Contemporary Intellectual Property: Law and Policy (5th edn)

Abbe Brown, Smita Kheria, Jane Cornwell, and Marta Iljadica

p. 2 1. Intellectual property law: an introduction

Abbe Brown, Professor in Intellectual Property, University of Aberdeen, Smita Kheria, Senior
Lecturer in Intellectual Property Law, University of Edinburgh, Jane Cornwell, Lecturer in
Intellectual Property Law, University of Edinburgh, and Marta Iljadica, Lecturer in Intellectual
Property, University of Glasgow

https://doi.org/10.1093/he/9780198799801.003.0001
Published in print: 27 August 2019
Published online: September 2019

Abstract
This chapter provides an accessible introduction to intellectual property (IP) law. It provides and
challenges some definitions of intellectual property law and IP itself. It discusses the development
of IP law as a field of study in an increasingly global context and presents a realistic view of the
law as it actually operates; the relationships between different levels of IP law—at national,
European, European Union, and international levels; the various influences on the formation,
justifications for, and development of IP law including between IP law and other legal fields; and
the tensions that arise from different perspectives when the law seeks to protect IP.

Keywords: intellectual property law, IP law, IP, national law, European law, EU law, international
law, other legal fields

Introduction

Scope and overview of chapter

1.1 This chapter is an introduction to the discipline of intellectual property (IP) law. You will examine
the nature of IP as well as the aims and content of IP law. A brief overview will be given of the main
rights and actions which make up IP law, together with an analysis of the various themes which
underpin this area of law. The importance of the European and international dimensions to IP law will

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 be emphasised, although throughout the starting point for discussion will be the jurisdictions of the
United Kingdom (UK). Here we lay the groundwork for the rest of this book, and you should use this
chapter as a platform for further in-depth study.

1.2 Learning objectives

By the end of this chapter you should be able to:

define IP and the broad church that is IP law;

articulate the aims and objectives of IP law and place it in its wider commercial setting;

give a brief account of the range and type of intellectual property rights (IPRs) which
exist;

appreciate the relationships between different levels of IP law—that is, (a) national, (b)
European, and (c) international; and

understand the various influences on the formation, justifications for, and development of
IP law, as well as the tensions that arise when the law seeks to protect IP.

1.3 The rest of the chapter looks like this:

What is intellectual property law? (1.4–1.16)

What is intellectual property? (1.17–1.44)

Developing intellectual property law (1.45–1.74)

Exercise

Before reading this chapter, ask yourself, ‘What is ‘intellectual property?’ Do you think that it
should receive legal protection? What form should that legal protection take? Try to justify your
responses and then compare your views with what we say later.

p. 3 What is intellectual property law?

1.4 This is a book about the law that protects IP. Let us begin, then, with a very brief overview of the
various elements of this area of law, which at first will seem disconnected. We will then go on to
explore the themes that tie these elements together, and to consider the influences that shape and
form modern IP law.

1.5 IP law comprises a wide range of forms of protection for IP. It encompasses statutory and common
law arrangements and has aspects which are shaped by international, European, and national
considerations. Under the umbrella of IP, a significant number of IPRs exist; each is tailored to protect
a particular example of IP.
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 The statutory rights
1.6 There are four principal forms of IP, and in the UK, these are protected by statute. They are as
follows.

Patents: Patents Act 1977

1.7 Patent law protects inventions, which can be described as technical solutions to technical
problems. An invention can be a product or a process. An invention is the paradigmatic example of
‘industrial property’—a concept which we will explore in detail later. The Intellectual Property Office
1
(UK IPO) in Newport, Gwent is responsible for the grant of patents in the UK. The European Patent
Office in Munich (which is distinct from the European Union (EU)), is responsible for the grant of
2 3
‘European’ patents. There is no such thing as a world patent. Patents require to be registered.

Copyright: Copyright, Designs and Patents Act 1988

1.8 Copyright law is designed to protect aesthetic and artistic creations such as literary, musical,
dramatic, and artistic works, known as original works, together with derivative works such as films,
sound recordings, cable programmes, broadcasts, and the typographical arrangement of a published
work (ie the way the material is laid out). Copyright was expanded considerably throughout the course
of the twentieth century to protect new and emerging forms of IP such as computer software and
databases. Copyright protection arises on the creation of a protectable work. There is no need to
register the right (cf patents).

Designs: Registered Designs Act 1949 and Copyright, Designs and Patents Act 1988
1.9 Design law protects the way a product or article ‘looks’. In the UK, designs can either be
protected by registration or automatically, through unregistered design protection, on the creation of a
design document or an article embodying the design. The two forms of protection are not mutually
exclusive. There is potential for overlap between copyright protection for artistic works and design
protection, and in the UK this is a complex interaction. The UK Intellectual Property Office (IPO) is
responsible for the grant of UK registered designs and for maintaining the Design Register.
Unregistered and registered Community design rights have also been available since 2002 and 2003
respectively, governed by Regulation 6/2002/EC on Community designs. Oversight of this system and
the registration process is handled by the Office for Harmonisation in the Internal Market (OHIM), now
4
the European Union Intellectual Property Office (EUIPO) in Alicante, Spain.

Trade marks: Trade Marks Act 1994

1.10 Trade marks operate to distinguish the goods and services of one enterprise from those of
another. They exist as badges of origin and help the consumer to avoid confusion between goods or
p. 4 services of variable quality. Trade marks can assist greatly in bolstering protection for goods already
protected by another form of IP law. For example, patent-protected drugs will invariably carry their
own trade mark: for instance, ‘Viagra’ is the trade mark for the drug sildenafil citrate, the patent on
which expired in 2013. The advantage of trade marks on patented products is that the trade mark can
continue long after the patent has expired. Trade mark protection is awarded by registration. In the

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 UK, this is handled by the Trade Mark Registry, once again, at the UK IPO in Newport. An EU trade
mark (formerly Community trade mark) is also available, awarded by the what is now the EUIPO,
formerly known as OHIM.

Common law actions

1.11 Beyond these statutory rights a number of common law actions are also considered to make up
the body of IP law in the UK. We examine these in full depth in Chapters 16, 17, and 18. For now, it is
only important that you understand the ambit of the two main actions.

Passing off
1.12 Passing off protects the ‘goodwill’ of traders in respect of their product ‘get-up’, name, or
trading style. The action becomes relevant when traders copy a rival’s ‘get-up’ and when this leads to,
or is likely to lead to, public confusion between the competing products. There is much scope for
overlap between trade mark protection and passing off. Often both actions are brought in the same
dispute.

Breach of confidence
5
1.13 The common law action of breach of confidence is often included in the definition of IP law. The
action can provide ancillary support in the protection of the interests of IP producers, especially when
information about IP that is going to eventually be registered must be kept out of the public domain
prior to registration, for example patents and registered designs. Registrable IPRs do require full
public disclosure in the course of the application process. By its protection of trade secrets, breach of
confidence provides an alternative means of protecting valuable knowledge if a decision is made (to try
to) keep it permanently outside the public domain. In 2016 the EU passed a Directive on trade
6
secrets. It will be interesting to see how this develops and what changes, if any, will need to be made
to the position in the UK jurisdictions, which is considered in Chapter 17.

Sui generis rights

1.14 Over the past few decades, a series of new IPRs have been introduced. This has usually been
because of the success of arguments that existing forms of protection are inadequate to accommodate
emerging technologies, and/or because political agendas have desired a novel and unique form of
protection. Some key examples include the following, and some of these are considered in more detail
later in this book:

Plant breeders’ rights: Plant Varieties Act 1997

1.15 New varieties of plants and seeds can be protected by a right of protection under UK legislation
7
which complies with a European Community Regulation from 1994. Moreover, protection of the rights
p. 5 in question is required by the International Union for the Protection of New Varieties of Plants (UPOV)
8
Convention of 1961, as amended in 1991.

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Database rights: Copyright and Rights in Databases Regulations 1997 (SI 1997/3032), now
incorporated into Copyright, Designs, Patents Act 1988
1.16 Compilations of data can receive protection in Europe as a database in two separate ways. First,
if the structure of the compilation is original, then the structure is protected by copyright. If it is not
original, then the underlying material can be protected through a ‘database right’ if sufficient
investment has been made in its compilation. ‘Investment’ is broadly defined and includes investment
of both time and money. The database right entitles the ‘maker’ of the database to prevent another
from extracting the whole or a significant part of the database without permission. This is a sui generis
form of protection which is not required under international obligations. It will therefore only be
accorded to foreign nationals whose country accords similar degrees of protection. Copyright
protection in the contents of the database is not precluded by the existence of the new right. Database
rights are considered in more detail in Chapter 7.

Question

What could possibly unite the disparate areas of protection which have been considered so far?
Can you see any common themes that might link them together?

What is intellectual property?

1.17 In this section we will attempt to make sense of this seemingly disparate collection of legal
rights. Let us begin by asking, ‘What really is “intellectual property”’?

1.18 IP is frequently referred to as ‘the novel products of human intellectual endeavour’. Yet, the use
of the term ‘property’ to describe intellectual products implies the existence of rights and, perhaps
more importantly, remedies in respect of the property and any unwarranted interference with it. A
property paradigm, in turn, implies a system of control to be exercised by the right holder over the
subject matter of their property right. What makes a book your book in legal terms is the fact that no
one can take, use, or otherwise interfere with your property without your permission. At this level, IP
protection operates in a similar fashion to that afforded to other forms of property. IP is concerned
with identifying and controlling permissible and impermissible dealings with intellectual products,
usually by reference to the consent of the right holder, at least in the first instance. However, in many
other respects an analogy with tangible property rights—that is, property rights over physical entities
—does not help us to understand what we mean by intellectual property. For example, your book will
not stop being your book at midnight tonight, yet in most cases IPRs eventually expire, leaving the
subject matter without an owner and so free to be used or exploited by anyone. Similarly, no one can
require you to lend your book to others so that they might benefit from it, whereas with certain forms
of IP compulsory licences can be granted to third parties to exploit the property in question. Finally, for
all forms of IP to exist, stringent criteria must be met, with these varying with the kind of IP protection
that is sought. This is not true of other forms of property, which assume the quality of property by
sheer dint of their existence.

