IIC - International Review of Intellectual Property and Competition Law

Published by Max-Planck-Institut für Geistiges Eigentum, Wettbewerbs- und Steuerrecht
Print ISSN: 0018-9855
The model provisions of the EC Biotechnology Directive rightly reject the patenting of the human body and its elements in situ without exception. Isolated elements, on the other hand, may be patented if the other general requirements are met. However, the industrial application of an isolated sequence or partial sequence of a gene must be disclosed in the patent application. It is not sufficient merely to designate basic methods of functioning. No greater weight is to be given to ethical considerations within the patenting procedure. Ethical questions may be the decisive motive behind planned legislation, and ethical aspects may substantially influence the concrete form of individual provisions. But any further- reaching effect of philosophy on prevailing law is to be avoided absolutely in the interests of legal clarity and certainty.
The progressive elucidation of the structure of the human genome with the subsequent use of this information for various purposes, many of which will be of commercial value, raises questions about the ownership of the information. This article points out some of problems of defining the genome as property and explores the relevance of the usual criteria of patent law to this new situation.
This article is an overview of the transitional provisions of Council Regulation (EEC) No. 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (now Regulation (EC) No. 469/2009). It discusses the rationale and structure of the provisions concerning the initial entry into force of the Regulation, the subsequent enlargement of the EU and the conflict with existing national regimes for extended patent protection. An analysis of the Community legislation is carried out in the light of the national law of the Member States and the case-law of the ECJ.
As in most civil law countries, registration is the only way to acquire trademark rights in China, and the protection of unregistered marks remains a marginal issue. However, companies always have considerable interests in the protection of their unregistered commercial signs. Problems with trademark piracy and passing off regarding unregistered trademarks in China have drawn attention throughout the world. Besides the absence of spontaneous market order, defects in the current trademark and competition law systems are the main reasons for this problem. The bona fide principle, as incorporated in the PRC Trademark Law, is applicable only to piracy of those trademarks that have been used in China and are known to the relevant public. The action of passing off in the PRC Anti-Unfair Competition Law does not cover unregistered trademarks as it stands, and they can only benefit from this protection by being disguised as a product name, packing or decoration. The protection of well-known trademarks is nearly unavailable because the fame requirement is too high. The last revision of the PRC Trademark Law improved the current regime by enlarging the scope of application of the bona fide principle in trademark law. However, we still need to give a clear status to unregistered trademarks in anti-unfair competition law, and Chinese courts should lower the fame requirement in the recognition of well-known trademarks.
This article demonstrates that the copyright exceptions for educational institutions are an obstacle to the development of lifelong learning and distance education in Thailand, as well as preventing the use of digital technology in the Thai educational sector. This is because they only allow the distribution of educational materials by teachers and educational institutions to be done in a class or in an educational institution, so they cannot cover the situation where the institutions distribute such materials to distance-learning students via electronic means outside the institutions. Thus, this article proposes that the exception for educational institutions needs to be reformed in order to support the Thai government’s policy of distance education and lifelong learning. However, it also argues that the proposed changes recommended in this article, to extend the scope of the current exceptions to cover the distribution of educational materials outside the classroom for distance education, must be carried out together with the introduction of some additional measures to ensure that such changes will only have a limited impact on the incentives for creativity and the economic interests of copyright owners.
From its very beginnings, the jurisprudence of the European Court of Justice (ECJ) on the free movement of goods had to integrate intellectual property rights.(1) By and large, it can be said that the Court has been very successful in eliminating unwarranted restrictions to the free movement of goods on grounds of such rights. In several recent judgments, the Court refined its jurisprudence concerning the doctrine of exhaustion. This doctrine is the Court's formula for balancing two competing concerns:(2) on the one hand, the fundamental principle of free movement of goods, guaranteed by Art. 28 EC. This is relevant, in the present context, for parallel traders, who "play an important role in preventing the compartmentalisation of national markets".(3) On the other hand, there are the legitimate interests of the holders of intellectual property rights (recognised by Arts. 295 and 30 EC). The analysis of the case law can, thus, be subdivided into three aspects: the rights conferred on owners of intellectual property, the conditions for exhaustion of intellectual property rights to occur, and the consequences of exhaustion.
