This article revisits the discussion on the rationales for intellectual property (IP) protection by addressing a particular justificatory theory for IP that had come to the forefront of legal discussions in recent years – the theory based on freedom of expression and information. This modern vision of IP focuses on the communicative nature of IP subject-matter and of IP as a legal regime. Firstly, this article reviews the Kantian theory of copyright that lies at the origins of any modern discussions on the communicative nature of IP regulation with the aim of answering whether IP should be more properly conceived as the system for regulating communication. It then looks at the readings of this theory by contemporary copyright scholars and considers applicability of the communicative theory to other areas of IP such as trademarks and patents. The analysis then proceeds towards looking at the freedom of expression dimension of the ‘classic’ IP theories. Reflecting on this matter is important as the rationales for IP protection influence virtually all spheres of IP’s legal regulation, including – first and foremost – the reach of IP holders’ entitlements.
{"title":"Freedom of Expression as a Rationale for IP Protection","authors":"Elena Izyumenko","doi":"10.1093/grurint/ikad071","DOIUrl":"https://doi.org/10.1093/grurint/ikad071","url":null,"abstract":"\u0000 This article revisits the discussion on the rationales for intellectual property (IP) protection by addressing a particular justificatory theory for IP that had come to the forefront of legal discussions in recent years – the theory based on freedom of expression and information. This modern vision of IP focuses on the communicative nature of IP subject-matter and of IP as a legal regime. Firstly, this article reviews the Kantian theory of copyright that lies at the origins of any modern discussions on the communicative nature of IP regulation with the aim of answering whether IP should be more properly conceived as the system for regulating communication. It then looks at the readings of this theory by contemporary copyright scholars and considers applicability of the communicative theory to other areas of IP such as trademarks and patents. The analysis then proceeds towards looking at the freedom of expression dimension of the ‘classic’ IP theories. Reflecting on this matter is important as the rationales for IP protection influence virtually all spheres of IP’s legal regulation, including – first and foremost – the reach of IP holders’ entitlements.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132648068","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article urges European companies to discard their prejudices and work with their patent offices to adopt a grace period in the European Patent Convention (‘EPC’) in exchange for the United States’ reconciliation of the definition of the prior art, harmonizing the differences remaining after the America Invents Act (AIA). The negative view that European companies have taken of a grace period is contrary to the experience in Japan, where an unrestricted grace period helped large companies engage in open innovation and increase their use. Empirical studies have substantiated the negative impacts of the lack of a grace period on European SMEs and Universities. After highlighting the differences in the prior art under AIA and EPC, this article will conclude with a proposal for a 12-month, U.S.-style grace period to harmonize the patent systems in Paris Union member states. The adoption of this proposed grace period would result in a win-win outcome for both the United States and European countries.
{"title":"Grace Period Harmonization in the Open Innovation Era","authors":"Toshiko Takenaka","doi":"10.1093/grurint/ikad064","DOIUrl":"https://doi.org/10.1093/grurint/ikad064","url":null,"abstract":"\u0000 This article urges European companies to discard their prejudices and work with their patent offices to adopt a grace period in the European Patent Convention (‘EPC’) in exchange for the United States’ reconciliation of the definition of the prior art, harmonizing the differences remaining after the America Invents Act (AIA). The negative view that European companies have taken of a grace period is contrary to the experience in Japan, where an unrestricted grace period helped large companies engage in open innovation and increase their use. Empirical studies have substantiated the negative impacts of the lack of a grace period on European SMEs and Universities. After highlighting the differences in the prior art under AIA and EPC, this article will conclude with a proposal for a 12-month, U.S.-style grace period to harmonize the patent systems in Paris Union member states. The adoption of this proposed grace period would result in a win-win outcome for both the United States and European countries.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134380591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Legal Requirements of Public Financial Incentives to Prescribe Drugs That Do Not Belong to the Same Generic or Similar Biological Groups","authors":"","doi":"10.1093/grurint/ikad061","DOIUrl":"https://doi.org/10.1093/grurint/ikad061","url":null,"abstract":"<jats:p>Toujeo</jats:p>","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129362722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Parody as an Exception to Copyright and Trade Mark Protection","authors":"","doi":"10.1093/grurint/ikad057","DOIUrl":"https://doi.org/10.1093/grurint/ikad057","url":null,"abstract":"<jats:p>Zorro</jats:p>","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114831817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past two years non-fungible tokens (NFTs) have become a highly popular, though extremely volatile trade asset. As mere data sets on the blockchain, NFTs are challenging the law to define the legal positions they entail. This article examines NFTs from the angle of copyright licensing, looking at it from a European perspective with the main focus on German law. Based on the technical specifics of NFTs, the paper evaluates the relevant legal position required for a permitted use of tokenized copyrighted content and how such a position may be obtained in the context of NFT trading. A review of the copyright schemes of 21 of the most sought-after NFT collections sets out the current state of licensing and identifies the prevailing legal uncertainties. The fact that these are not merely theoretical is then shown by the turbulent case of a ‘stolen’ ape avatar, tokenized by an NFT, that was set to star in a live-action animated series.
{"title":"When a Series’ Main Protagonist Gets Stolen and Sold – A Study of NFTs and Their Approaches to Copyright Licensing","authors":"S. Bischoff","doi":"10.1093/grurint/ikad056","DOIUrl":"https://doi.org/10.1093/grurint/ikad056","url":null,"abstract":"\u0000 Over the past two years non-fungible tokens (NFTs) have become a highly popular, though extremely volatile trade asset. As mere data sets on the blockchain, NFTs are challenging the law to define the legal positions they entail. This article examines NFTs from the angle of copyright licensing, looking at it from a European perspective with the main focus on German law. Based on the technical specifics of NFTs, the paper evaluates the relevant legal position required for a permitted use of tokenized copyrighted content and how such a position may be obtained in the context of NFT trading. A review of the copyright schemes of 21 of the most sought-after NFT collections sets out the current state of licensing and identifies the prevailing legal uncertainties. The fact that these are not merely theoretical is then shown by the turbulent case of a ‘stolen’ ape avatar, tokenized by an NFT, that was set to star in a live-action animated series.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122772062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Territorial Scope of the Order to Delist Data","authors":"","doi":"10.1093/grurint/ikad058","DOIUrl":"https://doi.org/10.1093/grurint/ikad058","url":null,"abstract":"Global Delisting of URLs","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128716895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Assessment of the Similarity and the Risk of Confusion with a Well-Known Trade Mark","authors":"","doi":"10.1093/grurint/ikad055","DOIUrl":"https://doi.org/10.1093/grurint/ikad055","url":null,"abstract":"Sheraton","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116242890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"China’s IP Policy in Reaction to Geopolitical Challenges","authors":"Yuanshi Bu","doi":"10.1093/grurint/ikad059","DOIUrl":"https://doi.org/10.1093/grurint/ikad059","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116558008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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