Suchergebnisse

"In the European Union, courts have been expanding the enforcement of intellectual property rights by employing injunctions to compel intermediaries to provide assistance, despite no allegation of wrongdoing against these parties. These prospective injunctions, designed to prevent future harm, thus hold parties accountable where no liability exists. Effectively a new type of regulatory tool, these injunctions are distinct from the conventional secondary liability in tort. At present, they can be observed in orders to compel website blocking, content filtering, or disconnection, but going forward, their use is potentially unlimited. This book outlines the paradigmatic shift this entails for the future of the Internet and analyzes the associated legal and economic opportunities and problems"--

In the 2010s, we are witnessing a number of policy debates concerning proposals for new intellectual property rights. The high-profile examples include publishers' rights, data producers' rights, and sport events organizers' rights. The arguments behind these rights are purely utilitarian, unlike in the case of some traditional intellectual property rights, such as authors' or inventors' rights. These rights are clearly presented as tools of the European Union (EU) innovation policy, incentivizing quality journalism, data creation and trading or investments in sports. However, how sticky are these tools? A lot of attention in the literature rightly focuses on the first-order issue of their social costs and benefits. Little attention is paid to the problem of institutional inertia which keeps some of these solutions in circulation despite their proven ineffectiveness. While economic progress is unthinkable without stable property rights, it is equally unthinkable without their never-ending adjustment and continuous reflection of their effects. In this working paper, I pose the following question: how difficult is it to legislate away a new set of intellectual property rights once they are found to be incapable of delivering on their promises?

Smoking kills. It is also very costly, which is why many governments try to change the habits of their citizens, including by changing the packaging of the products they buy. Of course, tobacco firms are pushing against such laws. They see their rights, in particular, rights to intellectual property, violated. They argue that such legislative changes take away the essence of their hard-earned IP rights and should not be permissible. They point out that the CJEU is allegedly redefining the "essence" of fundamental rights and its function in the system of limitations and developing a set of core inviolable rights. How justified are these arguments? The absolute theory of essence says that the essence of rights cannot be interfered with or taken away, including by the legislator. The relative theory of essence, on the other hand, claims that interference with essence is just a more serious interference which is still subject to the typical proportionality analysis. Therefore, the adoption of either of these two theories has profound consequences. What might constitute the essence of intellectual property rights? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the "essence" of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights.