Innovation, competition and consumer welfare in intellectual property law / Gustavo Ghidini.
2010
KJE2636 .G478 2010 (Map It)
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Details
Author
Title
Innovation, competition and consumer welfare in intellectual property law / Gustavo Ghidini.
Published
Cheltenham, UK ; Northampton, Mass. : Edward Elgar, [2010]
Copyright
©2010
Call Number
KJE2636 .G478 2010
ISBN
9781847209702 (hbk. : alk. paper)
184720970X (hbk. : alk. paper)
184720970X (hbk. : alk. paper)
Description
xx, 279 pages ; 24 cm
System Control No.
(OCoLC)472867166
Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
Preface / Giuliano Amato
x
Preface to Intellectual Property and Competition Law / J.H. Reichman
xii
A nouvelle vague? Author's brief foreword
xvii
Acknowledgements
xx
1.
Introduction: the basic paradigms and constitutional framework of intellectual property law
1
1.
Foreword. The Mosaic and the Fabric
1
2.
From Paris and Berne to Marrakech: IP's Basic Paradigms
2
I.
The classic dualism between patents and copyright, and its evolution
2
II.
The (expanded) protection of trademarks
4
3.
The Firm as the Central Reference of IP Law
5
4.
Rationale of that Centrality
8
5.
The Dialectic with Social Interests Involved in the Overall Constitutional Framework
9
6.
Intellectual Property and Antitrust: Distinct Rules...
11
7.
...But Nonetheless Dialectally Intertwined
13
8.
The Guiding Principles
17
9.
Current Protectionist Trends
19
10.
Specific Examples
20
11.
Signs of an About-turn...
23
12.
Keep a Tight Hold on the Helm
28
Bibliographical Notes
30
2.
Patent protection of innovations: a monopoly with pro-competitive antibodies
33
1.
The Dialectic Physiognomy of Patents
33
pt. I
The area of patentability: the often arduous distinction between basic and applied research
37
2.
The Privatisation of the Fruits of (Applied) Research
37
3.
Again on the Delimitation of Patentability to Applied Research: Its Rationale: Epistemological Considerations...
40
4.
...And Economic Considerations
43
5.
The (Fragile) Boundary between ̀Basic' and Àpplied' Research: So-called Targeted Research
45
6.
Interpretative Adjustments
47
pt. II
Striking a balance between exclusive protection and competitive dynamics of innovation
50
7.
General Outline (Conditions and Limits of Exclusivity), Commencing from the Time Limits to Protection
50
8.
The Èxclusivity for Knowledge' Trade-off and its Effects
53
9.
The Systemic Corollary: No Upgrading of Secrets to IP Protection: A Warning from an Italian ̀Reform'
56
10.
Qualifying Access to Patents: From Ìndulgence'...
59
11.
...To a Hoped-for Increased Strictness - Beginning from Patent Offices
61
12.
A Corollary on Ìnventiveness' in Utility Models: No to a Double Standard
64
13.
Strict Proportion of the Scope of Exclusivity to What has been Effectively ̀Found' (Inventum): Principle and Corollary
66
14.
Patents and Innovation Dynamics: Foreword on Subsequent Innovation
69
15.
Subsequent/Substitutive Innovation: Qualification Criteria
69
16.
Derivative/Dependent Innovation: A Virtuous Regime of Ǹon Voluntary' Cross-licences
71
17.
Patents in the Distribution Chain: The Principle of Exhaustion
77
pt. III
Conclusions, and some proposals
80
18.
Preserving the Competitive Dynamics of Innovation
80
19.
Some Corollaries, with Regard to Compulsory Licensing
82
20.
Further Pro-competitive Corrections
86
21.
Some Proposals for Extending Patent Protection
87
22.
Finale: An Overall Rethink of the System - Should Winner Take All?
89
Bibliographical Notes
92
3.
From art to technology: the expansion of copyright
98
pt. I
Copyright v. Patent. Comparing rules and rationales
98
1.
The Classical Model of Copyright: Historical Overview and Subject Matter
98
2.
The Constitutional Basis and Essential Structure of Copyright
102
3.
The Subject Matter of Protection: Expression, Not Ideas
103
4.
Key Features of Copyright (and Differences Compared to Patents)
104
5.
Plurality and Independence of the Exclusive Economic Faculties Granted by Copyright Law: The Power to Bar the Publication of Derivative Works (Including Translations)
108
6.
Copyright and Third Parties' Access: The Debatable Approach of Directive 2001/29: ̀Free/Fair Uses' as Discretionary Èxceptions': on the Limits of Admissibility of Technological Protection Measures (TPM)
110
7.
Circulation: Attenuated Exhaustion
118
8.
Neighbouring Rights
119
9.
