Book Review: The Future of Intellectual Property

This is a book review of The Future of Intellectual Property, edited by Daniel J. Gervais, Milton R. Underwood Chair in Law at Vanderbilt University Law School, US. 

 

In the introduction, Gervais explains that the approach to discussing IP law reform taken in this edited collection is considering both primary and secondary level reform. He defines primary IP rights as those that have been part of law for more than 50 years. Whereas, adding new rights to the primary rights, instead of changing them, creates secondary rights. As such, the book looks at both the need to, and the consequences of, changing primary rights, as well as whether adding secondary rights is a good idea, and if so, how and when.

The book is then presented in four parts, which reflect the four key themes: reforming the fundamental aspects of IP; the impact of artificial intelligence on IP, particularly considering data; specific reforms of copyright and trade mark; and geographical names and indications. 

Part I: "Rethinking Fundamentals"

The first chapter, in this section (chapter 2 of the book) is this Kat’s favourite (and very nearly became the subject of this entire review) for a number of reasons. Firstly, in footnote 1 the author, Phoebe Li, lets us know that all online resources were last accessed on 30 May 2020. This Kat would like to join the petition for footnotes to no longer require last access date information. Secondly, and more seriously, the title of the chapter is a great hook: Intellectual Property for Humanity: A Manifesto. You have our curiosity, Phoebe Li! And then, in the first paragraph the author powerfully states:

Our society has been accustomed to the proprietarian justification on information and knowledge and ignored the instrumental nature of IP. The individual rights-based regime neglects the collective identity and duties arising from ownership.

And now she has our full attention. Li goes on to explain that the chapter articulates IP duties as a lens for defining the scope of IP monopolies, shifting the imbalance and redressing the undesirable consequences of inequality. It advocates for embedding a sense of belonging, connectedness, honour and respect in a community of IP rights. Li proposes redefining the nature of IP ownership through the lens of collective duties with a view to optimising the use of IP rights. The aim is to strike a fair balance between monopolies and fair competition by repositioning power, rights, and duties within the IP policy framework, aiming for a sustainable, collaborative and equitable IP ecosystem that is human-centred. This sounds theoretical, but in fact, Li convincingly presents her arguments in a practical way, setting out how a duty-based approach has a role to inform policymaking.

In chapter 3, Intellectual Property Primary and Secondary Rights in International Law: The Case of Mexican Pharmaceutical Patents and the USMCA, Roberto Garza Barbosa illustrates the primary right and secondary right distinction in the context of pharmaceutical patents in Mexico.

In chapter 4, Company Classification Taxonomy and Corporate Intellectual Property Rights Owners, Janice Denoncourt considers how company law can lead to a recalibration of accountability of corporate IP rightsholders. In this chapter, the author explores a new way to address the widening gulf between the power wielded by corporate IP owners, by re-orienting regulatory scrutiny of their activities as they grow in the public interest. Deconcourt argues that creating a new classification for IP companies could ensure that regulators, policy makers and the public develop a better understanding of the different types of IP owners and the impact of their activities in society. This, in turn, would facilitate more accurate interdisciplinary communication, analysis and ultimately, regulation. 

In chapter 5, Emmanuel Kolawole Oke considers the role of investment law in IP, arguing for the need for the two to be synchronised. Lastly, in this section, Abbe E.L. Brown argues that policy action must consider other areas of law, from the perspective of discussing intellectual property, information control and oil and gas.

Part II: "Artificial Intelligence And Data"

 Image: Riana Harvey

Part II of the book addresses AI, Data and IP in four chapters. The first (chapter 7), by Dan L. Burk, considers the patent context, titled AI Patents and the Self-Assembling Machine; the second (chapter 8),  titled Challenges of Artificial Intelligence to Patent Law and Copyright Law and Countermeasures, by Xiang Yu, Runzhe Zhang, Ben Zhang and Hua Wang, considers both patent and copyright.

Margaret Ann Wilkinson then asks (in chapter 9) from the Canadian perspective, whether protection of data through data exclusivity, technological protection measures or rights management information is actually intellectual property? And fourthly, Helen Yu continues this analysis (in chapter 10), also with a focus on Canadian law, discussing the application of the disclosure requirement in patent applications and the need to demonstrate utility of inventions, asking in her chapter whether the doctrine of sound prediction is a possible tool to support patenting black box algorithms for personalized medicine? 

Part III: "Rethinking Copyright and Trademark Law"

Part III provides four chapters, three from a copyright perspective and one addressing trade mark. 

In chapter 11, Giuseppe Mazziotti argues that for fairer remuneration for creators, more access to platform and CMO data is required. Mazziotti examines recent examples, including the EU’s attempt to regulate online platforms and the US music copyright law reform to demonstrate his points. In doing so, he argues for a single music rights databases that, he states, is expected to play a crucial role in permitting nuanced and fair remuneration of content creators and, therefore, “to strengthen creators’ bargaining power and to make rights more effective, the law should increasingly grant rights to access data that so far has been kept secret in tech companies’ black boxes or in collecting societies’ records and archives…

Without data on content exploitations and detailed rights ownership information, creators’ rights are likely to remain only on paper, as an empty promise.

Chapter 12, follows with a discussion on the relationship between copyright and the education exception in the context of the CJEU Renckhoff decision, by Bukola Faturoti. In chapter 13, Ivana Kunda touches on hyperlinking to copyright works in EU. Turning to trade mark considerations, Guillermo Martínez Cons looks at the case of olfactory and sound marks from the perspective of modernising Mexican law in chapter 14.

Part IV: "Rethinking Geographical Names and Indications"

The fourth and final part of the book covers geographical names and indications in two chapters. First, Bernardo Calabrese, in chapter 15, Rebreeding Geographical Indications Beyond Agriculture: of ‘Genotype’ and ‘Phenotype’ in Territorial Products, argues that we should abandon the fallacy of reputation and restore consistently the regime of geographical indications (GI) on what lies beneath it. Instead, the author suggests that the function of a GI is not only to signify origin and quality to the consumer, but also concerns the preservation of local enterprises: “Reputation entails a loosening of the territorial requirement that could drift the system towards a wider degree of delocalization.”

Lastly, in chapter 16, Brand New IP: ‘Country Name Designation’ – from France With Love, by Natalie G. S. Corthésy, the author suggests introducing a right that allows sovereign States to exclusively control the use of the country name in commerce where it is used as a guarantee of origin.

Overall, this book will inevitably be of significance to readers who have an interest in IP reform, including policy makers and academics. It will also be particularly interesting to those working on updating IP in light of developing technologies, and IP theory, as well as the relationship between IP and other areas of law, such as competition.

Publisher: Edward Elgar

ISBN: 978 1 80088 533 2

Hardback price: £105

Also available as an ebook

Extent: 384 pp