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 1.19 In order to understand how and why IP is treated in this way we must first appreciate that at the
broadest level of abstraction IP is concerned with protection of information. Eminen’s songs, Margaret
Atwood’s latest poem, the website that supports this textbook, Louis Vuitton’s designer labels, OUP’s
p. 6 electronic databases of authors, the chemical formulae for new cancer drugs, and the shape of Volvic’s
newest mineral water bottle, are all protectable as IP; but equally they are all simply classes of
information. Thus, unlike many forms of property, IPRs protect intangibles. This gives rise to
considerable problems over the control of the property and its protection. If I borrow your book you
are automatically precluded from using it, but if I copy your process for refining sugar this in no way
precludes you from using the process for your own ends, or indeed, from passing it to others. This
makes protection and exploitation potentially problematic. It is largely for this reason that rights and
remedies are not available for intellectual products in the abstract. Protectable IP does not exist,
therefore, in unspecific and ill-defined ideas alone. Such ideas must be reduced to some tangible
9
embodiment before rights and remedies will accrue.

1.20 But this does not explain why IPRs expire, nor why the scope of these rights can be limited in
certain circumstances. To understand these features of IP protection we must ask:

Question

Which interests are furthered, or compromised, by the protection of IP? Revisit your thoughts
after you have considered the rest of this chapter.

A wide range of arguments can be put forward to justify IP. These will now be explored—and as will be
seen, they are not necessarily consistent with each other.

Moral interests
1.21 A wise and now long-dead Scottish lawyer once wrote: ‘Of all things, the produce of a man’s
10
intellectual labour is most peculiarly distinguishable as his own.’ This neatly sums up the moral
argument as to why IP is protected. Intellectual products are produced by the efforts of people who
have contributed from within themselves to the creation of the new entity, and so it is thought that IP
reflects a moral connection between the property and its creator. Thus, in theory at least, to protect
the property is also to protect certain crucial personal interests. Such interests can be compromised,
for example when control is relinquished to a third party and the property is subjected to some form of
derogatory treatment. And, while a creator might happily renounce their economic stake in their
property, for example by selling it, this does not mean that their moral interests are also abandoned.
This sort of reasoning is directly reflected in the law of copyright, as we discuss in Chapters 4 and 6.

1.22 Another common moral reason to protect IP is because it would be unjust for others to benefit
from a creator’s time, labour, and expenditure if it were possible simply to copy new intellectual
products without fear of reprisal. The standard example is the experience of the pharmaceutical
11
company. It is estimated that it costs upwards of $2.5 billion to bring a new drug to market. Most of
this is spent in research and development and in gaining regulatory approval for the drug’s safety and

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 efficacy. However, once a drug is available it is incredibly easy to copy at a tiny fraction of this original
cost. Would it be fair if rival companies were allowed to do so? Moreover, in that situation would any
company go to the bother and expense of being the first to develop and market a new drug? These
arguments focus, of course, on the investors or employers in respect of the innovation, rather than the
p. 7 individual innovator. It can also be argued that IP can lead to inefficient work to avoid existing rights,
and can slow down the future innovation of others. Further, it could be said, at least in some sectors
(software being a notable example), that there would be innovation without IP, and that even in
pharmaceuticals there are other means, such as prizes, which would support innovation without the
need for IP. Discussion about this is very much alive, for example in the UK’s Industrial Strategy White
12
Paper of 2017.

This brings us to the all-important issue of social interests which can be met, and hindered, by IP.

Social interests
1.23 Considerable social benefit can arise from IP. Indeed, it is precisely this argument that is
advanced by pharmaceutical companies: ‘give us protection for our drugs and we will have an
incentive to produce them: deprive us of that protection and the incentive is gone’. This may be true,
but it is also important to appreciate that social interests can be significantly compromised if IP is
protected too strongly. An inventor might choose to suppress a significant technological development
or refuse to license it to third parties, thereby compromising social interests which could benefit from
access to the technology. Indeed, these arguments help to explain why limits are placed on IPRs, and
we explore them further below.

1.24 In addition, the granting of IPRs over certain novel creations can give rise to social
consternation about the morality of certain acts of creation and the legal protection of them. This has
been most notable in recent years in the context of the patentability of the outputs of the biotechnology
industry. Patents have been granted for the creation of genetically engineered human gene fragments
and the development of transgenic animals which contain genetic material from foreign species,
including humans. Many voices have been raised in Europe in objection to this as a fundamentally
immoral practice. We explore this debate and its outcome in Chapter 11. It should be noted, however,
that questions of morality in the granting of IPRs have also impinged on all of the statutory forms of
13
IP, as IPRs are granted at the behest of the state. It is noteworthy that courts have been seen to be
14
unwilling to treat iniquitous information as ‘confidential’ for the purposes of the common law.

Economic interests
1.25 The economic interests of the producer of IP and their competitors and their customers will be
affected when that property is exploited in the marketplace. The degree to which this occurs depends
on the rights and remedies which are accorded to the property in question. It is here that we find one
of the most serious areas of tension in IP protection. When IP is introduced into a market (as part of a
product or through a licence to another person to make a product), it can have profound effects on the
market’s overall economic balance and on economic well-being. There is, therefore, considerable room
for dispute between the legitimate boundaries of IP protection and the encouragement of a free market
economy. This is most acutely felt within the confines of the EU, where the commitment of member

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 states to a single market in which goods can circulate freely between states is threatened by the
exercise of IPRs, which, by their nature, potentially erect barriers to such free trade. We discuss this
later in further detail, particularly in Chapter 19.

1.26 Considering all of these interests, it should be clear that what is required is a balance that seeks
to ensure that no one interest or group of interests dominates, while at the same time ensuring a fair
and just degree of protection for any IP that has been produced. It is the overarching role and aim of IP
law to achieve such a balance.

p. 8 Policies and tensions in intellectual property

1.27 Consistent with the range of justifications for IP, the ongoing protection of IP is also driven by a
number of important, and at times competing, policies. The outcome of any tussle between these
policies ultimately shapes the nature and scope of IPRs and determines the future direction of IP law.
Let us consider in more depth the various interests and policies at stake.

The protection of private interests through property rights

1.28 Property rights generally support and promote private interests, paramount among which is the
interest of the owner to enjoy their property. Thus, and as noted above, these rights usually include
exclusive control of the property and the right to exclude others from unauthorised use. Only in rare
circumstances are the private rights of an owner curtailed to further a public interest, for example
through the compulsory acquisition of land. The enjoyment of one’s property is guaranteed as a matter
15
of individual human right, and it is a fundamental tenet of EU law that national systems of property
16
law should not be influenced by European measures.

Reconciling public and private interests

1.29 The mere existence of IP can, however, significantly influence a number of public interests, as
we have seen previously. All forms of IP contribute something new to the sum total of human
knowledge, and this can occur across every conceivable realm of human experience; from the
development of new pharmaceuticals to treat cancer and AIDS to the design of more comfortable office
chairs; from the creation of beautiful (and not so beautiful) works of art, literature, music, or dance to
the introduction of distinctive packaging to assist consumers in distinguishing between the ever-
burgeoning range of soft drinks on offer; from the splicing of genetic material to create a new strain of
rose to the rights over the collections of data and algorithms in respect of them, on which we
increasingly rely. All of these innovations can be the subject of IPRs, and their introduction to the
public realm can surely only enrich the human condition.

1.30 It should be self-evident, then, that innovations such as these are to be encouraged, and the so-
called reward theory of IP (see Figure 1.1) seeks to promote this by engendering a cyclical pattern of
social interaction whereby those who innovate are rewarded by the grant of property rights, which in
turn act as an incentive to others to innovate, who are rewarded in their turn, and so on.

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 Figure 1.1 The cyclical pattern of intellectual property production and protection

p. 9 1.31 This model only serves its purpose, however, if the intellectual products find their way into the
public domain, and it is one of the paradoxes of the IP regime that it seeks to promote public interests
by granting private rights which imply exclusive control over the subject matter. The public interest
can, therefore, be jeopardised if private rights are exercised in a way that means that the property in
question is not used or exploited in a public setting.

1.32 A further paradox arises from the particular type of property right that is granted. The IP holder
can exclude others from a variety of activities; for example, direct copying of their property by rivals or
importation of samples of the property from a country where the price is lower, thereby stopping the
importer from undercutting their prices. Not only might various technological, scientific, artistic, or
consumer ends be thwarted, but overzealous use of these rights can lead to a distortion in competition,
which in turn impacts on wider economic interests, including those of the individual consumer, who
might have to pay higher prices to obtain new products, and those of competitors, who must find
another way to compete.

1.33 This is not to say that the existence of exclusive rights necessarily leads to these outcomes.
Indeed, economists and others argue endlessly about whether exclusive rights hinder or promote
competition, in that the rights can also serve as an incentive to others to engage in their own
innovation and go on to obtain their own exclusive rights. What can be said with certainty, however, is
that some exercise of power can have adverse outcomes. We see this most obviously in the context of
Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), which
respectively prohibit practices amounting to anti-competitive agreements (cartels) or abuses of a
dominant market position, where these are likely to affect trade between member states. Each of these
prohibitions has a potential direct bearing on the ways in which IP owners can exercise their rights,
and the relationship between IP and competition has been receiving increasing attention from courts,
regulators, and academics. We revisit these provisions later, as well as in more detail in Chapter 20.

1.34 In other contexts the matter distils, once again, into a question of striking a balance between the
potentially competing public and private interests. It is in this respect that IPRs differ most
significantly from traditional property rights. Consider, for example, the following features that are
found in the domain of IPRs:

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 In some contexts, an IP owner cannot simply refuse to exploit, or prevent others from exploiting,
their property once they have received protection for it. The technological developments would
not actually be used during the IPR term and further innovation would be stifled under the threat
of a law suit for infringement of IPRs. Thus, in the context of patents and UK unregistered design
17
law, compulsory licences can be granted to third parties who apply to the relevant authority if
the right holder does not exploit their property within a certain period of time (three years from
18
the date of grant, as in the case of patents), or when the IPR is nearing the end of its term (the
19
last five years of protection in the case of UK unregistered design right). The IPR owners are
compensated to the extent that the third parties’ entitlements are akin to those that would have
been granted under a reasonable licence agreement, with a ‘just’ licence fee to be paid to the
owner of the IP. A variation on this theme is the right of a government department to engage in
otherwise infringing acts in relation to a patented invention or a registered design without the
20
consent of the proprietor when they are ‘for services of the Crown’. Here too compensation is
payable to the IP owner (or an exclusive licensee) for any loss resulting from them not being
21
awarded a contract to supply the products which are the subject of the IPRs.

p. 10 In other contexts, an IP owner may not be able to prevent certain uses of their property by others
when these uses serve another valuable public interest. For example, copyright is not infringed
when a third party engages in ‘permitted acts’ with respect to the work. These acts include
22
copying done for the purposes of research or private study, dealings with the work for the
23
purposes of criticism, review or news reporting, and things done for the purposes of instruction,
24
examination, or education. A continuous theme across these is that the activity is fair dealing
with the work, in that it serves independent and worthwhile interests without unduly
compromising the individual (economic) interests of the copyright holder. The question of what is
‘fair’ is a matter of endless dispute, as we discuss in Chapter 5. Similarly, a trade mark owner
cannot prevent the use of its trade mark by a rival who simply engages in comparative
advertising—that is, compares its goods or services with those of the trade mark owner—if this is
25
done in an accurate and honest manner. This latter practice is thought to encourage
competition by raising consumer awareness about the range and quality of products available on
the market. This is discussed in Chapter 15.

