For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Sunday, 17 February 2013

Intellectual property overlaps: two books

Two books have been staring at this Kat from their vantage point on his "to-do" shelf, mutely demanding an explanation from him as to why he has so far failed to post anything about them on this weblog.  Indeed, both an explanation and an apology are required since both are towering works of scholarship that add much to our understanding of the complexities of the IP system taken as a whole, both span not only areas of IP but reach across many jurisdictions -- and each owes much to the input of one of this Kat's friends: in the one case fellow Kat Neil Wilkof and, in the other, his old academic colleague Estelle Derclaye. On the assumption that there is some merit in the old adage "better late than never", here's a word or two about these respective publications:

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Overlapping Intellectual Property Rights, edited by Neil Wilkof and Shamnad Basheer (another Katfriend and blogger with the ever-bubbling Spicy IP), is an imposing red Oxford University Press hardcover, a cover which harks back to the days when publishers of law books never gave a thought to what their publications might look like when displayed on the monitor of a computer or hand-held device.  While the solid red with the text reversed out on the dark inset is undoubtedly both handsome and dignified, this Kat now has quite a few books from the same publisher that look like this, and has occasionally in his haste popped the wrong one into his case ...

But never mind the aesthetics and the fascinating question of how to develop a book brand, let's turn to the thing that readers most want to know about: the content. What do the publishers say about this title?
"Providing a comprehensive and systematic commentary on the nature of overlapping Intellectual Property rights and their place in practice, this book is a major contribution to the way that IP is understood. IP rights are mostly studied in isolation, yet in practice each of the legal categories created to protect IP rights will usually only provide partial legal coverage of the broader context in which such rights are actually created, used, and enforced. Consequently, often multiple IP rights may overlap, in whole or in part, with respect to the same underlying subject matter. Some patterns, for instance, in addition to being protected from copying under the design rights regime, may also be distinctive enough to warrant trade mark protection.

Each chapter addresses a discrete pair of IP rights and is written by a specialist in that area. Facilitating an understanding of how and when those rights may be encountered in practice, each chapter is introduced by a hypothetical situation setting out the overlap discussed in the chapter. The conceptual and practical issues arising from this situation are then discussed, providing practitioners with a full understanding of the overlap.

Also included is a valuable summary table setting out the legal position for each set of overlapping rights in jurisdictions across Europe, Central and South America, and Asia, and the differences between them".
The cast list of contributors is impressive and contains several of this Kat's favourites.  The interface between utility patents and copyrights is bridged by an author whose very name bespeaks his talent in this regard, Andrew Bridges -- a practitioner whose contributions to the INTA's academic sessions reflects his commitment to not merely the technical application of IP law to the facts but a sensitivity to its theoretical bases. A surprising Strictly-Come-Dancing pairing of Sam Ricketson and Uma Suthersanen pulls off an elegant pas-de-deux on the dreaded copyright/design interface; Jonathan Band and Brandon Butler display a clear focus in tackling the somewhat unappealing overlap of different types of database protection with a clear focus; Mira T. Sundara Rajan elaborates her views on the tensions between moral and economic rights in copyright -- and there's much, much more.

The comparison table, incidentally, is vast: it covers 17 countries and around 130 pages.  While it initially takes some getting used to (this Kat has almost forgotten what it's like to turn pages backwards and forwards), it's more than a mere table and is the product of a great deal of careful research and judgement calls. One final point: if there were a prize for overlap, trade mark law would seem to win it, for in its current extended form it seems to overlap with more rights than does any other -- and it is in this area that the book is at its very best.

Bibliographic data: lxi + 536 pages. ISBN 978-0-19-969644-4. Hardback. Price £125.  Rupture factor: medium. Web page here.

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Intellectual Property Overlaps A European Perspective, written by Estelle Derclaye and Matthias Leistner and published by Hart Publishing, is a very different book indeed. For one thing, it is a good deal shorter, its operative text being not much more than half the length of Wilkof & Basheer.  For another, the authors have written it themselves, thus sacrificing the opportunity to pin a specialist to each topic but with the advantage of being able to provide a more nuanced and consistent, indeed holistic, approach; indeed, they have the luxury of developing a more detailed methodology since they are comparing a smaller and more concise body of variables.  A further difference is that, while the OUP title spans a larger jurisprudential world, Derclaye & Leistner focuses somewhat more narrowly: they start with international IP legislative framework, but their attention is more greatly occupied by the large and legally cohering segment of Europe which, without further qualification, we call "Europe" -- and particularly France, Germany and the United Kingdom.  The authors' European perspective is inevitably EU-centric. While this may disappoint some readers from Belorus, Ukraine and sundry other non-EU bits of Europe, it will scarcely surprise them.

According to its publishers (who have certainly provided a more visually appealing cover),
"Intellectual property rights, conventionally seen as quite distinct, are increasingly overlapping with one another. There are several reasons for this: the expansion of IPRs beyond their traditional borders, the creation of new IPRs especially at EU level, the exploitation of gaps in the law by shrewd lawyers, and the use of unfair competition as an alternative when IPRs are either not available at all or expired. The convergence of several IPRs on the same subject-matter poses problems. As they are normally envisaged as water-tight categories, there are very few rules which cater for the sort of regime clash that any overlap of IPRs necessarily entails. This book's aim is to find appropriate rules to regulate overlaps and thereby avoid regime conflicts and undue unstructured expansion of IPRs. The book studies the practical consequences of each overlap at the international, European and national levels (where the laws of France, the UK and Germany are reviewed). It then analyses the reasons for the prohibition or authorisation of overlaps. This analysis enables the determination of criteria and principles that can be used to (re)map the overlaps to achieve appropriateness and legitimacy. "
While Wilkof & Basheer has a conscious appeal to the practitioner, Derclaye & Leistner may appeal more to the policymaker. Both texts are, inevitably, concerned with problem-solving but the nature of the problems to be solved is in many cases quite different.  The former is more likely to offer an insight, a line of argument or an issue that cries out to be addressed in an IP licence, while the latter -- since it addresses a corpus of law which is largely and increasingly harmonised within a single community of nations with the same trade constitution and competition rules -- is able to point out inconsistencies between policy and practice within the Single Market and its constituent nations and offer guidance as to how to assess and evaluate them.

One thing that Derclaye & Leistner have done is, in their particular focus on French, German and UK law, is to demand that readers take French legal decisions a rather more seriously than many of us are apt to do. The shorter judgments and the absence of the volume of detailed references to earlier decisions that so characterises British and German law should not be taken as lack of legal content, and the operation of the French legal system is a factor.  Another thing which they do is to come up with different ways of analysing overlaps, which they describe as the 'horizontal' and the 'vertical', applying these approaches to a fascinating set of conclusions.

Bibliographic data: lix + 345 pages. Hardback.  ISBN 9781841139500. Price £73. Rupture factor: low. Web page here.

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