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Cover European Intellectual Property Law

26. Future Trends  

Justine Pila and Paul L.C. Torremans

This chapter offers an outlook to the future of IP at the European level. The EU and its legal instruments primarily approach IP from a utilitarian free market perspective and that applies also to the way they look at the future. The chapter focuses primarily on that angle when it looks at how the European IP system could and should function in the future and which direction it is taking. In a sense it offers an opportunity for reflection and attempts to enhance the reader's insight in and understanding of IP by wrapping the critical analysis of its technical rules up in a more theoretical analysis.

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Cover European Intellectual Property Law

1. An Introduction to Domestic and International Intellectual Property Law  

Justine Pila and Paul L.C. Torremans

This chapter commences the discussion of the European law of IP by introducing the domestic and international IP systems that preceded and continue to exist alongside it. It starts with the ‘what, how, and why’ of IP law in general—what it is, how it came to be, and why it exists—and proceeds to consider European IP law as part of an international network of IP laws that, while being a product of the domestic IP laws of individual European states, nonetheless differs from those laws in three related aspects. First, unlike domestic IP laws, many international laws operate by establishing legal standards for states to implement within their own territories rather than by regulating the behaviour of those states’ citizens. Second, the need for international legal communities to accommodate the diverse values and legal traditions of their member states makes their IP laws and policies less likely to reflect a single model or justificatory theory of IP than those of individual countries. And third, a central aim of international European IP communities is to supplement or substitute domestic laws and policies with European laws and policies in pursuit of European objectives, including some that stand in tension with domestic interests, such as the abolition of territorial restrictions on the operation of IP regimes.

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Cover European Intellectual Property Law

18. Indications of Geographical Origin  

Justine Pila and Paul L.C. Torremans

This chapter examines indications of geographical origin, which establishes a link between a certain geographical location and the goods originating from that location. That link allows the consumer to distinguish between identical or similar goods based on their geographical origin. The strength of the link varies between the different schemes and involves both human and natural elements. It is also important to realize that whilst similar to (collective) trade marks, indications of geographical origin are radically different as they are open standards. The chapter first looks at the position given to indications of geographical origin in the global and European IP systems. How did a historical practice develop into an exclusive right? And how is that exclusive right shaped and protected? It then focuses on the European system for the protection of indications of geographical origin.

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Cover European Intellectual Property Law

25. Remedies  

Justine Pila and Paul L.C. Torremans

This chapter deals with the enforcement of IP rights. Such enforcement takes place in search of redress and that redress is obtained in the form of remedies. The discussion focuses on remedies at a national level, i.e. the content of the applicable law determined by the court with competent jurisdiction, be it at a procedural or substantive level. It first looks at civil remedies. Civil proceedings brought by private parties are the norm in the enforcement of private rights, and thus take the lion's share of the enforcement and remedies effort in relation to IP rights, since the latter are very clearly private rights. The chapter then turns to criminal remedies. While criminal proceedings do not play an important role in the area of IP, some offences do exist and these types of proceedings are specifically concerned with cases of infringement that are seen as particularly serious from a public policy point of view. Examples include actions against copyright or trade mark pirates.

Chapter

Cover Contemporary Intellectual Property

1. Intellectual property law: an introduction  

This chapter provides an accessible introduction to intellectual property (IP) law. It provides and challenges some definitions of intellectual property law and IP itself. It discusses the development of IP law as a field of study in an increasingly global context and presents a realistic view of the law as it actually operates; the relationships between different levels of IP law—at national, European, European Union, and international levels; the various influences on the formation, justifications for, and development of IP law including between IP law and other legal fields; and the tensions that arise from different perspectives when the law seeks to protect IP.

Chapter

Cover Contemporary Intellectual Property

1. Intellectual property law: an introduction  

This chapter provides an accessible introduction to intellectual property (IP) law. It provides and challenges some definitions of intellectual property law and IP itself. It discusses the development of IP law as a field of study in an increasingly global context and presents a realistic view of the law as it actually operates; the relationships between different levels of IP law—at national, European, European Union, and international levels; the various influences on the formation, justifications for, and development of IP law including between IP law and other legal fields; and the tensions that arise from different perspectives when the law seeks to protect IP.