In all cases, as has been noted, for intellectual products to qualify for protection they must satisfy
certain predetermined criteria in order to assume the quality of property. The stringency of the
qualification criteria for each IPR will be seen to be aligned to the strength and length of the
exclusive right that might ultimately be granted or obtained.

1.35 The balance which the law strikes between all these competing interests and ideas is endlessly
controversial, with the result that proposals for reform, and actual reforms, are continuously
occurring. For example, in the UK a review of IP and growth was undertaken by Ian Hargreaves and
26
published in 2011. Many of these conclusions, recommendations, and steps which were subsequently
27
taken, as well as ongoing consultations, will be discussed later in this book. Further, as society
evolves, questions can arise regarding the legitimacy of IP (eg, should all information be open to all for
no charge, even if there is a relevant IP right?). Questions can also accompany the development of new
technologies which might seem to clash with IP—for example, new opportunities raised by the internet,
or 3D printing. These issues will also be considered throughout this book.

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 Exercise

Compare and contrast the following forms of IP.

1.36 Patents protect inventions which must display novelty, that is, the invention must never
previously have been made available to the public by any means anywhere in the world. This is the
strictest requirement of its kind in IP law. It can also be difficult to establish, and this can lead to
arguments that some patents involve established knowledge, including that of indigenous groups in
developing areas (traditional knowledge). If novelty and the other patentability criteria are met, the
reward—the patent—is the strongest type of IP right available. This confers the right for the holder to
prevent every unauthorised use of their invention in the marketplace. Thus, rivals cannot make and sell
copies of the protected invention, nor import any such copies, nor indeed sell the invention in a kit
28
form without fear of an infringement action. There is no requirement of ‘copying’—the patent owner
has the power to control any use of the invention, howsoever that arises. Thus, even if Abraham has no
p. 11 idea that Jacob already holds a patent for a vacuum cleaner that employs cyclone technology, and even
when there is no suggestion whatsoever of any copying, Abraham can be prevented from entering the
public arena with his independently created version of the machine if it effectively embodies the kernel
of Jacob’s invention.

1.37 Copyright protects works that demonstrate originality. Here, originality simply means that there
must be some evidence of independent skill or intellectual endeavour on the part of the creator, and
that the work is not simply copied from an existing work. Thus, if we take our class on an outing to
Princes Street Gardens in Edinburgh and every member of the class sketches Edinburgh Castle, each
and every sketch will attract copyright protection from the moment that it is created. It does not
matter that the subject is the same because the drawings themselves are original works deserving
legal protection. Moreover, if half of the class also takes a photograph of the castle, each photograph
will also be protected by copyright. The originality requirement is met by the simple act of holding the
camera at a certain angle and the independent exercise of judgement by each person as to when they
release the shutter. In the realm of copyright, it does not matter that millions of photographs have
already been taken of Edinburgh Castle: originality does not mean novelty in the same sense we find in
patent law. There is a good reason why different terminology is used because the threshold to qualify
for protection is set at a very different level. Furthermore, none of the people who have previously
photographed or sketched the castle can prevent our students from doing so. The right received in
copyright law is, as the name suggests, merely a right to prevent unauthorised copying or interference
with one’s own work. It is not a right to control all use of the underlying subject matter. As we explain
in Chapter 3, copyright relates to the particular expression that the IP creator gives to their work. This
is just as well, for were it otherwise the power of copyright could significantly hinder the production of
works in the fields of literature and the arts. Human beings are not very imaginative creatures. We
always explore the same basic themes through our stories: birth, death, love, betrayal, revenge, hate,
reconciliation, and salvation. Copyright does not prevent anyone writing about these subjects; it
merely protects the ways in which particular stories are told.

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 1.38 We can see, then, that the rights conferred by a copyright are much weaker than those conferred
by a patent. Not only does this affect the nature and scope of the private rights of the property owner,
but it also means that each of these IPRs will have a very different impact on the public sphere where
it is exercised. Differential time limits are employed to minimise these effects. For example, a patent
will initially only be granted for four years, although it can be renewed in successive years on the
29 30
payment of a steadily increasing renewal fee, up to a maximum of 20 years. Compare this with
copyright protection which, in the context of original works, lasts for the life of the author plus 70
years after their death. The compromise that is achieved balances, on the one hand, short and strong
protection with, on the other, longer and weaker protection. In all cases when an IPR expires, however,
the property enters the public sphere unconditionally, where it is free to be used by anyone.

1.39 Registration of IP is a common, although not universal, feature of protection regimes. Patents,
trade marks, and some design rights must be registered. In contrast, copyright protection arises
whenever a work which satisfies the qualification criteria is created and UK unregistered design right
31
exists whenever a design document is produced, or an article is made to the design. Registration
serves a number of functions, including identification of the subject matter to be protected, and a
means to test whether the putative property is indeed ‘new’ (since a search of the relevant register can
be carried out to determine if a similar or identical piece of property is already protected). Registers
are public documents and provide a single point of reference for third parties to consider the current
state of play in a particular field of innovation.

p. 12 Discussion point
For answer guidance visit www.oup.com/uk/brown5e <http://www.oup.com/uk/brown5e>.

Look at Figure 1.2 below. Why do each of patents, copyright, and design rights ultimately expire
whereas a trade mark can be protected for all time as long as it is renewed every ten years?

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 Figure 1.2 Core features of the statutory intellectual property rights

1.40 When a right must be registered it is important to bear in mind that, as has been noted, the
qualification criteria can be fairly stringent, and can call for no prior disclosure of the creation. The
classic example of this is patent law, which requires that an invention must never have been made
available to the public prior to the filing of an application for patent protection.

What protection do intellectual products receive prior to registration?

1.41 Here, as noted, the importance of common law protection through the action of breach of
confidence can become important. As we discuss in Chapter 17, the law of confidence protects
confidential information, that is, information which is not part of the public domain. The action
provides a remedy against those who disclose confidential information into that domain or are likely to
do so. Thus, the threat of an action of breach of confidence can assist considerably in protecting the
interests of IP producers in the period between the initial conception of their idea for a new creation
and the time when they file for registration.

1.42 However, in order to receive any protection at all, you must be able to express your idea with a
32
sufficient degree of specificity to make it realisable as a final product. This does not necessarily mean
that you should write it down, although you would be wise to do so, but it does require that you can
give sufficient substance to the information for which you wish to claim protection. Above all, you must
keep the information secret and only disclose it to those persons upon whom you can impose a duty of
confidence.

p. 13 Summary of common themes

1.43 A series of common themes and elements run through many, and sometimes all, forms of IP
protection:

Qualification for protection: newness

All forms of IP must be ‘new’ in order to receive the protection of the law. However, the degree to
which a creation must be new varies with each form of IP right.

Procedure for protection: registration

Many of the statutory IPRs require registration. This assists in the identification of the property
to be protected and administration of the rights to be granted.

Form of protection: control

IP owners can control how their property is used and exploited by others. Different rights are
conferred by the different IPRs. Note, however, that a common feature is that they only give a
negative right of exclusion from the marketplace. That is, there is no positive entitlement to
privilege or success in the market and so no real monopoly. The IPRs are rights to be exercised

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 against those who would compete with the IP holder in a public forum. IP constraints rarely reach
into the private sphere. Thus, as will be seen in Chapter 12, a patent is not infringed by acts done
privately and for purposes which are not commercial.

Duration of protection: time limits

One feature of the need to strike a balance in the provision of IP protection can be seen in the
imposition of time limits on the duration of many IPRs. Often, this is inversely related to the
strength of the right which is offered.

Implementation of protection: remedies

The remedies which are available for infringement of IPRs are, in the main, uniform. These are:

Injunction An action requiring a third party to desist from unlawful conduct, or to prevent them engaging therein.
(interdict) For example, an injunction might be granted to prevent a trader from selling infringing copies of your
latest book—or perhaps a product made using a 3D printer.

Delivery up But what is to stop the rogue trader from selling the 10,000 infringing copies anyway? This remedy
ensures that the infringer must hand over all infringing copies for destruction.

Damages or Damages will be assessed by the Court to reflect what, in its opinion, you have lost as a result of an
account of infringer’s activities. An account of profits requires that the infringer’s profits made from their illegal
profits activities be handed over to you. Note that these two remedies have generally been regarded as
mutually exclusive, that is, you must opt for one or the other—you cannot ask for both.

Summary of common expressions and notices

1.44 Here are some common expressions and notices that you will find attached to works that claim
IP protection:

• Notices of protection

Patent This term is used once a patent has been applied for but before it is granted. Inventors attach this to their
pending inventions to put rivals on notice that an application is being considered. Once an application is filed,
marketing of the invention can go ahead without any risk of prejudice to the patent application.

© Copyright protection arises automatically whenever a qualifying work is created. However, in order to gain
international recognition and reciprocity of that protection under the Universal Copyright Convention (1971),
this symbol should appear on the work, together with the name of the author and the date when the work
was first made publicly available.

p. 14 ↵ ® This symbol indicates that a trade mark is registered. Only formally registered marks are entitled to appear
33
with this symbol. It is an offence falsely to represent that a mark is a registered trade mark.

TM Intellectual property producers sometimes attach this symbol to signs, names, or logos in an attempt to put
third parties on notice that they regard their signs as trade marks. In Europe, this symbol has no legal effect
whatsoever.

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 Ⓓ This notice may appear on registered designs which seek recognition under The Hague Agreement
concerning the International Registration of Industrial Designs (1960). Under the 1960 agreement, the
encircled D is to be accompanied by the year of the deposit, the name of the depositor, and the number of
the international deposit.

℗ This symbol puts others on notice that rights of producers of phonograms or performers are being claimed
under the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (1961). As previously, name and date must also appear.

Developing intellectual property law

1.45 IP law is more in demand now than it has ever been. Businesses are increasingly seeing IP as
important for their survival, and as a consequence increased pressure has been brought to bear on IP
law to provide adequate protection for new and emerging technologies. Two forms of development
34
have been possible:

Accretion occurs when an existing right is extended to protect a new activity, for example the
extension of copyright protection to computer software and databases.

Emulation occurs when a new right is created to protect a new activity. This was used to protect
the content of databases.

