LW322: Intellectual Property Law School

of Law and Social Sciences

Supplementary Examination
Semester 1 2021

Face-to-Face and Online Modes

The Supplementary Final Examination in Semester 1 2021, applicable to all students enrolled in
LW322, will be an online exam. It will take the form of a take-home exam. Students may
download the exam questions and then post their answers later. The questions and drop box
will be available for 4 hours.

Date and time of examination

Starting (online release on Moodle): Saturday 7th August, 2021, 07.30am Fiji time;
Ending (online submission on Moodle): Saturday 7 th August, 2021, 11.30am Fiji time;
Duration of Exam: Four (4) hours. This includes reading, writing and online submission
time.

Take Home Supplementary Exam answers must be submitted within the stipulated time-frame
before the Moodle drop box closes. Late submissions will be regarded as non-submissions and
shall not be marked.

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 Instructions:

1. This Examination has THREE parts :

a. Part A: Short Answer Questions. (2 marks each –Total =20 marks)
b. Part B: Problem-based Scenario Question. Answer One Question only out of 2
questions (10 marks)
c. Part C: Problem-based Question. Compulsory question (20 marks)
2. This Final Supplementary Examination is 50% of your overall mark.
3. There are five (5) pages in this exam (including this cover page).
4. This Supplementary End of Term exams is open book.

5. There is no need to re-write the questions as part of your answer.

Part A: Answer ONLY ten (10) questions. Each question is worth two (2) marks. (20 marks)

1. Describe the different types of rights, which are protected by intellectual property laws.
Provide examples.
Ans: Copyright, Patent right, trademarks rights, designs rights. Eg A watch would have patent
rights and designs rights

2. State the sources of intellectual property laws in the Pacific Island countries and provide
examples.
Ans : Traditional laws, National laws, adopted empirical laws from UK or New Zeand etc. Eg UK
Patent law was adopted and is enforced in the Solomon Islands at present.

3. How does a copyright work qualify for protection under the copyright law? Provide
examples.

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Ans : A work has to original and must be new. Eg a work of art has to be original and fixed in an
expression to be copyrighted. Derivative works are works derived from original works, eg
translation of original work or a movie based on a novel.

4. A law librarian, at USP Laucala campus in Fiji, was required under her contract of
employment with USP to contribute to a book chapter on “Student’s use of the library
over a period of one year.” Who will own the copyright on her book chapter? Provide
legal support and examples.
Ans: Individual countries in the South Pacific have their own copyright law which will
determine who will own the copyright in the book chapter written by the law librarian,
however, a copyright work which has been created under a contract of employment will be
owned by the employer.

5. Describe the differences between a patent and other forms of intellectual properties
regulated under the TRIPS agreement. Provide examples.
Ans : Patent is different as it protects a different type of Intellectual Property apart from
copyright or trademarks. One difference is the period of protection. Protection period for
patent right is only 20 years under the Berne Convention whilst protection period for
copyright is the life time of the owner plus 50 years after their death.

6. Discuss what is patentable subject matter. Provide legal arguments and examples.
Ans : A patentable subject matter is tested as to whether the invention is a “manner of new
manufacture” and secondly if the invention is “capable of industrial application”.

7. Discuss how the law of patents is infringed and what would be the defenses available to a
person who has been accused of infringement.
Ans: A patent right is infringed by statutory offence such as making a false entry in the Registry
or a person exercises on the patent owner’s exclusive rights without the patentee’s permission.
The patent owner may take the patent infringer to court and ask for damages or account of

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profits. Or he may obtain an injunction to stop the infringing party from continue to do the
infringing act.

8. What are the four (4) basic functions of a trademark? Explain each of them.
Ans: a) A trade mark distinguishes the owners products from other person’s product on the
market. Eg an Apple computer is different from a Mackintosh computer.
b) A trademark gives information about the source of the product on the market. For
example a Mitsubishi vehicle is made in Japan whilst a Ford vehicle is made in the United
States.
c) A quality function. For example, oil extracted from olives grown in Morocco due to the
climate is much better quality from the olive oil extracted from olives grown in Australia.
d) A trademark has an advertising function. The owner of a mark will always maintain the
quality of his or her product.

9. Discuss the ways in which the internet has affected the law of intellectual property.
Provide examples.
Ans: Instant connection globally without restrictions by borders. There are no jurisdictional
barriers with internet. Hence one passes documents instantly with no jurisdictional barriers
and maintains the qualities which can be downloaded instantly. The internet system also
automatically copies all documents which are uploaded onto it and stores it within its memory
system and can be downloaded at anytime. This internet system is very difficult to trace
copyright infringers.

10. What are the legal measures taken by the World Intellectual Property Organisation
(WIPO) to address the issues surrounding copyright on the internet?
Ans : The WIPO has concluded two international agreements on the internet which are WIPO
Copyright Treaty and the US Digital Millennium Copyright Act.

