Sharia law, is it possible to ask a global protection of intellectual properties, without accepting the current Conventions in force? Does the legal bases of intellectual property laws in Iranian legal system indicate that it must close to the international regime by accepting the current Conventions or even imply it without any adhesion? To this aim, studying the foundations and theories within European and common law legal history, and comparing them with Iranian law based on Sharia law, will play a determining rule; if their foundations are as the same as those within Iranian law, then, it should be sought that why Iranian law stays out of the international regime. In this case, one significant point is necessary to have in mind. There may be other reasons to not implement the outcome of the desired historical and theoretical studies and justifying the non-allegiance to the current global progress, such as policy-making matters, economic or any other reasons.
Discussing this research themes with the researchers of the MPI and hearing their views which normally are based on different thoughts and legal backgrounds, will definitely help to find the most appropriate way of doing the research, and provide the most comprehensive outcome. Furthermore, the invaluable legal resources available at the MPI undoubtedly assists to do provide high standard research.

The end.

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  • تاریخ انتشار: 8 اردیبهشت 1396
  • تعداد بازدید: 498
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