Summary EU IP Law – NOT FOR DISTRIBUTION
European Intellectual Property Law and Technology
Course Description
Technological and cultural innovation is of growing importance to economic prosperity. For this reason, the
protection offered by the law to innovators is all the more important. This course gives an introduction to IP
protection of technology through copyright and patent. The role of copyright has over the years steadily grown,
not just for cultural innovation, but also for technical innovation. Copyright is of relevance to technology in
several ways:
1. Copyright protects 'technology', such as software, databases and architecture.
2. Technical innovation (such as the rise of peer to peer-networks) affects copyright protection of
traditional works, such as music and movies.
3. Conversely, strong protection of copyright on music and movies affects technical innovation (such as
video recorder, Internet, blank carriers).
4. Technology is being used to complement protection by the law. Patent is self-evidently relevant for
protection of technology.
The course is taught in English and will deal with European and International law. The course can function as a
stepping-stone to the course Advanced Topics in Intellectual Property Law.
Aims of the course
• Be able to give a reasoned opinion of extensions of IP rights based on the property theory and on
utilitarian theories about the rationale of IP
• Be able to explain the different IP strategies, tactics and policies (as described by Granstrand)
• Be able to apply the legal conditions for obtaining patent, copyright or database protection as laid
down in selected international and EU-legislation and case law to new cases
• Be able to apply the rules about exclusive rights, legal limitations thereof and licensing as laid down in
selected international and EU IP-legislation and case law to new cases
• Be able to apply the rules about ownership of IP rights as laid down in international and EU IP-
legislation and case law to new cases
• Be able to give an account of selected elements of patent procedure: priority, provisional protection,
contents of a patent, language regime at the EPO, amendments, PCT-procedure, shortcomings of the
pre-UPC practice, unitary effect and UPC.
Structure of the Course:
- Lecture 1 – Introduction into IPRs
- Lecture 2 – Introduction into IPRs
- Lecture 3 – Copyright: Term of protection + Work
- Lecture 4 – Copyright: Creator, Exclusive rights and Limitations
- Lecture 5 – Copyright: Exhaustion
- Lecture 6 – Substantive Patent Law: Sources, Patentability and Novelty
- Lecture 7 – Substantive Patent Law: Inventive step, Industrial application
- Lecture 8 – Procedural Patent Law: Priority
- Lecture 9 – Procedural Patent Law: Amendments and Opposition claims
- Lecture 10 – Procedural Patent Law: Single standard of interpretation (EPC)
- Lecture 11 – Patents and Nano Technology
- Lecture 12 – Rights in Databases
- Lecture 13 – Trademark Law
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Lecture 1 – Introduction: Literature notes
Aims
1. Be able to give a reasoned opinion of extensions of IP rights based on the property theory and on
utilitarian theories about the rationale of IP
2. Be able to explain the different IP strategies, tactics and policies (as described by Granstrand)
Literature:
Optional literature:
WIPO Intellectual Property Handbook, Chapter 1, p. 1-16, available at:
http://www.wipo.int/edocs/pubdocs/en/intproperty/489/wipo_pub_489.pdf
Mandatory literature:
(1) Justine Pila and Paul Torremans, European Intellectual Property Law, Second Edition, OUP 2019, ISBN:
9780198831280, p. 67-95: section 1.3 Theoretical Accounts of European IP
Introduction
- Why should we grant property rights in respect of intellectual products? And which theory, if there is
one, best explains the European system?
- European system: established teleological, systemic and purposive interpretations deployed by
tribunals. Moreover, there is an explicit concern for the respect and building on cultures, traditions,
spiritual and moral heritage and values of European peoples and states.
- European promotion of legal pluralism, connects to the diversity of European views regarding IP and
thinking in legal philosophy
- Sporong and Lönnroth v Sweden (1983). Unjustified interference meant interference that cannot be
shown to be a proportionate means of pursuing a general interest of the community and striking a fair
balance between public interest and individual fundamental rights.
- There is a wide margin of appreciation when it comes to supporting a range of domestic restrictions
on the individual right to exploit their IP rights. (Patents: renewal fees, obtaining regulatory approval
etc.)
For this reason this chapter discount positive law to consider normative validity of IP. The existence and legal
status should be considered with theoretical arguments only. However, there is reference to existing law by
considering the explanatory value of different theories, along with account of IP that depend on the CFR and
EU treaties specifically.
- 2 legal theories: IP rights as natural rights.
o 1: IP supports the personal development and autonomy of the individual creator. (Argument
from personhood)
o Hegel: emphasize the values of individual freedom or liberty as the appropriate reference
point for determining existence and justifiability of property – connects to the standard
theories of law in liberal democratic states.
o 2: Securing creators rights that they deserve as a result of their acts of intellectual creation.
(Argument from Desert) à this comes with the Lockean property theory argument: IP rights
derive from and support individual’s self ownership, by recognizing the products of their
labor as an extension of their bodies and extension of that in respect of which they have
“natural” rights over.
- If such a natural right theory is accepted, this means that there is a normative priority in deciding what
shape those rights should have.
- Simonds: the essential claim of natural law arguments for IP is that “whatever thing that is property-
subject-matter which a man makes out of materials belonging to no one else, is his exclusive property
by natural right”.
- Based on this it is crucial that in the natural law theories the existence can be attributable to one or
more persons (feature 3)
o However, this natural law claim is challenged a lot. Especially in our current times in which
advanced bionics and AI play a huge role.
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Both natural law theories can help in establishing a prima facie normative claim on the part of individual
creators to property.
Then we move to other theories.
- 1: This theory relies on the principles of commercial justice or fairness to argue that IP is defensive as a
means of preventing people from being enriched unjustly or from harming other by unfairly reaping
where they have not sown.