11. What were the international agreements on Intellectual Property before the Trade
Related Aspects of Intellectual Property Rights (TRIPS) Agreement was signed in 1995?
Explain each agreement.

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 Ans: The Bern Convention, and the Paris Convention. The Bern Convention provides for the
protection of Copyright owners and Paris Convention protects the owners of industrial
intellectual property rights which includes Patent rights, trademarks rights and designs rights.

12. Explain the common issues between the Convention on Biological Diversity (CBD) and
Intellectual Property?
Ans: Protection of genetic resources and access to benefit sharing for use of genetic
resources which are also protected by traditional knowledge. Eg is the Mamala plant in
Samoa which was used to produce treatment for HIV aids.

13. Discuss how could the Pacific Island countries use Intellectual Property laws to advance
their development strategies? Provide examples.

14. Why it is important for the Pacific Island countries to have sui generis law to protect
traditional knowledge and expressions of culture as intellectual property? State the
reasons and provide examples.

15. Discuss the difficulties faced when one uses western Intellectual Property laws to provide
protection over traditional knowledge and expressions of culture. Provide examples in
the South Pacific Islands countries.

PART B: Answer ONLY one question, worth ten (10) marks

1. Aute String Band has existed for over 30 years in the country of Lolia and has produced
quite a number of albums consisting of their own songs featuring mainly love themes as
well as other themes. Over the years, they earned from their albums as well as from live
performances and have become very popular. However, slowly, overtime the band
members feel disheartened about the fact that the national radio, as well as other radio

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 stations in the country, have played their songs on the air and other string bands in
Lolia. Their songs have been copied and, in some instances, changed in some ways and
performed in live performances as well as on other platforms without paying Aute any
form of royalties nor commission. The Aute band members also noted that two of their
songs have been uploaded onto youtube. The country Lolia is a member of the WTO
and TRIPS but does not have a copyright society nor an Intellectual property office. The
manager of the Aute Band comes to you and asks for your advice. What would your
advice be?
Model answer: Apply the IRAC approach to solve this situation. The Copyright and
related rights law apply to this situation. The band needs to fulfil the provision for the
copyright, state their economic and moral rights, see if they have been infringed and
apply the provisions for infringement and remedies provided by the Copyright law of
Lolia.

2. Chang Store, owned by Mr Kalo in downtown Apia, Samoa, had been given the authority
by Singer Machine, subsidiary company in Australia, to have the right to sell Singer
trademark sewing machines in the shop in Apia. Over a period of time, the owner of
Chang Store, Mr Kalo noticed that another Chinese shop, Lolo Store in Apia also sold
Singer machines in competition to him. Mr Kalo was advised by the parent Singer
company in the USA and the subsidiary company in Australia that they did not authorise
Lolo Store in Samoa to sell singer trademark sewing machines. Mr Kalo comes to seek
advice as to whether Lolo Store has infringed his Singer trademark rights. What would
your advice be?
Model answer : Apply the IRAC approach. Trademarks law apply to this situation. Check the
law on the rights of the trademarks owner and on the way these rights can be assigned or
licensed to another person. State the rights of the person who has been assigned the marks
and what actions they are allowed to carry out if the mark has been infringed. State the
remedies available to the mark owner or the assigned owner.

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Part C: Compulsory question worth twenty (20) marks.

The indigenous people of the island of Tala in Fiji have a unique traditional medicine
which they had been using since time immemorial for curing and healing broken
bones. A pharmaceutical company in the USA learnt of this traditional medicine
and sent three scientists to Tala in Fiji. They lived for a month in the village during
which they interviewed the traditional healers and owners of the traditional bone
medicine. The traditional owners of the medicine answered all their questions and
showed them the plant from which the traditional medicine is extracted. The
scientists took samples of the plant and returned to USA. The pharmaceutical
company researched and extracted the properties of the plant from which they
created a new powerful pharmaceutical product for treating leukemia and other
bone marrow deceases. This product was patented in the USA and is sold nationally
and internationally. Later the Director of the Department of Culture of the
Government of Fiji learnt about the scientists visit and about the new
pharmaceutical product, which was created from a traditional medicinal plant in
Tala. The Government of Fiji requested that you provide them with legal advice on
the use of traditional knowledge by the pharmaceutical company as well as the
legality of the patent on the pharmaceutical product. What would your advice be?

Ans: Apply the IRAC. The law is Patent law. Since US pharmaceutical company is involved you
need to look at one of the international agreements applicable to other members of the WTO
such as the US which provides protection and requirements over genetic resources ie the CBD,
the DRIPS, the TRIPS Plus etc.

Identify the actions of the scientists and see if they have infringed the laws of Fiji and any of the
international agreements relating to genetic resources and intellectual property. Advice as to
the way forward for the Government of Fiji as to any infringements, remedies available and
actions to be taken in relation to the patent taken on the traditional medicine.