EBS Law Term 2016 Intellectual Property Law Fields and Principles Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

Contents intellectual property rationale of protection international treaties international debate on IP protection dispute settlement research resources

Intellectual property

Intellectual Property Traditional approach: two main branches Intellectual Property copyright and neighboring rights industrial property

Copyright and neighboring rights

Cultural inspiration: protection of literary and artistic works books, writings, plays musical compositions choreography drawings, paintings sculptures, architecture cinematographic works photography

Copyright holders: authors Holders of neighboring rights: performers phonogram producers broadcasting organizations

Industrial Property

Technical innovation: protection of products and processes inventions layout-designs of integrated circuits

Aesthetic innovation: protection of product appearance industrial designs artistic works

Market transparency: protection of distinctive signs trademarks trade names geographical indications KLM

Overview of the protection system

Overview of the system culture copyright law industrial designs commerce technology trademark law patent law

Example: complex products inventions: patents appearance: works, industrial designs distinctive sign: trademark

Rationale of protection

freedom of competition Bird’s-eye view areas of IP protection freedom of competition freedom of expression

Art. 7 of the TRIPS Agreement ‘The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.’

Incentive for creativity and innovation stimulation of investment enhanced possibility of amortization ‘natural’ period of market exclusivity advantage of being first ‘extended’ period of market exclusivity term of IP protection

Further rationales reward for creative work publication of knowledge/ dissemination of information market transparency fair competition

International treaties

Principle of territoriality …national intellectual property rights …cross-national objects of protection

Obstacles to IP protection effect of protection grant limited to national territory grant only to be repealed by authorities of the granting state acts concerning IP governed by the domestic laws in the territory concerned no need to protect foreigners

Solution I: bilateral agreements based on reciprocity

copyright and neighboring rights industrial property Solution II: international IP treaties copyright and neighboring rights industrial property Berne Convention Paris Convention

World Intellectual Property Organization (WIPO) Berne Convention for the Protection of Literary and Artistic Works (1886/1967) Paris Convention for the Protection of Industrial Property (1883/1967) many further treaties, such as the Patent Cooperation Treaty (PCT) and the Madrid Agreement and Protocol (Madrid System)

Establishment of Unions Art. 1 of the Berne Convention ‘The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.’ Art. 1(1) of the Paris Convention ‘The countries to which this Convention applies constitute a Union for the protection of industrial property.’

Example: Paris Union

National treatment and minimum rights Art. 5(1) of the Berne Convention: ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.’

National treatment and minimum rights Art. 2(1) of the Paris Convention: ‘Nationals of any country of the Union shall, as regards the protection of industrial property enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention.’

National treatment and minimum rights international minimum standard country A country B

World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994) Annex 1C to the General Agreement on Tariffs and Trade (GATT 1994) inclusion of the intellectual property system in global trade regulations

Most-favored-nation treatment Art. 4 of the TRIPS Agreement: ‘With regard to the protection of intellectual property, any advantage, favor, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.’

Renaissance of bilateral agreements variety of trade-related instruments Free Trade Agreements (FTAs) EU Association Agreements Bilateral Investment Treaties (BITs) ‘investment’ includes intellectual property rights Bilateral IP Treaties (BIPs) = in many cases TRIPS-plus approach

International Debate on IP Protection

Development Dimension copyright: information products patents: technical know-how distinctive signs: product marketing, goodwill

Public Health Dimension copyright: access to knowledge patents: access to medicine distinctive signs: plain packaging

Plain packaging in Australia

Economic Growth Dimension grant of protection stimulates investment in innovative products but may also frustrate follow-on innovation innovation follow-on innovation

need for a balance

TRIPS Objectives and Principles mutual advantage of producers and users social and economic welfare balance of rights and obligations source of flexibility balancing done already WTO jurisprudence: certain adjustments possible, but no renegotiation of the basic balance

Overlaps revisited culture copyright law industrial designs commerce technology trademark law patent law

For example…

Settlement of disputes

International: WTO Dispute Settlement complaint by WTO member conciliation: consultations, mediation Dispute Settlement Body (General Council): appoints Panel Panel: hearings, report Appellate Body: appeal only on points of law automatic adoption by DSB, unless rejected if compliance (-): retaliation on request of plaintiff same or other sector (‘cross-retaliation’)

WTO Dispute Settlement: time schedule These approximate periods for each stage of a dispute settlement procedure are target figures — the agreement is flexible. In addition, the countries can settle their dispute themselves at any stage. Totals are also approximate. 60 days Consultations, mediation, etc. 45 days Panel set up and panelists appointed 6 months Final panel report to parties 3 weeks Final panel report to WTO members Dispute Settlement Body adopts report (if no appeal) Total = 1 year (without appeal) 60-90 days Appeals report 30 days Dispute Settlement Body adopts appeals report Total = 1y 3m (with appeal)

contact: m.r.f.senftleben@vu.nl The end. contact: m.r.f.senftleben@vu.nl