Directions in Intellectual Property Law Research: A Linguistic Contribution

2021 ◽  
pp. 344-360
Author(s):  
Alan Durant ◽  
Jennifer Davis
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Language Use ◽  
Public Debate ◽  
Policy Formation ◽  
Property Law ◽  
Concurrent Use ◽  
Subject Areas ◽  
Ip Law ◽  
Legal Meaning

The questions in intellectual property (IP) law which most directly engage language fall into several types. ‘Language’ questions may concern particular signs or stretches of language examined for their registrability as a trademark, or disputed in relation to alleged infringement of literary copyright. Other kinds of words and phrases may also create difficulty, such as the words ‘distinctive’ or ‘generic’ which describe features of, and categorize, such signs or stretches of language. Such words and phrases establish a metalanguage that overlaps with frameworks in linguistics (e.g. ‘noun’, ‘consonant’) yet differs from such frameworks both in detail and purpose. Across all IP subject areas, a further kind of language, the field’s legal terms of art, defines the intangible subject matter, doctrines, and rationales of IP law, giving specialized legal meaning to otherwise general words and phrases whose meaning in law may nevertheless be contested. Such terms remain in concurrent use beyond law, with related but different meanings, and may therefore also be problematic when relied on in policy formation and in public debate about what IP is. ‘Language’ in these and other IP contexts is not, we argue, a single, unified topic. Rather, it consists of a number of very different kinds of language use, which raise different questions and call for varied forms of analysis. This chapter describes and illustrates those specialized kinds of language use. It also discusses prominent examples of research into them by legal scholars and linguists, and highlights further topics that may be amenable to linguistic investigation. In conclusion, we explain why specialist linguistic expertise is less important in such study of than interdisciplinary, legal and linguistic collaboration.

7. Rights akin to copyright: database right and performers’ rights

2019 ◽  
pp. 238-264
Author(s):  
Abbe Brown ◽  
Smita Kheria ◽  
Jane Cornwell ◽  
Marta Iljadica
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Property Law ◽  
Intellectual Property Law ◽  
Database Right

This chapter considers two rights similar to copyright in many ways, in terms of both subject matter and the substantive contents of the rights: (1) the special or sui generis database right, which operates alongside the copyright in databases; and (2) performers’ rights. Both rights have been relatively recently introduced into the armoury of intellectual property law. The chapter gives an account of each of these rights, comparing them with copyright but also underlining the differences between the regimes, and the reasons behind these differences. The chapter considers relevant the relevant international and EU frameworks and also highlights the nature and importance of these rights.

scholarly journals An Autonomous EU Functionality Doctrine for Shape Exclusions

2020 ◽  
Vol 69 (6) ◽  
pp. 567-577
Author(s):  
Uma Suthersanen ◽  
Marc D Mimler
Keyword(s):  
European Union ◽  
Intellectual Property ◽  
Public Interest ◽  
Subject Matter ◽  
Trade Mark ◽  
Copyright Law ◽  
Property Law ◽  
The European Union ◽  
Court Of Justice ◽  
Functionality Doctrine

Abstract Exclusionary subject matter are often underpinned by public interest considerations. In the case of shapes of products, the Court of Justice of the European Union has aligned the interpretation of the relevant exclusionary provisions within design and trade mark laws. More recently, European jurisprudence within copyright law in relation to conditions of protection has imported the same considerations so as to regulate the protection of shapes of products. This article explores the multitude of doctrinal and policy reasons underpinning shape exclusions and argues that the Court is consciously creating an EU autonomous functionality doctrine within intellectual property law. We also argue that the Court is building a European macro-rationale within these laws namely to ensure that protection does not unduly restrict market freedom and competition.

scholarly journals The series of trademarks: theory, legislation, law enforcement

2021 ◽  
pp. 45-53
Author(s):  
Nataliia Myronenko
Keyword(s):  
Law Enforcement ◽  
Intellectual Property ◽  
Legal Protection ◽  
Property Law ◽  
The European Union ◽  
Association Agreement ◽  
Intellectual Property Law ◽  
Goods And Services ◽  
European Court ◽  
Ip Law

