Intellectual Property Law

This chapter examines the protectability and registration of athletes’ names, nicknames, and catchphrases as trademarks under federal law. More and more athletes are seeking to register their names, nicknames, catchphrases, and fan slogans as federal trademarks in an attempt to monetize their fame and cultural capital. However, their goals in filing those applications are not often in accord with the traditional goals of trademark law. After providing an overview on trademark use and registration, the chapter discusses some of the limitations for trademark protection, including those based on distinctiveness, false association, and confusion. It also explains how trademark doctrines affect athletes’ ability to protect certain words or phrases as trademarks. Finally, it considers how the general goals of trademark law correspond to an athlete’s desire to protect words and phrases associated with him or her and prevent others from appropriating them.

This chapter puts forward a comprehensive framework for evaluating property regimes for both physical and intellectual property resources. It starts with an account of the trade-off between common and private property regimes, noting that the former is appropriate, as a first approximation for resources that facilitate communication and transportation, where holdout problems dominate externality constraints. But where high levels of investment are needed, and coordination problems are low, private property, as bounded by laws of trespass, nuisance and infringement now tend to dominate. There are no rules of acquisition for an open-access regime. But for private property in all its forms, the common and civil law rules of occupation avoid virtually all the complications that stem from Locke’s erroneous labor theory of acquisition. The chapter then explores the rules governing duration, exclusion, remedies, and alienation in multiple private property interests, including the major forms of intellectual property.

The chapter considers the challenges faced by intellectual property (IP) laws, in particular copyright and patent laws, in responding to emerging technologies and innovation like 3D printing and scanning. It provides a brief introduction to 3D printing before moving to detailed analysis of relevant UK and Australian jurisprudence. Through this comparative analysis, the chapter explores whether copyright and patent laws can effectively protect innovation in this emerging technology, including consideration of both subsistence and infringement. The chapter suggests that 3D printing, like most other technologies, has a universal reach, yet subtle differences in the wording and interpretation of IP legislation between jurisdictions could lead to anomalies in levels of protection. It explores the possibility of a sui generis regime of IP protection for 3D printing, but submits that a nuanced reworking of existing regimes is, in the vast majority of circumstances, likely to be a sufficient response.

This chapter offers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of fixation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of intermediaries, and new copyright obligations concerning technological protections and copyright management information. It concludes with some observations concerning the role of copyright in promoting creativity and free expression.

This chapter identifies national and regional approaches adopted to ensure that intellectual property (IP) rights are enforceable in a global environment constituted by territorial rights that rely on local courts. It discusses reconsideration and recalibration of the private international law (PIL) rules that govern IP relationships in relation to jurisdiction, applicable law and recognition and enforcement. The chapter also explores the emergence of new fora for cross-border IP enforcement, through either trade or investment arrangements or privately designed alternative dispute resolution (ADR) mechanisms. It concludes by underscoring the continued relevance of the territoriality of IP rights, and the importance of coherence and mutual consistency between the different legal systems and regimes of cross-border IP enforcement.

This chapter surveys the legal protection of industrial designs, understood as the protection of the appearance of articles of manufacture. It discusses the definition of “design” according to both the European Union (EU) and the United States (US). It examines the international instruments that form the foundation of industrial design law, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention, and the Berne Convention, among others. It then focuses on the various areas of intellectual property (IP) law that make up design law, including sui generis design protection law, patent law, copyright law, and trademark law among others, with particular attention on these aspects of design law as they feature in the US and the EU.

This article examines the basic framework of the U.S. Food and Drug Administration (FDA)’s approval process for drugs, biologics, and medical devices within the broader context of the country’s healthcare system. The article also discusses intellectual property protections and statutory exclusivity periods for medical products and their effect on the market entry of follow-on therapies. It then considers a number of current developments shaping FDA regulation of pharmaceuticals and medical devices, including the rise of personalized medicine, the strengthening of First Amendment commercial speech protections, and the agency’s expanding involvement in the practice of medicine. Finally, the article examines how the FDA must increasingly share its gatekeeping role with third-party payers and considers the agency’s future in light of this phenomenon.

