THE ACCESS CHALLENGE IN THE 21ST CENTURY: EMERGING ISSUES IN INTELLECTUAL PROPERTY LAWS AND KNOWLEDGE GOVERNANCE

On May 18-19, 2012 more than 100 specialists in Intellectual Property (IP) Law gathered at Bucerius Law School, in Hamburg, Germany, for two days of stimulating presentations and thought-provoking discussions on some of the hottest topics in IP law. For Bucerius Law School this event also marked the inauguration of its new IP Center, the Center for Transnational IP, Media and Technology Law and Policy.

DAY ONE

The conference was opened with a short ceremony in which Professor Dr. Dres. h.c. Karsten Schmidt, the President of Bucerius Law School, handed an oversized key to Professor Dr. Dana Beldiman, the Center’s Director, to symbolize both the opening of the Center and the opening of minds.

The introductory keynote given by Roger Kampf (World Trade Organization) emphasized that as a result of knowledge becoming increasingly central to all areas of endeavor in our society, the importance of IP law to the global economy is rapidly growing.

Session I: Compulsory Licensing to Facilitate Access

Chair Professor Michael W. Carroll (American University Washington) opened the first session by introducing two different approaches to IP entitlements: property rules, as rights to stop third parties’ use, and liability rules, as rights to compensation. In his keynote, Professor Dr. Reto M. Hilty (Managing Director Max Planck Institute for Intellectual Property and Competition Law) approached IP entitlements from a liability rule perspective. He suggested that the compulsory license, because it does not follow the binary (protected/not protected) nature IP of rights, could successfully avoid both over- and underprotection. Compulsory licenses are currently underused because of the high transaction costs they entail. However, if supported by additional “flanking” measures, including provisional remedies and means of determining fair and reasonable compensation, compulsory licenses could successfully meet the challenge of balancing adequate protection and freedom of access. In endorsing Hilty’s approach, Professor Dan L. Burk (UC Irvine) pointed to several other options based on liability rules, such as the reverse liability rule, options which remain largely unexplored in scholarly IP literature. Dr. Lucie Guibault (University of Amsterdam) preferred a voluntary, open model, indicating that the wide-spread use of Creative Commons type licenses is evidence of the fact that they answer the needs of both creators and users. Professor Dr. Matthias Leistner (University of Bonn) presented a court-crafted license, criticizing the German decision that held that placing content on the Internet without technical protection amounts to an implied license. According to Leistner, this outcome constitutes de facto exhaustion of copyright online and should have been referred to the European Court of Justice.

Session II: Science and Digital Hurdles to Access

The second session, chaired by Professor Dr. Dana Beldiman (Bucerius Law School), examined hurdles to access of scientific, research and public sector data. Professor Jerome H. Reichman’s (Duke University) keynote deplored the emergence of a science-hostile copyright environment, as a result of scientific publishers’ restrictive business models. This environment, he argued, threatens the scientific community’s ability to access, use and reuse digital scientific data. However Reichman expressed faith in the countervailing measures initiated by the scientific community in managing its own upstream research assets. Next, Professor Dr. Geertrui Van Overwalle (KU Leuven) raised the question of access to digital research data from a patent law perspective. She explained that patent research exceptions do not meet the access needs of globalized research, as they differ considerably among jurisdictions, being quite narrow in some instances, such as the U.S. To cater to open innovation and collaboration, Van Overwalle suggested a “zero price liability rule” in the form of a voluntary research exception, to be used within the research community, as part of standard open licenses. As Professor Dr. Axel Metzger (University of Hanover) pointed out, however, transnational use of open license agreements presents considerable difficulties. In the specific case of copyright open access licenses, even though much work has gone into nationally adapting (“porting”) them, their use in a global context remains difficult. Instead, Metzger suggested that open access licenses could be conceptualized as part of a new lex mercatoria of the scientific community. Finally, Professor Marco Ricolfi (University of Torino) discussed the regime of public sector information (PSI) - geographical, climate or cadastral data, which can serve as important input for creative new products, such as mobile location-based services, e.g. to find the closest restaurant. Even though generated with public funds, these data remain inaccessible to the EU public due to an overlapping system of regulations. Ricolfi argued that various initiatives and the emergence of digital-platform-driven cooperation will render these data increasingly accessible. An initiative, known as LAPSI, is underway in this direction.