The Max Planck Institute for Intellectual Property, Competition and Tax Law is a research institute within the Max Planck Society for the Advancement of Arts and Science. With its expertise in these areas of law, and an emphasis on comparative analysis, it takes the economic and technological aspects of the law into account. The Max Planck Institute contributes to answering fundamental legal questions and provides impulses for legal developments at the national, European, and international level. These are the Institute's replies to the questions raised in the Green Paper.
The Max Planck Institute for Intellectual Property, Competition and Tax Law is a research institute within the Max Planck Society for the Advancement of Science. With its expertise in these areas of law, and an emphasis on comparative analysis, it takes the economic and technological aspects of the law into account. The Max Planck Institute contributes to answering fundamental legal questions, and provides impulses for legal developments at national, European and international levels. The Max Planck Institute hereby submits its comments on the Directorate-General Competition discussion paper on the application of Art. 82 of the EC Treaty to exclusionary abuses. Although some remarks will be made on the general analytical framework envisaged for exclusionary abuses, the focus of these comments will be on the Commission's approach to exclusionary abuses involving intellectual property rights.
After long parliamentary debates with a significant media presence, France has finally adopted the law of 1 August 2006 aimed at adapting copyright to the digital environment. This law, intended to implement the Directive of 22 May 2001 into national law, goes far beyond the requirements imposed by the Community legislation. Addressing delicate subjects not regulated by the Directive, such as file-sharing by means of peer-to-peer software and interoperability, the French legislature had the opportunity to set an example by adopting a particularly modern text. The result, strongly influenced by the activities of lobbies, unfortunately seems to fall far short of the hopes it had generated, and it is highly probable that it will (at best) only set up a very imperfect legal framework for the development of the information society. The aim of this article is to analyse the principal elements of the reform that are aimed at adapting copyright to the challenges posed by the new technologies.
The Max Planck Institute for Intellectual Property, Competition and Tax Law endorses the Commission's plans for a Community patent, which promises several key advantages as compared to fragmented rights under the EPC system. The Institute likewise endorses the general structure for patent litigation under the latest proposal advanced by the Council and the Commission in 2009 for the establishment of a European and Community patent court (ECPC), which answers to most of the current problems of ineffectiveness plaguing patent litigation and incorporates a workable compromise between the differing interests of political players and other stakeholders. The Institute underlines in particular that the tasks of creating a substantive patent right for the internal market and of reforming the patent litigation system are essentially separate and may therefore be implemented separately. However, the structure of the ECPC as discussed under the 2009 Proposal requires a number of adaptations to increase effectiveness and to ensure compliance with general Community law, which are discussed in this article.
The Max Planck Institute welcomes the initiative of the European Commission for a binding legal instrument on collective management of copyright and related rights in the EU. Numerous provisions are to be appreciated (paras 15 and 31). Yet the Commission seems to fail to take account of the full legal framework and factual circumstances that have structured the current system of collective rights management. Disposing of natural monopolies in a two-sided market (paras 5-9), collecting societies (about this terminology, see footnote 2) should not refuse to grant access to their services to rightholders and users. Hence, it is strongly recommended that the European legislature follows the experience of numerous Members States and proposes an obligation to contract with rightholders (para 10) as well as with users (para 11). The critique on the Commission’s approach to cross-border licences for online rights on musical works as set forth in the Recommendation of 2005 (footnote 6) has unfortunately not been duly considered and the Commission’s assessment of the practical effects of the Recommendation is mistaken (paras 9-10, 12, 17, 46 et seq.). Differences of substantive copyright law among Member States still constitute an obstacle to the establishment of an internal market for works. This is why the Institute deems the Commission's sectorial approach to the regulation of cross-border licensing to be problematic. Also such regulation would require further harmonisation of substantive copyright law (paras 13, 20 and 25). Moreover, the Proposal fails to take account of statutory remuneration rights and cases of mandatory collective management (see paras 14, 18 and 36). Both pursue specific protection of original rightholders. In this regard the Proposal’s refusal to distinguish between different categories of rightholders raises concerns (paras 15-18, 28, 55). Since collecting societies manage copyrights and related rights arising from national law, and considering the benefits of an authorisation system (paras 57 and 69 et seq.), which can be found in several Member States, the Institute advises the European legislature to clearly state that the intellectual property exception of article 17(11) of the Service Directive applies to collecting societies (paras 19-24). The Proposal endangers the balance both between different categories of rightholders and between rightholders and users that the established system of collective management of copyright in Europe traditionally seeks to achieve (see paras 32-45, 64). It thereby compromises the laudable goal to foster the establishment of an internal market for online uses of works across Europe (paras 12, 26, 46-65).
