Severine Dusollier, ‘Pruning the European Intellectual Property Tree – In Search of Common Principles and Roots’

Abstract:
The European Union knows a multiplicity of IP rights, from classical ones (copyright, patent, trademark or design) to more marginal ones, in terms of economic sectors concerned (rights in database, in plant varieties, in semiconductors, in geographical indications). This paper aims at identifying and assessing the existing similarities or common principles in the intellectual property rights in the European Union. Despite their apparent diverging functions, subject matter and scope of protection, copyright, trademark, patent and the other intellectual property rights share at least the fact that they belong to a set of rules granting some exclusive rights in intangible assets, whether creation or signs. Their inclusion under the same label ‘Intellectual Property’ should at least count for something and induce some joint ends and means that could serve as a first skeleton for a reform of intellectual property. This quest for common principles follows successive steps: the justification of the granted protection, the subject matter, the requirements for protection, as well as the exclusions from protection, the scope of protection, the limitations and exceptions to such protection, the duration.

This survey concludes that the principles common to all intellectual property rights are rather scarce. There is the overarching principle, laid down in the EU Charter of Fundamental Rights, that protection of intellectual property should be. The fact that ideas should remain free is another important motto in European intellectual property. The principle of exhaustion applies across all exclusive rights, and enforcement and remedies are almost similar whatever the right infringed. Beyond these common lines, traces of similarities can maybe be detected in formalities (save for copyright and related rights), in exclusive rights conferred, or in the rule of a limited duration. However, justifications, subject matter, rights and exceptions largely remain fragmented and leave ample manoeuvre for uncontrolled extension of intellectual property and overlapping of rights.

I argue that the EU IP tree should at least common roots in the form of an overall foundation sustaining intellectual property and based on innovation and promotion of knowledge, including a necessary balance, and a solid trunk based on some overarching principles. Those principles should be a proper limitation of subject matter, a registration-based grant of the protection, a unitary right of exploitation for all intellectual property rights, though adjustable to the subject matter concerned, a common catalogue of exceptions and limitations, as well as an effective public domain. The branches of intellectual property could then develop under their own rules and specificity to cater to the needs and mechanics of the diverse subject-matter concerned.

Dusollier, Severine, Pruning the European Intellectual Property Tree – In Search of Common Principles and Roots (April 10, 2011). Constructing European Intellectual Property: Achievements and New Perspectives, C. Geiger, ed., Edward Elgar Publishing, 2012.

First posted 2012-08-11 09:28:36

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