The Effects of Intellectual Property Conventions

MAGNT Research Report (ISSN.
1444-8939)
Vol.2 (4). PP: 244-250
The Effects of Intellectual Property Conventions

Kourosh Safarkopaieh
Abstract: In general view, conventions originally is not any treaty, it is a sort of treaty law so the
effects of both of them is similar to each other but Treaty law is more general rather than convention.
Intellectual property regulations originated of two important Conventions, Therefore in the first step, this
paper prefer to begin of them. Treaties and conventions mean an international agreement concluded
between states in written form and governed international Law. Therefore the state responsible for an
internationally wrongful act is under an obligation to compensate for damage caused thereby also related
organizations shall respect to their obligation. The effects intellectual property convention is direct or
indirect to their organs even conduct dependent person or group which are under the control of them,
unless exceptions remove the effects of these conventions
Keywords: Intellectual property, international Law, conventions
1. Introduction
A convenient starting point for discussing
intellectual property conventions is the Vienna
convention on the law of treaty 1969, came into
force on 27 January 1980, Article 2(i) (a) of it
defines a treaty for the purposes of conversations
as international agreement1 between two parties
in the respect to a treaty as a result of
agreements2.
In general view, conventions originally is not
any treaty, it is a sort of treaty law so the
effects of both of them is similar to each other
but Treaty law is more general rather than
convention. in this line of argument, What is
more?
Intellectual
property
regulations
originated of two important Conventions,
Therefore in the first step, this paper prefer to
begin of them.
Treaties and conventions mean an
international agreement concluded between
states in written form and governed international
Law3. With difference in details, in other words,
convention is an international community,
whenever establishing a new organization or
system such as convention establishing the
intellectual
property
organization
for
Constituting.
1
- R. M.M. Wallace, International Law, Fourth Edition, London,

Sweet & Maxwell, 2002, P231.
2
- M. Akehurst, A Modern Introduction to International Law,
Sixth Edition London, Unwin Hyman, Boston / Sydney /
Wellington, 1987, P123.
3
- Article 1 of Vienna convention 1969.
Bern and Paris conventions for creating a

new legal system which are established two
substantive Unions as like as others. For
protection of copyright, patents, trade names and
marks and Allied rights that are named
intellectual property conventions.
Any state which is a party to Paris or Bern
conventions may become a party to other related
agreements or protocols also intergovernmental
organization where every member of Unions are
adopting decisions, the program and budget of
them4. Conventions enter into force in such
manner and upon such date as it may provide as
soon as consent to be bound for all the
negotiating states5; Also when the consent of a
state to be bound on the date after the
convention has come into force. So such
conventions create legal obligations (rights and
duties) for objectives of international law.
States are in charged with performing and
fulfilling the obligations of intellectual property
conventions based on principles of free consent
and of good faith and pacta stunt servanda rule
during in respect to previous treaties and
conventions6.
Of
course,
Intellectual
Property
conventions may be between two states or
organizations or among them as bilateral or
multilateral treaties for better performing that
4
- Article 1 of Vienna convention 1969.

- WIPo, Intellectual property handbook, policy, P. 292.
6
- I. Browline, Principles of public International Law, Fifth
Edition Oxford, Clarendon press, 1998, P.P 610-612.
5
(DOI: dx.doi.org/14.9831/1444-8939.2014/2-4/MAGNT.31)
MAGNT Research Report (ISSN. 1444-8939)

