CHAPTER 12
Fundamentals in Country Legal Systems: Generalities BEFORE YOU CREATE OR ACQUIRE IP RIGHTS,
you should become generally familiar with the legal systems and laws of other countries where you might desire protection for those rights. You should also have some awareness of the similarities and distinctions between the legal system of your own country and those of other countries. It is not necessary for you to become an expert on these laws—you can leave that to your attorney. But you need some awareness to make certain that you are asking the right questions and gaining satisfactory protection. Fortunately, in the realm of IP, many of the distinctions tend to blend across country borders because most countries have recently developed or amended their IP laws and regulations to conform to international agreements, such as TRIPS. Nevertheless, an understanding of country legal systems is important for two reasons. First, an awareness of legal systems will be useful in a general context when considering your business and marketing plans. If you know which countries have tended to follow common law versus socialist law, you can anticipate the treatment of your IP and the receptivity of the markets, and you can make advance modifications to secure your IP rights and to ensure popular acceptance. Second, if you are aware of how local laws have developed within the context of different legal systems, you will be better prepared when facing the specific requirements of a particular country. For example, if you understand the basic tenets of Germanic civil law and you are protecting your IP rights in Japan, you can make some assumptions as to what to expect because Japan’s IP law was developed from Germanic civil law.
Legal Systems Worldwide There are four major types of legal systems in the world: common law, civil law, Islamic (Shari’ah) law, and communist or socialist law. Many countries have adopted a combination of these legal systems, and in addition have retained some influences from various cultures that have crossed the borders in the past. For example, Japan looked to Germany when developing its modern laws, and therefore it follows the civil law system. The United States took much of its legal system from England, and therefore it follows common law. Malaysian law is a combination of common law, Islamic law, and Malay principles, and it is also influenced by Chinese and Muslim cultures. In Egypt, the civil law system combines French Civil Law with Islamic principles and some common law rules, reflecting lingering British and French influences. In Asia, Africa, and South America, and various island chains, many of the legal systems have been built on the foundations of former colonial masters—Brazil applies civil law reflecting its Portuguese history, while Singapore applies common law on account of its English heritage.
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