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

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

3. Intellectual property

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

5. Copyright and neighboring rights

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

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

8. Industrial Property

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

10. Aesthetic innovation: protection of product appearance
industrial designs
artistic works

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

12. Overview of the protection system

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

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

15. Rationale of protection

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

17. 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.’

18. 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

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

20. International treaties

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

22. 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

23. Solution I: bilateral agreements
based on reciprocity

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

25. 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)

26. 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.’

27. Example: Paris Union

28. 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.’

29. 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.’

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

31. 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

32. 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.’

33. 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

35. International Debate on IP Protection

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

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

38. Plain packaging in Australia

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

40. need for a balance

41. 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

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

43. For example…

44. Settlement of disputes

45. 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’)

46. 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)

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