In 2002, the European Economic and Social Committee (ESC) described the doctrinal premise of the European Patent Office´s interpretation of Art. 52(2) of the European Patent Convention as "the product of legal casuistry". The purpose of the current article is to consider that description, and ask whether it is fair, or whether the EPO´s approach to Art. 52 is better ascribed to problems inherent in the EPC itself. Three issues are addressed to that end. The first is the object of the ESC´s criticism: Art. 52(2) and its interpretation by the EPO´s Boards of Appeal. The second is the context and substance of the criticism itself: the European Commission´s Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions, and the scathing response it attracted from the ESC. And the third is the question of the criticism´s validity: can the EPO´s approach to Art. 52(2) be defended against the charge of casuistic reasoning, and, if it can, does it follow that the approach is satisfactory?
In a paper recently published in the IIC, I argued against the prevailing construction of article 52(2) of the Convention on the Grant of European Patents as resolving to a single requirement for technical character. That argument was based in part on a challenge to contemporary assumptions surrounding the historical provenance of the 'technical character' theory of inventions, and article 52(2) itself, that drew heavily on an analysis of the EPC's travaux preparatoires. Hence the article's subtext, that the travaux preparatoires can be of value in contemporary debates regarding European patent law, not only for the insights they offer on substantive matters of patentability, but equally for the insights they offer on regional lawmaking processes themselves. In the light of that value it is surprising that so little academic attention has been paid to the EPC's travaux preparatoires to date. There is an important series of early IIC articles documenting the progress of each stage in the EPC lawmaking process, but no detailed study of the travaux preparatoires in relation to the central EPC provisions themselves. The purpose of the current paper is to make a modest start on filling this gap in the literature of European patent law by offering a 'pre-history' of the most contested of those provisions, article 52(2), and its counterpart in the United Kingdom, sub-section 1(2) of the Patents Act 1977. It is hoped in doing so to create a study of interest and use to the range of people engaged in the current national and international debates concerning the reach of the contemporary European patent system, and the most appropriate mechanisms for that system's reform.
On February 25, 2000, the Italian Government adopted Legislative Decree No. 67, which enacted Directive 97/55/EC amending Directive 84/450/EEC concerning misleading advertising, so as to include comparative advertising. Contrary to what one could have expected in a country that has traditionally banned comparison in advertisements, Italy was one of the first among the Member States to implement Directive 97/55/EC. In order to allow consistent enforcement practices, however, the adoption of the new law must be followed by a profound change in the ways Italian courts and legal operators have approaches this issue so far. This Article explore this issue and addresses the following question: can comparative advertising, whenever it is truthful and fair, be finally declared admissible under Italian law as a result of the adoption of Legislative Decree 67/2000 — that is to say, will the criterion that has distinguished the issue in the past, according to which comparative advertising appeared inevitably to discredit competitors, continue to thwart, in practice, its declared lawfulness? First, the Article describes the traditional approach of Italian law on the issue of comparative advertising. Next, this Article considers how the Italian Government implemented Directive 97/55/EC into national law. Finally, this Article examines the first decisions adopted under the new law to draw some conclusions as to whether consistent enforcement practices can now be possible in Italy. Considering the traditional importance of the Italian self-regulatory system, the Article also refers, whenever it is necessary, to the relevant provisions of the Italian Self-Regulation Advertising Code.
The focus of this work will be an analysis of the European conception of the functionality doctrine, which was originally invented and developed by United States’ courts. The central debate revolves around the differing approaches taken by the European Court of Justice and Advocate General Mengozzi in the ECJ’s recent Lego decision, concerning the classification of so-called hybrid shapes and the relevance of alternative shapes. In order to reconcile these differences with a coherent dogmatic understanding, these questions will be supplemented with the findings of US courts, specifically the ruling in the Traffix decision. The underlying idea of this comparative method is to find appropriate solutions to the questions that still appear to be unresolved at this stage in European trademark practice.