Session III: Access to the Marketplace

Dr. Leopold von Gerlach (Hogan Lovells International LLP), chair of the third session, introduced the need for ensuring a balance between the scope of trademark protection and free access to a competitive market. Professor Dr. Graeme Dinwoodie’s (University of Oxford) keynote offered a comparative perspective of the way in which U.S. and EU courts have used the trademark functionality doctrine - barring essential features of shapes and 3-dimensional objects from trademark protection in specific cases - as a means of enhancing access to the market. To address the gray areas remaining in this field, Dinwoodie considered the option of a “thin” trademark, to protect against copying only. Professor Stacey L. Dogan (Boston University) instead suggested that a competitive market would be better served by expanding the functionality doctrine beyond an approach based strictly on features “essential” to competitors’ ability to compete in the marketplace. Professor Dr. Martin R. F. Senftleben (VU University Amsterdam) would broaden the scope of the functionality doctrine for a different reason - to avoid dysfunctional overlaps between fields of IP law, such as trademark and copyright. In his view, the aesthetic functionality doctrine should preclude trademark protection of shapes that are also protected by copyright. Finally, approaching the scope of trademark protection from a different angle, Professor Dr. Christophe Geiger (CEIPI, University of Strasbourg) discussed a possible free speech limitation to trademark law. Such limitation would solve access problems for artistic and political speech and could be accomplished by way of a “fair use” style exception.

DAY TWO

On the morning of the second day, Dr. Sacha Wunsch-Vincent (World Intellectual Property Organization) conveyed greetings to the new IP Center from WIPO’s Director General and presented a number of statistical data on the growth of the global knowledge market as a result of the increased R&D activity of the past decades.

Session I: Access and Enforcement - ACTA in the EU and beyond

The fourth session, chaired by Professor Dr. Theo Bodewig (Humboldt University of Berlin), considered the implications of the highly controversial Anti-Counterfeiting Trade Agreement (ACTA), a treaty that proposes to standardize enforcement of IP rights at an international level. In her keynote, Swedish politician Amelia Andersdotter (Member of the European Parliament) highlighted the fact that the proposed adoption of ACTA in the EU challenges the balance of the European Union institutions. She urged adoption of a more vocal stance in political discussion. Echoing these views from the perspective of a political scientist, PD Dr. Ingrid Schneider (University of Hamburg) felt that the ongoing protest movements are only the tip of the iceberg in the emerging politicization of IP rights. These movements may have contributed to the apparent demise of ACTA in the EU. However, as pointed out by Dr. Henning Grosse Ruse-Khan (Max Planck Institute for Intellectual Property and Competition Law) the treaty may yet be resurrected as a bargaining chip in bilateral Free Trade Agreements. On an international level, Professor Peter K. Yu (Drake University) placed ACTA, along with the Trans-Pacific Partnership, in the category of “country club agreements”.

Session II: Young Scholar's Presentations

The Young Scholars’ Panel chaired by Professor Dr. Karsten Thorn (Bucerius Law School) gave four selected young scholars the opportunity to present their work. Erika Ellyne (Vrije Universiteit Brussel) argued for a paradigm shift in patent eligibility in order to regain the law’s initialflexibility, meaning and function. Dr. Andrea Wechsler (European University Institute) suggested compulsory licenses as a measure against the non-use of patents. Professor Dr. Mindaugas Kiškis (Mykolas Romeris University) proposed to help control enforcement of copyright online by way of a global approach to domain seizures. Literarily inspired, Giancarlo F. Frosio (Duke University) rounded up the panel with a highly original historical analysis of the collaborative nature of creativity.