{"title":"3. Theoretical Accounts of European Intellectual Property","authors":"J. Pila, P. Torremans","doi":"10.1093/he/9780198729914.003.0003","DOIUrl":"https://doi.org/10.1093/he/9780198729914.003.0003","url":null,"abstract":"This chapter offers a full and critical account of the arguments for and against the existence of IP systems in general, and of European IP systems in particular. It begins by considering two general theories in support of the recognition of IP rights as natural rights: the first casting IP as supporting the personal development and autonomy of individual creators (the argument from personhood), and the second casting IP as securing for creators such rights as they deserve by virtue of their acts of intellectual creation (the argument from desert). From natural law accounts of the existence of IP the chapter goes on to examine three other theories grounded in considerations of justice, utility, and pluralism respectively. According to the first, IP is defensible as a means of preventing people either from being enriched unjustly or from harming others by unfairly ‘reaping where they have not sown’. According to the second, IP rights are privileges conferred by the state on specific individuals in the pursuit of certain instrumentalist ends, such as encouraging socially desirable behaviour on the part of their beneficiaries or discouraging socially undesirable behaviour on the part of those whose freedoms they restrict. And according to the third, IP is a regulatory mechanism by which different understandings and traditions of protecting creative and informational subject matter are reconciled in support of legal and social pluralism. The chapter concludes with a discussion of the implications of the theoretical accounts for the duration of copyright and related rights protection and the patentability of biotechnology.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124354110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"24. Enforcement","authors":"J. Pila, Paul Torremans","doi":"10.1093/he/9780198831280.003.0024","DOIUrl":"https://doi.org/10.1093/he/9780198831280.003.0024","url":null,"abstract":"This chapter looks into preliminary aspect of private international law, focusing on jurisdiction and choice of law. Before enforcement actions can get off the ground we need to know which court will have jurisdiction and which law that court will apply. Jurisdiction is based on the domicile of the defendant as a basic rule, but alternative fora are available. The courts of the place of the harmful event may also have jurisdiction and there are special rules for multiple defendant cases. Validity cases are subject to exclusive jurisdiction rules. In terms of choice of law, the law of the country for which protection is sought takes centre stage when it comes to IP. It is the law applicable to the IP right as such and it also applies to infringement.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132560168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"21. Database Rights","authors":"J. Pila, P. Torremans","doi":"10.1093/he/9780198729914.003.0021","DOIUrl":"https://doi.org/10.1093/he/9780198729914.003.0021","url":null,"abstract":"This chapter discusses database protection and database right under European Parliament and Council Directive on the protection of databases [1996] OJ L 77/20.1, better known as the Database Directive. Long before the advent of digital technology various forms of databases were around in analogue format, such as telephone directories. Digital technology opened up opportunities of scale in this area and made data easy to search. But at the same time it impeded the mere consultation or reading of the data, that are now hidden in a digital format. The real value of a database lies in the comprehensive nature of the information it contains, rather than in the originality of the information itself. Thus, granting an exclusive right in a collection of data or information, without any requirement of originality in relation to the data or information, not only risks interfering with the right of access to information, but also risks interfering with the freedom of competition, since the only workable access to information and data that are themselves in the public domain and freely available will now pass via the rights holder and its database. The database right has the difficult task of striking the right balance between the various interests involved, and the Directive has been accused of putting in place the least balanced and most anti-competitive exclusive right in the EU.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115745355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"5. The Procedure for Obtaining a European Patent","authors":"J. Pila, P. Torremans","doi":"10.1093/HE/9780198729914.003.0005","DOIUrl":"https://doi.org/10.1093/HE/9780198729914.003.0005","url":null,"abstract":"This chapter considers the procedure for obtaining a European patent directly from the European Patent Office (EPO) and indirectly from a competent patent office of a European Patent Convention (EPC) Contracting State or by international patent application under the Patent Cooperation Treaty 1970. It also considers the result of each procedure, and the focus within the European patent community on reducing the burden on patent applicants and improving patent quality with a view to minimizing the risk of a patent's revocation post-grant.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125362515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"17. Unfair Competition Law","authors":"J. Pila, P. Torremans","doi":"10.1093/HE/9780198729914.003.0017","DOIUrl":"https://doi.org/10.1093/HE/9780198729914.003.0017","url":null,"abstract":"This chapter focuses on EU law on unfair competition. Unfair competition law is concerned with fair play in commerce. It normally acts in tandem with its more powerful, but much more narrowly focused, counterpart competition law. Together they are generally regarded as necessary in order to steer competition along an orderly course. And they thereby contribute to promoting an efficient market system that serves the interests of all participants. While there is no single EU instrument that deals with unfair competition law as a whole, there is a significant level of EU legislative intervention in relation to comparative and misleading advertising and in relation to unfair business-to-consumer commercial practices; each of these are discussed in detail.