A paradox in development?
1.46 At the time of writing, IPRs remain creatures of national territorial effect only, with a few notable
exceptions. National IP laws have been, however, under supranational influences for centuries, and
indeed the drivers of modern IP development come almost exclusively from the international sphere. IP
law is truly an international subject, and one cannot acquire a true understanding of the discipline by
looking only at national rights.

The Map of Intellectual Property Law

National law
MOST IPRs ARE CREATURES

OF TERRITORIAL EFFECT ONLY

European Union law influences on IP law

(a) Programme of harmonisation and approximation of laws

(b) EU-wide IPRs

(Community trade marks and designs)

p. 15 ↵ (c) Treaty on the Functioning of the European Union

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 Free movement of goods and services

(Arts 345, 34, and 36)

Anti-restrictive and monopolistic practices

(Arts 101 and 102)

International agreements, conventions, protocols etc

Common features:

(1) Access to protection and ‘national treatment’ for foreigners

(2) Minimum (harmonised) standards of protection to be offered by national laws

National law
1.47 You will see later that many international instruments and EU initiatives now shape and direct IP
law. Despite this, there are very few IPRs which have an effect beyond the particular country
jurisdiction in which they are granted. For the IPRs that must be registered, this means that IP
producers must register their rights in each jurisdiction where they seek protection. This cumbersome
process is eased in some cases by international agreements that permit one application to be lodged
and then considered for a number of specified countries. For example, the Patent Cooperation Treaty
(1970) provides such a mechanism for patents, the Madrid Agreement concerning the International
Registration of Marks (1891) and the Madrid Protocol (1989) offer an equivalent system for trade
marks, and The Hague Agreement concerning the Deposit of Industrial Designs (1925) allows for the
deposit of a single design application which will be recognised throughout all countries that are
signatories to the agreement. In each case, however, it is national rights which are obtained ultimately,
and infringement and enforcement procedures can only be invoked in the domestic courts of individual
states.

1.48 In the context of copyright, signatory countries to the Berne Convention for the Protection of
Literary and Artistic Works (1886) and the Universal Copyright Convention (1952) guarantee mutual
recognition of copyright to nationals of fellow signatory states.

Exercise

To which of the previously mentioned international agreements is the UK a signatory? (Hint:

each of these measures is administered by the World Intellectual Property Organization (WIPO)
based in Geneva.)

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 A tension between legislative onslaught and judicial reticence
1.49 One outcome of this rather curious mix of national and international dimensions to IP law is that
we can see the discipline being pulled in different directions depending on who is holding the reins at
any given time. For example, there is a very significant push to maintain international legislative
initiatives designed to extend IP protection in the economic interests of IP producers. At the same
time, it will be seen throughout this book that domestic courts, especially in the jurisdictions in the UK,
are often seeking to restrict the scope and influence of IPRs through the interpretations that they give
to IP legislation, as regards both itself and in relation to other principles such as competition and
human rights. This affects IP law in a number of different ways. For one thing, it means that there may
be considerable disharmony between different countries in terms of the actual rights that IP holders
p. 16 enjoy. Thus, even if the substantive legal provisions are the same, as they have been agreed
internationally and incorporated into the letter of domestic law, the effect given to those provisions
through interpretation by the national courts can result in fairly wide variations in practice.

Exercise

Consider whether this is an accurate statement of a phenomenon in modern IP law as you read
through this book. Why might the courts approach IP questions in a manner which is different
from that taken by policymakers? What are the wider implications of this disparity of approach?
Which faction is likely to win out in the end? Will this be the right result?

The European Union dimension

1.50 It is precisely because IPRs have traditionally only been effective in individual states that the EU
has taken such an interest in this area of law. Primarily, this is because of the prospect that the
exercise of IPRs within the European single market will have the effect of partitioning that market and
thereby thwart one of the fundamental guiding principles of the Union, namely, that goods should be
allowed to circulate freely within the single market. A moment’s reflection should reveal how this can
happen. If A has a patent only in France, the invention will only be protected in that country. They
cannot, therefore, prevent the making or use of the invention elsewhere in the EU, nor can they control
what happens to versions of the invention which they have produced once they leave French soil.
However, the French patent should, in principle at least, allow them to prevent any imports into
France, both of infringing goods that they have not authorised, and also of products comprising the
invention which they might have sold elsewhere. While the first of these rights is thought to be
permissible, the second has been severely curtailed in the name of protection of the single market.
Other problems can arise when IPRs are protected unevenly within the single market’s territory. For
example, if copyright is protected for the life of the author plus 50 years in the UK (as used to be so),
but subsists for the life of the author plus 70 years in Germany, material will fall out of copyright in the
former earlier than the latter allowing it to be copied by anyone and to circulate freely except in
Germany, where it retains an additional 20 years of protection. Once again, this can lead to a division
35
of the single market along private property lines.

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 1.51 The Union has launched a three-pronged offensive on IPRs as a result of these concerns in an
attempt to minimise their adverse effects.

Harmonisation and approximation of laws

1.52 The Union has been engaged in a robust programme of harmonisation (also sometimes
‘approximation’) of certain crucial areas of IP law over several decades. There is more potential for
such action since the Lisbon Treaty came into effect in 2009. Article 118 TFEU provides for the
promulgation of ‘measures for the creation of European intellectual property rights to provide uniform
protection of intellectual property rights throughout the Union and for the setting up of centralised
36
Union-wide authorisation, coordination and supervision arrangements’. Harmonisation has several
advantages beyond ensuring that each member state applies the same legal provisions to IP protection.
Perhaps most importantly, it brings the interpretation of IP law within the rubric of the Court of Justice
of the European Union (CJEU). This is one way of addressing the potential for residual unevenness
around the Union in the way in which IPRs are given effect by domestic courts.

p. 17 1.53 Already a number of projects have been completed or are in progress. Other initiatives also
exist. Here are some key and more recent examples, some of which have already been addressed:

37
Trade mark approximation (UK law) Trade Marks Act 1994. Establishment of the Community
trade mark (now the EU trade mark), administered by the OHIM (now the EUIPO), in Alicante,
38
Spain.

Harmonisation of the legal protection of databases, now embodied in the UK under the Copyright
and Rights in Databases Regulations 1997 (SI 1997/3032), as incorporated into the Copyright,
39
Designs and Patents Act 1988.

Harmonisation of legal protection of biotechnological inventions. Parliament and Council

Directive of July 1998, incorporated into domestic UK law in the Patents Regulations 2000 (SI
40
2000/2037).

Harmonisation of design law. The UK complied through amending the Registered Designs Act
41
1949 by the Registered Designs Regulations 2001 (SI 2001/3949). Establishment of Community
42
registered and unregistered design rights, administered through the OHIM, now EUIPO.

Harmonisation of the period of duration of rights in copyright (now life of the author plus 70
years for original works, following the German model). See Duration of Copyright and Rights in
43
Performances Regulations 1995 (SI 1995/3297).

Extended term protection for performers rights in sound recordings from 50 years to 70 years, in
the context of a controversial public consultation in which many stakeholders argued against
such a move. See Directive 2011/77/EU, adopted on 12 September 2011, which came into effect
in the UK on 1 November 2013 (Copyright and duration of rights in performances Regulations (SI
2013/1782)).

Patent law harmonisation (European Patent Convention (EPC) (1973 and 2000)), establishing the
European Patent Office in Munich, Germany (1978). Note that this is not part of the European
44
Union framework. UK law was brought into line via the Patents Act 1977.

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 Web link

EU internal market IP website:

https://ec.europa.eu/growth/industry/intellectual-property_en <https://ec.europa.eu/growth/
industry/intellectual-property_en>

EU rights
1.54 You should note from the list in paragraph 1.53 that in two instances the European Union
(formerly Community) has instituted Union-wide IPRs, which have been mentioned earlier in this
chapter. The first of these was the Community trade mark, established by means of a Council
45 46
Regulation in 1996. It is administered through the OHIM. The Council subsequently adopted the
p. 18 Community Design Regulation, which introduced both registered and unregistered design rights with
47
effect throughout the Union, and which is also administered by the OHIM. Neither of these measures
supplants the existing frameworks for domestic protection.

Discussion point

For answer guidance visit www.oup.com/uk/brown5e <http://www.oup.com/uk/brown5e>.

How is it possible for the Union (and formerly the Community) to legislate on property matters
when Article 345 TFEU states: ‘This Treaty shall in no way prejudice the rules in Member
States governing the system of property ownership’? Will the existence of a single right render
national rights redundant?

1.55 Union-wide rights are the best means to resolve the tension between territorial IPRs and the
aims of the single market, for reasons which should be self-evident. There can be no partitioning of the
market if only a unitary right can subsist throughout its territory. Moreover, the creation of new legal
provisions means that mechanisms can be incorporated ab initio to prevent some particular uses of the
IPRs which have just been discussed. We explore the details and the functioning of the EU IPRs in
Chapters 8, 9, and 13.

1.56 These EU successes have not been easy to bring about. Often there is difficulty in getting
consensus on the terms of protection, the languages to be used for registration purposes, and the
scope of the eventual rights to be granted. In particular, disputes about the extent of protection of
spare parts held up the Community Design Regulation for a number of years. Longer still in the making
have been proposals for an EU patent (formerly called the Community patent). This has been on the
cards since the mid-1970s, but sufficient agreement has never been reached to bring an international
48
instrument into force. This is distinct from the EPC discussed in paragraph 1.53. The EU patent
49
emerged as a viable option with a proposal for a Council Regulation in 2000, although there was little
progress until 2007, when the Commission adopted a Communication on ‘Enhancing the patent

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 system’. This became a draft Agreement to establish a unified patent litigation system, but this was
50
found by the CJEU to be beyond the legislative capacities set out in the EU Treaties. The Commission
quickly turned to a proposal for unitary patent courts, which led in late 2012 to the European
Parliament approving a unitary package patent, which addresses both the application and enforcement
51
process. The same problems have re-emerged at each stage, including the very thorny issue of
language: if patent law requires that an inventor describe in intricate detail the workings of his
invention, and there are 23 official languages of the EU, the question of in which language or
languages this description must appear invariably arises. Translations into all official languages would
make patenting prohibitively expensive, but if we do not require all, then which? And where would any
central court or courts be located? It will be interesting to note how the unitary patent package
develops. We discuss this further in Chapter 10.

Question

Can you think of a reasonable compromise? Is it the same as that in the unitary patent
package?

