Notes

We need a bit of intro on IP Law to understand:

• What Intellectual Property (IP) and IP Law are.
• What IPRs are.
• The reasons why IP is protected.
• What is happening in the IP landscape.
• What is public domain.

Intellectual Property, its Law and IPRs IP Law is the law concerning rights (IPRs) associated with creative effort, innovation, commercial reputation and goodwill. IP is the subject matter of IP Law (and of course of IPRs).

• Copyright
• Trademarks
• Patents

Way to study IPRs

• What do IPRs protect? Subject matters (the "IP")
• How do I get the IP Protection? Requirements
• What does the protection consist in? Rights granted and their scope. (Exclusively rented to the creator of IP).
• What does fall beyond the scope of IPRSs? The notion of "Public Domain". You already have the copyright on the invention you make without and scrutiny required.

The scrutiny is always ex-post, meaning that a case should take place and a judge has to declare that there are no infringements.

The reasons why IP is protected

• IPRs as "natural right" (e.g. Kant, Hegel, German Constitution, Droit d'Auteur), (Civil Law Countries).

  Personhood-right approach. Work as expression of author's personality and a "natural obligation".

• IPRs as for a "reward someone's own labor" (e.g. Locke), (U.K.).

  Labour theory of property. Universal right to "own oneself" and the consequential universal right to "own the fruits of one's labor", such as intellectual goods (Locke).

• IPRs as "contractual right" (e.g. Thomas Jefferson, Statute of Anne, U.S. Constitution), (Common Law Countries)

  Work as a means to achieve progress of society (from the utilitarian approach to the welfare theory).

The most established theory is that of IPRs as an incentive and as tools to avoid free riding.

Source of Intellectual Property Law

• National (Italy, U.S., Germany, etc.)
• Regional (European Union Law)
• International (International Treaties).

What is happening in the IP Landscape?

• There is a Database right that protects the data within a database.
• For integrated circuits a shorter special version of patents was created to enhance the chips market.
• Software since 1991 is protected under copyright law.

Expansions in Nature and Scope of IP

• Legal Hybrids
• Sui Generis Rights
• New Subject Matter
• Enforcement, Duration, ...

What does not fall within the realm of Intellectual Property? The Notion of Public Domain.

Public Domain "The public domain is the law's primary safeguard of the raw material that makes authorship [and inventorship] possible." - J. Litman

The three main elements of the public domain are:

• Aspects of protected inventions, marks, and creations that IP Law does not protect (Fair Uses, Exceptions and Limitations to protection).
• Non-Protectable material (Ideas, Facts and Similia).
• Inventions, Marks, and Creations for which IP Law protection has expired (Out-Of-IP-Works).