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"77 Suppl 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116359764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"20. Introduction to Rights in Data and Information","authors":"J. Pila, P. Torremans","doi":"10.1093/he/9780198729914.003.0020","DOIUrl":"https://doi.org/10.1093/he/9780198729914.003.0020","url":null,"abstract":"This chapter provides an overview of rights in data and information. It discusses the impetus for the creation of ‘rights’ in information, which is found in the financial investment in the gathering and the organization of the data and information. This area is entirely about the protection of investment against the ease of copying. The nature of what emerges is therefore also radically different from the traditional IP rights. Traditional IP rights such as patents, trade marks, and copyright are exclusionary rights, but they are transferable in nature. One can assign these rights. But in the area of ‘rights’ in information, non-transferability is the norm.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131262128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"1. An Introduction to Domestic and International Intellectual Property Law","authors":"J. Pila, P. Torremans","doi":"10.1093/HE/9780198729914.003.0001","DOIUrl":"https://doi.org/10.1093/HE/9780198729914.003.0001","url":null,"abstract":"This chapter commences the discussion of the European law of IP by introducing the domestic and international IP systems that preceded and continue to exist alongside it. It starts with the ‘what, how, and why’ of IP law in general—what it is, how it came to be, and why it exists—and proceeds to consider European IP law as part of an international network of IP laws that, while being a product of the domestic IP laws of individual European states, nonetheless differs from those laws in three related aspects. First, unlike domestic IP laws, many international laws operate by establishing legal standards for states to implement within their own territories rather than by regulating the behaviour of those states’ citizens. Second, the need for international legal communities to accommodate the diverse values and legal traditions of their member states makes their IP laws and policies less likely to reflect a single model or justificatory theory of IP than those of individual countries. And third, a central aim of international European IP communities is to supplement or substitute domestic laws and policies with European laws and policies in pursuit of European objectives, including some that stand in tension with domestic interests, such as the abolition of territorial restrictions on the operation of IP regimes.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128670490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"16. Trade Marks and the Free Movement Aspects of EU Law","authors":"J. Pila, P. Torremans","doi":"10.1093/he/9780198729914.003.0016","DOIUrl":"https://doi.org/10.1093/he/9780198729914.003.0016","url":null,"abstract":"This chapter examines the interaction between trade mark law and the principles of free movement of goods in the EU. It discusses the concepts of essential function and specific subject matter which the CJEU uses to distinguish between what amounts to pro-competitive use of the trade mark, which the Treaty encourages, and anti-competitive abuse of the trade mark rights, which the Treaty prohibits. The essential function looks at this from a theoretical perspective, whilst the specific subject matter translates this in more practical guidelines. The chapter then turns cases and heated debates arising from parallel importation, which essentially focus on the relabelling and repackaging of parallel-traded goods.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115190801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"23. Trade Secrets","authors":"Justine Pila, P. Torremans","doi":"10.1093/he/9780198729914.003.0023","DOIUrl":"https://doi.org/10.1093/he/9780198729914.003.0023","url":null,"abstract":"This chapter deals with the legal protection of trade secrets. Traditionally, trade secret protection was left to the national laws of Member States. These national regimes are rooted firmly in existing legal rules in the areas of unfair competition, tort, or breach of confidence. And there is also the “Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use, and disclosure”. The Directive seeks to impose on Member States a minimal form of harmonization and uniformity. It does not impose a (Community) right in relation to a trade secret, but it works with a common basic definition of a trade secret, the principle that there needs to be redress for the unlawful acquisition, use, or disclosure of a trade secret, and a catalogue of measures and remedies.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114742452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"6. Patentable Subject Matter","authors":"J. Pila, P. Torremans","doi":"10.1093/HE/9780198729914.003.0006","DOIUrl":"https://doi.org/10.1093/HE/9780198729914.003.0006","url":null,"abstract":"This chapter considers the subject matter for which European patents may validly be granted under the European Patent Convention (EPC), and the substantive European (EPC and EU) legal principles governing their identification and conception. To this end it discusses the two-fold role of the requirement for an invention in European patent law: first, as a means of filtering protectable from non-protectable subject matter; and second, as a means of denoting the object of patent protection, i.e. that which must be new, inventive, susceptible of industrial application, and clearly and sufficiently defined and described in the patent specification, and that with reference to which the scope of the patent monopoly is defined under Article 69 EPC. It also discusses the range of public policy-based exclusions from European patentability, and their relation to the requirement for an invention itself.","PeriodicalId":133152,"journal":{"name":"European Intellectual Property Law","volume":"143 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127396490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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