- 2: This theory relies on the principles of utility to support an instrumentalist (practical purpose) view
of IP rights. Meaning IP rights are privileges conferred by the state on specific individuals for pursuing
practical ends, such as encouraging socially desirable behavior on the part of beneficiaries or
discouraging the opposite on the part of those whose freedom they restrict.
- 3: This theory is the pluralist model of IP.
Intellectual products have three features:
1) Objectively recognizable form
o So not an idea, but something visually or verbally represented.
2) Expressive/informational properties
o 2 difficulties: what is and what is not an intellectual product and clearly identifying the nature
or constitutive features of that product.
o Example: flying a plane can come be an intellectual product in different forms. Expressive or
informational (manufacturing). The rights of the products are arrived from the different form.
Could be the manufacturing process or the expressive form and history of the individual
production supporting recognition as a work of expressive significance.
o Expressive works can turn into signifiers of a certain intellectual product and can distinguish
products from others in the market.
o The products (ideas, forms etc.) are not scarce, it is only after the grant of IP rights that these
products become scarce (so as to resemble their tangible counterparts). Everyone can namely
think of manufacturing ideas of planes at the same time/simultaneously.
3) Identifiable human beings to whom their existence can be attributed.
o Methods lack sufficient stability in its essential features to be regarded as having the
objectively recognizable form required of an intellectual product.
o Photo made by AI may fall in the categories of IP, however no human creator so no due to
personal intellect.
o Moreover, this excludes facts and products of nature, since their creation is a stand-alone
product and (besides the discovery) cannot be attributed to man.
o Philosophical problems: to what extent can it be attributed to one or a group of minds? Is it
attributed to the person who paints? The one who taught the person to paint? Does a brand
owe its existence to the inventor? Or the community keeping the company alive?
o This 3rd feature has special ground in the natural law theories of IP. For the simple reason
that such accounts assert and proceed from the basis of a special connection between
individual beneficiaries of IP rights and the products to which those rights attach.
Property rights are exclusionary rights that attach to certain objects. Others for this reason cannot use the
property. Excludability is the essence of property. (Q: how expansive should they then be?)
- Economically: reserving to one self the commercial benefits of a protected object and charging for
others.
- Posner: expansiveness – trade names, logos are not objects of property, but merely identifiers,
designed to prevent consumers from being misled. For an exclusionary right to be a property right,
these must confer a general right on their beneficiaries to exclude others from the object to which
they attach, not merely a right to exclude others from objects in its performance of a certain
social/economic function. à answer to both these parts is generally no. Trademarks namely increase
values and the trademark still depends on the expressive and informational property.
- In conclusion, even a limited right to exclude others from the benefits of graphics registered as
trademarks in their functions as commercial signs, is considered property.
- Term property is very elastic.
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Economic value of property rights is based on (contingent on) at least 3 things:
1. Right holder’s desire to realize the value
2. Ability to make the arrangements necessary to that end
3. Public’s willingness to participate in those arrangements by paying access.
So commercial exploitation of property rights to a poem is a possibility and not a certainty. This is why the
European system makes the maintenance or subsistence of property in registered trademarks conditional upon
sufficient use à Use it or lose it IP concept.
Political property rights:
In political terms we can describe exclusionary PR as creating state-sanctioned relationships between individual
right holders, objects of property and third parties excluded from it. Seeing it in political terms highlights the
importance of IP ownership (and power to be contractually transferred).
- PR are appropriate defined as state-endorsed claims of an individual to exclude others from its benefits of
certain objects. This explains and supports Radin’s statement that “there can be no free-standing, purely
private, regime of property and contract”, since both property and contract presuppose limits and
enforcement shaped by a sovereign authority.
Accounts from Natural law
1) Accounts from personhood à Intellectual products as manifestations of the individual’s personality
Natural right for persons to protect their personhood and personal autonomy. This view considers intellectual
IP to be an extension of the person itself. This builds on the views of Hegel. Hegel states: intellectual products
are the external manifestations of the people who made them. These views stress à individual freedom or
liberty as the reference point for determining the existence and justifiability of PR and connect this to standard
jurisprudential theories of law in liberal democratic states.
Example: Copyrights subsists automatically, no need for registration or application. Yet, only in authorial works,
where the author expresses its own intellectual creation (bear a personal mark). Personhood arguments could
be said to consider Copyright itself as existing to protect the personal autonomy of individual creators. Q: if
they are there to protect, should they last more than a lifetime?
Difficulties with the personhood theory:
1. Failure to property distinguish between the creation of an intellectual product on the one hand and its
existence on the other. Even if they can be attributed, it could seem far-fetched to view continued existence as
depending on those same authors. The continued existence seems to depend on the readers, listeners etc.
2. Accounts from desert à Creators of intellectual products as deserving PR
Existence of IP from natural law depends on the view of those who create intellectual products as deserving PR.
Basis for this view: one or more of 3 things à Special kind of labor involved in creating it, special value it
possesses, special needs of those who create intellectual products on account of their investment.
Locke on Self-Ownership: Individuals have natural rights of ownership in respect of their bodies, which rights
reach through to the products they create in respect of their labor.
When a person takes an idea or some other material from the pool of resources, and mixes this with his or her
labor, they hereby acquire the natural right to that object.
Differences personhood and desert arguments:
- Hegel v Locke
- From labour v from autonomy
- Arguments from desert have potentially a broader appeal and application across the spectrum of
intellectual products and IP.
- However: what is the compensation, if it is labour wouldn’t salary during the labor me more fair?
- Desert arguments have to incorporate the claims of all creators, even if those have used products
created by 3rd parties.
Accounts from Unjust Enrichment and Unfair competition
Account for the existence of IP: prevent individuals from being unjustly enriched or harmed by others’ acts of
free riding and reaping where they haven’t sown.
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