- The Oxford Handbook of Intellectual Property Law
- List of Contributors
- Intellectual Property Law: An Anatomical Overview
- The Basic Structure of Intellectual Property Law
- What Kind of Rights Are Intellectual Property Rights?
- Intellectual Property as a Public Interest Mechanism
- Intellectual Property and Human Rights: Mapping an Evolving and Contested Relationship
- Intellectual Property Incentives: Economics and Policy Implications
- The Emergence and Development of Intellectual Property Law in Western Europe
- The Emergence and Development of the International Intellectual Property System
- The Emergence and Development of United States Intellectual Property Law
- The Emergence and Development of Intellectual Property Law in Canada
- The Emergence and Development of Intellectual Property Law in Australia and New Zealand
- The Emergence and Development of Intellectual Property Law in Central and Eastern Europe
- Intellectual Property in Asia: ASEAN, East Asia, and India
- The Emergence and Development of Intellectual Property Law in the Middle East
- Three Centuries and Counting: The Emergence and Development of Intellectual Property Law in Africa
- The Emergence and Development of Intellectual Property Law in South America
- Patents and Related Rights: A Global Kaleidoscope
- Trade Marks and Allied Rights
- Design Protection
- Rights in Data and Information
- Overlapping Rights
- Intellectual Property Licensing
- Cross-Border Intellectual Property Enforcement
- Users, Patents, and Innovation Policy
- Traditional Knowledge, Indigenous Peoples, and Local Communities
- Intellectual Property, Development, and Access to Knowledge
- Workers in the “Groves of Academe”: The Claim of Academics to Copyright and Patents
- Intellectual Property Meets the Internet
- Intellectual Property and Competition Law
- Intellectual Property and Private Ordering
- Intellectual Property and Public Health
- Intellectual Property and Climate Change
Abstract and Keywords
This chapter considers the law’s response to the challenge posed by the use of contract and technological protection measures (TPMs) as private ordering mechanisms in intellectual property. It considers the three (factual, legal, and contractual) levels of exclusivity on which private ordering may apply, and the different tools for intervening in private ordering that currently exist. It also highlights the inability of these tools to impose effective limits on private ordering by use of TPMs particularly, and considers the desirability and feasibility of new regulatory approaches based on the laws of consumer protection, IP, and unfair competition. The inflexibility and other shortcomings of such traditional regulatory mechanisms leads to a discussion of the possibility of alternative, self-regulatory mechanisms emerging, including the conditions required to that end, drawing on the experience of standard essential patents and collective rights management in copyright.
Keywords: contract law, technical protection measure (TPM), exclusivity, antitrust law, unfair competition law, consumer protection, self-regulation, standard-essential patents, patent pool, collective rights management (CRM)
Reto M Hilty is Director of the Max Planck Institute for Innovation & Competition and Professor of Intellectual Property Law at the University of Zürich.
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