The Articulated Rationale of Copyright
122
pt. II
̀Technology copyright': the rationale of a ̀trespass', and the related risks for the development of subsequent innovation and competition
124
10.
Foreword on the Contemporary Features of Technology Copyright
124
I.
The Convergence Between Function and Aesthetics: From Applied Art to Industrial Design
126
11.
The Terms of the Question from an International Perspective. Or the Ambiguities of the EC Regulation
126
12.
Playing Fields Distinction, Not Mere Cumulation, i.e., Amassing of Legal Protections
127
II.
Copyright and Information Technology
130
13.
Origins and Scope of Copyright Protection for Computer Programs
130
14.
The Protection of Databases
134
III.
An Effect-Oriented Assessment of Technology Copyright
136
15.
The Substantive Reasons: Ǹo Cost, No Test, No Access'
136
16.
Has the Classic Model been Superseded in the Contemporary Context of Innovation?
136
17.
Specific Reference to Network Industries and Conclusion
138
pt. III
Copyright and the diffusion of culture and information through the new communication technologies
140
18.
The Risk of Cultural Exclusion
140
19.
Remuneration of Creative Work and Related Investments: New Content Distribution Models
142
20.
Cultural Pluralism at Risk?
144
Bibliographical Notes
146
4.
The distinguishing function and advertising value of the trademark: aspects and critique of the European reform
156
pt. I
The classic system (before the reform)
156
1.
The Fundamental Distinguishing Function of Trademarks
156
2.
The Classic Paradigm Based on Protection of the Distinguishing Function
158
3.
The Pro-competitive Role of Protecting the Distinguishing Function
160
4.
Some Critical Aspects of Trademark Protection from a Competition Standpoint
161
Shape marks (three-dimensional marks)
161
5.
Limitations to the Principle of Exhaustion at European Community Level
174
6.
Beyond the Distinctive Function: Protection of the Trademarks' Suggestive Value (S̀elling Power')
177
pt. II
The reform: The business interests protected
181
7.
The Cornerstones of the Reform
181
8.
The Expanded Protection of Trademarks with ̀Reputation'
182
9.
Greater Protection also in Similar Sectors?
184
10.
Expanded Protection of ̀Renown' to De Facto Trademarks?
185
11.
Conclusion: The Systemic Meaning of the Special Protection of Renowned Trademarks
187
12.
A Further Aspect of the Reform with Competition Implications: Revocation for Becoming Generic
188
13.
Whom Does the Reform Benefit?
188
pt. III
The reform, and the risks of consumer deception
191
14.
Fragmented Identity, and Informative Compensation
191
15.
Qualitative Compensation?
193
pt. IV
Weighing up the reform
196
16.
The Effects on Competition and the Market
196
17.
Prices and Propensity to Innovate
197
18.
Possible Repercussions on Denominations of Origin
199
19.
Normative Room and Interpretative Tools to Balance out the Protectionist Effects of the Reform
201
I.
From inside trademark law
201
II.
From the òutside'
204
Bibliographical Notes
204
5.
Intellectual property and regulation(s) of competition
209
1.
Foreword
209
pt. I
Intellectual property and antitrust
213
2.
The Earlier Perspective: Checking the Contractual Exercise of IPRs
213
3.
Phase Two: Storming the Sanctuary Commencing from Telecommunications Standards
216
4.
The Door is Open - But Not Wide Open; from Magill to Microsoft
218
5.
Does the Exercise of IPRs Confer Market Power? Checking Each Basic Paradigm
221
6.
Intermezzo: In Search of the Historical Roots of the European Approach
227
7.
The Technological and Economic Rationale of the European Approach
229
8.
Further Points and a Note about the Effects on the Dynamics of Innovation
232
pt. II
Intellectual property and unfair competition
235
9.
The Corporatist Origins of the Law
235
10.
A Fresh Breeze from across the Channel
237
11.
The Ǹew' Relationship with IPRs
238
12.
Unfair Competition, Antitrust, Ùnfair Commercial Practices': Which Convergence?
239
13.
Conclusion: A Systemic Convergence Focused on Consumer Welfare
240
Bibliographical Notes
242
Appendix - On TRIPs and developing countries: ̀Don't do unto others...'
247
1.
Foreword
247
2.
Adieu to the ̀Local Working Requirement'
250
3.
On the Deadlines for Applying TRIP Rules
252
4.
Drawing some Conclusions...
254
5.
...And Searching for Remedies
255
6.
More on the Rationale for the Local Working Requirement, also as Concerns the Supply of Patented Drugs
256
7.
Seq. A Fortiori, When Exploitation of Local Biodiversity is Concerned
259
Bibliographical Notes
260
Index
263