Queen Mary Journal of Intellectual Property


Johanna Gibson and Lord Hoffmann

Full Text

Intellectual property law and its application comprise necessarily not only the rights inhering in the product but also the rights to the product. This issue of the Queen Mary Journal of Intellectual Property brings together a diverse range of analysis of the way in which the scope for the use of intellectual property might be strengthened and broadened by adaptations in the law itself and its application.

Apostolos Chronopoulos questions the conventional market-based perspective on trade marks and the so-called advertising function. As a communicative instrument, the rights in a trade mark reflect communication as goodwill, trust and continued consumer patronage, arguably distracting from the product itself and incentives to innovate for quality and efficient production, and any enhancement of consumer welfare in the process. Chronopoulos considers whether trade mark rights reflect goodwill and information in the product, or indeed a relationship only to the brand, and proposes refining this approach from the perspective of competition and consumer welfare.

Sue Farran looks at use in terms of its wider social and welfare aspects, more particularly in the context of food security. Farran notes the consequences of so-called TRIPS-plus imposed on recent entrants to the World Trade Organization (WTO). The author brings together the crucial interaction of commercial rights, climate change, environmental and biodiversity loss and degradation, all in the context of the global economic crisis. For traditional knowledge holders, indeed, it is the use and continued practice of local knowledge that may be more immediately instrumental in the sustainability of food sources than global trade-related frameworks. Knowledge transfer is not a unilateral exchange, despite the colonial implications of contemporary intellectual property frameworks for local and traditional knowledge.

Ilanah Fhima examines the way in which defence might be characterized in terms of use, or more specifically, fair use. Fhima analyses the relationship and similarities between European defences in copyright and trade marks and suggests that rather than a measure of fair use, the three-step temperament in Europe is far more restrictive, but is the mood changing?

In an excellent survey of the industry, Apurva Bakshi and Ravi Kiran look at the creative and indeed commercial aspects of plagiarism in Bollywood and the potential for copyright to alter the dynamics and ideologies of the industry itself. In this very useful analysis piece, the authors provide numerous examples from Bollywood cinema and analyses the famous Barfi! in detail. How does the use of Hollywood, as it were, shape the identity, integrity and indeed risibility of Bollywood?

Use in a digital environment is an evolutionary, revolutionary and volatile abstraction. In this context, Gemma Minero reviews the important judgment in C-466/12 Nils Svensson v Retriever Sverige AB (13 February 2014) which provides clarification of the law as to hyperlinks to open websites and communication to the public.

This issue assembles not only a diverse range of developments and issues in intellectual property use, but also a diverse range of disciplinary expertise on use. Use is shown to be not only an action, but also an attitude as well as a significant social value in its own right.

We hope you enjoy this issue. Put it to good use.

Professor Johanna Gibson and Lord Hoffmann

July 2014