One size fits all? Of IP rights and gefilte fish

The Structure Of Intellectual Property Law: Can One Size Fit All? Edited by Annette Kur (Max Planck Institute for Intellectual Property and Competition Law, Munich) and Vytautas Mizaras (University of Vilnius, Lithuania), this is the first in a series of annual themed volumes which Edward Elgar Publishing will be bringing out, featuring well-researched papers originating with ATRIP -- the Association for the Advancement of Teaching and Research in Intellectual Property.  As the publishers explain,
"... This well-researched and highly topical book analyses whether the ever-increasing degree of sophistication in intellectual property law necessarily leads to fragmentation and inconsistency, or whether the common principles informing the system are sustainable enough to offer a solid and resilient framework for legal development.

The expert contributors explore the legal tools that are available to adjust IP protection to different needs and circumstances and how much flexibility exists to employ these tools. In providing answers to these and other similar questions, the book helps to resolve the fundamental question of whether one size can really fit all in the domestic and international context.

Uncovering the general matrix of IP, The Structure of Intellectual Property Law will appeal to researchers in law, economics and business, students in intellectual property, competition law and economics, as well as practitioners and policymakers".
It would be invidious to pick out must-read chapters in this excellent book, but every reviewer is entitled to identify his favourites. Alexander Peukert's chapter, "Individual, multiple and collective ownership of intellectual property rights -- which impact on exclusivity?", if you can get past the clumsy and not entirely comprehensible title, makes some acute observations and asks some discomforting questions concerning IP, not omitting traditional knowledge from his analysis. Martin Senftleben's call for horizontal fair use defences ("Overprotection and protection overlaps in intellectual property law -- the need for horizonal fair use defences") also stirred the IPKat into one of his come-on-let's-legislate moods.

There is of course something wrong with this book. Although the authors cite a wealth of case law, statutes, treaties and so forth, there is no table of materials cited. Usually when the IPKat says this, it's more by way of gentle regret - but on this occasion he was genuinely inconvenienced. He actually wanted to see how -- or whether -- different contributors made reference to the same materials and also, for example, wanted to discover whether the ever-excellent Ansgar Ohly ("Free access, including freedom to imitate, as a legal principle-- a forgotten concept?") had cited any of Sir Robin Jacob's judicial utterances in the RoHo cushions litigation or L'Oréal v Bellure, but could not do so without a page-by-page hunt for them [Says Merpel: the IPKat won't tell you, but I will: Ansgar indeed mentioned both cases].

Overall, this book reminds this Kat of a Jewish culinary staple, the gefilte fish.  In its traditional form, you catch your fish and, having taken out its tasty bits, you mince them up together with onions and seasoning, then stuff them back into the skin of the original fish and cook it.  Here in this book, within the original skin of intellectual property right, the various authors have scooped out the subject's tasty bits, chopped them up with some logic and seasoned them with some sharp perspectives, then popped them back within the all-embracing framework of intellectual property. The result? A delicious concoction that you can even serve with decoration in the form of the sprig of parsley which mysteriously and unaccountably garnishes the book's front cover.  Well done, says the IPKat, this is an excellent venture; ATRIP has served its readers well [Ah, says Merpel, now I understand, with all this talk of serving and food, why it is students enroll for 'courses'].

Bibliographic data: xiii + 361 pages. Hardback. ISBN 978 1 84844 876 6.  Price £115 (but if you buy it from the publisher online, it's only £103.50. Rupture factor: small to moderate. Web page here.
One size fits all? Of IP rights and gefilte fish One size fits all? Of IP rights and gefilte fish Reviewed by Jeremy on Thursday, September 01, 2011 Rating: 5


  1. "... the sprig of parsley which mysteriously and unaccountably garnishes the book's front cover ..."
    - a cloaked reference to a very famous trade mark for washing powders ...?


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