Can One Size Fit All?
ATRIP Intellectual Property series
Edited by Annette Kur and Vytautas Mizaras
Chapter 6: Free Access, Including Freedom to Imitate, as a Legal Principle – A Forgotten Concept?
Ansgar Ohly* GRETCHEN’S QUESTION 1. In Goethe’s drama Faust, Gretchen asks Dr Faustus: ‘Now tell me: how do you take religion?’1 Gretchen’s question is naïve, but also fundamental, directly to the point, and it is answered in an evasive way. If we try to rephrase Gretchen’s question in relation to intellectual property law, it might be: ‘Now tell me: how about imitation?’ What sounds like a question asked by a student in an introductory course is in fact a fundamental issue about which there is a surprising degree of disagreement. If imitation is unfair, it follows that intellectual property protection against misappropriation is appropriate, even where there is no evidence that such protection is beneficial for society. The protection of well-known marks against dilution and misappropriation of goodwill, for example, can easily be justified. Overlaps between intellectual property rights are generally acceptable, and unfair competition law can be relied on in order to fill gaps between intellectual property rights. If, however, imitation is a necessary and welcome process in a market economy, the argumentative threshold for justifying intellectual property rights is significantly higher. Broad anti-dilution laws, for example, are more difficult to justify because consumer interests are only marginally affected and because there is no evident need to create incentives for the creation of luxury images. Overlaps between intellectual property rights can be worrying where the accumulation of rights can undermine exceptions.2 Seen from * Dr. iur. (Munich), LL.M. (Cantab.), Professor of Civil Law and Intellectual Property Law...
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