sometimes there is no clear distinction between
law making and others.
While was accepted supplementary treaties
for complete fulfilling new agreements, imagine
TRIPs agreements for commercial aspects of
Intellectual property conventions.
These international demands pay attention to
treatment of parties for respect to other states
rights and performing their obligations unless
they must step for non observance of their
obligation or may be non performing right
because of respect to human rights about their
followers.
However shall distinguish non observance
of Intellectual property conventions from
international responsibility but for excellent
understanding of it should consider international
responsibility in consequences of non
observance or other illegal measures.
Therefore, there is two notions, performance
and non performance the obligations by
objectives, in first face is positive measures
according to international law but in the second
notions is against the demand of international
community.
There was an early difference of opinion over
definition of legal relationship arising from it,
first arising from binding bilateral relationship,
second is from the compulsory legal order but
third view hold that the consequences of it
cannot be limited to reparation or sanction that
may give rise to various types of legal based on
circumstances7.
So conditions required to establish the existence
of internationally wrongful act of the state are
attributed act based on subject or breach
obligation based on objective.
Whenever parties to conventions as objectives of
international law accept the provisions of a
treaty based on counter consent, it enters into
force so every treaty in force is binging upon the
parties and must be performed by them in good
faith8 unless different intentions appear from the
treaty or is established9.
7
- Article 1 Of The draft Articles On Responsibility Of States For

Internationally Wrongful Acts with Communitarians, 2001.
8
- Article 24 / 26 of Vienna Convention, 1969.
9
- Article 28 of Vienna Convention, 1969
Vol.2 (4). PP: 244-250

Also when all the parties to the earlier treaty are
parties to the later treaty, but the earlier treaty is
not terminated10.
However, member states are obliged to
submit the treaty to their organs and competent
authorities for enactment of conforming to
domestic legislation.
The conduct of any state organ shall be
considered an act of that state under
international law, whether the organ exercises
legislative, executive, judicial or any other
functions, whatever position it holds in the
organization of the state, and its character as an
organ of the central government or of a
territorial unit of the state also an organ includes
any person or entity which has that status in
accordance with the internal law of the state11,
Because of it states are the first principal of
attribution for the purposes of state
responsibility in international law.
Moreover the principle of the unity of the
state entail that the acts or omissions of all it's
organs should be regarded as act or omissions of
the state for the purposes of international
responsibility12.
States may be responsibility for unlawful acts of
their organs or the acts of an official with
apparent authority even for the consequences of
acts which are not unlawful13.
Because of, it is impossible for the judges to
rule out their doctrines, also these doctrines may
have been fair enough at their inception, but
many have since proved inadaptable to changed
conditions parliament can solve the problems by
legislation which modifies or verses the rules14
based on necessaries of society.
Actually the noticeable point is legislation,
under some of the fundamental principles. It
means following of Intellectual property
conventions for legislative about copyright,
planet or other related rights is compulsory
unless non observance.
10
- Article 30, Vienna Convention, 1969

- Article 4 Of The draft. Articles On Responsibility of States For
Internationally Wrongful Acts with Commentaries, 2001.
12
- Report Of International Law Commission On The work of It's
Fifty-Third Session, P 40.
13
- I. Browline, Principle of public International Law, Fifth
Edition, Oxford, Clarendon press, 1998, P 612.
14
- G. Eftekhar. A miscellany of Law Text and other Material,
yalda publication, Tehran, 1993, Shahid Beheshti University.
11

For them, may be against international demands,
even it is possible in by law which rules out by
executive system
where as sometimes
misconducts is look as if, are non observance
to states obligation.
So it does not mean that regulations do not
permit foreigners for using of a right of priority
without attention to Paris convention or patent
corporation treaty.
Article 17 of Bern convention state that the
provisions of this convention cannot in any way
affect the right of the government of each
country of the Union to permit, to control, or to
prohibit, by regulation, the circulation,
presentation, or exhibition of any work or
production in regarded to which the competent
authority may find it necessary to exercise that
right.
Of course, it is not mean that countries
cannot grant greater protection. Article 19 of
Bern convention states that the provision of this
convention shall not preclude the making of a
claim to the benefit of any greater protection
which may be granted by legislation in a country
of the union.
Contracting parties may, in their national
legislation, provide for limitations of or
exceptions to rights granted to the authors of
literary and artistic works under WCT (WIPO
copyright treaty) in certain special cases that do
not conflict with a normal exploitation of the
work and do not unreasonably prejudice the
legitimate interests of the author.15
An alternation argument for responsibility
of home state could be created on the basis of
human rights law16.
Executive power is the most organ of states
for protection and promote human rights, so
protection of rights, who invent or create a
artistic work is on of the duties of executive
system, based on municipal law is legislated by
legislative systems.
One of the most important functions of
executive power is enforcement of regulations
which is ruled out in advance, under the
international law, it is possible in intellectual
property. Executive system must regard for
Vol.2 (4). PP: 244-250