Free movement of goods and restrictions on anti-competitive practices

1.57 Another important influence of European law comes from certain key provisions in the TFEU.
Because of the potential for IPRs to interfere with the aims and smooth operation of the single market,
p. 19 the European Court of Justice (ECJ) as it was then had taken it upon itself to rule on the extent to
which the exercise of IPRs conflicts with European law, and to temper the scope of those rights as a
result. Attention has focused on the interpretation of what are now Articles 34, 36, and 345 TFEU.
Article 345 specifically reserves property law matters to the member states, including IP laws, but the
Court has interpreted this to mean that only the existence of such rights enjoys unfettered national
protection. The exercise of those rights may be curtailed if it represents an unjustified interference
with free trading practices. Articles 34 and 36 operate to prohibit unjustified restrictions upon what
can be imported and exported between member states. And, while Article 36 allows restrictions upon
imports if they are justified to protect ‘industrial or commercial property’, it will not do so if the
restriction which is imposed amounts to ‘arbitrary discrimination’ or ‘disguised restriction’ on trade
which is otherwise legitimate.

1.58 A common example of how the Court has taken all of these interpretations and applied them to
the exercise of IPRs is found in the context of parallel imports. While it is acceptable for an IP right
holder to exercise their right within a particular member state, they will be deemed to have
‘exhausted’ their right if they permit export to one or more member states, or exercise the right there
itself or allow the right to be exercised with their (free) consent. If, then, a third party who has
legitimate possession of protected goods in member state X wishes to re-import the goods into the IP
right holder’s country (undoubtedly at a lower price than they are being sold by the right holder), the
latter cannot prevent the former from doing so, as it would represent an unfair fetter on free trade.
The right holder is said to have exhausted their rights in this regard, and can no longer impose any
restrictions on the free circulation of those goods within the single market. Thus, in one sense the
scope of the IP right is modified, in that ‘the right to first market’ now forms part of the right but also
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 operates as a limitation on it. In all other senses, however, IPRs operate normally. Note, too, that these
restrictions only apply when the intellectual products have been first marketed by the right holder
themselves or with their ‘consent’, and this has led in turn to debate about the legal meaning of
52
consent, requiring further rulings by the ECJ (now CJEU). This is considered in more detail in
Chapter 19.

International exhaustion
1.59 All of this is done in the name of protecting the integrity of the single market, that is, in
regulating what happens within that market. But what is the position of the right holder who wants to
exercise his rights to prevent goods entering the single market from outside its borders? Well, the ECJ
has ruled that the principle of ‘international exhaustion’ does not apply to IPRs protected within the
European Economic Area (EEA) (the European Union plus the members of the European Free Trade
Association, namely Iceland, Liechtenstein, and Norway). Thus, when S, the manufacturer of designer
sunglasses, sold his previous year’s stock to a trader in Bulgaria—at that time outside the EU—it was
nonetheless able to use its trade mark right in respect of the sunglasses (Silhouette) to prevent an
Austrian retailer from buying the glasses cheaply and importing them back into the EEA to compete
53
with the right holder. This has been a very controversial decision, not least because it is seen to
favour the interests of manufacturers and IP holders over the interests of consumers, by keeping lower
cost, quality products out of the EU marketplace. Further, neither the product nor the mark is being
held out as anything other than that which it is, namely, the goods and mark of the IP holder. Thus, in
strict terms, has the trade mark right not served its function, which is to act as a mark of quality and a
badge of origin, albeit that there is conduct which is covered by the exclusive rights conferred on the
national trade mark owner? Again, we explore this, and other, controversial issues in this realm in
Chapter 19.

Anti-competitive practices
1.60 Articles 101 and 102 TFEU operate to ensure that free trade is not compromised by
unacceptable, restrictive or monopolistic practices. Article 101 prohibits, inter alia, the establishment
p. 20 and operation of cartels between enterprises which have as their object or effect the distortion or
prevention of competition in the single market. Article 102 concerns the abuse of a dominant position
within a particular market by any particular commercial enterprise, to the extent that it affects trade
between member states. This Article offers examples of how such an abuse might be affected; namely:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets, or technical development to the prejudice of consumers; (c) applying
dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a
competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other
parties of supplementary obligations which, by their nature or according to commercial usage, have no
connection with the subject of the contracts. Any agreements which contravene Article 101 or 102 are
void.

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 1.61 These provisions are policed by the European Commission, which can offer guidance on the fine
line between acceptable and unacceptable practices, as it has done, inter alia, by issuing ‘block
54
exemptions’ for certain types of agreement or terms in agreements. By the same token, the
Commission is also empowered to fine any undertaking which contravenes the terms of Articles 101
and 102.

1.62 The relevance of these provisions for IP right holders is seen most acutely in the context of
licensing. IP can be exploited through licences, which are simply agreements between the right holder
and third parties to determine how, when, where, and for how much the third party can exploit the IP
of the owner. Ordinarily, these licences are subject to domestic contract law, with the proviso that they
must also accord with Articles 101 and 102. Thus, the terms of these agreements are liable to scrutiny
by the Commission, although the granting of block exemptions has made it clearer as to which
provisions may or may not be included. Moreover, a refusal to enter an agreement with a third party to
exploit IP is not automatically a contravention of the TFEU, even though this might leave the right
55
holder with exclusive control of its IP in the market. In some rare circumstances, however, it may be
56
abuse of a dominant position to refuse to license. We discuss the margins of permissible and
impermissible conduct in Chapter 20.

Implications of the UK withdrawal from the European Union

As has been seen so far, there are strong links between UK IP law and EU law, from the
existence of unitary pan-European rights to harmonising Directives. At the time of writing in
late 2018 and production in 2019, the UK has triggered the process for it to leave the EU. If this
process is completed, it will inevitably have an impact on the issues explored in this book.

First, some background. An advisory referendum on EU membership was held in the UK in

57
2016, in which the majority of those who voted, chose ‘leave’. The UK government then chose,
in March 2017, to activate the process in Article 50 TFEU, pursuant to which the UK would
leave after two years—making the leave date 29 March 2019. A withdrawal agreement was
negotiated between the EU and UK to deliver ‘an orderly withdrawal’ and a transition period to
58
p. 21 31 December 2020. At the time ↵ of final writing, there is resistance as to whether this
agreement will be acceptable to the UK Parliament (it has been rejected three times by April
59
2019) and an extension has been granted to the leave date to 31 October 2019. These
developments are intertwined with arguments by some that the UK should revoke its notice
60
under Article 50 and remain in the EU, and by others that the UK should leave the EU without
61
any further agreement being reached regarding the withdrawal process. There is also an
62
agreed draft Political Declaration, which accompanies the withdrawal agreement. This sets
out the framework on which a new relationship between the UK and the EU, likely through a
new trade agreement, is to be negotiated.

Secondly, there is the question of the impact of ‘Brexit’ on IP and related issues. There are two
elements to this: what will happen internally to UK law; and what will happen externally.

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 Internally within the UK, the UK European Union (Withdrawal) Act 2018 (EUWA) provides that
the European Communities Act 1972, which has provided the legislative mechanism through
63
which EU law takes effect in the UK, will be repealed on the UK’s ‘Exit Day’. EU-derived
domestic legislation (say, the provisions of the Registered Designs Act 1949 (as amended) which
64
were implemented to give effect to the EU Designs Directive) will continue in domestic law.
65
Direct EU legislation (such as Regulations) will also continue to be part of domestic law.
However, this will be of no assistance in relation to EU IP rights such as EU trade marks or
Community designs, as they are defined in the relevant EU Regulations as covering the
territory of the EU—of which the UK will no longer be part. The EUWA confers power on the UK
government to pass primary and secondary legislation to make changes to retained laws—and
66
this is likely to be an area for future debate. The EWCA provides that the principle of
supremacy of EU law continues so far as relevant to any enactment or rule of law passed before
67
Exit Day, but not thereafter. The Charter of Fundamental Rights will also not be part of
68 69
domestic law on or after Exit Day. The Supreme Court is not bound by retained EU case law.
Courts in the UK are not bound by decisions of the CJEU on or after Exit Day and cannot make
new references to the CJEU; however, courts can have regard to anything done by the CJEU or
70
the EU in so far as relevant to a matter before it.

Externally, if the draft withdrawal agreement is accepted by the UK Parliament (which again is
by no means certain) the starting point is the proposed transition period the UK and EU
negotiate their future relationship. The draft withdrawal agreement provides that EU law
(legislation and the provisions of EU treaties—so including competition law and free movement)
71
p. 22 will be applicable in the UK ↵ during the transition period. The draft withdrawal
72 73
agreement also engages specifically with IP and makes some key points.

The holders of EU trade marks, Community registered designs, and Community plant
variety rights at the end of the transition period are to become holders of comparable
registered and enforceable national rights in the UK.

Owners of unregistered Community design rights are to be entitled to the same level of
protection in the UK.

Database rights will continue to have the same level of protection under UK law as they do
at present.

IP rights which were exhausted (through the free movement/IP interface) before the end
of the transition period will be exhausted in the EU and also in the UK.

The draft political declaration refers to IP; parties should protect and enforce IP to stimulate
innovation, creativity, and economic activity going beyond TRIPS (the Agreement on trade-
related aspects of intellectual property rights, 1994) and the WIPO conventions where relevant,
and parties are to maintain the freedom to establish their own regimes for exhaustion of IP
rights. The parties are also to have autonomy to regulate economic activity to achieve
legitimate public policy objectives, with reference made inter alia to public health, climate
change, privacy and data protection, and cultural diversity, and to ensuring a level playing field
74
for open and fair competition.

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 The draft withdrawal agreement and the draft political declaration do not refer to the Unified
Patent Court, although this had been a main focus of UK post Brexit proposals, notwithstanding
75
the Court’s reliance on the supremacy of EU law.

Brexit issues will be addressed in more depth as appropriate in the relevant sections of this
book, again in specially headed textboxes. It is likely that during the currency of this book there
will be further developments—of whatever nature. For now, one can only echo the comments of
76
the EU:

The withdrawal of the United Kingdom from the European Union will create
uncertainty for UK and EU27 stakeholders alike in relation to the scope of protection in
the United Kingdom of certain intellectual property rights; to the treatment of
applications for certain rights and to the exhaustion of rights conferred by intellectual

p. 23 property rights. This uncertainty will significantly affect the conditions ↵ under
which goods that are placed on the market in the Union before the withdrawal date
could continue to circulate between the EU27 and the UK.

To this, add the potential for divergence between decisions of the CJEU and courts in
jurisdictions in the UK. In future editions of this book, the content of the EU-related sections
may be in a different form. But they will continue to be an important part of the legal and
practical landscape for innovators and creators.

International obligations
1.63 The EU has its own particular agenda for interfering with the exercise of IPRs and guiding their
future development. However, beyond this particularised regional influence, other agendas have
operated for well over a century, and today a large number of internationally imposed obligations
mould the nature and content of IPRs and ultimately determine the direction of IP law.