Key words: trademark, series of signs, dominant element, originality, resolution The article, based on the analysis of the doctrine of intellectual property law,legislation of Ukraine, law enforcement practice, examines the state and prospects ofproviding legal protection of a series of trademarks. To overcome the existing gap inthe legislation of Ukraine, the need to amend the Law of Ukraine «On Protection ofRights to Marks for Goods and Services» is justified. It is proposed to define «a seriesof marks as a set of trademarks belonging to one owner of interdependent rights, interconnected by the presence of the same dominant verbal, figurative or combined element,having phonetic and semantic similarity, and may also bear minor graphic differencesthat do not change the essence of the trademarks. The lack of definition ofthe term «dominant element» in the legislation is emphasized. Based on the provisionsof the philosophy and doctrine of intellectual property law, the dominant elementmeans the smallest indivisible component of the trademark, which is originaland not descriptive. Based on this, its main features are distinguished: originalityand indivisibility.It is proved that the same position of the dominant element in the structure of allsigns is necessary to create a stable image of consumers in relation to a particularproduct and its manufacturer. Examples of court decisions on recognition or refusal toprovide legal protection to trademarks are given.In the context of reforming the legislation of Ukraine in terms of its approximation toEU legislation and the development of relevant case law, which must meet Europeanstandards, the expediency of using the legal positions of such a leading democratic courtas the European Court of Justice is justified. Attention is drawn to the fact that the decisionof the ECJ is not a source of law for resolving disputes of this category by the courtsof Ukraine. At the same time, they are a source of harmonious interpretation of the nationallegislation of Ukraine in accordance with the established standards of the legalsystem of the European Union. It is proved that this conclusion is consistent with thepurpose and objectives to be solved in the country in the process of implementing the provisionsof the Association Agreement in the legislation of Ukraine. Proposals are formulatedto improve the quality of legislation in the field of IP law.

scholarly journals Beyond Invention: Patent as Knowledge Law

2017 ◽  
Author(s):  
Michael J Madison
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Cultural Influences ◽  
The United States ◽  
Copyright Law ◽  
Property Law ◽  
Intellectual Property Law ◽  
Starting Point ◽  
Invention Patent ◽  
Patentable Subject Matter

The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from the Court’s opinions. The article suggests that renewing consideration of the idea of a law of knowledge would bring some clarity not only to patentable subject matter questions in particular but also to much of intellectual property law in general.

A Framework for Thinking about Intellectual Property Subject Matter

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Intellectual Property ◽  
Subject Matter ◽  
Essential Properties ◽  
The Subject ◽  
Ip Law ◽  
Normative Value

This chapter proposes a framework for thinking about the subject matter protectable by intellectual property (IP) and related questions of analytic assistance. The proposed framework is built around certain devices of philosophy, including the artifact, types and tokens, the category, and the property. In combination, these devices support a paradigmatic or focal conception of the subject matter protectable by European and UK IP law. According to that conception, IP subject matter are artifact types distinguished by their properties and categorized accordingly. The analytic and normative value of this conception is discussed, and certain distinctions of importance for IP subject matter outlined, complementing those identified in Chapter 2. The questions of analytic assistance derived from the framework concern the essential properties of IP subject matter, the method of their individuation, their relationship with their concrete instances or tokens, and the manner by which their and their tokens’ existence is known.

Philosophical Approaches to Intellectual Property Law Scholarship

2021 ◽  
pp. 294-304
Author(s):  
Jeremy N. Sheff
Keyword(s):  
Intellectual Property ◽  
Interdisciplinary Approach ◽  
Normative Theory ◽  
Property Law ◽  
Technology And Culture ◽  
Applied Philosophy ◽  
System 2 ◽  
Ip Law ◽  
Special Case

Intellectual property (IP) law and philosophy is an interdisciplinary approach to scholarship that applies insights and methods from philosophy to the legal, normative, theoretical, political, and empirical questions presented by the project of organizing and regulating the creation and dissemination of knowledge, technology, and culture. In this chapter, I outline four types of IP-law-and-philosophy scholarship, focusing specifically on the discipline of analytic philosophy (with appropriate caveats about the coherence of that discipline). These modes of scholarship can be categorized as: (1) the jurisprudence of the IP system; (2) philosophical analysis of IP law; (3) applied philosophy in IP; and (4) normative theory of IP. Category (4) is obviously a special case of category (3), focusing specifically on applications of moral philosophy. Within each category, I provide illustrative examples of past scholarship and suggestions for further research.