Chapter

Cover European Intellectual Property Law

24. Enforcement  

Justine Pila and Paul L.C. Torremans

This chapter looks into preliminary aspect of private international law, focusing on jurisdiction and choice of law. Before enforcement actions can get off the ground we need to know which court will have jurisdiction and which law that court will apply. Jurisdiction is based on the domicile of the defendant as a basic rule, but alternative fora are available. The courts of the place of the harmful event may also have jurisdiction and there are special rules for multiple defendant cases. Validity cases are subject to exclusive jurisdiction rules. In terms of choice of law, the law of the country for which protection is sought takes centre stage when it comes to IP. It is the law applicable to the IP right as such and it also applies to infringement.

Book

Cover European Intellectual Property Law

Justine Pila and Paul Torremans

European Intellectual Property Law offers a full account of the nature, context, and effect of European IP law. The amount and reach of European law- and decision-making in the field of intellectual property has grown exponentially since the 1960s, making it increasingly difficult to treat European IP regimes as mere adjuncts to domestic and international regimes. European Intellectual Property Law responds to this reality by presenting a clear and detailed account of each of the main European IP systems, including the areas of substantive IP law on which they are based. The result is a full account of the European intellectual property field, presented in the context of both the EU legal system and international IP law, including EU constitutional law, the law of the European Patent Convention 1973/2000, and private international law. By drawing selectively on examples from domestic IP regimes, the text also illustrates substantive differences between those regimes and demonstrates the impact of European law and decision-making on EU Member States. The result is a modern treatment of European IP law that goes beyond a discussion of the provisions of individual legal instruments to consider their wider context and effect.

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2. The Foundations of European Union Intellectual Property Law  

Justine Pila and Paul L.C. Torremans

This chapter discusses the role of the EU in the IP field before and since the introduction of the Lisbon Treaty. To that end it introduces the EU legal order itself, including its founding Treaties, institutions, and authority to act (competence), with a focus on IP. The chapter is organized as follows. Section 2.2 traces the establishment of the European Economic Community and its development to the European Union. Section 2.3 describes the seven EU institutions: the European Council, European Commission, European Parliament, Council, Court of Justice of the EU, European Central Bank, and Court of Auditors. Section 2.4 explains the legal authority of the EU, in relation particularly to IP. Section 2.5 covers EU measures and their legal effects. And Section 2.6 discusses the actions of the Court of Justice.

Chapter

Cover European Intellectual Property Law

3. Theoretical Accounts of European Intellectual Property  

Justine Pila and Paul L.C. Torremans

This chapter offers a full and critical account of the arguments for and against the existence of IP systems in general, and of European IP systems in particular. It begins by considering two general theories in support of the recognition of IP rights as natural rights: the first casting IP as supporting the personal development and autonomy of individual creators (the argument from personhood), and the second casting IP as securing for creators such rights as they deserve by virtue of their acts of intellectual creation (the argument from desert). From natural law accounts of the existence of IP the chapter goes on to examine three other theories grounded in considerations of justice, utility, and pluralism respectively. According to the first, IP is defensible as a means of preventing people either from being enriched unjustly or from harming others by unfairly ‘reaping where they have not sown’. According to the second, IP rights are privileges conferred by the state on specific individuals in the pursuit of certain instrumentalist ends, such as encouraging socially desirable behaviour on the part of their beneficiaries or discouraging socially undesirable behaviour on the part of those whose freedoms they restrict. And according to the third, IP is a regulatory mechanism by which different understandings and traditions of protecting creative and informational subject matter are reconciled in support of legal and social pluralism. The chapter concludes with a discussion of the implications of the theoretical accounts for the duration of copyright and related rights protection and the patentability of biotechnology.