HOW TREATIES AND TECHNOLOGY HAVE CHANGED INTELLECTUAL PROPERTY LAW: GLOBAL GOVERNANCE OF INTELLECTUAL PROPERTY IN THE 21ST CENTURY REFLECTING POLICY THROUGH CHANGE

摘要

The essay Code, Autonomous Concepts and Procedure: Stepping Stones for European Law?, by Alison Firth aims to defend two propositions: (1) judicial development is occurring in the European Union regarding intellectual property and (2) remedies and procedures determine what issues are brought forward. Regarding the first proposition, the European Union (EU) and its member states are signatories to the TRIPS Agreement and other IP treaties. The EU subsequently started harmonizing IP law among its member states to comply with these treaties. Because EU law supersedes national laws, member states must implement the laws that the EU adopts to comply with TRIPS. The Court of Justice (CJ) of the EU interprets these laws when member states find them unclear. In the area of IP, the CJ has interpreted EU law by establishing "autonomous concepts." These autonomous concepts are necessary when a specific term of an EU law does not refer to the laws of member states to determine that term's meaning. In these situations, the CJ establishes an independent interpretation that applies throughout the EU. When framing a concept to interpret EU law, the court must consider the context of the concept and the purpose of the legislation that the court is interpreting. Some examples of autonomous concepts developed by the CJ are "human embryo," "sale," and "parody."The second proposition is that procedures and remedies determine the issues brought forward. The EU has planned to establish EU-wide patent rights using the European Patent Office. The EU has also established a Unified Patent Court. This will encourage the development of more autonomous concepts as this court adopts procedures regarding patent law. To conclude, the CJ has created autonomous concepts that assist the harmonization of IP law across the EU, and the EU has established a specialized court to develop autonomous concepts in patent law.The essay The Harmonization of EU Copyright Law: The Originality Standard by Professor Thomas Margoni discusses the history of how the EU has harmonized the originality requirement in copyright law. This requirement says that works of authorship must show some originality to qualify for copyright protection. However, international treaties have not defined this requirement. Consequently, national legislatures and courts have needed to define the originality requirement. Countries have interpreted the originality requirement in various ways. The United Kingdom (UK) has emphasized the amount of labor the author has put into the work, while Germany, France, and Italy have emphasized the personal creativity that the author brings to the work. The EU initially did not set a standard for originality because it only had limited power to regulate copyrights. The Treaty on the Functioning of the European Union (TFEU) allowed the EU to ensure the smooth functioning of the "internal market." This limitation of EU power caused the fragmented regulations mentioned above. For example, countries had diverse originality requirements for software. The EU created a uniform standard of originality specifically for software to ensure that the internal market continued to function. The standard was that the software had to be the author's "own intellectual creation." The subsequent directives addressed photographs and databases. However, the CJ expanded on the originality requirement between 2009 and 2012. The CJ concluded that the "author's own intellectual creation" standard applies to all works covered by copyright law. This transition to a fully-harmonized standard occurred regardless of any considerations of the internal market. The CJ's rulings will not substantially affect countries like Italy, Germany, and France because these countries already emphasize personal creativity. However, The United Kingdom might try to interpret the new originality standard in a way that reflects the UK's traditional view. The UK has already stated that the "author's own personal creation" standard does not significantly change the UK's originality requirements. Thus, Professor Margoni says that countries will interpret the new originality standard according to their traditions but that this will be easier for countries that have already adopted a similar requirement to that of the CJ. Overall, Professor Margoni demonstrates in this essay how the EU's CJ has required countries to change their originality requirements. The essay International Copyright: Marrakesh and the Future of Users' Rights Exceptions by Dr. Margaret Ann Wilkinson discusses the 2013 Marrakesh Treaty, which sought to facilitate access to works for people who are blind or visually impaired. This treaty was not in force when Dr. Wilkinson wrote her essay. However, it has since come into force. Dr. Wilkinson addresses three questions: (1) what has previously constituted a shift in international copyright law, (2) whether Marrakesh is such a shift, and (3) whether Marrakesh indicates a greater focus