This chapter provides both an overview of the history of intellectual property (IP) laws in Australia and New Zealand, and pathways into existing and emerging scholarship in this area. It discusses convergence and divergence in copyright, patent and trademark legislation and case law between Britain and these two former colonies, from early colonial experimentation to the long period of closely mirroring UK reforms. In the late twentieth century, both countries developed more distinctive IP laws, and diverged on a range of fundamental questions. In the twenty-first century, trade policy—trans-Tasman and global—has created pressures for convergence, but as the countries have grown apart, more perhaps than many realize, so there is considerable resistance to unifying projects. The chapter closes with a discussion of the different trajectories in how IP and indigenous cultural and knowledge systems interface in Australia and New Zealand.

This chapter reviews the emergence of intellectual property (IP) norms in the areas of copyright, trademarks, patents, and designs in Canadian law from the early days of the Dominion’s complex relationship with British IP statutes and policy to a time of progressive independence from those statutes. It then reviews more recent changes, some of which were made to bring Canada’s laws into line with major international registration systems. Canada has also been ready to experiment with variations on IP themes. This is visible both in statutes and in decisions by the Supreme Court of Canada. The impact of the bijural nature of Canada’s legal system and its proximity to the United States are also discussed: Canada has integrated civil law notions into an edifice constructed mostly of common law bricks, and must confront demands from its most important trading partner in adapting its intellectual property framework.

While this chapter considers the significant differences between the Central and Eastern European countries, their common pasts of centrally planned economies and difficulty of transitioning to a market economy justifies reviewing their intellectual property (IP) laws together. The overwhelming majority of these countries are party to the treaties—as well as EU directives—which determine the basic elements of their national IP laws. Nevertheless, certain features of their former “socialist” IP systems may also play a part in, for example, their regulation of original ownership and transferability of rights; their contractual and tariff systems; and their organizational structures, particularly in the field of collective management of copyright. Other specific features have also emerged as a result of the difficult transition processes, such as higher levels of counterfeiting and piracy.

This chapter analyses the emergence and development of intellectual property (IP) systems in South America as they have evolved since the early Pan-American treaties and the Paris and Berne Conventions, and how they have been influenced by national constitutions, domestic laws, and—most recently—international trade agreements. It highlights the coexistence of distinct landscapes for several decades before the TRIPs Agreement entered into force and brought minimum standards of harmonization. Before that, IP regimes in South America matured according to each country’s own conception of IP, resulting in different national statutes and constitutional provisions and producing a unique regional IP legal and policy landscape. From a regional perspective, South America has made efforts to create local systems of IP protection, but with limited success. The result is a fragmented system that still needs to relate to multilateral and bilateral rules, creating a challenging regulatory environment.

The Eurocentric term “Middle East” captures the historical sources and emergence of intellectual property (IP) in this region. Early colonial influences had a long-lasting effect. In the mid-1990s the global replaced the colonial, imposing new demands. Both the colonial and globalized IP frameworks have allowed only a narrow leeway for the expression of local interests. This chapter explores the emergence and development of IP law in the Middle East as a case of a western legal transplant, and focuses on Egypt, Israel, the Palestinian Authority, Jordan, Saudi Arabia, and the United Arab Emirates. Instead of a technocratic doctrinal approach that compares local law to international standards and asks about “compliance,” it advocates a richer evaluation. In assessing IP laws against global standards, it suggests contextualizing the local law within the country’s larger legal framework to take into consideration its political economy, local and global politics, and unique cultural needs.

This chapter surveys the emergence and development of Intellectual Property (IP) law in Continental Europe and Britain. The story begins largely in the middle ages with the grant of territorially-confined inventors’ and printers’ privileges, and traces the development of these privileges into the four main species of IP rights recognized throughout the world today. A key theme is the varied national histories that underpin the development of each IP right even within the geographical confines and relative social and political homogeneity of Western Europe, and the extent of modern IP law’s embeddedness in the industrial and cultural development of individual states. The chapter ends with an account of the emergence of a European perspective on IP, as expressed in the nineteenth-century Paris and Berne Conventions, and its development by general and IP-specific European communities, including the EU, which has established unitary patent, trademark, and design rights for its Member States.

