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Rethinking Intellectual Property

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini

Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures for reform to allow intellectual property to become socially beneficial for all.
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Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini

1     Conflicts of interest, and guiding principles for their resolution within IP’s constitutional framework


I     The positive normative scenario

II    IPRs’ essential scope

III   Firms as ‘final holders’ of (economic) intellectual property rights

IV   The salient conflicts of interests underlying IPRs’ exercise

V     From economic conflicts to those between legal models

VI   For a balanced reconstruction of IP regime(s): methodological criteria and examples of their application


Bibliographical notes

2     Patent protection of innovation: a ‘monopoly’ with antibodies

Introduction: the reconstruction hypothesis


I     A rethink of patents in light of their essential function

II    Limitation of patentability to the fruits of applied research

III   The other multiple limitations of exclusive protection

IV   Features fostering dynamic competition

V    Some proposals for reform


Bibliographical notes

3     From art to technology: copyright expansion and barriers: the evolving relation ‘right v. access’



I    Copyright holders, subject matter, content, and conditions for granting copyright

II   The scope of copyright: the boundaries of the ius excludendi

III   The ‘neighbouring rights’ of non-copyright holders

IV   From analogue to digital environment: the persistent basic exclusionary model regime, and its limited breaches

V    Industrial design works

VI   Information technologies


Bibliographical notes

4     Firms’ identity and brand value in the regime of trademarks

Introduction: the two souls of the trademark regime – which reconciliation?


I   The information on firms’ market identity (distinctive function): its impact on competition

II   The other (‘qualitative’) information that may be conveyed by trademarks: the protection of consumers’ expectations

III  Trademarks as goods per se

IV   The ‘extramural’ and ‘intramural’ protection of trademarks ‘with reputation’

V   The protection of (three-dimensional) shape marks and its implications for the protection of competition

VI  Secondary meaning and vulgarization – the symmetry of the ‘rehabilitation’ of generic signs


Bibliographical notes

5     On the ‘intersection’ between IP and competition law(s)


I   The antitrust ‘interference’

II  The relationship between unfair competition law and IPRs regime


Bibliographical notes