This article explores the abusive nature of price squeeze through investigating why a dominant undertaking subject to a price squeeze liability cannot be allowed to benefit from its competition advantages over vertical integration. As such a result, price squeeze obliges a dominant undertaking to subsidize non-vertically integrated competitors. This goes against a general principle that competition law protects only competition rather than inefficient competitors. The examination of the six price-squeeze cases within the context of EU competition law reveals that price squeeze cannot be fully explained by other closely related concepts, such as excessive pricing, predatory pricing and refusal to deal. Accordingly, this article develops a new theory for the abusive nature of price squeeze. This theory tells that price squeeze aims to maintain competition on a regulated market where a sector-specific regulator imposes both a duty to deal and a price regulation upon the dominant undertaking concerned.
Using the method of comparative analysis, this paper explores different legal issues related to software management within universities. It is organized in two sections. The first section will deal with the crucial issue of ownership of intellectual property rights in copyrights and patents, outlining the discussion with reference to the specific objective of this review. The regulatory framework in this field, which is often opaque due to the different regulations that characterize the diverse forms of intellectual property rights, is made even more incomprehensible by providing different legal regimes according to the status of the person who has carried out the research (professors, lecturers, fellows, graduate students, etc.). The second section provides an explanation of the role that contract law, and specifically licensing, has in the exploitation of software. Finally, considerations of a general nature will be developed and some operational solutions proposed, primarily aimed at emphasizing the importance of a systematic approach to the transfer of knowledge in a university environment.
In this paper, the author argues that compulsory licenses might potentially amount to indirect expropriation provided that their effects constitute a severe curtailment of the patent rights. Inasmuch as the expropriation standards in BIAs differ from those articulated under the TRIPS Agreement, particularly in the focus of due process and compensation requirements, the ability of developing countries to make use of compulsory licenses at the WTO level might be reduced. Also, regarding the arbitral procedure, it is of much value from the public health perspective that an investor-state arbitration structure could pursue a balanced reform between private investment and pubic policy. It is a matter for deliberation whether an ultimate return to state-state dispute settlement, rather than investor-state arbitration, would be more feasible to settle disputes concerning health-related compulsory licenses under BIAs.
The nature and scope of intellectual property protection, if any, which clinical trial data should receive in terms of Art. 39 of the TRIPS Agreement have been put back in the spotlight through recent events: First through suggestions by heads of the Dutch, French and UK regulatory authorities as well as the European Medicines Agency that such data should not be considered commercially confidential information. Secondly, courts in countries such as Argentina and Brazil have recently decided cases in which they had to balance rights over clinical trial data with competing public health priorities. Both courts decided that public health interests take priority over claims for exclusive rights over clinical trial data. These events raise pertinent ethical and legal concerns, which warrant considerations of strategies that can be used to manage intellectual property rights over clinical trial data with a view to fostering access and benefit sharing in public health. This paper draws lessons from these events and suggests possible options for strategic management of intellectual property rights over clinical trial data in order to cater to public health needs. The concept of access and benefit sharing, which has so far been debated in the fields of biodiversity and most recently in the human genome context is applied to public health with a view to initiating discussions on how it can inform decision making in the management of intellectual property rights over clinical trial data.
The America Invents Act (AIA) introduces profound legal and administrative changes to US patent law. Recently, many practitioners have focused on the US patent system transformation from a first-to-invent system into a first-to-file system. Since March 16, 2013, a patent will generally be awarded to the first inventor to file an application on an invention and not the first to actually invent it. This will be implemented through changes in 35 U.S.C. § 102. The long-developed US legal concepts of “conception” and “reduction to practice” of ideas, for example, will thus become irrelevant as such. The US patent filing system will eventually resemble Europe’s and most other countries’ patent filing systems. The new law fundamentally reforms the paths for contesting granted patents. With various applicable transitional periods and different reviews, reexaminations and other proceedings available, an analytical and structured overview of the revised post-grant procedures is in order. Also, considering the last step of AIA implementation on March 16, 2013, the functional significance of the most relevant changes from old to new law is outlined below. In this context, crucial parallels as well as discrepancies between the reformed US Patent and Trademark Office (USPTO) rules and the practice of the European Patent Office (EPO) shall be presented.