1.64 Although it has been the tradition of IP law to protect rights first and foremost at the national
level, the international possibilities for the exploitation of IP have long been appreciated. Markets do
not recognise territorial boundaries, and IP producers will always gravitate towards a potential
market. And, as international trade became a more realistic possibility with the advent of the industrial
revolution in the nineteenth century, so too industrialised nations realised that disparities between
markets in terms of IP protection could have an adverse impact on the rights of their IP producers and,
in turn, on their own economic interests. In a spirit of economic reciprocity, then, a number of
countries sought to establish multilateral treaties to minimise these adverse effects. The first
instruments to emerge were the Paris Convention for the Protection of Industrial Property (1883), and
the Berne Convention for the Protection of Literary and Artistic Works (1886).

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 Paris Convention for the Protection of Industrial Property (1883, as revised)

The protection of ‘industrial property’ has as its objects patents, utility models,
industrial designs, trade marks, service marks, trade names, indications of source or
appellations of origin and the repression of unfair competition.

Berne Convention for the Protection of Literary and Artistic Works (1886, as
revised)

The expression ‘literary and artistic works’ shall include every production in the
literary, scientific and artistic domain, whatever may be the mode or form of its
expression, such as books, pamphlets and other writings; lectures, addresses, sermons
and other words of the same nature; dramatic or dramatico-musical works;
choreographic works and entertainments in dumb show; musical compositions with or
without words; cinematographic works to which are assimilated works expressed by a
process analogous to cinematography; works of drawing, painting, architecture,
sculpture, engraving and lithography; photographic works to which are assimilated
works expressed by a process analogous to photography; works of applied art;
illustrations, maps, plans, sketches and three-dimensional works related to geography,
topography, architecture or science.

Question

Why two conventions and not one? What differentiates ‘industrial property’ under the Paris
Convention from the entities protected under the Berne Convention? Does this remain a
meaningful distinction in the modern age?

p. 24 1.65 Signatory countries to these conventions undertook to provide two key elements of protection.
The first is national treatment of foreigners, which, as the name suggests, means that any entity
seeking protection in a signatory country beyond their own shores must be dealt with on the same
terms as if they were a national of that country. Secondly, these instruments sought to establish certain
baselines of protection, as the previous definitions indicate, to ensure that the same kinds of ‘property’
were protected in the various party states. The obligation to provide this level of protection is,
however, very broadly drafted. For example, the UK does not have a specific law to guard against
unfair competition, yet the argument is made that the UK nonetheless complies with its international
obligations under the Paris Convention in a piecemeal fashion, inter alia, because of the existence of
common law actions such as passing off and breach of confidence considered in Chapters 16 and 17.

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 Discussion point

For answer guidance visit www.oup.com/uk/brown5e <http://www.oup.com/uk/brown5e>.

What does protection against unfair competition mean? Do you think that the UK maintains a
defensible position in this regard? Would it be preferable to institute a specific law in this area?
Reconsider the question after you have read Chapter 16.

1.66 In summary, two main themes typify international agreements on IP protection: (1) access to
protection and ‘national treatment’ for foreigners; and (2) minimum (harmonised) standards of
protection to be offered by national laws.

1.67 The Paris and Berne Conventions, and indeed many other instruments, are administered by
77
WIPO in Geneva. Disputes and compliance measures may be dealt with through the International
Court of Justice.

TRIPS Agreement (Agreement on trade-related aspects of intellectual property rights,

1994)
1.68 The TRIPS Agreement was included in the Accord which finalised the Uruguay Round of the
General Agreement on Tariffs and Trade, establishing the World Trade Organization (WTO) in 1994.
TRIPS touches all the major forms of IPR and is administered by the World Trade Organization, also
based in Geneva. Importantly, states which do not comply with the provisions of TRIPS may face
proceedings before the WTO dispute settlement system. A variable timescale for implementing TRIPS
continues to operate to ensure that developing and least developed countries have a transitional period
in which to bring their laws into compliance with the Agreement.

1.69 TRIPS is similar to the Paris and Berne Conventions in that it provides for national treatment
and seeks to harmonise basic IP provisions. However, in other respects it goes far beyond its
nineteenth-century counterparts. For example, TRIPS puts more flesh on the bones of the elements of
protection required of signatory countries, as we shall see in each of the chapters to come that deal
with the substantive law. Moreover, TRIPS ties these countries into many of the essential terms of the
Paris and Berne Conventions, even if they are not signatories to them, thereby considerably extending
78
the reach of these instruments.

1.70 The motivation for the implementation of TRIPS is almost entirely economic. It was driven by the
concerns of Western industrialised countries, and most notably the United States, which could not
countenance the multi-billion-dollar trade in unauthorised IP that had developed over the years,
despite the existence of the Paris and Berne Conventions. One of the problems was that these
Conventions had not attracted universal support, and in particular many of the countries where illicit
p. 25 trading was taking place were not signatories to them, and so were not subject to their terms. How
then to implement a regime that could bring offending states under its influence? The answer was
trade. By linking TRIPS to trade, and so thereby bringing all signatory states under the auspices of the
WTO, the relevant politicians and governments in control have been able to establish a system which is

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 almost impossible to resist. No state in the modern world can develop without international trade; and
so tight is the hold on that regime through the WTO, that no state can fail to sign up, and thereby
become obliged to comply with TRIPS. The real stroke of economic genius has been to link non-
compliance with TRIPS to the withdrawal of WTO privileges and the prospect of trade sanctions in the
79
event of an adverse ruling by the WTO—which could potentially cripple a state’s entire economy. And
if there is a potential clash between TRIPS and the priorities of other regimes which have less effective
enforcement measures, this may lead to countries choosing to follow the TRIPS requirements—or
indeed, how some large countries which host IP owners would prefer these requirements to be
interpreted.

1.71 Finally, despite the power available for IP owners as a result of TRIPS, there has also been an
increase in bilateral and regional trade agreements which require that states provide other parties
with higher levels of protection than is required or enabled by TRIPS. Given the national treatment
80
requirement, this can lead to higher levels of protection in a state’s IP laws as a whole. This is known
as the phenomenon of TRIPS-plus. Similar themes were seen when several developed countries led
secret negotiations of the Anti-Counterfeiting Trade Agreement (ACTA). Activist groups, with a focus
81
on access to knowledge and innovation, led strong challenges to this, and its content became more
82
moderate; ultimately, several countries, including the EU, refused to ratify ACTA. Undeterred, IP has
also formed part of (further) secret trade agreements, for example the Trans-Pacific Partnership, which
83
was agreed in October 2015. Another issue receiving significant attention and objection is
agreements including investor state dispute settlement chapters, enabling IP owners to challenge
84
directly state action. The relationship between IP, trade, and investment is constantly evolving. In
85
2018 the Comprehensive Trans-Pacific Partnership (largely superseding the Trans-Pacific Partnership
86
which did not come into force) and the Comprehensive Economic and Trade Agreement have more
measured approaches to IP and also to investor state dispute settlement. Assuming Brexit comes
about, these types of agreements will be particularly important to the UK in its future international
dealings.

Other international instruments

1.72 This has clearly not been an exhaustive account of the international measures which impact on
IP law. It is not intended to be. Rather, this overview should give a good idea of the influences which
international measures have on the discipline. Bear these in mind as you proceed through this book.
For the sake of completeness, however, note too that there are many other international instruments
which exist in this realm. We will consider them where this is relevant in the forthcoming chapters.

p. 26 Patents

Patent Cooperation Treaty, Washington 1970

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the
Purposes of Patent Procedure, 1977

Copyright

WIPO Copyright Treaty, 1996, and associated Agreed Statements

Marrakech Treaty to Facilitate Access to Published Works for Persons with Visual Impairment
(2013)

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 Designs

Hague Agreement concerning the International Registration of Industrial Designs, 1925, as

revised

Trade marks

Trade Mark Law Treaty, Geneva 1994

Appellations of origin

Lisbon Agreement for the Protection of Appellations of Origin and their International
Registration (1958, as revised)

Performers’ rights

WIPO Performances and Phonograms Treaty, 1996, and Agreed Statements

Rome Convention for the Protection of Performers, Producers of Phonograms and

Broadcasting Organizations (1961)

The Beijing Treaty on Audiovisual Performances 2012 (adopted June 2012, not yet in force)

Geneva Convention for the Protection of Producers of Phonograms against Unauthorized

Duplication of their Phonograms, 1971

Integrated circuits

Treaty on Intellectual Property in Respect of Integrated Circuits, 1989

Intellectual property and human rights

1.73 A final influence on the possible development of IP law comes once again from the international
plane, although this time the forces at work may be pulling in different directions. The European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950) was a post-war
initiative by the Council of Europe designed to prevent a repeat of the atrocities of the era that had
gone immediately before. Its general approach was to establish fundamental, and largely negative,
rights for individuals against the state: rights of non-interference. Over the years a rich and complex
jurisprudence has grown around the Articles of the Convention through the work of the European
Court of Human Rights in Strasbourg, but for the most part its rulings have only touched the lives of
UK citizens indirectly, because successive governments had refused to make the terms of the
Convention part of domestic law. The Human Rights Act 1998 came into full force in October 2000
heralding an explosion in speculation and litigation about the possible impact of human rights in every
87
conceivable area of law, including IP law. The place of human rights within the discussion of IP was
88
strengthened further (although again with uncertain impact) through the Lisbon Treaty, which
includes the Charter of Fundamental Rights. Article 17(2) provides that ‘Intellectual property shall be
protected’, in addition to potentially conflicting provisions, such as in respect of freedom of expression.
89
p. 27 Further, negotiations are ongoing for the EU to become a party to the Convention. In December
90
2014, however, the CJEU held that the agreement as drafted was incompatible with EU law. The next
91
step remains to be seen.

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1.74 The existence of IP, its infringement, business, and societal impact (in particular in complex
areas such as health, communications, and the environment), the interaction between IP and other
interests, and the conflicts between IP owners, access seekers, and activists, will be explored in more
detail in the following chapters.

