The subject matter of intellectual property / Justine Pila, University of Oxford.
2017
K1401 .P55 2017 (Map It)
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Author
Title
The subject matter of intellectual property / Justine Pila, University of Oxford.
Published
Oxford, United Kingdom : Oxford University Press, 2017.
Copyright
©2017
Call Number
K1401 .P55 2017
Edition
First edition.
ISBN
9780199688616 (hardback)
0199688613 (hardback)
0199688613 (hardback)
Description
xxxiv, 279 pages ; 24 cm
System Control No.
(OCoLC)972431084
Summary
"Despite a rich academic literature in the field of intellectual property (IP), there has been little conceptual analysis of the subject matter that IP rights protect, and in reflection of this, little attention paid to the meaning of the terms used to denote those subject matter, including 'invention', 'authorial work', 'trade mark', and 'design'. This book offers such an analysis, the first of its kind, with the aim of furthering understanding of each IP regime and of IP in general. By means of a nominal word:thing definitional exercise, it studies the terms in question with reference to their recent use by IP legal officials in order to offer a conceptual understanding of the objects that they denote. The analysis proceeds in three main stages. At the first stage, the context in which the relevant terms fall to be defined is considered, with a particular focus on the nature, aims, and values of IP rights and systems. At the second stage, a theoretical framework for thinking about the subject matter protectable by IP in general is proposed, and certain focal questions for understanding such subject matter are derived. And finally, at the third stage, officials' use of the legislative terms that denote the subject matter protectable by IP regimes are considered in detail and the results of that consideration used to answer the focal questions. The result is a definition of each of the terms with reference to the objects that they denote, with a particular focus on the categories and properties of the subject matter protectable by each IP regime, the methods by which those subject matter are individuated within each regime, the relationship between each subject matter and its concrete instances, and the manner in which each subject matter and its instances is known."--Page 4 of cover.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Table of Cases
xv
Table of Legislation
xxv
List of Abbreviations
xxxv
1.
Definitions and Intellectual Property Subject Matter
1
1.
Definitions and Intellectual Properly Subject Matter
1
2.
Specific Definitional Aims and Methods
4
2.1.
Indicative (Nominal Word: Thing Definitional) Exercise
4
2.2.
Explicative and Reconstructive (Conceptual Definitional) Exercise
5
2.3.
Analytic and Synthetic (Definitional) Exercise that Proceeds in Three Stages
7
2.3.1.
Overview of the Nature, Aims, and Values of Intellectual Property Rights and Systems
7
2.3.2.
Theoretical Framework for Thinking about Intellectual Property and Related Definitional Questions
8
2.3.3.
Defining the Terms in Question
11
3.
Definitions of `Invention', `Authorial Work', `Trade Mark', and `Design', etc
12
3.1.
`Invention': An Idea for a Product or Process that Is Technical (Europe) or Technically Inventive (UK), and that May (But Need Not) be Intended for a Specific Purpose
12
3.2.
`Plant Variety': A Type of Invention in the European Conception
13
3.3.
Authorial Work': An Expressive Object that Has a Certain Expressive Form and History of Production (Conceived Differently by European and UK Legal Officials)
13
3.4.
`Trade Mark': An Expressive Object Intended and Suitable for Use to Distinguish Goods or Services
14
3.5.
`Designation of Origin' and `Geographical Indication': A Trade Mark
15
3.6.
`Goodwill': An Attractive Force Which Brings in Custom'
15
3.7.
`Design': A Type of Authorial Work that (in the Conception of Unregistered UK Design Law) Has a Different History of Production
16
3.8.
Method by which Each Subject Matter Is Individuated within Intellectual Property
17
3.9.
Relationship between Each Subject Matter and Its Tokens
20
3.10.
Establishing the Existence of Each Subject Matter and Its Tokens
21
4.
Conclusions
22
2.
Overview of Intellectual Property Rights and Systems
25
1.
Introduction
25
2.
Intellectual Property Law in England and France before the 1880s
25
3.
Early Deontological and Instrumentalist Arguments for Intellectual Property
29
4.
Great (Paris and Berne) Conventions of the 1880s
31
5.
Intellectual Property Law in Europe and the United Kingdom Today
34
5.1.
Constitutional Values and Intellectual Property
34
5.1.1.
