Not just for academics …

So close, yet so far

An information environmental manifesto

Enforcement of unfair competition and consumer protection laws by a private business association in Germany: the Wettbewerbszentrale

Copyright at the interface between EU law and national law: definition of "work" and "right of communication to the public"

This article is based on a speech delivered on 25 September 2014 at the Annual GRUR Conference within the larger framework of a panel discussing the status of copyright at the interface between requirements of EU law and their national implementation.The panel engaged in a comparison between English and German reception of the latest developments on the EU level. Court of Justice of the European Union (CJEU) judgments on the definition of a work in copyright law and on the right of communication to the public serve to illustrate the fundamental considerations concerning the fully harmonized nature of EU law as well as the breadth of harmonisation and depth of specification in individual cases. Here the actively harmonizing case law of the CJEU generates considerable challenges for individual national copyright systems. Going beyond the individual examples it discusses, this article addresses fundamental implications in detail and the practical consequences of European harmonisation for German law.

China’s shifting patent landscape and State-led patenting strategy

The extent to which China is an innovative economy is the topic of an on-going debate in scholarly and practitioner circles. The intellectual-property component of China’s technological catch-up strategy has been geared towards, first, focusing on quantity of outputs and then eventually shifting towards ensuring the quality of outputs. Disconcertingly, in recent years, this strategy has created negative impacts on patent quality and thus may have hampered innovation in China.

New Chinese intellectual property policies, and the 2014 phenomena of decreasing annual growth rates of domestic invention patent filings and unprecedented negative growth rates of domestic utility model and design filings, shed new light on this debate. They suggest that recent shift away from the government strategy of stimulating mere numbers of any type of patent application may be having a tangible impact.

Even though science and technology development in China will inevitably continue to be a numbers game of sorts, these recent trends may reflect a step towards a healthier Chinese innovation trajectory. Scholars, policymakers and businesses should consider these shifting dynamics in their intellectual property and innovation forecasting, strategizing and planning.

A Dutch bankruptcy: how does it affect intellectual property, licensors and licensees?

When a company established in the Netherlands is declared bankrupt, a trustee is appointed whose main task is to settle the bankruptcy in the interest of the company’s creditors. Accordingly, the trustee has the power to sell and transfer the intellectual property rights part of the bankrupt’s estate for as high a price as possible. It is a common perception that unencumbered property has a greater market value and may be sold at a higher selling price than property which, for example, has been licensed. Hence it is likely the bankruptcy trustee seeks to sell intellectual property rights free from encumbrances.

This practice gives rise to several legal questions, amongst others regarding the (limitations to) the powers of the trustee with regard to the intellectual property rights and the effect of the bankruptcy on the legal position of licensors, licensees and third parties.

In this article, the authors seek to provide some insight and guidance with regard to these legal questions. For this purpose, the article focuses on (the impact of) two judgments of the Dutch Supreme Court in the so-called Nebula and Berzona cases, which are regarded as pivotal in this light.

First comprehensive review of metatag liability by a Canadian court

The Federal Court of Canada recently issued the first comprehensive review of metatag liability by a Canadian Court, finding the tags in question did not infringe copyright or trade mark law.

FRAND in India: The Delhi High Court’s emerging jurisprudence on royalties for standard-essential patents

Indian jurisprudence on fair, reasonable, and nondiscriminatory (FRAND) licensing practices for standard-essential patents (SEPs) is at a relatively nascent stage. Unlike US and EU courts, which have dealt with cases concerning calculating a FRAND royalty for a considerable time, Indian courts and the Indian antitrust authority—the Competition Commission of India (CCI)—have only just begun to decide such cases.

In its initial orders in the first two antitrust complaints concerning SEPs, the CCI seemed to favour using the smallest salable patent-practising component (SSPPC) as the royalty base to determine a FRAND royalty. However, in the short time since the CCI’s orders, the Delhi High Court has rendered contrary decisions in two SEP infringement suits. The Delhi High Court’s decisions use the value of the downstream product as a royalty base and rely on comparable licences to determine a FRAND royalty. The Delhi High Court’s decisions are not only consistent with sound economic principles, but also indicate that the court is responding to the judicial and industry trends in the rest of the world.

Because the CCI is still investigating the antitrust complaints with respect to the same SEPs, the CCI could benefit from considering the legal and economic arguments in the Delhi High Court’s decisions. It would be counterproductive for the emerging FRAND jurisprudence in India if the judiciary and the competition authority take opposing views toward the rights of SEP holders and SEP implementers.

Exhaustion, essential subject matter and other CJEU judicial tools to update copyright for an online economy

How far the IP holder’s monopoly should extend into secondary and subsequent dealings with a protected work is an old legal chestnut.

Yet this question is at the forefront of a recent spate of judicial activism in the EU and some national courts. The challenge is to update copyright and other IP regimes for an online economy.

Set against a backdrop of imminent EU reform proposals, this article charts the development of exhaustion and other concepts in the English legal tradition, through the changes wrought by EU law, and into the EU court’s most recent precedents1 changing the online IP landscape. The authors ask whether judicial activism on this scale is appropriate—upsetting long-held orthodoxies and established offline precedents—or whether it is better left to policy makers to forge an appropriate balance between protection and dissemination through democratic debate.