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Fairness, Morality and Ordre Public in Intellectual Property
This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
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Critical Acclaim
Contributors
Contents
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This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit IP rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
Fairness, Morality and Ordre Public in Intellectual Property addresses questions about which outcomes of IP use can be defined as fair or moral, to whom they may be considered fair or unfair, and which criteria should be used to decide. Chapters examine these issues through topics such as fairness in copyright law, economic aspects of fairness, the intersection of human rights principles and indigenous peoples’ heritage rights with IP, and the pricing of pharmaceutical drugs.
Scholars and researchers working in IP, international trade and public international law policy will find this book to be critical reading. It will also be relevant to international IP law practitioners and policy makers.
Fairness, Morality and Ordre Public in Intellectual Property addresses questions about which outcomes of IP use can be defined as fair or moral, to whom they may be considered fair or unfair, and which criteria should be used to decide. Chapters examine these issues through topics such as fairness in copyright law, economic aspects of fairness, the intersection of human rights principles and indigenous peoples’ heritage rights with IP, and the pricing of pharmaceutical drugs.
Scholars and researchers working in IP, international trade and public international law policy will find this book to be critical reading. It will also be relevant to international IP law practitioners and policy makers.
Critical Acclaim
‘Notions of fairness and the doctrines of morality and ordre public infuse international IP law and policy. It’s important to understand what drives lawmakers to utilise these flexibilities and what are both the benefits and challenges of doing so. This book superbly demonstrates both the breadth and detail of these matters in an accessible way. The contributions represent different viewpoints from around the globe and show the depth and richness of scholarship that ATRIP brings together. As the editor, Daniel Gervais, states in his introduction, what fairness, morality and ordre public mean will vary among jurisdictions. This means that some countries regard their use as something that should be rare and others use them more readily, giving rise to significant global diversity. This book shines a light on much of that diversity and consequently this collection provides valuable insights into the fairness or otherwise of the IP regime.’
– Susy Frankel, Victoria University of Wellington, New Zealand and ATRIP President 2015-2017
– Susy Frankel, Victoria University of Wellington, New Zealand and ATRIP President 2015-2017
Contributors
Contributors: K.D. Beiter, M. Borghi, J.M. Breemen, V.E. Breemen, J.F. Córdoba-Marentes, J. Denoncourt, Y.M. Gadallah, H. Geng, D.J. Gervais, M. Kolasa, T.V. Kumari, M. LaFrance, P. Mysoor, A. Nordberg, E.K. Oke, A. Rubí-Puig, Q. Tao, K. Weckström Lindroos, I. Zenin
Contents
Contents:
Introduction 1
Daniel J. Gervais
PART I SETTING THE STAGE
1. Capturing the dynamism of fairness: a common law
perspective 8
Poorna Mysoor
PART II FAIRNESS IN COPYRIGHT LAW
2. Fairness for authors and performers: the role of law 31
Mary LaFrance
3. Reconstructing fairness: the problem with fair use
exclusivity 53
Maurizio Borghi
4. Fairness vs. welfare in the discussion of copyright laws
and policies: royalties for the resale of artworks as a
case study 76
Antoni Rubí-Puig
5. Access to textbooks in developing countries, copyright,
and the right to education: embracing extraterritorial state
obligations in intellectual property law 96
Klaus D. Beiter
6. Fair use of intellectual property and economic growth 124
Yasser M. Gadallah
PART III ECONOMIC ASPECTS OF FAIRNESS
7. Corporate intellectual property, governance and board
effectiveness reviews in large and premium listed UK
companies 141
Janice Denoncourt
8. Fair and equitable treatment of foreign investments and
intellectual property rights 173
Emmanuel Kolawole Oke
9. Fairness and ordre public in certified global food chains 195
Katja Weckström Lindroos
PART IV APPLICATION OF FAIRNESS, MORALITY
AND ORDRE PUBLIC TO OTHER IP RIGHTS
10. Human rights principles as normative ‘fairness’ tools in the
context of IP and (access to) indigenous peoples’ heritage
via digital libraries 215
Kelly Breemen and Vicky Breemen
11. Patents, morality and biomedical innovation in Europe:
historical overview, current debates on stem cells, gene
editing and AI, and de lege ferenda reflections 243
Ana Nordberg
12. Towards a fair intellectual property framework for Open
Science: a comparative law approach 268
Juan F. Córdoba-Marentes
13. Using fairness to determine post-employment duties with
respect to trade secrets: the case of remedies under the
Trade Secrets Directive 288
Magdalena Kolasa
14. A study on the application of the General Clause of the
Anti-Unfair Competition Law in China in the age of
the internet 310
Qian Tao and Haotian Geng
15. Pricing of drugs: wither fairness! 328
T. Vidya Kumari
Appendix: justice, morality and public order in intellectual
property – harmony and dissonance (Russian experience) 353
Ivan Zenin
Index 355
Introduction 1
Daniel J. Gervais
PART I SETTING THE STAGE
1. Capturing the dynamism of fairness: a common law
perspective 8
Poorna Mysoor
PART II FAIRNESS IN COPYRIGHT LAW
2. Fairness for authors and performers: the role of law 31
Mary LaFrance
3. Reconstructing fairness: the problem with fair use
exclusivity 53
Maurizio Borghi
4. Fairness vs. welfare in the discussion of copyright laws
and policies: royalties for the resale of artworks as a
case study 76
Antoni Rubí-Puig
5. Access to textbooks in developing countries, copyright,
and the right to education: embracing extraterritorial state
obligations in intellectual property law 96
Klaus D. Beiter
6. Fair use of intellectual property and economic growth 124
Yasser M. Gadallah
PART III ECONOMIC ASPECTS OF FAIRNESS
7. Corporate intellectual property, governance and board
effectiveness reviews in large and premium listed UK
companies 141
Janice Denoncourt
8. Fair and equitable treatment of foreign investments and
intellectual property rights 173
Emmanuel Kolawole Oke
9. Fairness and ordre public in certified global food chains 195
Katja Weckström Lindroos
PART IV APPLICATION OF FAIRNESS, MORALITY
AND ORDRE PUBLIC TO OTHER IP RIGHTS
10. Human rights principles as normative ‘fairness’ tools in the
context of IP and (access to) indigenous peoples’ heritage
via digital libraries 215
Kelly Breemen and Vicky Breemen
11. Patents, morality and biomedical innovation in Europe:
historical overview, current debates on stem cells, gene
editing and AI, and de lege ferenda reflections 243
Ana Nordberg
12. Towards a fair intellectual property framework for Open
Science: a comparative law approach 268
Juan F. Córdoba-Marentes
13. Using fairness to determine post-employment duties with
respect to trade secrets: the case of remedies under the
Trade Secrets Directive 288
Magdalena Kolasa
14. A study on the application of the General Clause of the
Anti-Unfair Competition Law in China in the age of
the internet 310
Qian Tao and Haotian Geng
15. Pricing of drugs: wither fairness! 328
T. Vidya Kumari
Appendix: justice, morality and public order in intellectual
property – harmony and dissonance (Russian experience) 353
Ivan Zenin
Index 355