Europe
34
5.1.2.
United Kingdom
36
5.2.
European Commission Policies and Intellectual Property
38
5.3.
Intellectual Property Legislation
41
5.3.1.
Copyright and Related Rights
41
5.3.2.
Industrial Property Rights
45
5.3.2.1.
Patents
45
5.3.2.2.
Trade Marks
49
5.3.2.3.
Designs, Plant Variety Rights, and Trade Secrets
52
5.4.
Conclusion
55
6.
Distinctions of Importance to Intellectual Property Rights
55
6.1.
Distinction between Industrial, Authorial, and Other Species of Intellectual Property
55
6.2.
Distinction between Registered and Unregistered Intellectual Property Rights
59
6.3.
Distinction between Intellectual Property Rights and Legislation
59
6.4.
Distinction between Intellectual Property Rights and Subject Matter
60
7.
Conclusion
60
3.
Framework for Thinking about Intellectual Property Subject Matter
63
1.
Introduction
63
2.
Intellectual Property Subject Matter as Artifacts
65
2.1.
Intellectual Property Subject Matter as Intangible Objects
65
2.2.
Intellectual Property Subject Matter as Intellectual Creations
66
3.
Intellectual Property Subject Matter as Types
72
4.
Categories of Intellectual Property Subject Matter
81
5.
Properties of Intellectual Property Subject Matter
88
6.
Conclusion
95
4.
Invention and Plant Variety
97
1.
Patents for Inventions, and Plant Variety Rights for Plant Varieties
97
2.
Inventions in Europe: Subject Matter that Solves a Technical Problem Using Particular Technical Means
99
2.1.
Patents for Products
103
2.2.
Statutory Categories of Non-inventions
105
2.2.1.
Discoveries, Scientific Theories and Mathematical Methods, Schemes, Rules and Methods for Performing Mental Acts, and Presentations of Information as Such
105
2.2.2.
Aesthetic Creations as Such
108
2.2.3.
Schemes, Rules, and Methods for Playing Games and Doing Business, and Programs for Computers as Such
108
2.3.
Public Policy Exclusions from Patentability
109
2.3.1.
Plant and Animal Varieties, and Essentially Biological Processes for the Production of Plants and Animals
109
2.3.2.
Inventions the Commercial Exploitation of which Would be Contrary to Ordre Public or Morality, and Medical and Veterinarian Methods
112
2.4.
Conclusion
115
3.
Inventions in the United Kingdom: Subject Matter that Make a Technical Contribution to the Art
116
4.
Plant Varieties in Europe (Including the United Kingdom)
123
4.1.
Introduction
123
4.2.
Nature of the Plant Variety
124
5.
Entitlement
125
5.1.
Patents are for Inventors
125
5.2.
Plant Variety Rights are also for Inventors (Referred to as `Breeders')
129
6.
Conclusions
131
6.1.
Introduction
131
6.2.
Inventions as Artifact Types Having Certain Properties and Arranged in Categories that Express and Reflect those Properties
132
6.3.
Plant Varieties as Artifact Types Having Certain Properties and Arranged in Categories that Express and Reflect those Properties
136
5.
Authorial Work
141
1.
Copyright Protects Authorial Works and Related Rights Protect Other Expressive Productions
141
1.1.
Copyright Protects Authorial Works
141
1.2.
Related Rights Protect Other Expressive Productions
142
2.
Authorial Works in Europe: Works that Express an Author's Own (Literary or Artistic) Intellectual Creation
143
2.1.
Introduction
143
2.2.
Authorial Works Have a Certain Expressive Form
144
2.3.
Authorial Works Have a Certain History of Production
147
2.3.1.
Authorial Works are of a Type that Leaves Scope for Creative Freedom in their Production
148
2.3.2.
Authorial Works Reflect their Creators' Exploitation of the Scope they Leave for Creative Freedom in their Production
150
2.4.
Conclusion
151
3.
Authorial Works in the United Kingdom: Works Created by the Exercise of Independent (Literary, Dramatic, Musical, or Artistic) Skill and Labour
151
3.1.
Introduction
151
3.2.
Authorial Works Have a Certain Expressive Form
153
3.2.1.
LDMA Works and Ideas---The Idea/Expression Distinction
156
3.2.2.
