Hardback
Fairness in Intellectual Property Law
Searching for a Uniform Concept
9781800883055 Edward Elgar Publishing
This is an open access title available under the terms of a CC BY-NC-ND 4.0 License. It is free to read, download and share on Elgaronline.com.
This book contends that the concept of fairness should be embraced and developed as a middle ground between strictly utilitarian and fundamental rights-based approaches to intellectual property (IP) law. Annette Kur, Nari Lee and Anna Tischner provide elegant arguments as to why this should be the case, and offer insights into how the operation of fairness as a legal notion can fulfil the role of mediator between the property aspects of IP law, market regulation and general welfare.
This book contends that the concept of fairness should be embraced and developed as a middle ground between strictly utilitarian and fundamental rights-based approaches to intellectual property (IP) law. Annette Kur, Nari Lee and Anna Tischner provide elegant arguments as to why this should be the case, and offer insights into how the operation of fairness as a legal notion can fulfil the role of mediator between the property aspects of IP law, market regulation and general welfare.
More Information
Critical Acclaim
Contents
More Information
This book contends that the concept of fairness should be embraced and developed as a middle ground between strictly utilitarian and fundamental rights-based approaches to intellectual property (IP) law.
Annette Kur, Nari Lee and Anna Tischner provide elegant arguments as to why this should be the case, and offer insights into how fairness as a legal notion can fulfil the role of mediator between the property aspects of IP law, market regulation and general welfare. They explore the terms and concepts of fairness in EU legislation, analyse the overarching network of goals and values set by EU law, and address the predominant theories that inform the notion of fairness and the use of empirical methods as a tool for its concretization. Ultimately, the book presents a conceptual framework of fairness to form a toolkit for legislative and judicial decision making and applies this to emerging challenges in IP law, such as AI regulation.
Showcasing multifaceted perspectives, relevant doctrines and positive norms, this book is a valuable resource for scholars and researchers of European law and intellectual property law. It is also beneficial to judges, IP practitioners, policymakers and IP offices.
Annette Kur, Nari Lee and Anna Tischner provide elegant arguments as to why this should be the case, and offer insights into how fairness as a legal notion can fulfil the role of mediator between the property aspects of IP law, market regulation and general welfare. They explore the terms and concepts of fairness in EU legislation, analyse the overarching network of goals and values set by EU law, and address the predominant theories that inform the notion of fairness and the use of empirical methods as a tool for its concretization. Ultimately, the book presents a conceptual framework of fairness to form a toolkit for legislative and judicial decision making and applies this to emerging challenges in IP law, such as AI regulation.
Showcasing multifaceted perspectives, relevant doctrines and positive norms, this book is a valuable resource for scholars and researchers of European law and intellectual property law. It is also beneficial to judges, IP practitioners, policymakers and IP offices.
Critical Acclaim
‘Fairness is a key concept of intellectual property law. The authors analyse it from different substantive and methodological angles and present its surprising theoretical and practical potential as a cornerstone of a modern, balanced and sustainable IP system. A highly instructive and original book.’
– Ansgar Ohly, Ludwig Maximilian University of Munich, Germany
‘Issues of fairness have long been shortchanged in intellectual property scholarship, either sacrificed to arguments about economic efficiency or just assumed by commentators without rigorous analysis. Kur, Lee, and Tischner have produced a sweeping, thoughtful, and thought-provoking book on fairness in IP that deserves a lot of attention.’
– Justin Hughes, Loyola Marymount University, US
‘No one today doubts that the rules on which intellectual property protection is based need to be rethought. It is above all the development of new technologies, based on digitalisation and easy processing of information, and most recently of artificial intelligence, that has turned some acquired concepts upside down. The proposal put forward in the book Fairness in Intellectual Property Law, written by distinguished and experienced academics, is a must-read for anyone who takes the protection of intellectual property seriously.’
– Maciej Szpunar, First Advocate General at the CJEU, Luxembourg
‘This book develops a principle of fairness, considers how closely IP law adheres to that principle, and then applies the concept to develop IP law for new technologies, such as AI, and for novel challenges, such as pandemics, and to guide legislators, administrators, and civil society. Although the approach is EU-centric, every legal system has much to learn from the careful analysis of these superb legal theorists.’
