IIC - International Review of Intellectual Property and Competition Law

The importance of access to intellectual property rights (IPR) protected subject-matter in two crucial areas – public health, and educational and cultural engagement – has been extensively demonstrated during the COVID-19 pandemic. Although they involve separate legal areas, patent and copyright, the common thread linking the two is intellectual property's difficult relationship with access in the public interest. This paper examines the tensions caused by access barriers, the tools used to reduce them and their effectiveness. It is clear that the access barriers magnified by COVID-19 are not restricted to narrow or specific contexts but are widespread. They are created by, and are a feature of, our existing IPR frameworks. Open movements provide limited remedies because they are not designed to, nor can adequately address the wide range of access barriers necessary to promote the public interest. Existing legislative mechanisms designed to remove access barriers similarly fail to effectively remedy access needs. These existing options are premised on the assumption that there is a singular “public” motivated by homogenous “interests”, which fails to reflect the plurality and cross-border reality of the public(s) interest(s) underpinning the welfare goals of IPR. We conclude that a systemic re-evaluation is required and call for positive and equitable legal measures protective of the public(s) interest(s) to be built within IPR frameworks that also address non-IPR barriers. The current pandemic and development of a “new normal” provides a crucial opportunity to comprehensively consider the public(s) interest(s), not just during a global health crisis, but on an ongoing basis.

In the ongoing discussion about the impact of fundamental rights on EU copyright law, thePelhamjudgment of the Court of Justice of the European Union (CJEU) has received much attention. However, the decision also raises important legal-doctrinal issues. The CJEU employs the harmonized right of reproduction as a vehicle to regulate adaptations of pre-existing source material. Moreover, the Court insists on a balancing of interests within the EU matrix of exclusive rights and limitations. The closed list of limitations in EU copyright law, however, can hardly be expected to offer sufficient breathing space for adaptation scenarios. As the Information Society Directive did not harmonize the right of adaptation, there was no need to include indispensable free adaptation rules that have evolved at the national level, such as the German “free use” doctrine. Instead of embracing national rules of equity and fairness to fill the gap, the CJEU is reluctant to borrow from the legal traditions of EU Member States and misses an important opportunity to provide guidance for the regulation of adaptations outside the sound sampling arena. After an introduction to the German “Metall auf Metall” saga that led to thePelhamdecision, the following analysis sheds light on these developments in EU copyright law and discusses problems arising from the approach taken by the CJEU.

This paper analyses the suitability of the extension of the EU quality schemes – Protected Designations of Origin (PDOs) and Protected Geographical Indications (PGIs) – to the protection of non-agricultural products. In particular, the work develops an original investigation on the nature of these goods and assesses whether it is compatible with the scope of protection of the EUsui generisGI system, which is determined by the different origin link that characterises the two abovementioned quality schemes. The research, by applying a mixed comparative/empirical methodology and building upon a previously unpublished dataset, develops an analysis divided into three parts, reaching the following conclusions. First, ifsui generisGIs were chosen as the means to protect non-agricultural products, the French legislation on thesui generisprotection of handcrafts should be considered as the best practice. Second, the empirical analysis shows that, since non-agricultural goods are characterised by a loose link to a specific place, predominantly based on the on the product’s history and on its distinctive traditional method of production, PGIs seem to be fit for the purpose. Indeed, the analysis of a sample of non-terroiragricultural products protected by PGIs will highlight this parallelism. Third, evidence shows that PDOs could be useful only in a small number of cases while the rationale of Traditional Specialities Guaranteed (TSGs), despite not being origin labels, can be useful to define products that cannot be linked to a specific area by physical or natural elements. Therefore, the EU legislator should take these elements into consideration if it decides to extend the EU GI regime to non-agricultural products.