protection of industrial property which has
patents, utility models, industrial designs,
trademarks, service marks, trade names.
Indications of source or appellations of organ are
as subject matters and the repression of unfair
competition. It is impossible unless by
establishing organizations or centers that
improvement the protective Ways in practice.
If inventors want to fill in an application for
a patent, this organ must make the best
conditions for inventors under by laws.
Therefore it is not possible the countries of
Union or other members of the patent
cooperation treaty determine more period for
protection of inventor because it is against rights
of nationals of parties treaty or non observance
for right of priority nationals of countries inside
Unions. In this situation, the distinction between
higher and lower officials has no significance for
the placing of responsibility on the state17. In
this opinion, convention proved, the government
of each country shall be represented by one
delegate, and the expenses of each delegation
shall be borne by the government which has
appointed it, as one of the other obligations.
Whatever may be their particular status or
rank under domestic law, results in the failure of
a notion to perform its obligations under
international law, the nation must bear the
responsibility for the wrongful acts of its
servants 18 , so it is not important between the
acts. Of superior and subordinate of officials but
where the law of a state characterizes an entity
as an organ, no difficulty will arise 19 even
omissions of armed police for performance of
the verdict about infringement of copyright or
abuse of patent which belonged to others can
create responsibility.
The turning point is that the conduct of an
organ placed at the disposal of a state by another
state shall be considered an act of the former
state under international law, if the organ is
acting in the exercise of elements of the
17
- I. Browline, Principles of Public International Law, Fifth

18
- See above, P 52.
19
- The Report of The international Law Commission On The
Work Of It's Fifty-Third Session P 42.
15
- Article 10 of WIPo Copyright Treaty

- M. Sornarajah, The International Law on the Foreign
Investment, Second Edition, Cambridge University press, P 194 .
16

governmental authorities of the state at whose
disposal it is placed20.
The activity of judicial organ relates
substantially on the rubric, denial of justice,
which may affect the responsibility of the state
because of non observance for Intellectual
property conventions, it means a state has a right
to delegate to it's judicial department the
application and interpretation of treaties if
however the, court commit errors in task or
changes enforcement of provisions of treaties
responsibility may be generated for the state
because of unlawful measures of judicial power
as vital part of state21. The functions of
executive and administrative powers are
enforcement of law which had ruled out by
legislative power according to international law,
it means, executive system must obey of
international law as like as legislative system22.
Article 34 of the Vienna convention
provides as a general rule regarding third states,
that is to say, states not parties to a treaty. That a
treaty does not create either obligations or right
for a third state without its consent, it expresses
that a treaty cannot impose rights or obligations
for a third states but if the treaty parties intend
the provision for establishing the obligations and
rights and the third state expressly accepts it
so23.
A treaty creates neither rights nor
obligations for third states but there are
exceptions to this general rule which are laid
down in detail in Vienna convention or
sometimes happens that a party to a treaty enter
into another treaty relating to the same subject
matter24, specialty on modification of treaties
because the provisions of both of them are
accepting context of each other. But by
customary international law a special territorial
agreement may produce obligations for the
20
- Article 6 of The draft Article On Responsibility Of States For

