Fairness, Morality and Ordre Public in Intellectual Property
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Fairness, Morality and Ordre Public in Intellectual Property

Edited by Daniel J. Gervais

This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
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Chapter 7: Corporate intellectual property, governance and board effectiveness reviews in large and premium listed UK companies

Janice Denoncourt

Abstract

The activities, actions and ethics of UK corporate technology and intellectual property (IP) owners are increasingly subject to public scrutiny. This chapter examines the role of corporate governance in relation to technology, and IP rights owned by large and premium listed companies. The analysis is interdisciplinary and examines how the UK’s corporate law framework is beginning to give visibility and transparency to potentially valuable corporate IP assets, the technological innovations and brands they protect. For the first time, the UK Financial Reporting Council’s revised ‘Guidance on Board Effectiveness’, which supplements the 2018 Corporate Governance Code, expressly refers to ‘intellectual property’. The Guidance recommends that company boards of directors ask themselves questions on these important company assets when making decisions. The chapter examines the legal requirement for company directors to possess appropriate ‘ability’ to exercise independent judgment in matters relating to the company’s technology and IP. Directors’ reliance on the ‘business judgment rule’, a legal doctrine used as a shield against accountability, is critically analysed in the context of technology and IP rights. The chapter then evaluates board composition and the use of advisory technology and IP boards established to advise the main board of directors, as well as the role of the Chief IP Officer (CIPO). Finally, the chapter hypothesizes that a company with an IP-conscious ethos will enhance public trust in technology and IP rights by providing a pragmatic route to shaping its corporate culture, ethics and social responsibility (CSR).

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