[Guest Post] Book Review: Research Handbook on Intellectual Property Rights and Inclusivity

This book review of “Research Handbook on Intellectual Property Rights and Inclusivity” is kindly provided by Katfriend Maciej Padamczyk (Herchel Smith Doctoral Researcher, Research Associate QMIPRI). Here is what Maciej has to say: 

This is a book review of Research Handbook on Intellectual Property Rights and Inclusivity, edited by Cristiana Sappa, Professor of Business Law, INENTIS Department, IESEG School of Management, Lille, France.

Can a property right meant to exclude promote inclusivity? In response to what is often perceived as a failure of IP rights to support public interest in fostering equality, both on the national and international level, this impressive collection of 24 chapters offers an insightful critique of the relationship between IP rights and inclusivity. 

Part I constitutes a conceptual introduction into the intersection of IP and inclusivity. Sunimal Mendis takes on the ambitious task of re-imagining IP regimes to promote democratic inclusion and offers useful practical guidance for achieving this objective. Paul Torremans’s contribution plays with the concept of inclusivity in the international context depicting, perhaps surprisingly, how inclusiveness is achieved through a nuanced application of nationality and territoriality. The first part of the book is completed by Bryan Khan, whose postcolonial critique identifies both structural forces for discrimination and the potential for inclusivity within the international IP system. 

Part II considers inclusivity from the perspective of communities, minorities, and individuals. In this respect, two chapters examine recent trade mark developments, especially the US Supreme Court’s ruling in Matal v Tam, with Willajeanne F. McLean arguing for the necessity of including a minority perspective when deciding whether to protect a derogatory trade mark, and Clare Keonha Shin presenting a specific LGBTQ+ perspective and advocating for the inclusion of minority voices to help them reclaim words and take control of their narratives. Francesca Benatti explores how religious groups may protect their interests, for instance through morality clauses in trade mark and patent law. Caterina Sgagna raises the important issue of IP and accessibility of works for persons with disabilities. An interesting perspective on IP and sports is provided by Stef van Gompel, who describes different facets of inclusivity in sports, both from an athlete’s (accessibility of patented sports gear) and a fan’s (exclusive territorial licensing in sports events broadcasting) perspective. The meaning of inclusivity in urban spaces is addressed by Tomasz Szewc and Szymon Rubisz who illustrate how IP on smart city solutions can foster inclusivity, and Aline Arenque, Amanda Costa Novaes, Dimitrius Costa who examine whether exclusion of ‘hostile designs’ from IP protection as immoral may support public policy. While one would usually consider public domain as inclusive par excellence, Maximiliano Marzetti questions this assumption and offers an illuminating analysis of the conditions for improving the inclusivity of the public domain. Diana Liebenau considers copyright in the context of discrimination, depicting how discriminatory and anti-discriminatory functionalities are intertwined within the copyright system. 

Part III approaches the relationship between inclusivity and IP rights from the perspective of micro, SMEs, and big business. Carla Zuddas and Andrea Cocco offer a fascinating case-study of craftmanship in Sardinia, evaluating potential tools for the promotion of traditional artistic production and female entrepreneurship. The following two chapters by Sven J.R. Bostyn present a critical analysis of the medicines accessibility issue in the COVID pandemic, indicating compulsory licensing and Advance Purchase Agreements as possible ways to overcome future crises, and provide a discussion of inclusivity in the context of plant breeders’ rights. Sharon K. Sandeen offers a new take on the employer/employee problem in the trade secrets context, considering how inclusivity considerations may elucidate the difference between employee’s knowledge and employer’s trade secrets. With the digital platforms landscape becoming more and more complex, Sabine Jacques suggests using inclusivity as one of the factors in creating a fair balance between the rights of creators of copyrightable works and the public interest in ensuring greater access. Cristiana Sappa’s contribution describes the intersection between freedom to conduct business and the re-use of works of cultural heritage, presenting legislative examples of insufficient inclusion of pluralism in relation to the freedom to conduct business. Toshiko Takenaka adds an interesting proposal to create a utility model protection based on the idea of open innovation, international publication with cheap and simplified disclosures, and statutory licensing. While FRAND licensing could be considered as an implement designed specifically to support inclusivity, Martin Stierle shows that legal and actual inclusion are two separate things and discusses available options to bring them together. Enrico Bonadio and Henna Hingorani offer an insightful perspective on compulsory licensing in all IP regimes, explaining their essential role not as a negation of IP rights, as sometimes claimed by the industry, but rather a natural element of any IP system, the ‘other side of the coin’ to the right to exclude, and indeed, an element direly needed to reinforce the basic creativity supporting function of IP. Irina Bazu considers the opportunities arising with the development of blockchain and, specifically, smart contracts to foster inclusivity in IP transactions. Online platforms make a comeback with Alina Trapova’s chapter on enforcement of IP rights; the points on the effect of the CDSM Directive
on fundamental rights appear particularly relevant in this context. IP insurance is a subject of increasing interest and in this light, Marjorie Fox’s chapter makes an interesting contribution by describing the potential of contractual tools and the rule of law to make use of IP insurance policies more inclusive towards SMEs. 

One of the finest qualities of this valuable contribution to IP literature is the diversity of subjects and approaches, from theoretical and historical analyses to empirically informed case studies. Inclusivity – and exclusivity – are sometimes considered as functionalities, sometimes as values, and sometimes as objectives of IP regimes. With both a sound theoretical foundation and numerous useful suggestions de lege ferenda, the collection surely constitutes a step forward in the effort to bridge the legally exclusive character of IP rights and inclusive policy effects they can produce. 

Details:

Available in hardback and ebook 

Publication Date: 2024

Extent: 538 

ISBN: 978 1 80392 725 1