Overprotection and Protection Overlaps in Intellectual Property Law - the Need for Horizontal Fair Use Defences

Abstract

During the last decades, intellectual property protection has been expanded continuously. New technologies were found eligible for patent protection. New types of marks have been recognized in trademark law. Copyright law is no longer confined to the cultural domain. In parallel, the exclusive rights of IP owners have been broadened. The TRIPS Agreement provides for a comprehensive portfolio of patent minimum rights. The WIPO Copyright Treaty added new layers of protection to the standard reached under the Berne Convention. As a result of protection against dilution, trademark rights have become instruments for the exploitation of brand image.

Enhanced protection, however, gives rise to the question of appropriate counterbalances. Flexible rights are likely to require flexible limitations for at least two reasons. On the one hand, flexible limitations facilitate the task of maintaining a proper balance between protection and competing freedoms within individual protection regimes. On the other hand, flexible limitations can be employed to safeguard breathing space for unauthorized use when it comes to overlaps between different forms of IP protection. If an intellectual creation enjoys cumulative protection in different IP protection systems, a network of corresponding, flexible limitations ensures that the freedom offered in one system is not eroded through protection granted in another system.

The flexibility required within and across IP protection regimes may be provided by open-ended fair use provisions that allow the courts to develop and adjust IP limitations case-by-case on the basis of abstract criteria. Against this background, the paper explores the notion of fair use and identifies factors indicating a need for fair use solutions before embarking on a discussion of the situation in copyright, patent and trademark law. Drawing conclusions, protection overlaps will be considered.

Keywords: intellectual property, copyright, trademark, patent, flexibility, fair use, TRIPS Agreement, WTO Panel, three-step test, search engine, freedom of speech, experimental use, anti commons, software patent, public health, global warming, comparative advertising, dilution