Internationally Wrongful Acts, With Commentaries, 2001.
21
- I. Brownline, Principle of Public International Law, Fifth
22
- see above, P 452.
23
- G. Eftekhar, A miscellany of Law Text and other material,
yalda publication, shahid Beheshti University, Tehran, 1993, P 172.
24
- M. Akehurst, A Modern Introduction to International to
International Law, London, Unwin Hyman, Boston / Sydney /
Wellington, 1987, PP 122 / 123.
Vol.2 (4). PP: 244-250

maintenance of international peace and
security25.
One of the noticeable conventions is Bern
convention for the protection of literary and
artistic works. First article this convention
provide, the countries to which this convention
applies constitute a union for the protection of
the rights of authors in their works, at the result
of this opinion, the countries that do not accept
provisions of Bern convention and they are third
states, so there is no obligations and duties for
them, also these countries cannot have rights for
protection of their works.
Of course, we shouldn't forget the counter
treatment. It means that if countries non
member convention respect to other countries
for their works, according to general rule
members of Bern contention will regard for non
member's works.
At the result, according to article 38 of the
Bern of connection, the countries of the Bern
Union which have not ratified or acceded to this
Act and which are not bound by Stockholm Act
of this convention may, until a short period,
exercise, if they so desire, the rights provided
under the said articles as if they were bound by
them. So countries shall be deemed to be
members of the assembly until the said date of
notification. Therefore when do accept the
provision of this convention the intellectual
property international organizations are formal
arrangement transcending machinery to facilitate
corporation among members under convention
of establishing world intellectual property is
expressed two objectives first to promote the
protection of intellectual property throughout the
world through cooperation among states or in
collaboration with any other international
organization. Second to ensure administrative
cooperation is among the unions.
According to article (4) of this convention, there
are many functions which attain the objectives
described as one of the effects of intellection
property conventions. On the other hand, the
world intellectual property has rights as like as
other organizations, too. It means, organizations
have legal capacity privileges and immunities.
25

sweet & Maxwell, 2002, P 124.

The organization can establish working
relatives
and
corporate
with
other
intergovernmental organization and make
suitable arrangements for consultation and
corporation
with
international
non
governmental organizations.
The second referable point is world trade
organization about TRIPs agreement. The
second part of this agreement consist of eight
sections such as copyright and related rights,
trademarks, geographical indications, industrial
designs, patents, lay out designs of integrated
circuits, protection of undisclosed information,
control of anti competitive practices in
contractual licenses.
A state is only responsible for acts or
omissions which can be attributed to it as it own
in international law, a state is thus responsible
for actions of government or any political sub
division of state also any organ, agency official
employee or other agent of its government or of
any sub division acting within the scope of
their employment but a state is not responsible
for acts committed by one of its nationals
because he is a private individual against a
foreigner so he is liable to prosecution in the
domestic courts26 under private international law
and sometimes according to breach of a contract
related to IP regulations are listed in it.
A state can be held liable for conduct of an
official even when official competence has been
exceeded, provided that is, the officials acted
with apparent authority as competent officials or
organs and the powers or methods used
appropriate to this official authority.
It means expropriation is taking of private
property by state that including tangible or
intangible such as: Industrial, literary and artistic
property as well as rights and interest in any
property27. Also act or omission for injuring to
properties belongs to aliens.
Of course, a contract between a state and alien
can be an internationalized, if legislates to
abolish or repudiate its contractual obligations.
Therefore many notions are possible:
As a general principal, the conduct of private
persons or entities is not attributable to the state
26

Sweet & Maxwell, 2002, P 179.
27
- Article 10(7) Of Harvard Draft Convention, 1961.
Vol.2 (4). PP: 244-250

under international law but may arise where
such it is attributable to the state because
There is a specific factual relationship between
the person or entity engaging in the conduct and
the state28. But they are acting instructions of, or
under direction or control of, that state in
carrying out the conduct29.
The conduct of a person or group of persons
shall be considered an act of a state under
international law of the persons or group of
persons is in fact exercising elements of the
governmental authority in the absence or default
of the official authorities and in circumstances
such as to call for the exercise of those elements
of authority30.
The conduct of a person or entity which is not an
organ of state which is empowered by the law of
the state such as public corporations, semi
public entities, public agencies of various kinds
private companies that to exercise elements of
the governmental authority shall be considered
an act of state under international law an entity
can be classified as public or private according
to a given legal system also the existence of a
greater or lesser state participation in it's capital
and the ownership of it's assets moreover is not
subject to executive control are not decisive
criteria for purpose of attribution of the entity's
conduct to the state, even attributing the conduct
of parasitical entities to state is considerable
which the conduct must concern governmental
activity, not other commercial or private
activities.
Conduct of organs placed at the disposal of a
state by another state is another kind's
responsibility31.
The words placed at disposal, express the
essential condition that must be met in under for
the conduct of the organ to be regarded under
international law as an act of the sending state
which means that is acting with consent of
sending state so there are two further criteria,
first it must be an organ of sending state,
28
- The Report Of The International Law Commission On The

