Intellectual property (IP) Law
At present, IP law is beset with a spate of upheavals originating both from within the system as well as from without. Contemporary political, social and economic exigencies are leading to radical changes in the way IP rights are negotiated, litigated and enforced. In keeping with the overall theme of the TILTing 2021 conference “Regulating in Times of Crisis”, we explored how current crises, both external and internal to the system, are challenging and shaping IP law and seek innovative solutions to re-model the IP law framework to meet the needs of the future.
Intellectual property (IP) law has never been a stranger to tumult and turmoil, but lately we have been spoilt for choice in picking our battles. At present, IP law is beset with a spate of fresh upheavals that originate both from within the system as well as from without. Regulatory and policy shifts that seek to respond to contemporary political, social and economic exigencies are leading to radical changes in the way IP rights are negotiated, litigated and enforced.
For instance, within the EU, the introduction of the Copyright in the Digital Single Market Directive (2019) compels online service providers (OSPs) to assume a more proactive role in monitoring content shared on online platforms (Article 17) and introduces a new right for press publishers (Article 15).
Meanwhile in patent law, the decades-long progress made in the pursuit of a unified patent has been put on shaky ground by the departure of the United Kingdom and the collective action case in Germany. Moreover, the emergence of disruptive technologies such as artificial intelligence (AI) challengescore concepts and rules (e.g. ‘authorship’, ‘inventorship’, ‘originality’) on which the IP law system is founded.
The persistent tension between IP law and (other) fundamental rights is ever-increasing, especially as regards the right to privacy, freedom of expression and access to culture and education. The interface between IP law and competition law is also coming under greater scrutiny with growing calls for more fairness, openness and transparency.
On top of all that, the COVID-19 pandemic has urged us to re-examine the role of IP law as an instrument for promoting public welfare and sustainable human development. It has also provided fresh impetus to arguments for a more ‘inclusive’ approach to IP protection; particularly in the context of pharmaceutical patents, the sharing of copyright protected content over remote-learning networks, and the sharing of data in the context of research and monitoring public health.
These are but a few examples of crises that highlight shortcomings and limitations of the current IP law framework and provide us a golden opportunity for re-modelling it in creative ways.
The track 'From IP law in crisis to IP law and crises, and back again'
For this track, we welcomed papers that explore the ways in which crises -both within and outside the legal framework -are both challenging and shaping IP law and discuss innovative solutions for resolving existing crises.
Mark A. Lemley (Keynote Speaker)
Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. He is also a Senior Fellow at the Stanford Institute for Economic Policy Research and is affiliated faculty in the Symbolic Systems program. He teaches intellectual property, patent law, trademark law, antitrust, the law of robotics and AI, video game law, and remedies.
The Contradictions of Platform Regulation
Everyone wants to regulate the big tech companies. The desire to regulate the private actors that control so much of our lives is understandable, and some ideas for regulation make sense. But the political consensus around regulating the tech industry is illusory. While everyone wants to regulate big tech, it turns out that they want to do so in very different, indeed contradictory, ways.
These contradictions of platform regulation mean that it will be very hard to turn anti-tech popular sentiment into actual regulation, because the actual regulations some people want are anathema to others. They suggest caution in imposing regulation and an awareness of the difficult tradeoffs that are involved. But they also suggest a way forward: introducing competition to reduce the influence the tech giants have over our lives.
Jorge Contreras (Book Presentation)
Jorge Contreras (JD (Harvard), BSEE, BA (Rice)) is a Presidential Scholar and Professor of Law at the University of Utah (Salt Lake City, USA). Before entering academia, Professor Contreras was a partner at an international law firm where he practiced transactional and IP law. His research focuses, among other things, on intellectual property, technical standards and science policy. He is the author of more than 100 scholarly articles and book chapters and the editor or author of ten books.
Issuing and Tailoring Patent Injunctions – A Cross-Jurisdictional Comparison and Synthesis
This chapter is from the edited volume "Injunctions in Patent Law: A Trans-Atlantic Dialogue on Flexibility and Tailoring" (Jorge Contreras & Martin Husovec, eds., Cambridge Univ. Press, forthcoming). It offers a unique analytical synthesis of eleven national and two regional/international descriptions of flexibilities in patent remedies authored by leading scholars in the field. This synthesis identifies a range of similarities and differences among jurisdictions, explains the principal features of these different legal systems, provides an analytical framework for comparing them, and offers observations about trends and the outlook for the future. The countries studied include Canada, Finland, France, Germany, Israel, Italy, Netherlands, Poland, the United Kingdom, and the United States, with additional commentary on the European Union and the World Trade Organization TRIPS AgreemenRead a chapter from the book
other authors of the book that will contribute to the book presentation:
- Rochelle Dreyfuss
Pauline Newman Professor of Law and Co-Director of the Engelberg Center on Innovation Law & Policy, New York University School of Law; Arthur Goodhart Visiting Professor in Legal Science, Cambridge University.
- Sir Richard Arnold
Lord Justice at Court of Appeal of England and Wales; External Member of the Enlarged Board of Appeal of the European Patent Office.
- Peter Georg Picht
chair for Commercial Law at the University of Zurich; Head of the University’s Center for Intellectual Property and Competition Law (CIPCO).
- John Golden
Professor at the University of Texas School of Law
- Thibault Gisclard
Associate Professor at the University of Lille, Director of the University Diploma of Industrial Property
- Rafal Sikorski
Professor of law at the Faculty of Law of Adam Mickiewicz University
Article 17 DSMD Panel
This panel will focus on Article 17 of the Directive on Copyright in the Digital Single Market. It will provide each panelist opportunity to home in on certain aspects of this article more generally, as well as to look into how Member States have attempted to reconcile some of the conflicting obligations imposed by this article in their national implementations.
|Paul Halliday||Tilburg Institute for Law, Technology and Society|
|Julia Reda||Former member of EU Parliament and Head of the Control © Project at GFF)|
|Christoph Schmon||EEF’s International Policy Director|
|Paul Kelle||Co-Founder and Policy Director at Open Future|
|João Pedro Quintais||Assistant Professor at the Institute for Information Law, University of Amsterdam|
|Giancarlo Frosio||Associate Professor at the Center for International Intellectual Property Studies, Strasbourg University|