This paper examines the adverse effect of patent ambushing on competitive conditions resulting in the distortion of the standardization process in markets where the effectiveness of competition relies heavily on standardization. The US Rambus litigation serves as a point of departure. In this case, the strategic behavior of the patentee was subjected to both an antitrust and unfair competition analysis. Both approaches display an inadequacy to squarely balance all of the conflicting interests involved. The solution proposed is to apply the patent misuse doctrine as a rule that expresses a public policy defense against patent enforcement so as to ensure the precompetitive function of standard-setting bodies. The argument is then taken further by addressing the issue of whether public policy limitations of patent rights are necessary in network industries in order to achieve welfare-enhancing reductions of the exclusionarv effect of the oatent.
This article revisits the arguments, debates and controversies that led up to the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), reflects on what might happen once the Court of Justice of the European Union (CJEU) has clarified the implications of the agreement for fundamental rights and freedoms in the European Union (EU), and evaluates the implications for the EU of the scrutiny of international agreements with provisions on intellectual property rights in the future. The article undertakes these tasks in four stages. First, it examines how Parliament was able for the first time to exercise its power of veto over a draft international agreement negotiated by the Commission on behalf of the EU under the consent procedure of the Treaty on the Functioning of the European Union (TFEU). Second, it reconsiders the rationale for ACTA in terms of why the agreement was perceived as being necessary in the first place, given that other international fora existed for intellectual property enforcement issues to be addressed. Third, the article reflects on the reasons why ACTA became so controversial that it became the focus of unprecedented public concern in the EU and its Member States, which particular attention paid to lack of transparency in the negotiating process, concerns that fundamental rights and freedoms in the EU would be undermined by provisions of ACTA, and concerns that the agreement would conflict with the acquis communautaire of the EU and with the WTO TRIPS Agreement. Fourth, the article concludes by considering what lessons can be learned for the future.
The conflicts between intellectual property rights (IPRs) and industry common standards in telecommunication sector have raised growing concerns in the industry. These highly controversial issues at play include the embrace of proprietary technologies in standards, excessive royalties for the use of proprietary technologies, the refusal to grant licenses for the use of proprietary technologies. Many standard-setting organizations (SSOs) have adopted IPR policies in order to address these issues. However, some legal disputes concerning such IPR policies have been raised in recent years, showing that the IPR issues in standardization are far from settled. This article examines the IPR policies of three major telecommunication SSOs under the EU and U.S. law, and concludes that some flaws of these IPR policies may make them fail to address the problems that they have tended to address, and finally it will provide some ways to fix those problems.The first part of this article provides a background of the standardization of mobile telecommunication technologies and the development of IPR policies by three major telecommunication SSOs. The second examines the requirement of disclosure of essential IPRs in SSO IPR policies. The third part examines the requirement of fair, reasonable and non-discriminatory (FRAND) licensing commitments in SSO IPR policies. Part four provides the conclusion.
Over the last two years the European Commission has striven to secure the adoption of its Community Patent. Those initiatives have not succeeded. During this period an alternative solution to the problems of jurisdiction over rights arising under European patents has been developed in the form of a European Patent Litigation Agreement (EPLA). This agreement is designed to provide a common procedure for litigation concerning the distinct national patents which result from the common granting procedure of the European Patent Office. It will apply duly between those EPC countries that ratify the Agreement. It is not therefore to have any application to proceedings relating to Community patents, if and when they become available in the future. Because this is so, the hostility that has been directed by the European Commission at the EPLA is difficult to accept. Among patent practitioners, support for the EPLA solution is gaining considerable ground as is manifested by the Resolution described in this Note.
Trademark law relies on the principle of priority: The person first filing for registration (or, depending on the legal system, the person first using a sign) becomes the owner of the right within the territory where the filing (or use) took place. However, in certain exceptional cases priority is discarded vis-à-vis superior interests of third parties. International law explicitly recognizes two such constellations, namely protection of well-known marks (Article 6 Paris Convention) and unauthorized registration by an agent or representative (6septies Paris Convention). Furthermore, it is widely acknowledged that the priority principle may not apply if a mark is filed in bad faith. The article presents all three constellations from an international and European legal background, including a discussion of the Commission proposals for reform of European trade mark law. It is argued that while the current law as well as the proposals go beyond what is necessary to comply with international obligations in regards of Article 6 and application in bad faith, they do not live up to the required level when it comes to well-known marks. Nevertheless, in spite of certain deficiencies, it is also shown that European trademark law in its current state as well as in view of the envisaged reform proposals presents a fairly comprehensive panoply of options for protection of superior interests in a sign in spite of lacking registration.