This Chapter identifies and describes the principal features of the international arrangements for protecting intellectual property rights (IPRs) in countries other than those of their originator or creator. In the case of national or regional IP laws, these connections are readily identifiable. At the international level, however, they are less obvious, and many gaps and inconsistencies arise. Nonetheless, the Chapter argues that a ‘system’ for the international recognition and protection of IPRs is still clearly discernible and can be described. It begins with a brief account of the objectives of that system and its principal organizing principles, and then moves to consider its principal actors and the means by which its protection is achieved, namely through a series of international conventions or treaties of varying content and particularity. The Chapter concludes by noting a number of pressures, both internal and external, to which the system thus comprised is subject.

This chapter surveys the history of intellectual property law in the United States from its colonial origins to the present, and focuses on the three subfields that have a claim for seniority in terms of their longevity and importance: patent, copyright, and trademark. The development of these subfields is described as a process in which law has interacted with technology, economic factors, ideology, and politics. The chapter describes how at the end of the eighteenth-century American patent and copyright law emerged out of two sources: British laws and institutions and local colonial practices. The further development of American intellectual property law is analysed as comprising three stages: early patent, copyright, and trademark law; the consolidation of the modern framework of these fields through significant transformations beginning in the second half of the nineteenth century; and the various developments from the early twentieth century to the present.

Intellectual property rights are crucial for encouraging creativity and innovation. They contribute significantly to employment and GDP within the EU. The IP system is of both economic and social importance. Intellectual property has global significance also. EU IP systems and rights must therefore work well not only within the EU and its Member States, but also within the complex international context. The EU IP system must also be regarded with confidence by stakeholders. Protection of IP rights is important, but so is access to intellectual property. From a very high-level view, harmonizing EU schemes has worked well on the whole. Nevertheless, reform and improvement remain a continuing priority, and the environment is challenging and rapidly changing. The Unitary Patent seems about to come into effect, though its success remains to be demonstrated.

This chapter explores the legal implications of the entire human genome, or “genomics.” It begins with an overview of scientific aspects of human genomics and a discussion of the history of the legal, ethical, and policy challenges raised by the science of genomics. It looks at the eugenics movement in the early twentieth century and state sickle-cell screening programs targeting African Americans in the 1970s. It then considers the basic rules governing genomic research and the legal issues raised by genomic research on human subjects, so-called incidental findings, ownership of DNA samples, government oversight, and genomic research aimed at altering the human germ line. The chapter examines whether discoveries arising from genomic research are entitled to intellectual property protection, or whether they can be patented; genomic screening and testing; liability in genomic testing; genomic therapy and enhancement; forensics; and genomic discrimination. Finally, it outlines future prospects for genomic research.

This article focuses on a group of doctrines that bear a family relation to each other, doctrines usually included under the rubric of ‘Intellectual Property’ (IP), and these include, among others, copyright, patent, trademark, trade secrecy, so-called ‘moral’ rights, rights in the topography of integrated circuits, rights in industrial design, plant breeder rights, rights of publicity, database rights, and rights against misappropriation. Not all nations recognize or enforce all the doctrines, but because of international obligations, most nations must recognize much of this list. Each doctrine involves restraining people from using or duplicating a pattern that is owned by, or associated with, another party. The article describes the primary areas of IP. This is followed by an outline of some of the dominant economic approaches, as economics provides the most developed line of systematic scholarship thus far.

This chapter discusses the current and potential impact of intellectual property (IP) on efforts to manage and reduce climate change through technological development. To that end it considers international IP and environment treaties (notably the TRIPS Agreement, the United Nations Framework Convention on Climate Changes and its Kyoto Protocol and Paris Agreement, and the Aarhus Convention) and the extent to which their objectives can and do intersect or conflict. Particular reference is made to discussions at the TRIPS Council and to the activities of WIPO Green. It explores possible ways to increase the role of IP in addressing climate change issues, including limiting the availability of patents, fast-tracking certain patent applications, and promoting IP exploitation models based on sharing rather than control. Finally, it explores the benefits to be gained in developing the relationship between IP and climate change by looking more widely, to human rights and competition laws.