Work of it's Fifty Third Session
29
- Article (6) Of Draft Responsibility Of States For
Internationally Wrongful Acts, with Commentaries, 2001
30
- Article 9 of Draft Articles On Responsibility Of States For
Internationally Wrongful Acts, With Commentaries, 2001
31
Work Of It's Fifty Third Session, P 44.

secondly it's conduct must involve the exercise
of elements of the sending state32.
Moreover conduct of a person or entity
empowered to exercise elements of the
governmental authority, even if it exceeds its
authority or contravenes instructions.
It shall be considered illegal act does under
international law in that capacity so state cannot
take refuge behind to the provisions of its
internal law or enforceable actions of its organs,
this subject is accepted by international
jurisprudence, state practice and writings of
jurists, also international court and tribunals
have applied the same practice33.
Next is that the conduct of a person or group
of persons under the direction or control of
states. This refers to the principal of
effectiveness in international law.
It means, it is necessary to take into account
the existences of real link between the wrongful
acts of persons be attributable to states which
accepted in international jurisprudence.
This persons are private individuals so their
conduct is not governmental activity but when
their conduct is as carried out under direction or
control of a state, it will be attributable to state
on condition that the control is effective by
planning, direction and support even companies
are state owned and controlled too, it is clear a
state may be responsible by specific.
Direction or by exercising control over a
group, there is no different between it has
authorized an act or has exercised direction or
control over it34.
The final point is the conduct carried out in the
absence or default of the official authorities35.
Such cases occur during revolution, armed
conflict or foreign occupation, sometimes self
defense of citizenry in the absence of regular
forces with three conditions which conduct must
be attribute to state and in absence or default of
the official authorities also circumstances must
Vol.2 (4). PP: 244-250

have been such as to call for the exercise of
those elements of authority36.
There are other effects for intellectual
property convention. The legal consequences of
this kind of convention is continued duty and
obligation even it is breached in advanced, it is
that in some situations the ultimate effect of a
breach of an obligation may be to put an end to
the obligation itself but it is impossible in
intellectual property convention in spite of
contract treaties about intellectual property.
One of the effects of intellectual property
convention is reparation. It means, If a state does
internationally wrongful act, must under their
obligations make full reparation for the injury
which includes any damage, whether material or
moral, coursed by states37.
Also, irrelevance of internal law considerable
in intellectual property conventions, In deed in
some of the articles can find exceptional matters
which parties or non parties relevant to their
internal law, Where as WIPO copyright treaty
provide that duration of the protection of artistic
works or limitations and exceptions according to
internal legislation38.
In general, Article 27 of the Vienna convention
provides that a party may not invoke the
provisions of its internal law as justification for
its failure to perform a treaty39.
It depends on the obligations of state which
may be owed to another state or several states.
Therefore, the objectives of international law
must accept the effects of IP convention it
means, first states of it's organs for legislation
Performance and Judicial measures. Second
organizations based on their objects and
obligations, third entities according to definite
obligations.
In some case, there are many justifications
which the objectives of international law don't
have to for the effects of intellectual property.
Satisfaction of objectives have main role for
removing liquidated and likely damages.
32
- See above, P 45.

