نشریه حقوق اداری
پیاپی 14 (بهار 1397)

By Public Consultation we mean the procedure of acquiring the views of citizens or special interest groups. Although rulemakers in almost all aspects are somehow the representatives of the people as a whole and responsible before them, but public consultation make an extra emphasis in respecting public views about regulations. The very idea of Smart Regulation is that by respecting public views about regulations, we pave the way of its application. All member countries of the OECD, EU and all countries which have Administrative Procedures Act also have some clear rules about public consultation regarding regulation. As public consultation has been recognized as a worldwide regulatory approach, it is important to make some improvements in Iranian regulatory system. In fact, this system lacks some important elements of public consultation in some areas of regulation. The research method is analytic based on comparative data.

The principle of human dignity is one of the fundamental human principles that has been inserted and recognized in most of the major international and regional documents, including the Universal Declaration of Human Rights. In these documents, the importance of this principle and the necessity of its observance has been emphasized. The principle of rights of defense is also one of the most important principles that has been particularly respected since the twentieth century, and has a special role in protecting the rights and interests of citizens affected by the decisions of the administrative authorities. It should be noted that the principle of human dignity has been accepted in the constitutional law of the legal systems of the Islamic Republic of Iran and France. In this paper, it is attempted to highlight the relationship between these principles regarding the protection of the rights of administered persons while expressing the status of human dignity and rights of defense in Iranian and French administrative laws.

Although requirement of standing (locus standi) before the court for defending personal interests is not controversial, restriction of universal right of access to court in relating to illegal decisions of public and administrative authorities when do not violate a personal right but contradict rights of community is very contentious matter. In fact, “legality” as a public benefit ought to be a standing for take a suit by every one of citizens against illegal public decisions that termed as “public law litigation” or “ public interests litigation”; A kind of litigation with the public purpose of preventing the illegality that benefits the public but not for protection of a personal interest; This litigation is known in many countries including Iran that in the form of a claim against administrative regulations can be made. This research with a analytic- descriptive method aims to analyse and explain various dimensions of subject on basis of legal principles and judicial decisions.

A wide range of traditional cultural expressions (expressions of folklore) is consisted of literary works such as tales, folk art like drawings and paintings and folk songs and music. It would not be surprising to choose copyright law as the primary legal system in intellectual property to protect expressions of folklore since there is a close resemblance between these expressions and the protected works under copyright law. In fact, the expressions of folklore can be categorized under different protectable works in this system such as literary, musical and artistic works. This may suggest that copyright law can be opted as an appropriate regime to protect these expressions and in practice some countries have taken this approach. An accurate study of prerequisites and requirements of protection in copyright law, however, reveals that in spite of the similarity between the expressions of folklore and works under copyright law, these expressions lack the very basic and fundamental preconditions to be considered as a protectable work under this regime such as authorship, ownership of rights, originality and fixation as well as the temporary duration of protection. Despite these shortcomings, many have tried to justify and adapt the characteristics of these expressions to such prerequisites to fit them into copyright system so that they can benefit the provided protection. It seems, however, infeasible to entirely apply copyright rules of protection to expressions of folklore. More importantly, the aim of protection is different in each of these two categories. Considering these differences, protection of expressions of folklore under copyright law, not only demands excessive exemptions in application of its rules, but also does not ultimately lead to the desirable outcome. Accordingly, it appears that imposing expressions of folklore to copyright system neither benefits these expressions nor the aforementioned system. Therefore, it would be more appropriate to structure a sui generis system in order to protect traditional cultural expressions.

Although the new created works in the field of folklore or inspired or based on the Traditional cultural expression mainly are related to literary and artistic works can protected in accordance the copyright system but because of the limitation of copy right system that is originality, term of protection ,recognition of the holder ,concept of ownership and the fixation clause this mechanism is not necessarily adequate for the protection of Traditional cultural expretions.so until the formation a sui generis system for protection of folklore ought use all mechanism including the industrial property system for protection of cultural expressions. In the existing industrial property law system can be used Trade mark, geographical indication, trade secret, principle of the unfair completion and etc for the protection of folklore in the national and international level.

Despite the importance of effective protection of the folklore expressions, there is not an appropriate and efficient system for this purpose neither in the international nor in the national levels. The newest attempt in this scope by the national legislative system is providing a draft for “The protection of folklore expressions Act”. This draft, as the first step towards a sui generies for the protection of the folklore expressions, contains some essential faults which should be corrected according to the international experiences. The mentioned faults are mostly originated from wrong aiming in the legislation process that cause, in turn, the wrong and inappropriate quality and subject of the intended protection.

Unfair Competition (UC) , an Intellectual Property Right (IPR) according to Art. 1(2) of Paris Convention, seems to be one of the mysterious aspects of IP law; because unlike other IPRs that deal with a definite subject matter, addresses market behavior and instead of rules and principles with predictable results, uses ethical concept named “Fair Behavior” that just like other ethical concepts is ambiguous and makes prediction of results much difficult. However this characteristic has produced a popular function for UC i.e. protecting new subjects deserving protection such as Traditional Cultural Expressions (TCEs). In this study author after briefly introducing Art.10 bis of Paris Convention, examines how UC protection will extend to TCEs and also what is advantages and disadvantages of this extension. At the end author suggest trivial UC expansion for more effective protection of TCEs.