scholarly journals A ‘Human Development’ Approach to Intellectual Property Law

2021 ◽  
pp. 640-653
Author(s):  
J. Janewa Osei-Tutu
Keyword(s):  
Intellectual Property ◽  
Human Development ◽  
Human Development Index ◽  
Well Being ◽  
Human Condition ◽  
Property Law ◽  
Human Flourishing ◽  
System P ◽  
Development Approach ◽  
Ip Law

This chapter discusses the human development approach to intellectual property (IP) and suggests some areas for further research. As the chapter explains, IP can positively affect human development and human flourishing. Human development refers to factors such as those measured by the United Nations Human Development Index, and includes health, education, and financial well-being. This human development framing can also incorporate subjective measures of human flourishing, such as happiness. A human development lens treats IP as a tool for promoting progress by improving the human condition, and recognizes human development as an objective of IP law rather than as an incidental by-product of the trade-based IP system.

scholarly journals Robots vs. Monkeys: Intellectual Property Rights of Non-Human Creators [Poster Session]

2017 ◽  
Author(s):  
Tiffany Li ◽  
Charles M. Roslof
Keyword(s):  
Comparative Analysis ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Poster Session ◽  
Academic Discourse ◽  
Property Law ◽  
Legal Scholarship ◽  
Legal Precedent ◽  
Ip Law

A fundamental tenet of intellectual property law is that it is beneficial to give creators some measure of ownership over their creative or scientific works. New innovations in technology have changed the way works are created, but current IP law still lacks clarity regarding IP rights in works by non-human creators, including robots and animals. Legal scholarship has not reached a consensus on how principles of intellectual property can or should be applied, broadly, to works of non-human creators.In this study, we explore possible directions for the future of IP law, specifically involving works by non-human creators. We look at the (scant) legal precedent in these two realms and provide comparisons of the legal precedent and academic discourse surrounding each topic. Based on findings from this comparative analysis, we offer potential recommendations and future paths of research for the field of IP rights of non-human creators.

scholarly journals Comparative Legal Analysis and Intellectual Property Law: A Guide for Research

2021 ◽  
pp. 46-66
Author(s):  
Irene Calboli
Keyword(s):  
Intellectual Property ◽  
Comparative Law ◽  
Property Law ◽  
Legal Analysis ◽  
Legal Traditions ◽  
Technological Developments ◽  
High Level ◽  
Ip Law ◽  
Technological Integration

This chapter addresses the intersection between comparative law and intellectual property (IP) law and the role of comparative legal analysis as a research methodology for IP scholars. Due to the high level of international harmonization of IP laws, comparative legal analysis has traditionally played a prominent role for IP scholars. However, this methodology has become even more fundamental in recent decades because of the further integration of legal systems due to the process of globalization of trade and the fast-evolving worldwide technological developments. As a result of this economic and technological integration, different legal traditions have converged to an unprecedented level. In particular, after an overview of Comparative Law and the process required to conduct comparative analysis, this chapter offers several examples in the context of IP research.

The Emergence and Development of Intellectual Property Law in Western Europe

2017 ◽  
Author(s):  
Catherine Seville
Keyword(s):  
Intellectual Property ◽  
Middle Ages ◽  
Western Europe ◽  
Cultural Development ◽  
Property Law ◽  
European Perspective ◽  
The World ◽  
Ip Law ◽  
Unitary Patent ◽  
The Eu

This chapter surveys the emergence and development of Intellectual Property (IP) law in Continental Europe and Britain. The story begins largely in the middle ages with the grant of territorially-confined inventors’ and printers’ privileges, and traces the development of these privileges into the four main species of IP rights recognized throughout the world today. A key theme is the varied national histories that underpin the development of each IP right even within the geographical confines and relative social and political homogeneity of Western Europe, and the extent of modern IP law’s embeddedness in the industrial and cultural development of individual states. The chapter ends with an account of the emergence of a European perspective on IP, as expressed in the nineteenth-century Paris and Berne Conventions, and its development by general and IP-specific European communities, including the EU, which has established unitary patent, trademark, and design rights for its Member States.

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