Further reading

Books
WR Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (2004)

GB Dinwoodie and RC Dreyfuss, A Neofederalist Vision of TRIPS (2012)

P Drahos, A Philosophy of Intellectual Property (1996)

P Drahos with J Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (2003)

P Drahos and R Mayne, Global Intellectual Property Rights: Knowledge, Access and
Development (2002)

G Ghidini, Intellectual Property, Competition and Consumer Welfare in Intellectual Property Law
(2010)

HR Howe and J Griffiths, Concepts of Property in Intellectual Property Law (2013)

D Llewelyn and T Aplin, Cornish, Llewelyn and Aplin Intellectual Property: Patents, Copyright,
Trade Marks and Allied Rights (9th edn, 2019)

MR Pugatch, The Intellectual Property Debate: Perspectives from Law, Economics and Political
Economy (2006)

B Sherman and L Bently, The Making of Modern Intellectual Property (1999)

B Sherman, L Bently, and D Gangjee, P Johnson Intellectual Property (5th edn, 2018)

U Suthersanen, G Dutfield, and KB Chow (eds), Innovation Without Patents: Harnessing the
Creative Spirit in a Diverse World (2007)

Reports
Report of UK Commission on Intellectual Property Rights (2002)
www.iprcommission.org <http://www.iprcommission.org>

Articles and lectures

E Cameron and J Berger, ‘Patents and public health: principle, politics and paradox’, Inaugural
British Academy Law Lecture, https://script-ed.org/wp-content/uploads/2016/07/1-4-
Cameron.pdf <https://script-ed.org/wp-content/uploads/2016/07/1-4-Cameron.pdf>

E Derclaye, ‘Should patent law help cool the planet? An inquiry from the point of view of
environmental law’, Part 1: (2009) 31(3) EIPR 168 and Part 2: (2009) 31(5) EIPR 227

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 C Geiger, ‘Fundamental rights—a safeguard for the coherence of intellectual property
law’ (2004) 35 IIC 268

EC Hettinger, ‘Justifying intellectual property’ (1989) 19 Philosophy and Public Affairs 31

R Jacob, ‘Is intellectual property the grit in the wheels of industry?’ (2012) 2 UCL JL and J 1(2)
1–14

A Kur, ‘A new framework for intellectual property rights—horizontal issues’ (2004) 35 IIC 1

Sir H Laddie, ‘National IP rights: a moribund anachronism in a federal Europe?’ (2001) 23(9)
EIPR 402

M Lemley, ‘Ex ante versus ex post justifications for intellectual property’ (2004) 71 University of
Chicago Law Review 129 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=494424 <http://
p. 28 papers.ssrn.com/sol3/papers.cfm?abstract_id=494424> ↵

K Maskus and J Reichman, ‘The globalisation of private knowledge goods and the privatization
of global public goods’ (2004) 7 JIEL 279–320

C Oguamanam, ‘IP in global governance: a venture in critical reflection’ (2011) WIPOJ 2(2) 196–
216

D Vaver, ‘Intellectual property: still a “bargain”?’ (Editorial) (2012) 34(9) EIPR 579–86

K Weatherall, ‘Intellectual property in the TPP: not “The New TRIPS”’ (2016) 17(2) Melbourne J
Int Law 1–29.

PK Yu, ‘Currents and crosscurrents in the international intellectual property regime’ (2004) 38
Loyola of Los Angeles Law Rev 323

Radio
Clive Anderson, ‘Unreliable Evidence’www.bbc.co.uk/programmes/b00zsjzf <http://
www.bbc.co.uk/programmes/b00zsjzf>

Ongoing updates
The IPKat blog at http://ipkitten.blogspot.com <http://ipkitten.blogspot.com> (also Twitter feed)

IPWatch at www.ip-watch.org <http://www.ip-watch.org> (also Twitter feed)

WIPO consideration of protection of Traditional Knowledge at www.wipo.int/tk/en/tk <http://

www.wipo.int/tk/en/tk>

Notes

1 www.ipo.gov.uk/pro-home.htm <http://www.ipo.gov.uk/pro-home.htm>.

2 www.european-patent-office.org <http://www.european-patent-office.org>.

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3 Other important patent offices are the US Patent and Trademark Office at www.uspto.gov <http://
www.uspto.gov> and the Japanese Patent Office at www.jpo.go.jp <http://www.jpo.go.jp>.

4 http://oami.europa.eu/ows/rw/pages/index.en.do <http://oami.europa.eu/ows/rw/pages/
index.en.do>.

5 The meaning of ‘intellectual property’ was considered by the Supreme Court (Phillips v News Group
Newspapers [2012] UKSC 28) in the context of a legislative privilege against self-incrimination (section 72 Senior
Courts Act 1981). The Supreme Court held that, for these purposes only, all technical or commercial information which
is confidential would be treated as intellectual property.

6 Directive 2016/943 on the protection of undisclosed know how and business information against their unlawful
acquisition, use and disclosure.

7 Council Regulation (EC) No. 2100/94 of 27 July 1994 on Community plant variety rights (as amended).

8 UPOV Convention for the Protection of New Varieties of Plants 1961, 1991.

9 A possible variation on this occurs with the protection of confidential information, which need not be in written
form to be protected but must nevertheless be sufficiently identifiable to merit protection. See Chapter 17.

10 Bell, Commentaries, I, 103.

11 R Mullin, ‘Cost to develop new pharmaceutical drug now exceeds $2.5B’ (24 November 2014)
www.scientificamerican.com/article/cost-to-develop-new-pharmaceutical-drug-now-
exceeds-2-5b <http://www.scientificamerican.com/article/cost-to-develop-new-pharmaceutical-
drug-now-exceeds-2-5b>.

12 See HM Government, ‘Industrial strategy. Building a Britain fit for the future’ (2017) www.gov.uk/government/
uploads/system/uploads/attachment_data/file/662508/industrial-strategy-white-
paper.pdf <http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/
662508/industrial-strategy-white-paper.pdf>.

13 See, eg, Re Masterman’s Application [1991] RPC 89 (registered designs); Re Hack’s Application (1941)
58 RPC 91 (trade marks).

14 See Coco v AN Clark (Engineers) Ltd [1969] RPC 41, and Attorney General v Guardian
Newspapers (No 2) [1990] 1 AC 109. Note also Glyn v Weston Feature Films [1916] 1 Ch 261 (copyright).

15 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Protocol 1, Art 1:
‘Every natural person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions provided for by law and by the general
principles of international law.’

16 Article 345 TFEU states: ‘The Treaties shall in no way prejudice the rules in Member States governing the system of
property ownership.’ See also Art 17 EU Charter.

17 This is the UK IPO Office in the UK.

18 Patents Act 1977, s 48.

19 Copyright, Designs and Patents Act 1988, s 237.

20 Patents Act 1977, ss 55–58; Registered Designs Act 1949, s 12 and Sch 1.

21 Patents Act 1977, s 57A; Registered Designs Act 1949, Sch 1 para 2A.

22 Copyright, Designs and Patents Act 1988, s 29.

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23 Copyright, Designs and Patents Act 1988, s 30.

24 Copyright, Designs and Patents Act 1988, ss 32–36.

25 Trade Marks Act 1994, s 10(6), although note decision of the Court of Appeal in O2 Holdings Ltd v Hutchison
3G Ltd [2006] EWCA Civ 1656; [2006] ETMR 55 regarding this provision.

26 See www.gov.uk/government/uploads/system/uploads/attachment_data/file/32563/ipreview-
finalreport.pdf <http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/
32563/ipreview-finalreport.pdf>.

27 See www.gov.uk/government/publications?departments%5B%5D=intellectual-property-
office&publication_filter_option=consultations <http://www.gov.uk/government/publications?
departments%5B%5D=intellectual-property-office&publication_filter_option=consultations>.

28 Patents Act 1977, s 60.

29 Patents (Fees) Rules 2007 (SI 2007/3292).

30 A notable exception to this is the Supplementary Protection Certificate (SPC). These certificates can be granted in
respect of ‘medical products’ and ‘plant protection products’ to extend legal protection for a further five years at the
end of the initial 20-year period of patent protection. The market lead-in time for such products is often prolonged
because of the requirement to subject them to regulatory and safety controls in the public interest. This results in a
net reduction in the effectiveness of any patent that is granted, and the SPC addresses this. Both forms of SPC operate
under European Regulations (Regulation 469/2009 (medicinal products) 1992 OJ L182/1; Regulation 1610/96 (plant
protection products) 1996 OJ L198/30).

31 Defined in Copyright, Designs and Patents Act 1988, s 263(1).

32 De Maudsley v Palumbo and Others [1996] FSR 447.

33 Trade Marks Act 1994, s 95.

34 See WR Cornish, ‘The international relations of intellectual property’ (1993) 52 CLJ 46.

35 The term of copyright protection was made uniform by Council Directive 93/98/EEC of 29 October 1993
harmonising the term of protection of copyright and certain related rights.

36 Treaty of Lisbon 2007/C OJ 306 17 December 2007, Art 84 inserts a new Art 97A into the Treaty on European Union,
which became Art 118. For discussion as to the possible impact of this, see W Kingston, ‘Intellectual property in the
Lisbon Treaty’ (2008) 30(11) EIPR 439–43.

37 Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the member states relating to trade
marks as codified in Directive 2008/95/EC of 22 October 2008, recast in Directive (EU) 2015/2436.

38 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, and Council Regulation (EC)
No 207/2009 of 26 February 2009 on the Community trade mark (codified version) and amended by Regulation (EU)
2015/2424 then codified in Regulation (EU) 2017/1001.

39 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of
databases.

40 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of
biotechnological inventions.

41 Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of
designs.

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42 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.

43 Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain
related rights, which was replaced by Directive 2006/116/E, a consolidated version, which has now been amended by
Directive 2011/77/EU.

44 There are currently 38 signatories to the EPC, including the 28 member states of the EU (as at late 2018—see lists at
www.epo.org/about-us/organisation/member-states.html <http://www.epo.org/about-us/
organisation/member-states.html>).

45 See n 42.

46 See n 4.

47 See n 4.

48 Convention for the European Patent for the Common Market (Community Patent Convention) (Luxembourg, 1975,
revised 1989).

49 Commission Proposal for a Council Regulation on the Community Patent, COM(200) 412 final.

50 [2011] 3 CMLR 4.

51 See details on http://ec.europa.eu/growth/industry/intellectual-property/patents/unitary-patent/

index_en.htm <http://ec.europa.eu/growth/industry/intellectual-property/patents/unitary-patent/
index_en.htm>.

52 See, eg, Joined Cases C-414/99, C-415/99, and C-416/99 Zino Davidoff SA v A & G Imports Ltd and Levi
Strauss & Co and Others v Tesco Stores Ltd and Others, Judgment of the Court, 20 November 2001.

53 See Silhouette International Schmied GmbH & Co KG v Hartlauer Handelsgellschaft mbH

[1998] ECR I-4799.

54 The current block exemption most relevant to intellectual property is Commission Regulation (EU) No 316/2014 of
21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to
categories of technology transfer agreements text with EEA relevance OJ L 93/17 of 23 March 2014.