- Article 7 Of Draft Articles On Responsibility of States For
Internationally Wrongful Acts, with Commentaries, 2001.
34
Work Of It's Fifty Third Session, P 47 / 48.
35
33
36

Work of It's Fifty Third Session, P 49.
37
- See above, P 88.
38
- Article 10 Of WIPo Corporation Treaty.
39
Work Of It's Fifty Third Session, P 94.

The Vienna convention express the consent
of a state to be bound by a treaty is expressed by
the signature of It's representative and
instruments exchanged between parties or by
ratification or approval so is not compulsory for
non parties convention unless as a customary
rule of international law; So on the other hand.
Specialty by bilateral agreement, parties of
convention can suspend or postpone the effect of
treaties due to each other
As discussed above, under Article 22 in drafts
on responsibility of states, countermeasures in
respect of an internationally wrongful act.
In the literature concerning counter
measures, reference is sometimes made to the
application of a sanction or to reaction due to
party's convention. Where countermeasures are
taken, the underlying obligation is not
suspended, of course, as a response to
internationally may be justified only in relation
to that states40, According to Article 2 of
convention for protection of the national
treatment shall mean the treatment accorded by
the domestic law of contracting state and shall
be subject to the protection guaranteed and
limitation provided for this convention.
Force majored is one of the legal general
principle in municipal and international law, it is
irresistible compulsion or coercion this phrase
particularly is used in commercial contract to
describe of parties, there is three elements for
force majored first the act is by on resistible
force or unforeseen event second is beyond the
control of the state concerned third perforce men
is impossible in this circumstance and
intellectual property conventions may suspend
or postpone because of the force major41.
Necessity, According to Article 25 of draft of
responsibility states, may not be invoked by
state as a ground for precluding the
wrongfulness of an act not in conformity with an
international obligations, of course shall
distinguish between necessity of distress, the
term necessity is used to denote where a state
can safeguard an essential interest threatened by
grave and imminent peril, perhaps about
commercial categories related to intellectual
40
- WIPo Yearbook Of International Law Commission, P 75.

Vol.2 (4). PP: 244-250

property that executive power of a state based on
necessity non observance to regulation of
copyright for short time.
Finally, in spite of contract treaty subjects
of international law must observance to
international obligation in intellectual property
based on previous consent, also third states
according to international customary law shall
confirm their conditions to intellectual property
conventions, of course shall distinguish between
obligations due to right and due to duties, it
means states can abandon of their rights in
condition that respect citizen's human rights.
When convention entree into force, subjects of
international community must perform their
special obligations, where respect to common
and normal obligations, on the other hand, there
is kinds of agreement in intellectual property
with special subject matter attribution to it's
categories in details.
Whereas non observance for
international obligation, about intellectual
property may cause international responsibility.
Therefore the state responsible for an
internationally wrongful act is under an
obligation to compensate for damage caused
thereby also related organizations shall respect
to their obligation.
The effects intellectual property convention
is direct or indirect to their organs even conduct
dependent person or group which are under the
control of them, unless exceptions remove the
effects of these conventions.
References
1. G. Eftekhar. 1993. A miscellany of Law
Text and other Material, yalda publication,
Tehran, Shahid Beheshti University.
2. I. Brownline. 1998. Principle of Public
International Law, Fifth Edition, Oxford,
Clarendon press.
3. M. Akehurst, A Modern. 1987. Introduction
to International Law, Sixth Edition London,
Unwin Hyman, Boston Sydney /
Wellington, P123.
4. Bouzoubaa N, Lachemi M. Self-compacting
concrete incorporating high volumes of class
F fly ash-preliminary results. Cem Concr
Res 2001; 31: 41320.
41

5. M. Sornarajah, the International Law on the
Foreign Investment, Second Edition,
Cambridge University press, P 194.
6. R. M.M. Wallace, 2002.International Law,
Fourth Edition, London, Sweet & Maxwell, ,
P231.
Vol.2 (4). PP: 244-250

7. WIPo, Intellectual
policy, P. 292.
property
handbook,

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MAGNT Research Report (ISSN.

Vol.2 (4). PP: 244-250