This article describes the new European regime for identifying the ‘applicable law’ in unfair competition cases with an international element, according to the Rome II Regulation. It also discusses the relationship of the Rome II Regulation with the Unfair Commercial Practices Directive.
The Rome II Regulation introduces a new regime for determining the applicable law in all cases of non-contractual liability with an international element. If the act of unfair competition affects markets or consumers in general, then the applicable law is that of the state or states where competitive relations are affected. If a single competitor alone is affected (as with theft of trade secrets), then a more complicated three-stage scheme applies, possibly leading to a single system of law governing a multi-jurisdictional claim.
The Rome II Regulation creates new opportunities for litigating unfair competition actions on an international, and even Global scale. In the longer term, its main significance may lie in forcing common lawyers to think of ‘unfair competition’ as a distinct and homogeneous category of law, separate from IP, and more extensive than the various nominate torts which go to make it up in English law.
This paper examines the argument that patenting has become an impediment to innovative activity, rather than the incentive it was originally designed to be.
Using economic analysis and empirical evidence, I take up three main issues: deterioration in the quality of patents issues, with ‘weak patents’ unlikely to be enforced by courts if challenged; patent thickets, where firms must secure license agreements from many patentees in order to undertake R&D; and the costs of enforcing patent rights.
The analysis leads to five main policy recommendations: 1) an opposition procedure in the patent office, 2) a mechanism for third-party provision of information on relevant prior art, 3) a substantial increase in patent renewal fees to generate a progressive tax on patent rights, 4) an effective, market-based system of patent litigation insurance, and 5) a centralized patent court to increase predictability of patent enforcement.
Knowledge, its generation, appropriation, and control, is at the heart of the modern knowledge economies—and IP rights (in particular, patents) that protect this knowledge can be described as their currency. It is therefore unsurprising that issues around knowledge and its ownership have become contested by an increasing number of actors, as the stakes are very high. As the role of the patent system has become more visible, it has been subject to increasing scrutiny not only by societal groups but also by the users of the system. Detractors often criticize the patent system for its perceived lack of openness or transparency, yet the very word patent is derived from the Latin word for open.
The health of the patent system is of critical importance to many stakeholders. This article discusses how the different definitions of openness—open v secret, or open v proprietary—might provide some useful thinking on how to restore this sense of inherent openness to the current system. The authors contend that the issue of openness is often a surrogate for societal concerns about trust in the patent system and its institutions. They suggest three questions that the system should address in order to regain public trust and argue that the issues of transparency and trust should be at the heart of any initiatives to reform the patent system and protect its threatened virtue.
This article studies the current understanding of copyleft by the Spanish judicature from the analysis of the collection of judgments delivered since the first appearance of this new concept in court in 2005.
Two different main issues are discussed in this article: on one hand, the attitude of Spanish courts to copyleft, on the other, their approach to copyleft and moral rights. The study of the first point is based on the review of 20 judgments concerning musical works and the characteristics and importance of two existing case law presumptions, their application by the courts, and the lessons that may be drawn from four relevant cases. The study of the second element is based on the review of the only case which connects copyleft with moral rights by contrasting court's findings with the broad frame of protection to moral rights existing in Spain.
Europe has recently witnessed a first launch of judicial decisions on open content and copyleft issues. From a practical perspective, the author explains the general framework designed by case law in Spain and points out several critical issues about the exercise of some moral rights over copyleft works in one of the jurisdictions with stronger moral rights protection.
Copyright exhaustion ensures that the owner of copyright does not have resale downstream control over the copies of copyrighted material once they have been sold. This keeps anticompetitive practices at bay and at the same time ensures that the copyright holder is rewarded once for every copy produced.
This article examines the difference in approach of the different constituent elements of the overall umbrella of IP Rights jurisprudence, for issues like exhaustion of the IP creator's rights after the first sale of the IP has already taken place, while doing so the authors explore the difference of rights in the same doctrine under different jurisdictions like India and the USA.
The difference in position with respect to patents and copyrights on exhaustion has been amply highlighted. This article explores the fact that the USA extends the doctrine of copyright exhaustion and parallel importation to all kinds of ‘works’, whereas the applicability of the same is much restricted in India, is highlighted as one of the issues to be resolved to attain a state of harmony in applicability and enforceability between apparently similar laws. This article thus compares and contradicts the issue of copyright exhaustion in two very different jurisdiction.
In 1992, Directive 92/100/EC required Ireland to enact a remuneration scheme in respect of authors whose works were made available by public lending. Ireland missed the deadline and when the Directive was transposed, with effect from 2001, the ECJ ruled that, in exempting all public libraries from the duty to pay remuneration to authors and peformers, Ireland had exceeded the limits of the cultural purposes derogation in the Directive. The Copyright and Related Rights (Amendment) Act 2007 and SI No. 597 of 2008 set up a Public Lending Right (PLR) system, effective from March 2009.
The Irish PLR is closely modelled on the UK PLR system that pre-dated the Directive by a decade and in following the UK model, in particular by making the right conditional on registration and preventing the estates of authors who died between 1994 and March 2009, the legislation fails to meet the rationale that lay behind the 1992 Directive and the legitimate expectations of authors following the passage of the Directive. The scheme is financed by the Irish taxpayer and is administered by the Library Council, the body in charge of administering the public library system. As the rules make the author entitled to whatever is left after expenses have been deducted, one fears that this may not be very much in the straitened financial conditions that Ireland is currently in. The first distribution will be made in 2010 when the ‘per loan’ statistics are available.
It will not be possible to evaluate the Irish PLR system until the first distribution is made, but we are going to see that the estates of Irish authors who registered in the UK but who died before registration was possible in Ireland will get cheques from the UK PLR authority but not from the Irish body. The fact that the Directive has been narrowly construed to exclude authors of other than literary works and performers is a cause of concern and while Ireland is not alone in taking this approach, the European Commission needs to re-examine the 1992 Directive and whether EU states have broadly ignored some key objectives that prompted its adoption by the Community legislator.