– Rochelle C. Dreyfuss, New York University, School of Law, US
‘This is a thought-provoking book about the role of fairness as a legal concept in EU intellectual property law. Written by leading IP scholars, it builds a framework of fairness through analysis of EU primary and secondary law, along with theoretical and empirical perspectives. The book is a must read for those grappling with how fairness is and can be incorporated into IP law, particularly as technological challenges continue to push at the boundaries of IP.’
– Tanya Aplin, King''s College London, UK
– Ansgar Ohly, Ludwig Maximilian University of Munich, Germany
‘Issues of fairness have long been shortchanged in intellectual property scholarship, either sacrificed to arguments about economic efficiency or just assumed by commentators without rigorous analysis. Kur, Lee, and Tischner have produced a sweeping, thoughtful, and thought-provoking book on fairness in IP that deserves a lot of attention.’
– Justin Hughes, Loyola Marymount University, US
‘No one today doubts that the rules on which intellectual property protection is based need to be rethought. It is above all the development of new technologies, based on digitalisation and easy processing of information, and most recently of artificial intelligence, that has turned some acquired concepts upside down. The proposal put forward in the book Fairness in Intellectual Property Law, written by distinguished and experienced academics, is a must-read for anyone who takes the protection of intellectual property seriously.’
– Maciej Szpunar, First Advocate General at the CJEU, Luxembourg
‘This book develops a principle of fairness, considers how closely IP law adheres to that principle, and then applies the concept to develop IP law for new technologies, such as AI, and for novel challenges, such as pandemics, and to guide legislators, administrators, and civil society. Although the approach is EU-centric, every legal system has much to learn from the careful analysis of these superb legal theorists.’
– Rochelle C. Dreyfuss, New York University, School of Law, US
‘This is a thought-provoking book about the role of fairness as a legal concept in EU intellectual property law. Written by leading IP scholars, it builds a framework of fairness through analysis of EU primary and secondary law, along with theoretical and empirical perspectives. The book is a must read for those grappling with how fairness is and can be incorporated into IP law, particularly as technological challenges continue to push at the boundaries of IP.’
– Tanya Aplin, King''s College London, UK
Contents
Contents
Fairness in Intellectual Property Law: an introduction 1
PART I SECONDARY EU LAW AS A SOURCE FOR CONCEPTUALIZING FAIRNESS
1 Fairness and related concepts in EU unfair competition law 9
2 Honest commercial practices and similar concepts in trade mark law 43
3 The concept of honest practices in EU trade secrets and data law 79
PART II FAIRNESS IN LIGHT OF OVERARCHING PRINCIPLES IN PRIMARY EU LAW
4 Undistorted competition and fundamental freedoms 112
5 Fairness, intellectual property and fundamental rights 141
PART III DEFINING AND MEASURING FAIRNESS
6 Economics, distributive justice and moral perspectives 184
7 The role of empirical evidence 213
PART IV NORMATIVE FRAMEWORK AND FAIRNESS OF PROCEDURE
8 Normative structure for fairness 249
9 Access to justice and fairness of sanctions 294
PART V THE FAIRNESS APPROACH IN OPERATION
10 Practicing fairness erga omnes – design law as an example 334
11 Fairness inter partes 379
12 Conclusions – operationalizing fairness 419
Index 443
Fairness in Intellectual Property Law: an introduction 1
PART I SECONDARY EU LAW AS A SOURCE FOR CONCEPTUALIZING FAIRNESS
1 Fairness and related concepts in EU unfair competition law 9
2 Honest commercial practices and similar concepts in trade mark law 43
3 The concept of honest practices in EU trade secrets and data law 79
PART II FAIRNESS IN LIGHT OF OVERARCHING PRINCIPLES IN PRIMARY EU LAW
4 Undistorted competition and fundamental freedoms 112
5 Fairness, intellectual property and fundamental rights 141
PART III DEFINING AND MEASURING FAIRNESS
6 Economics, distributive justice and moral perspectives 184
7 The role of empirical evidence 213
PART IV NORMATIVE FRAMEWORK AND FAIRNESS OF PROCEDURE
8 Normative structure for fairness 249
9 Access to justice and fairness of sanctions 294
PART V THE FAIRNESS APPROACH IN OPERATION
10 Practicing fairness erga omnes – design law as an example 334
11 Fairness inter partes 379
12 Conclusions – operationalizing fairness 419
Index 443
