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  • Series: ATRIP Intellectual Property series x
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Tana Pistorius

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Margaret Ann Wilkinson

Patent, copyright and trademarks (the ‘classic intellectual property triad’) balance monopoly interests with the contributions such monopolies make to dissemination of knowledge. It may be argued that more recent additions to the intellectual property (IP) canon, such as moral rights, and protection of business confidences (the ‘modern IP devices’) do not encourage dissemination of knowledge but rather give stakeholders perpetual control over certain knowledge. This chapter argues that the key to balancing stakeholders’ interests within IP as new technologies emerge is recognising that the classic IP triad worked effectively in the beginning only because there was then no legal separation between individuals and their businesses. This chapter argues that the differentiation of individuals from corporations, and the eventual dominance of the corporate form in business, is the leading cause of current tensions in IP law. The emergence of new technologies is exposing these tensions even more clearly but is not itself their cause.

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Hong Xue

The unprecedented expansion of the internet domain name system (DNS) from 22 to as many as 1,000 top-level domains (TLDs), will impact the Internet business models as well as trademark protection issues. Trademarks involved in the TLDs are not only more economically significant compared with the other domain names registered at the lower levels, but bring up new challenges to both the DNS and trademark law. The chapter offers an objective review on the impact of the applied TLDs’ management and registration policy on the relevant trademark right through a case study involving two Chinese leading Internet companies, Sina and Tencent. The paper concludes that the Legal Right Objections and other trademark measures developed through Internet Corporation for Assigned Names and Numbers (ICANN) policy and implemented in the DNS are building up a new body of globalized norms that will impact the future development of the international trademark legal system.

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Ana Nordberg

The chapter considers the patentability of human enhancement, namely technologies that provide the means to intentionally develop, modify or introduce in the human body aesthetic features, physical or cognitive performance levels and abilities beyond the human species’ typical standards under the current evolutionary state, and resulting in induced permanent alterations. This mere possibility has led to ethical interrogations concerning the nature and boundaries of human nature and our relationship with science and technology. New technologies typically have a mixed nature, offering a wide range of uncontroversial benefits to humanity while simultaneously posing complex ethical challenges. The author concludes that the patent system is hardly the most appropriate legal tool to disincentivize specific commercial practices, business models or individual uses of technology. The author concludes that a broad, inclusive and interdisciplinary dialogue on science and technology is necessary.

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Milton Lucídio Leão Barcellos

This chapter addresses the challenges that new technologies pose to patent claim interpretation. According to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), a full disclosure of the technology is mandatory in order to obtain patent protection. At the same time, the claim construction techniques are often based on broad protection and on what the competitors would do to avoid infringement in the marketplace, and not only on the disclosure invention itself. The chapter explores patent claim interpretation using the problem/solution approach as a way to help understand the scope of protection of the new technologies. The equality principle as a route to understand the scope of patent protection (based on the differences in the multiple and always challenging new technologies in the different technology fields) supports the problem/solution approach to patent claim interpretation techniques related to new technologies.

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Rebecca Giblin and Jane C. Ginsburg

This chapter addresses the implications of business models that fulfill demand for individual access to works in a manner which avoids liability for infringing the public performance and reproduction rights. The authors argue that the opportunistic engineering choices that obscure some courts’ perceptions of the impact on the on-demand access market risk removing evolving markets from the scope of copyright owners’ exclusive rights. Businesses that free-ride on copyrighted works also obtain an unfair competitive advantage over copyright licensees. The authors argue that liability should not turn on ancillary questions such as who did the act, whether unique copies were made, or the size of a transmission’s potential audience, because these bases for (or against) liability can be vulnerable to manipulation and exploitation. Instead asking the ‘right’ questions should lead to principled conclusions about the legal effects (if any) that should flow from distinctions between technological modes of exploitation.

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Johan Axhamn

Copyright law has always been developed in close connection with technological evolution. However, recent technological developments have also brought about a new kind of pressure on the copyright system. For example, norms on cross-border exchange (‘exportation’) and importation of works have been included in the recently finalised Marrakesh Treaty to facilitate access to published works by visually impaired persons and persons with print disabilities. Similarly, the recent European Union Directive on certain permitted uses of orphan works includes a provision on ‘mutual recognition’ – thereby providing a solution to cross-border use of, and access to, such works. The chapter discusses these recent developments and questions whether they are simply traditional means to achieve a balance in the copyright system due to technological developments, or if they are of a more fundamental nature as they take aim at the territorial nature of copyright as such.

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Irini Stamatoudi

This chapter focuses on ‘browsing’, ‘linking’ and ‘framing’ and in particular on whether these acts fall within the rightholders’ absolute and exclusive rights and therefore require authorisations. These acts are examined in light of the Court of Justice of the European Union’s (CJEU’s) recent case law. Until recently it was also not entirely clear whether EU Member States may interpret this right as they consider appropriate or whether they have to interpret it in a uniform manner. In light of the CJEU’s recent case law the author concludes that the Court’s judicial activism has proven to work conveniently for the EU and perhaps for its Member States that seem prudent and reserved to any legislative initiatives in this area. The Court’s pro-activism has proven capable of overcoming political entanglements and catching up (some would argue in a timely manner) with the challenges and emerging needs arising from new technologies and practices.

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Tatiana-Eleni Synodinou

Nearly fifteen years ago and since the adoption of the E-commerce Directive the issue of the intermediaries’ liability in Europe appeared to have been settled up by the creation of a ‘safe harbour’ regime, inspired by the American model. This chapter focuses on two recent jurisprudential interpretations on the question of intermediaries’ liability: the CJEU’s Telekabel judgment and the Judgment of ECtHR in the case Delfi v Estonia. The author analyses these evolutions and points out that the intermediaries’ asylum is in fact much less absolute than it looks. The chapter also demonstrates that the intermediaries’ safe harbour will have to deal with the respect of human rights that could open new horizons to the development of the regulation of the intermediaries’ liability.

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Paweł Kamocki

This chapter examines the copyright implications of text and data mining (TDM). Even though raw facts are traditionally beyond the scope of copyright protection, the collection of data may be protected by both copyright (if it meets the originality criterion) and the sui generis database right (if it is sufficiently structured and meets the threshold of substantial investment), in which case both a copyright holder and a database producer can forbid the use of their datasets for mining. This general picture becomes even more complicated if we consider that some types of data (such as images or texts) can attract copyright protection on its own. This chapter argues that the non-consumptive use doctrine is a technology-neutral way to provide relief for many sorts of activities: TDM, caching, indexing, reverse engineering and various research activities. A broad, technology-neutral research exception is deemed to be an appropriate solution to the problem.