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The Structure of Intellectual Property Law

The Structure of Intellectual Property Law

Can One Size Fit All?

ATRIP Intellectual Property series

Edited by Annette Kur and Vytautas Mizaras

This well-researched and highly topical book analyses whether the ever-increasing degree of sophistication in intellectual property law necessarily leads to fragmentation and inconsistency, or whether the common principles informing the system are sustainable enough to offer a solid and resilient framework for legal development.

Chapter 11: Proprietary Transactions in Intellectual Property in England and Germany: Transfer of Ownership, Licensing, and Charging

Stefan Enchelmaier

Subjects: law - academic, intellectual property law


Stefan Enchelmaier* 1. INTRODUCTION In the following, we shall consider proprietary transactions in intellectual property: transfer of ownership, licensing, and charging. The legal regime governing these transactions in England and Germany,1 respectively, will be analysed with regard to patents, trade marks, and copyright. As it turns out, there are many similarities between the two legal systems, many of which these days are due to the harmonisation of intellectual property law through European Union law. Nevertheless, some fundamental differences in approach remain, in particular with regard to copyright. Leaving * Dr. iur. (Bonn), LL.M. (Edinburgh), MA (Oxon), Professor of European and Comparative Commercial Law, York Law School, University of York. Many thanks are due to Professor Bill Cornish for his very helpful comments on a draft of this chapter. None of my opinions or errors should, however, be imputed to him. Thanks also to Professor Willem Grosheide for his suggestions. 1 ‘England’ or, in legal terms, ‘England and Wales’ means that part of the United Kingdom which is neither Scotland (which has been in political and partial legal union with England since 1707) nor Northern Ireland (which came into existence in 1921 on the formation in the southern part of the island of Ireland of the Republic of Ireland or Eire). The substantive provisions on intellectual property discussed in the following apply identically to all parts of the United Kingdom. Occasionally, there are separate procedural rules for Scotland (see, e.g., s. 114B Copyright, Designs and Patent Act (CDPA) 1988), and adaptations...

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