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EBS Law Term 2014 Intellectual Property Law
Fields and Principles
Prof. Martin SenftlebenVU University Amsterdam
Bird & Bird, The Hague
Contents
• intellectual property
• rationale of protection
• international treaties
• international debate on IP protection
• dispute settlement
• research resources
Intellectual property
Intellectual Property
copyright and neighboring
rights
industrial property
Traditional approach: two main branches
Copyright and neighboring rights
• books, writings, plays
• musical compositions
• choreography
• drawings, paintings
• sculptures, architecture
• cinematographic works
• photography
Cultural inspiration:protection of literary and artistic works
• performers
• phonogram producers
• broadcasting organizations
Holders of neighboring rights:
• authors
Copyright holders:
Industrial Property
Technical innovation:protection of products and processes
• inventions
• layout-designs of integrated circuits
• industrial designs
• artistic works
Aesthetic innovation:protection of product appearance
• trademarks
• trade names
• geographical indications
KLM
Market transparency:protection of distinctive signs
Overview of the protection system
Overview of the system
technologycommerce
culture
patent lawtrademark law
copyright law
industrial designs
Example: complex products inventions:
patents
distinctive sign: trademark
appearance: works, industrial designs
Rationale of protection
freedom of competition
areas of IP protection
Bird’s-eye view
freedom of expression
Art. 7 of the TRIPS Agreement
‘The protection and enforcement of
intellectual property rights should contribute
to the promotion of technological innovation
and to the transfer and dissemination of
technology, to the mutual advantage of
producers and users of technological
knowledge and in a manner conducive to
social and economic welfare, and to a
balance of rights and obligations.’
‘natural’ period of market exclusivity
advantage of being first
‘extended’ period of market exclusivity
term of IP protection
Incentive for creativity and innovation
• stimulation of investment
• enhanced possibility of amortization
Further rationales
• reward for creative work
• publication of knowledge/
dissemination of information
• market transparency
• fair competition
International treaties
Principle of territoriality
…national intellectual property rights
…cross-national objects of protection
• effect of protection grant limited to
national territory
• grant only to be repealed by authorities
of the granting state
• acts concerning IP governed by the
domestic laws in the territory concerned
• no need to protect foreigners
Obstacles to IP protection
based on
reciprocity
Solution I: bilateral agreements
copyright and neighboring
rights
industrial property
Berne Convention
Paris Convention
Solution II: international IP treaties
World Intellectual Property Organization (WIPO)
• Berne Convention for the Protection of
Literary and Artistic Works (1886/1967)
• Paris Convention for the Protection of
Industrial Property (1883/1967)
• many further treaties, such as the Patent
Cooperation Treaty (PCT) and the Madrid
Agreement and Protocol (Madrid System)
Establishment of Unions
• Art. 1 of the Berne Convention
‘The countries to which this Convention applies
constitute a Union for the protection of the rights
of authors in their literary and artistic works.’
• Art. 1(1) of the Paris Convention
‘The countries to which this Convention applies
constitute a Union for the protection of industrial
property.’
Example: Paris Union
National treatment and minimum rights
• Art. 5(1) of the Berne Convention:
‘Authors shall enjoy, in respect of works for
which they are protected under this Convention,
in countries of the Union other than the country
of origin, the rights which their respective laws
do now or may hereafter grant to their nationals,
as well as the rights specially granted by this
Convention.’
National treatment and minimum rights
• Art. 2(1) of the Paris Convention:
‘Nationals of any country of the Union shall, as
regards the protection of industrial property
enjoy in all the other countries of the Union the
advantages that their respective laws now grant,
or may hereafter grant, to nationals;
all without prejudice to the rights specially
provided for by this Convention.’
international minimum standard
country A country B
National treatment and minimum rights
World Trade Organization (WTO)
• Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS 1994)
• Annex 1C to the General Agreement on
Tariffs and Trade (GATT 1994)
• inclusion of the intellectual property system
in global trade regulations
Most-favored-nation treatment
• Art. 4 of the TRIPS Agreement:
‘With regard to the protection of intellectual
property, any advantage, favor, privilege or
immunity granted by a Member to the
nationals of any other country shall be
accorded immediately and unconditionally
to the nationals of all other Members.’
• variety of trade-related instruments
• Free Trade Agreements (FTAs)
• EU Association Agreements
• Bilateral Investment Treaties (BITs)
– ‘investment’ includes intellectual property rights
• Bilateral IP Treaties (BIPs)
= in many cases TRIPS-plus approach
Renaissance of bilateral agreements
International Debate on IP Protection
copyright: information
products
patents: technical know-how
distinctive signs: product marketing, goodwill
Development Dimension
copyright: access to
knowledge
patents: access to medicine
distinctive signs: plain packaging
Public Health Dimension
Plain packaging
• grant of protection stimulates investment in
innovative products
• but may also frustrate follow-on innovation
innovation
follow-on innovation
Economic Growth Dimension
need for a
balance
source of flexibility
balancing done already
WTO jurisprudence:
certain adjustments possible, but no renegotiation of the basic balance
• mutual advantage of producers and users
• social and economic welfare
• balance of rights and obligations
TRIPS Objectives and Principles
Settlement of disputes
• complaint by WTO member
• conciliation: consultations, mediation
• Dispute Settlement Body (General Council):
appoints Panel
• Panel: hearings, report
• Appellate Body: appeal only on points of law
• automatic adoption by DSB, unless rejected
– if compliance (-): retaliation on request of plaintiff
– same or other sector (‘cross-retaliation’)
International: WTO Dispute Settlement
These approximate periods for each stage of a dispute settlement
procedure are target figures — the agreement is flexible. In
addition, the countries can settle their dispute themselves at any
stage. Totals are also approximate.
60 days Consultations, mediation, etc.
45 days Panel set up and panelists appointed
6 months Final panel report to parties
3 weeks Final panel report to WTO members
60 daysDispute Settlement Body adopts report (if no
appeal)
Total = 1
year(without appeal)
60-90 days Appeals report
30 days Dispute Settlement Body adopts appeals report
Total = 1y
3m(with appeal)
WTO Dispute Settlement: time schedule
Research Resources
Commentary Literature
Online resources
Blogs
