When applied to public architectural art, the instability of copyright law is emphasized by the presence of many conflicting interests as well as by the identitarian dimension that architectural expression conveys. After surveying the struggle to obtain copyright protection for architectural works, this article analyses these conflicting interests and the unpredictable contours that architectural copyright encompasses, which are the result of cultural and economic demands as well as the social and environmental needs expressed by individuals, public bodies or collective entities. Then, the identitarian dimension of the architectural phenomenon is addressed to show that public architectural art can be, at the same time, an expression of individuals, communities and the state – where by ‘expression’ we refer to both the interests involved and the reason why protection is given to a specific interest. This exercise aims at understanding how to cope with copyright instability in public architectural art and face the unpredictable effects that it may cause by giving a more concrete meaning to ‘the public interest’, and, more precisely, by giving more substance to the identities that this concept expresses.
Aura Bertoni and Maria Lillà Montagnani
Paola Magnani and Maria Lillà Montagnani
This work considers the growing phenomenon of art exhibitions and arts festivals as new means to access culture, which, departing from the traditional contemplative experience, now entails the involvement of the public. Given the proliferation of the above-mentioned events – and their relevance from an economic point of view – the issue of their protectability under copyright law needs to be addressed. In order to do this, we first consider the creative, organizational activity that leads to the actual set up of exhibitions and festivals so as to identify the diverse phases and the respective outcomes of such planning activity. The outcome that is more likely to access copyright protection is the result of the advanced planning activity, that is, that project that comprises all the elements of the future exhibition or festival. Given the nature of ‘schemes’ that exhibitions and festivals reveal, we then draw a parallel with television formats, as the works that more fully evoke such projects and whose copyrightability is equally controversial. We conclude by assessing whether, in principle, copyright protection is available for art exhibition projects as well as for the projects that are at the core of the diverse kind of arts festivals currently employed to make art more accessible to the public.
Anne Flanagan and Maria Lillà Montagnani
Economic and Social Justice Perspectives
Edited by Anne Flanagan and Maria Lillà Montagnani
Mariateresa Maggiolino and Maria Lillà Montagnani
Driven in part by the enthusiasm spurred by the Open Innovation (OI) movement, individual patentees and larger corporations holding valuable patent portfolios have started expanding access to those patents. Whether in the open source software environment or in the fields of biosciences and green technologies, in recent years patent holders have been uniformizing the terms and conditions of their pledges in order to facilitate the access to and use of their patents. Patent pledges have thus become the keys to open patents. However, the way in which patented knowledge is opened varies according to the pledges and covenants that are adopted. Some pledges have contributed to create large “clubs of patentees” that are reciprocally committed to share their patents, but are closed toward the non-members. Other pledges have set the grounds to make patents open toward whoever is interested in them, on the main condition that this unknown re-user will make her own follow-on innovation be equally open. By analyzing the characteristics of OI systems and the cases of patent pledges that open patented inventions, this chapter seeks to illustrate how and when patent pledges fit within the wider realm of open innovation.
Mariateresa Maggiolino and Maria Lillà Montagnani
This chapter examines how the abuse of rights fits within the twofold framework of EU competition law and Union law to investigate the actual scope of this long-standing general principle of law. To this end, the chapter begins by analyzing the EU case law to identify the conditions under which a firm abuses its rights and violates EU competition law. Then, taking inspiration from the US antitrust law, the chapter maintains not only that the case of the abuse of rights should be distinguished from the case of the conflict of laws, but also that the psychological inquiry into the intent motivating abusive business practices should be kept separate from the objective examination of the reasons explaining and justifying the abusive behaviors. The chapter discusses the EU case law that, moving from the analysis of many and diverse legal provisions, has over the years shaped the principle of the abuse of rights that is now applied in the EU. In particular, the chapter elicits the problems connected to the subjective and objective elements of the actual definition of the abuse of rights and concludes by comparing the tests adopted in EU competition law and Union law.
Maria Lillà Montagnani and Alina Trapova
The chapter aims to verify the extent to which the US and EU courts influence each other in striking a balance between copyright and fundamental rights. It first turns to the internal and external balancing mechanisms provided for in both jurisdictions. It then analyses the nature of these safeguards and evaluates where the conflict between copyright law and fundamental/constitutional rights is resolved – within or outside copyright law. The authors then turn to the jurisprudence of the US Supreme Court and the US Courts of Appeal and compare it to the Court of Justice with the goal of establishing whether and to what extent the decision-making processes in the two jurisdictions converge or diverge.