Reto M. Hilty

The Unitary Patent Package: Twelve Reasons for Concern

A balanced, innovation-friendly and uniform patent system is indispensable for Europe. However, the latest EU proposal for a patent package (Patent Regulation and flanking court system) is both dangerous and misguided. While a superficial glance may create the false impression of a patent law advancement through the proposal, it instead actually threatens to forestall the necessary legal progress and innovation capacities for the foreseeable future. It might prove disastrous to implement a patent system which is already known to be detrimental from both the legal as well as the innovation perspectives. This paper provides a short introduction to the major reasons for concern regarding the current proposals and explains why it is imperative to reconsider the proposals entirely afresh.

Balancing copyright : a survey of national approaches

Overview.- Questionnaire.- Argentina.- Australia.- Belgium.- Bosnia and Herzegovina.- Brazil.- Canada.- Chile.- China.- Colombia.- Croatia.- Cyprus.- Egypt.- France.- Germany.- France.- Greece.- Hungary.- India.- Israel.- Italia.- Japan.- Korea (Republic).- Lithuania.- Macau S.A.R.- Netherlands.- Poland.- Portugal.- Russia.- Serbia.- Singapore.- Scandinavia (Norway, Denmark and Sweden).- Slovenia.- South Africa.- Spain.- Switzerland.- Taiwan.- Turkey.- Uganda.- United Kingdom.- United States of America.

Individual, Multiple and Collective Ownership - What Impact on Competition?

IP law, as a matter of principle, allocates the subject matter of protection to owners. However, different forms of ownership are possible, either based on specific legal arrangements (e.g. co-authorship) or as a result of contractual arrangements. Depending on the circumstances in a particular case, the impacts of different forms of ownership on competition vary. The more open a system of ownership turns out to be for third parties, the less we are faced with negative competitive impacts, and the more likely new innovations or creations will occur. At the same time, open systems are not in conflict with IP law - on the contrary. Based on the power to prohibit use activities entirely, right holders alternatively may allow for certain uses under specific conditions. Notably, the requirement to keep a system open in cases of creative or inventive uses of the subject matter of protection (e.g. such as the creative commons licenses) would not be enforceable without IP rights. Open systems therewith constitute special licensing regimes ultimately providing for more innovation and creation. All the same, incentives to choose an open systems are weak. IP rights are hardly enforced by the creators or inventors themselves, but rather by the marketers of IP-related products. Such marketers, however, have strong incentives to pursue proprietary systems avoiding competition, and therewith increasing their own profits. Hence, IP rights risk displaying dysfunctional effects, notably prohibiting new creations or innovations. Such dysfunctional effects may be prevented, or at least limited, by provisions facilitating (compulsory) licensing.

The Law Against Unfair Competition and Its Interfaces

In a constitutional state (“Rechtsstaat”), committed to liberal values, the intervention of the legislator in the market forces of free competition requires a specific justification.1 Economically speaking, this justification rests on the consideration that, without any such intervention, a market failure would ensue after a certain period of time.2

Compulsory licensing : practical experiences and ways forward

Practices across jurisdictions.- The operation of compulsory licensing regime.- Doctrinal discussions.

Introduction: IP and the Asia-Pacific ‘Spaghetti Bowl’ of Free Trade Agreements

The contributions to this book show the strategies and policies of countries in the Asia-Pacific region that have to grapple with international standard setting in what has been called the ‘spaghetti bowl’ of criss-crossing free trade agreements. The chapters show how intellectual property is just one among many political and economic factors that are used in trade off discussions. It leads to an often considerable further raising of IP standards in those countries that agree to higher protection levels, often for reasons that have little to do with the provision of incentives for technological progress. A more nuanced picture of IP protection in Asia shows the different interests of high protection countries, ‘first’ and ‘second tier’ newly industrialized and industrializing countries and the rather peculiar position of Australia and New Zealand. The chapter introduces the contributions to this volume according to these various groups of countries and of international law and the political economy of the region.

Access and Use: Open vs. Proprietary Worlds

There are good reasons to assume that an open world, which allows broad access to existing knowledge, is a better and more social world. But non-open, proprietary systems like patent or copyright laws do also have their legitimacy – particularly with regard to providing incentives for innovation and creation. The paper shows that open and proprietary worlds are not mutually exclusive but rather dependent on each other. Instead of replacing the propriety world by an open world, it is rather crucial to find a balance between both systems. In search for the right balance, it is apparent that the risk of imbalance is rather one-sided. IP rights as a matter of principle are of an exclusive nature. Hence, the risk of over-exclusiveness is more likely than over-openness. The tools to safeguard a certain degree of openness already exist. In this respect often overlooked is the importance and effectiveness of compulsory licenses.

Open Innovation in einer Welt mit geistigem Eigentum

Bereits die Begriffe „open“ und „innovation“ stellen Juristen vor grose Herausforderungen, denn diese Begriffe findet man im Recht so nicht. Nun muss naturlich nicht alles, was Menschen machen, auch in der Rechtsordnung finden, muss nicht alles von der Rechtsordnung abgedeckt sein, gerade das Internet hat nicht der Gesetzgeber erfunden, sondern das ist aus der Realitat entstanden. Aber das Bestehen der Rechtsordnung ist ein Faktum. Die Rechtsordnung gilt immer – sie gilt auch fur neue Phanomene, fur Phanomene, an die Gesetzgeber bei der Schaffung von Recht gar nicht gedacht hat (Bild 1). Aber es ist alles noch viel schlimmer; denn Recht besteht nicht nur, es hat auch die Eigenschaft, zu wuchern. Sobald Neues entsteht, wachst Recht so zusagen nach – ein Umstand, den Sie sattsam kennen aus dem Internetkontext. Wir haben eine unglaubliche Evolution des Urheberrechts erlebt.

Legal Protection of Cultural Heritage in a World of Intellectual Property Rights

The discussion on the legal protection of cultural heritages and traditional knowledge started about 40 years ago, to some extent initiated via a certain public international legal recognition of indigenous peoples and traditional and other cultural communities. From then on, one can observe an increasing extension of the awareness that cultural heritage as such deserves legal protection. During those four decades certain legislative achievements on the international level have been reached, such as for instance (but not limited to)

Position Statement of the Max Planck Institute for Innovation and Competition on the Proposed Modernisation of European Copyright Rules Part B Exceptions and Limitations (Art. 3 – Text and Data Mining)

In Article 3 of the “Proposal for a Directive on copyright in the Digital Single Market COM(2016) 593 final” the European Commission suggests an exception for text and data mining (TDM). While, in principle, a clear legal framework for TDM is to be welcomed, the proposed provisions are to be criticized regarding their scope and the applied regulatory method. This Position Statement develops an alternative proposal: Since TDM is to be seen as a normal use of works and other protected subject-matter, a field exemption is suggested allowing everyone to carry out TDM related to lawfully accessible works or other subject-matter. This includes the permission to extract contents of databases and to make reproductions for the sole purpose of TDM. Moreover, research organizations also need to carry out TDM regarding content to which they do not have lawful access. The proposal includes a specific provision obliging rightholders who market works or other subject-matter primarily for research purposes to provide datasets suitable for TDM only, for which they may request a reasonable payment.