Book review: Intellectual Property Excesses

This is a review of Intellectual Property Excesses: Exploring the Boundaries of IP Protection, edited by Enrico Bonadio (City University London) and Aislinn O’Connell (Royal Holloway University of London).

As the title suggests, this edited collection assembles examples of disputes that highlight IP at its most extreme, taking it to, what the editors refer to as “sometimes absurd outcomes which an unjustified overprotection of intellectual property may lead to.” They state that the aim of the book is to - 

criticise these excesses precisely because they harm IP; and because they contribute to creating an environment where more and more people are led to ‘hate’ IP, and view it as a protectionist regime which discourages creativity in innovation and ends up safeguarding the owners of monopolistic rights which restrict trade, competition and people’s freedom.

The collection contains 16 chapters covering various jurisdictions and types of IP, by 19 authors, presented in three parts; 1) Culture 2) Technology and Science; and 3) Signs, Images and Marketing Rights.

 

Part One covers copyright and rights relating to television shows, songs, photographs, and intimate videos. In chapter two: Copyright Liability and Music ‘Piracy’, Peter Mezei, discusses file-sharing and the case of Capitol Records v Thomas-Rasset. Mezie explains that after rightsholders struggled to enforce their rights against peer-to-peer platforms, they turned their attention to individual end-users. He addresses the doctrinal and procedural complications of file-sharing case law, and the excessive use of statutory damages against end-users. Jammie Thomas-Rasset was the first end-user to bring a case to a jury trial in a P2P file-sharing case, after she was sued by Capitol Records in 2006 for downloading and sharing 24 songs via KaZaa. Thomas-Rasset was found liable for reproducing and distributing the recordings, and the jury awarded a total of $222,000 in statutory damages. Mezei then takes us through the various re-trials and his analysis of the decisions, highlighting the limitations of their strategy as “tremendous negative externalities of the content industry’s file-sharing litigation, eg, irrecoverable damages, bad public relations and growing disobedience of copyright norms.”  

Part Two covers patents and trade secrets. In chapter 10, Amir H Khoury covers five scenarios of excessive protection of trade secrets, arguing that “over time and in light of new challenges trade secrets are slipping quietly from the domain of asset into the domain of liability.” The chapter suggests that whilst trade secrets are intended to facilitate innovation and safeguard economically relevant information, they can be subject to abuse due to excessive protection which can be counterproductive and, in some cases, dangerous. Khoury argues for a healthy trade secret regime that strikes a balance between competing interests.

Part Three covers rights relating to trade marks, domain names, ambush marketing and publicity rights. In chapter 16, Marc H Greenberg addresses the case of the Estate of Elvis Presley v Russen and the right of publicity. After providing a detailed history of the right to publicity in the U.S. and its intersection with copyright, Greenberg turns to the relentless enforcement of these rights by the Estate of Elvis Presley. These actions range from cards, posters, a memorial statue, memorabilia, to a nightclub named ‘Velvet Elvis’ and a video anthology of Elvis’ career. Greenberg highlights the Russen case, an effort by the Presley Estate to shut down a nightclub and performance act centering on a tribute concert by an Elvis imitator. Concluding, he notes that whilst these rights hold economic value for celebrities during their lifetime, many of these cases are brought by the estates of deceased celebrities. He suggests that the tension between publicity rights and free speech and the right of creative expression is likely to continue, particularly due the financial motivations driving the disputes.

As the editors explain, “this book is not against IP, it is instead a call for change and an attempt to save IP.” This original contribution will therefore appeal to those interested in the scope and enforcement of intellectual property rights, policies and procedures. 

Extent: 448

ISBN: 9781509944903

Imprint: Hart Publishing

Publisher: Bloomsbury Publishing