Justine Pila

Authorship and e-Science: Balancing Epistemological Trust and Skepticism in the Digital Environment

In this article I consider the role of authorship in balancing epistemological trust and skepticism in e‐science. Drawing on studies of the diagnostic practices of doctors in British breast care units and the gate‐keeping practices of a Californian publisher of (professional and amateur) horticultural works, I suggest that conventions of authorial designation have an important role to play in nurturing the skepticism essential for scientific rigor within the framework of epistemological trust that pragmatism and morality require. In so doing I question the assumption of contemporary scholars that scientific works are determinate in fact, while nonetheless supporting the idea of semi‐indeterminate authorship as a goal. I then consider the theoretical and practical consequences of that view with an analysis of the Anglo‐Australian legal constraints on attributions of authorship, and the complex of other relevant (authorial and public) interests and rights that may require different models of attribution—oriented not around authors themselves, but rather their employer, their manager or supervisor, or some (other) pseudonym deemed to be an appropriate organizing mechanism for the works in question.

The Europeanization of intellectual property law : towards a European legal methodology

PART I: THE EUROPEANIZATION OF INTELLECTUAL PROPERTY LAW 1. Intellectual Property as a Case Study in Europeanization: Methodological Themes and Context 2. An Overview of European Harmonization Measures in Intellectual Property Law PART II: HARMONIZATION MODELS AND APPROACHES 3. The Europeanization of Patent Law: Towards a Competitive Model 4. Is Harmonization a Good Thinga The Case of the Copyright Acquis 5. The Europeanization of Trade Mark Law PART III: THE IMPACT OF GENERAL EU LAW 6. The Impact of General European Union Law on Industrial Property Law 7. The Balancing Impact of General European Union Law on European Intellectual Property Jurisprudence PART IV: THE IMPACT OF CONSTITUTIONAL RIGHTS AND VALUES 8. The European Fundamental Rights and Intellectual Property 9. Rhetoric and Reality: The Impact of Constitutional and Fundamental Rights on Intellectual Property Law, as Revealed in the World of Peer to Peer PART V: EUROPEAN AND NATIONAL COURTS 10. The Relationship between European and National Courts in Intellectual Property Law 11. Towards a Unified Patent Court in Europe 12. The Future of European Intellectual Property Courts: Intellectual Property and the European Judicial Architecture PART VI: TOWARDS A EUROPEAN LEGAL METHODOLOGY? 13. A Constitutionalised Doctrine of Precedent and the Marleasing Principle as Bases for a European Legal Methodology 14. Concluding Remarks: Postmodernism and Beyond

An Intentional View of the Copyright Work

In this article I consider the questions at the heart of copyright: what is a work and the extent of protection which copyright confers? In so doing I make two central arguments. The first is for an understanding of copyright works oriented around authorial intent, and the second is for a statutory test of infringement that pays closer attention to issues of policy and the authorial acts that copyright rewards. In developing these arguments I revisit two of the central cases of modern English copyright law, Walter v Lane and Interlego v Tyco Industries, and suggest that their reasoning is problematic; Walter v Lane because the transcripts of Lord Roseberys speeches were not books for copyright purposes, and Interlego because the technical specifications were part of the drawings, which were consequently new artistic works for copyright purposes. This suggestion is supported by contemporary authority - including paradoxically Sawkins v Hyperion Records in which the correctness of both cases was most recently affirmed - and has wider implications for our copyright regime.

Intellectual property rights and detached human body parts

This paper responds to an invitation by the editors to consider whether the intellectual property (IP) regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognised by European and international law in respect of authorial works. In the argument made, both of these species of IP right may suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to accommodate the relevant public and private interests in respect of the same.

The European Patent: An Old and Vexing Problem

In December 2012 the European Parliament supported the creation of a European patent with unitary effect. For the next year at least, the international patent community will be on the edge of its proverbial seat, waiting to see whether the proposal becomes a reality. If it does, it will be a significant event in both the long and rich history of patent law, and in the equally rich and understudied history of attempts to create a European patent system. In this article (the preprint of which is available from my institutional website) I consider the three post-War European patent initiatives of the most direct and enduring relevance in that regard with a view to answering the following questions. First, what drove them? Second, what issues confronted them? And third, how were those issues resolved and with what ultimate effect? In the concluding section I relate the discussion back to the present by considering the current European patent proposal in its historical context.

Patent Eligibility and Scope Revisited in the Light of Schütz v. Werit, European Law, and Copyright Jurisprudence

This chapter (available in full from my institutional webpage) responds to the contribution of Professor Ted Sichelman in the same volume by reconsidering the UK courts’ method of determining patent scope. Using my earlier work regarding the role of eligibility as a determinant of patent scope as the departure point for that reconsideration, I argue that the theory of “patent eligibility scope” proposed in Sichelman’s chapter runs against the grain of UK patent jurisprudence by virtue of its uncertain and open-ended policy nature, and is therefore unlikely to be accepted by the UK courts. On the other hand, recent UK cases such as Schutz v. Werit can be read as going to the other extreme by eschewing regard to policy that might limit the protection of the patentee. Such cases invite reconsideration of the UK courts’ method of determining patent scope. Hence the aim of this contribution, which is to undertake such a reconsideration drawing on jurisprudence of the Court of Justice of the European Union and (UK and European) copyright. In a Postscript at the end I consider the implications for my analysis of the Supreme Court’s opinion in Schutz v., published after this chapter was completed but before it went to press. In the argument I make, that case supports my analysis and argument by adopting a new approach to patent infringement which falls between the two extremes of Sichelman and recent UK cases, is consistent with CJEU jurisprudence, and is akin to the approach adopted in copyright.