An unexplored perspective of Laugh It Off Promotions v. South African Breweries Ltd 2006 (1) SA 144 (CC) is that it was also about the construction of the "public interest" through the freedom of expression. This article builds on the jurisprudence of the South African Constitutional Court in this case to examine how the South African judiciary can construct a meaningful public interest in South African copyright law. Presently that interest is not as prominent as the private interest. Proceeding from the stand point that copyright is a human right and that it is made up of private and public interests of equal priority, this article asserts that the best way to mediate the interaction of copyright and other human rights is to engage in a balancing of the rights. To accomplish this in a meaningful way, this article deconstructs copyright and examines how the private and public interests in copyright interact with other human rights such as the freedom of expression, constitutional property and the right to privacy. The article ends by proposing different options open to the judiciary to construct the public interest.
The extension of patent protection to biological material is by no means a recent phenomenon in Belgium. In 1836 the Belgian Patent Office granted the first patent for a micro-organism, viz. a yeast for the production of beer. A century later, in 1949, the Office delivered the first patent for a plant, viz. a succulent. As for animals, the Office granted patents for the culture of animal cells from 1970 onward. And as for human material, the Office first granted patents for human cell lines, viz. human liver cells, in 1970. Given this rather open and lenient granting policy in the field of biological material, it might come as a surprise that the implementation of the EU Biotechnology Directive from 6 July 1998 met with considerable resistance in Belgium. In order to reconcile the many diverging viewpoints and interests at stake, the Belgian patent legislator opted for a mixture of legal measures. On the one hand, a rather literal transposition of the Directive was opted for in order to join the harmonization objective at the European level. On the other hand, some breathtaking novelties, exceeding the strict finality of the Directive, were introduced in order to accommodate the many national aspirations and complaints.The present contribution first offers an overview of the genesis and objectives of the Belgian implementing Act of 28 April 2005. Next, the paper elaborates in detail the way in which the various stipulations of the Directive have been implemented into Belgian patent law. Finally, the paper examines some measures which do not strictly relate to the Directive, such as the renewed research exemption and the compulsory license for domestic public health use.
The ruling of the European Court of First Instance in Microsoft v. Commission in was a pivotal judgment in the area of interaction between competition law and IPRs. It has been, and continues to be, a subject of many controversial discussions from both legal and economic perspectives not only in the EU but also all over the world. It also illustrated that the application of IPR-related competition law is a complex and controversial issue in both developed and developing countries. In this legal process, competition authorities in developing countries face with even greater and more serious problems. Developing countries, therefore, rarely use flexibilities concerning competition rules under the TRIPS Agreement of the WTO to address IPR-related anti-competitive practices in reality.In this context, the Microsoft v. Commission ruling may be an important catalyst in the interpretation and application of competition rules in the TRIPS Agreement. Until now, Microsoft v. Commission was the first and unique judgment given by a WTO member’s court that invoked the TRIPS competition rules to justify application of WTO member’s competition law to IPR exercise. Hopefully, this ruling will encourage competent authorities of WTO members, particularly the ones in developing countries, and embolden them to apply national competition law to IPRs and technology transfer for the sake of customer welfare and national interests.
The legal nature of software agreements, in particular on the delivery of standard software, has become one of the most debated issues among software law experts in continental Europe. In particular, the tradability of software via online services raises legal questions for both software suppliers and customers. This paper provides a legal overview of approaches adopted by some EU Member States (Germany, France and England) and the legal framework in the United States. Further it analyses the characteristics of software, principally with a view to copyright law in comparison to patent law. The authors conclude that the ECJ’s UsedSoft v. Oracle decision confirms that agreements on the delivery of software have to be qualified as licence agreements – irrespective of whether online technologies or offline “sales” apply. The paper further reflects on the decision’s impact on cloud computing as well as on contracts related to other copyright-protected digital content.