55 AB Volvo v Erik Veng (UK) Ltd [1988] ECR 6211.

56 The first landmark case is Radio Telefis Eireann v EC Commission [1991] ECR II-485.

57 For a contemporaneous analysis of the reasons for the holding of the referendum, see Financial Times, ‘What is
Brexit and why is the referendum being held’ (22 February 2016) www.ft.com/content/a23ce766-
d0ed-11e5-831d-09f7778e7377 <http://www.ft.com/content/a23ce766-
d0ed-11e5-831d-09f7778e7377>.

58 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European
Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European
Council on 25 November 2018 at https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/
759019/25_November_Agreement_on_the_withdrawal_of_the_United_Kingdom:of_Great_Britain_
and_Northern_Ireland_from:the_European_Union_and_the_European_Atomic_Energy_Communit
y.pdf <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/

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 759019/25_November_Agreement_on_the_withdrawal_of_the_United_Kingdom:of_Great_Britain
_and_Northern_Ireland_from:the_European_Union_and_the_European_Atomic_Energy_Communi
ty.pdf> (‘Withdrawal Agreement’), see Preamble para 5, 2 and Art 126.

59 For a useful summary of the processes and the issues, see K Ziegler, ‘Brexit: what has to happen in UK and EU
parliaments to ratify withdrawal and future trade agreements’ (19 November 2018) http://theconversation.com/
brexit-what-has-to-happen-in-uk-and-eu-parliaments-to-ratify-withdrawal-and-future-trade-
agreements-107127 <http://theconversation.com/brexit-what-has-to-happen-in-uk-and-eu-
parliaments-to-ratify-withdrawal-and-future-trade-agreements-107127>. See also Conclusions of
Special Meeting of the European Council (Art 50) (10 April 2019) EUCO XT 20015/19.

60 Wightman and Others v Secretary of State for Existing the European Union C- 621/18 finding that
the Article 50 notice could be unilaterally revoked by the UK.

61 For reflection on this and possible consequences, see I Glinavos and A Shipman, ‘No-deal Brexit: experts on what
the UK government’s advice means’ (24 August 2018) https://theconversation.com/no-deal-brexit-experts-
on-what-the-uk-governments-advice-means-102074 <https://theconversation.com/no-deal-brexit-
experts-on-what-the-uk-governments-advice-means-102074>.

62 Draft political declaration setting out the framework for the future relationship between the United Kingdom and
the European Union (22 November 2018) www.gov.uk/government/publications/draft-political-
declaration-setting-out-the-framework-for-the-future-relationship-between-the-european-union-
and-the-united-kingdom-agreed-at-negotia <http://www.gov.uk/government/publications/draft-
political-declaration-setting-out-the-framework-for-the-future-relationship-between-the-
european-union-and-the-united-kingdom-agreed-at-negotia> (‘Political Declaration’).

63 EUWA 2018, s1.

64 7(1) EUWA 2018, s2(1), 7(1).

65 EUWA 2018, s3(1).

66 EUWA 2018, s7(2), (3), 8, Sch 8 in particular para 3.

67 EUWA 2018, s5(1) and (2).

68 EUWA 2018, s5(4).

69 EUWA 2018, s6(4).

70 EUWA 2018, s6(1), (2).

71 Withdrawal Agreement, Art 127.

72 Withdrawal Agreement, Titles IV and VII.

73 Of possible interest might be the documents released by the EU and the UK on IP. From the UK, HM Government,
‘The Future Relationship between the United Kingdom and the European Union’ Cm 9593 (July 2018) https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
725288/
The_future_relationship_between_the_United_Kingdom:and_the_European_Union.pdf <https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
725288/The_future_relationship_between_the_United_Kingdom:and_the_European_Union.pdf>,
see 42 para 128(h) and 46–7 paras 149–152; UK, ‘Trade marks and designs if there’s no Brexit deal’ (17 January 2019)
www.gov.uk/government/publications/trade-marks-and-designs-if-theres-no-brexit-deal <http://

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 www.gov.uk/government/publications/trade-marks-and-designs-if-theres-no-brexit-deal> (24
September 2018); UK, ‘Patents if there’s no Brexit deal’ (24 September 2018) www.gov.uk/government/
publications/patents-if-theres-no-brexit-deal <http://www.gov.uk/government/publications/
patents-if-theres-no-brexit-deal>; UK, ‘Exhaustion of intellectual property rights if there’s no Brexit deal’ (24
September 2018) www.gov.uk/government/publications/exhaustion-of-intellectual-property-rights-if-
theres-no-brexit-deal/exhaustion-of-intellectual-property-rights-if-theres-no-brexit-deal <http://
www.gov.uk/government/publications/exhaustion-of-intellectual-property-rights-if-theres-no-
brexit-deal/exhaustion-of-intellectual-property-rights-if-theres-no-brexit-deal>; and UK, ‘Copyright if
there’s no Brexit deal’ (24 September 2018) www.gov.uk/government/publications/copyright-if-theres-no-
brexit-deal/copyright-if-theres-no-brexit-deal <http://www.gov.uk/government/publications/
copyright-if-theres-no-brexit-deal/copyright-if-theres-no-brexit-deal>.
⤴
From the EU, see Position paper transmitted to EU27 on Intellectual property rights (including geographical
indications) (6 September 2017) https://ec.europa.eu/commission/publications/position-paper-
transmitted-eu27-intellectual-property-rights-including-geographical-indications_en <https://
ec.europa.eu/commission/publications/position-paper-transmitted-eu27-intellectual-property-
rights-including-geographical-indications_en> and Position paper TF50(2017)11/2 Commission to the UK (20
September 2017); TF50 (2018) 33 Commission to EU 27 (28 February 2018), see Title IV 30–35 Arts 50–57.

74 Political Declaration, paras 8–10, 17–18, Parts II, VII, and XIV.

75 HM Government, ‘The Future Relationship between the United Kingdom and the European Union’ Cm 9593 (July
2018) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/725288/
The_future_relationship_between_the_United_Kingdom:and_the_European_Union.pdf <https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
725288/The_future_relationship_between_the_United_Kingdom:and_the_European_Union.pdf>,
see 42 para 128(h) and 46–7 paras 150–151; UK, ‘Patents if there’s no Brexit deal’ (24 September 2018) www.gov.uk/
government/publications/patents-if-theres-no-brexit-deal <http://www.gov.uk/government/
publications/patents-if-theres-no-brexit-deal>; and HM Government, ‘The Future Relationship between the
United Kingdom and the European Union’ CM 9593 para 128(h), 150–152. See also House of Lords European Union
Committee, ‘Brexit: the Withdrawal Agreement and Political Declaration’, HL Paper 245 (4 December 2018) para 231.

76 Position paper TF50 (2017) 11/2 Commission to the UK (20 September 2017) 2.

77 For more information on international treaties and agreements, see the WIPO website at
www.wipo.org <http://www.wipo.org>.

78 TRIPS (1994), Arts 2 and 9.

79 For further discussion, see F Ravida, ‘Influence of WTO decisions on international intellectual property’ (2008) 3(5)
JIPLP 314–26 and D Gervais, The TRIPs Agreement: Drafting History and Analysis (4th edn, 2012).

80 D Vivas Eugui and J von Braun, ‘Beyond FTA negotiations: implementing the new generation of intellectual
property obligations’ at 113 and P Drahos, ‘Doing deals with Al Capone: paying protection money for intellectual
property in the global knowledge economy’ at 141 in P Yu (ed), Intellectual Property and Information
Wealth: Issues and Practices in the Digital Age. Volume 4: International Intellectual Property
Law and Policy (2007).

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81 PK Yu, ‘Six secret (and now open) fears of ACTA’ (2011) 64 SMU Law Rev 975; discussion on ACTA FFII Blog at
http://acta.ffii.org/?p=633 <http://acta.ffii.org/?p=633>; see also www.ustr.gov/acta <http://
www.ustr.gov/acta> (including text).

82 European Parliament News, ‘Everything you need to know about ACTA’ (18 July 2012)
www.europarl.europa.eu/sides/getDoc.do?type=IM-
PRESS&reference=20120220FCS38611&format=XML&language=EN <http://
www.europarl.europa.eu/sides/getDoc.do?type=IM-
PRESS&reference=20120220FCS38611&format=XML&language=EN>.

83 For criticism of this, see www.eff.org/issues/tpp <http://www.eff.org/issues/tpp> (which compares the

agreement to ACTA) and for a supportive approach, see www.ustr.gov/tpp <http://www.ustr.gov/tpp>.

84 See consideration in IP Watch, ‘Inside views: how the leaked TPP ISDS chapter threatens intellectual property
limitations and exceptions’ (26 March 2015) www.ip-watch.org/2015/03/26/how-the-leaked-tpp-isds-
chapter-threatens-intellectual-property-limitations-and-exceptions <http://www.ip-watch.org/
2015/03/26/how-the-leaked-tpp-isds-chapter-threatens-intellectual-property-limitations-and-
exceptions>.

85 www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-agreements-in-force/
cptpp <http://www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-agreements-in-force/
cptpp>.

86 See http://ec.europa.eu/trade/policy/in-focus/ceta/index_en.htm <http://ec.europa.eu/trade/

policy/in-focus/ceta/index_en.htm>.

87 Ashdown v Telegraph Newspapers [2001] 4 All ER 666. See also for a theoretical exploration of human
rights in the context of copyright, STM Newman, ‘Human rights and copyrights: a look at practical jurisprudence with
reference to authors’ rights’ (2009) 31(2) EIPR 88.

88 See N MacCormick, ‘Human rights and competition law: possible impact of the proposed EU Constitution’ (2005)
2(4) SCRIPTed 444 (https://script-ed.org/wp-content/uploads/2016/07/2-4-MacCormick.pdf) <https://
script-ed.org/wp-content/uploads/2016/07/2-4-MacCormick.pdf)> and C Geiger, ‘Intellectual property
shall be protected!? Article 17(2) of the Charter of Fundamental Rights of the European Union: a mysterious provision
with an unclear scope’ (2009) 31(3) EIPR 113.

89 See, eg, existing presumptions of compliance, C Banner and A Thomson, ‘Human rights review of state acts
performed in compliance with EC law—Bosphorus Airways v Ireland’ (2005) 6 EHRLR 649.

90 Opinion 2/13 [2015] 2 CMLR 21: key points were the impact on autonomy, coordination between the ECHR and the
EU Charter, and the level of external control which would be involved.

91 See sources at www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-

rights/file-completion-of-eu-accession-to-the-echr <http://www.europarl.europa.eu/legislative-
train/theme-area-of-justice-and-fundamental-rights/file-completion-of-eu-accession-to-the-echr>.

© Abbe Brown, Smita Kheria, Jane Cornwell, and Marta Iljadica 2019

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