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This paper reexamines the current legal landscape regarding the protection of trade marks and other industrial property rights in signs on the Internet. It is based on a comparative analysis of EU and national laws, in particular, German, U.S., and U.K. law. It starts with a short restatement of the principles governing trade mark conflicts that occur within a particular jurisdiction (part 2) and proceeds to the regulation of transnational disputes (part 3). This juxtaposition yields two basic approaches. Whereas trade mark conflicts within closed legal systems are generally adjudicated according to a binary either/or logic, transnational disputes are and should indeed be solved in a way that leads to a fair coexistence of conflicting trade mark laws and rights under multiple laws. This paper explains how geolocation technologies can alleviate the implementation of the principle of fair coexistence in concrete cases.
On 14 September 2016, the European Commission proposed a Directive on “copyright in the Digital Single Market”. This proposal includes an Article 11 on the “protection of press publications concerning digital uses”, according to which “Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.” Relying on the experiences and debates surrounding the German and Spanish laws in this area, this study presents a legal analysis of the proposal for an EU related right for press publishers (RRPP). After a brief overview over the general limits of the EU competence to introduce such a new related right, the study critically examines the purpose of an RRPP. On this basis, the next section distinguishes three versions of an RRPP with regard to its subject-matter and scope, and considers the practical and legal implications of these alternatives, in particular having regard to fundamental rights.
The article, which summarizes key findings of my German book ‘Die Gemeinfreiheit. Begriff, Funktion, Dogmatik’ (‘The Public Domain: Theory, Func-tion, Doctrine’), asks whether there are any provisions or principles under Ger-man and EU law that protect the public domain from interference by the legisla-ture, courts and private parties. In order to answer this question, it is necessary to step out of the intellectual property (IP) system and to analyze this body of law from the outside, and – even more important – to develop a positive legal conception of the public domain as such. By giving the public domain a proper doctrinal place in the legal system, the structural asymmetry between heavily theorized and protected IP rights on the one hand and a neglected public do-main on the other is countered. The overarching normative purpose is to devel-op a framework for a balanced IP system, which can only be achieved if the public domain forms an integral part of the overall regulation of information.
According to the prevailing view, the purpose of digital copyright is to balance conflicting interests in exclusivity on the one hand and in access to information on the other. This article offers an alternative reading of the conflicts surrounding copyright in the digital era. It argues that two cultures of communication coexist on the internet, each of which has a different relationship to copyright. Whereas copyright institutionalizes and supports a culture of exclusivity, it is at best neutral towards a culture of free and open access. The article shows that, depending on the future regulation of copyright and the internet in general, the dynamic coexistence of these cultures may well be replaced by an overwhelming dominance of the culture of exclusivity.
This country report was prepared for the 19th World Congress of the International Academy of Comparative Law in Vienna in 2014. It is structured as a questionnaire and provides an overview of the legal framework for Free and Open Source Software (FOSS) and other alternative license models like (e.g.) Creative Commons under German law. The first set of questions addresses the applicable statutory provisions and the reported case law in this area. The second section concerns contractual issues, in particular with regard to the interpretation and validity of open content licenses. The third section deals with copyright aspects of open content models, for example regarding revocation rights and rights to equitable remuneration. The final set of questions pertains to patent, trademark and competition law issues of open content licenses.
The article makes two points regarding the fundamental rights dimensions of intellectual property (IP). First, it explains why the prevailing approach to balancing the fundamental right to intellectual property with conflicting fundamental freedoms as if they were of equal rank is conceptually flawed and should be replaced by a justification paradigm. Second, it highlights the pre-eminent role of the legislature and the much more limited role of the judiciary in developing IP law. The arguments are based on an analysis of the jurisprudence of the European Court of Human Rights (ECHR), the Court of Justice of the European Union (CJEU) and last but not least the German Constitutional Court, the Bundesverfassungsgericht, regarding the respective inter-/supra-/national fundamental-rights regimes.
Although intellectual property law is a distinctively Western, modern, and relatively young body of law, it has spread all over the world, now encompassing all but a very few outsiders such as Afghanistan, Somalia, and Vanuatu. This article presents three legal transfers that contributed to this development: first, from real property in land and movables to intellectual property in the late 18th century in Western Europe; second, from Western Europe, in particular from the United Kingdom and France to the rest of the world during the colonial era in the 19th and early 20th century; third, from the protection of new knowledge to the protection of traditional knowledge, held by indigenous communities in developing countries, on 5 August 1963. This story illuminates how legal transfers in a broad sense – including, but not limited to legal transplants - drive the evolution of law.