IP rights licence agreements could be considered as contracts for the provision of services within the meaning of Article 5.1.b) of the EC Regulation 44/2001, that grants jurisdiction to the courts of the State "where, under the contract, the services were provided or should have been provided". If this characterization is not concurrent with, then, jurisdiction is to be determined according to the criterion of the "place of performance of the obligation in question" ex Art.5.1.a) of the same Regulation. In the Falco case, the Austrian Supreme Court referred to the ECJ a first question which concerned whether a licensing agreement should be considered as a contract regarding the provision of services ex Art. 5.1.b, and a second subordinate question, related to the place of performance of the contractual obligation ex Article 5.1.a). This paper analyses the ECJ answers to both questions, with particular regard to the nature of the IP rights licence agreement involved.
In this digital era, public and academic libraries serve as key players in the promotion of access to knowledge. The legal discourse concerning realization of the promise of public e-libraries has thus far focused on two major battle-fronts: mass digitization of libraries’ collections and free access to the products of academic research funded by the public. Nonetheless, the radar of public and legal discourse has failed to identify a far more troublesome phenomenon, one which presents a threat to the very ability of the public e-libraries to fulfill their function. The digital era has created a profound shift in libraries’ practice, finding expression in the transition from purchasing shelf-books to purchasing licenses to electronic resources. These licenses control the libraries’ ability to pursue their declared goals, and highlight the core problem of private ordering in the information market. One of the most acute manifestations of this problem is the common practice, which has taken on worldwide dimensions, whereby these licenses restrict various uses otherwise permitted by copyright law. The exceptions and limitations acknowledged by copyright legislation are tailored in a manner that gives increased weight to the public interest. The clash between the phenomenon of restrictive contracts and the policy underlying intellectual property is therefore clear. The position advanced in this article is that there are sound justifications for a focused rule that would invalidate restrictive contracts, at least in the context of public e-libraries. These justifications are based on the function served by public e-libraries as a gateway to knowledge and in the promotion of social justice and freedom of speech. Moreover, the proposed rule should be adopted on an international level; otherwise it can easily be circumvented. The global political economy in the copyright arena has experienced major upheavals in recent years, resulting in a steadily growing demand for the expansion of users’ rights. These developments create the potential for the adoption of an international instrument designed to regulate the sphere of public libraries.
In 2009, when the Council reached a political agreement on the creation of a substantive patent right for the internal market and of a flanking litigation system, the prospects of that project looked brighter than ever before. However, the project has since taken some heavy blows, administered by permanent disagreement in the Council over translation arrangements on the one hand and by a negative ECJ opinion on the court system on the other. The Commission and Council have since been busy to reassemble the leftovers patchwork-style. This article suggests that such an approach might do more harm than good to the project overall and that perhaps one step back should be taken to reconsider the latest proposals and assess alternatives.
This publication deals with the current system of protection of indications of geographical origin (IGOs) within the European Union (EU) law. The publication examines applicable Regulations and other legal acts in relation with case-law of the Court of Justice of the European Union. The publication examines protection of IGOs from four aspects. First, there is given an overview of the current protection system. The second aspect deals with acquiring and losing of protection. The third aspect concerns protection norms of registered IGOs. Finally, there is examined necessity for further unification of protection of IGOs and expressed proposal for drafting a single common Regulation.
This study summarizes Armenian legislation in intellectual property rights (IPR) and deals with its practical aspects (enforcement); the study was conducted in March 2007 through interviews with different governmental and non-governmental bodies. Intellectual property plays an important role in an increasingly broad range of areas, ranging from the internet to healthcare to nearly all aspects of science, technology, literature and the arts. Intellectual property surrounds us in nearly everything we do: at home, at school, at work, at rest and at play. No matter what we do, we are surrounded by the fruits of human creativity and invention. Countries generally have laws to protect intellectual property for two main reasons: one is to give statutory expression to the moral and economic rights of creators in their creations and to the interests of the public in accessing those creations; the second is to promote creativity and the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development.
Top-cited authors
Christophe Geiger
  • LUISS Guido Carli, Libera Università Internazionale degli Studi Sociali
Reto Hilty
  • Max Planck Institute for Innovation and Competition, Munich, Germany
Martin Senftleben
  • University of Amsterdam
Jonathan Griffiths
  • Queen Mary, University of London
Geertrui Van Overwalle