LDM Works and their Material Fixations
157
3.2.2.1.
LDM Works Must Be Recorded to Be Protected by Copyright
157
3.2.3.
Artistic Works and their Material Fixations
158
3.2.4.
Records of LDMA Works
159
3.2.4.1.
Walter v Lane and the Question of Literary Copyright in Literary Transcripts
159
3.2.4.2.
Walter v Lane Today
160
3.3.
Authorial Works Have a Certain History of Production
161
3.3.1.
Authorial Works are Intended by their Creator and/or Regarded by Society to Exist as Such
161
3.3.1.1.
Not Every Collection of Letters is a Literary Work
162
3.3.1.2.
Not Every Scribble, Painted Surface, or Handmade Three-dimensional Object is an Artistic Work
162
3.3.1.3.
Not Every Collection of Sounds or Movements is a Musical or Dramatic Work
166
3.3.1.4.
Words and Short Phrases, and Other Trivial Subject Matter: The De Minimis Principle
166
3.3.1.5.
Conclusion
167
3.3.2.
Authorial Works are Original, ie the Product of Independent Skill and Labour
168
3.3.2.1.
Applicability of the Common Law and EU Law Tests of Originality
168
3.3.2.2.
Common Law Test of Originality: The Requirement for Independent Labour and Skill in the Creation of a Work
170
3.4.
Conclusion
177
4.
Entitlement: Copyright Is for Authors
178
5.
Conclusions: Authorial Works as Artifact Types Having Certain Properties and Arranged in Categories that Express and Reflect those Properties
179
6.
Trade Mark, Other Product Designations, and Goodwill
187
1.
Registered Protection for Trade Marks and Other Product Designations, and Unregistered Protection for Goodwill
187
1.1.
Registered and Unregistered Protection for Trade Marks
187
1.2.
Registered Protection for Other Product Designations
190
2.
Trade Marks and Other Product Designations in Europe (Including the United Kingdom): Purpose-limited Signs the Protection of which Does Not Undermine Other Intellectual Property Regimes
192
2.1.
Trade Marks
192
2.1.1.
Introduction
192
2.1.2.
Trade Marks are Signs
193
2.1.3.
That are Capable of Distinguishing and Intended for Use to Distinguish Certain Goods or Services
195
2.1.4.
That are Capable of Representation
201
2.1.5.
That are Not Comprised Exclusively of Functional, Technical, or Aesthetic Characteristics of Goods
209
2.1.6.
Conclusion
212
2.2.
Other Marks of Origin
213
2.2.1.
Introduction
213
2.2.2.
Designations of Origin and Geographical Indications
216
3.
Goodwill in England and Wales: `The Attractive Force Which Brings in Custom'
218
4.
Entitlement
220
4.1.
Registered Trade Mark Protection is for Registrants
220
4.2.
Passing Off Protection is for those who Develop Goodwill
222
5.
Conclusions
224
5.1.
Trade Marks as Artifact Types Having Certain Properties and Arranged in Categories that Express and Reflect those Properties
224
5.2.
Goodwill as an Extrinsic Property of a Person
231
7.
Design
233
1.
Registered and Unregistered Protection for Designs
233
2.
Registered and Unregistered Design in Europe, and the Registered Design in the United Kingdom: An Original Appearance of the Whole or Part of a Product
238
2.1.
Design Is the Appearance of the Whole or Part of a Product
238
2.2.
Excluding Any Features Dictated Solely by Technical Function or Interoperability Requirements
242
2.3.
To the Extent that It Has Individual Character
246
2.4.
Conclusion
251
3.
Unregistered Design in the United Kingdom: An Original Appearance of the Whole or Part of an Article
252
3.1.
Introduction
252
3.2.
Design Is the Shape or Configuration (whether Internal or External) of the Whole or Part of an Article
254
3.3.
Excluding any Method or Principle of Construction, Must-fit or Must-match Features of Shape or Configuration, and Surface Decoration
257
3.4.
That Is Original, Including Not Commonplace
259
3.5.
Conclusion
261
4.
Entitlement: Registered and Unregistered Design Rights are for Designers (ie for Authors)
262
5.
Conclusions: Registered and Unregistered Designs as Artifact Types Having Certain Properties and Arranged in Categories that Express and Reflect those Properties
263
Index
271