Intellectual Property Overlaps

Robert J. Tomkowicz, INTELLECTUAL PROPERTY OVERLAPS, Routledge, 2011

Posted: 23 Dec 2010 Last revised: 27 Dec 2010

See all articles by Robert Tomkowicz

Robert Tomkowicz

Vancouver, British Columbia, Canada

Date Written: December 22, 2010

Abstract

Intellectual property is traditionally split into three main segments that of copyright, patents and trademarks. In theory, each category of intellectual creations should belong in only one segment of the system and only to the extent authorized by relevant statutory provisions or judicial doctrines. However, as the scope of each segment expanded, their boundaries began to overlap, which resulted in consequences that had not been anticipated at the time of their inception and the issue of intellectual property rights overlaps surfaced. When the statutory monopoly expires, most intellectual property rights should vest in the general public. In practice however, due to overlaps of the segments comprising intellectual property system, some of the creations or inventions have qualities that make them capable of being protected under more than one intellectual property monopoly. For example, a machine can be protected under patent law, but drawings of that machine could enjoy copyright protection.

The book identifies the complex interfaces between different intellectual property rights, especially in the context of new technologies, such as computer programs and the internet. The book considers intellectual property rights and their overlaps in light of the right’s purposes, relying on the concept of balance of rights as the measuring rod for assessment of the consequences resulting from use of the overlapping rights. In doing so the book investigates how use of intellectual property rights associated with one segment of the system can affect carefully crafted balance of rights of various stakeholders in an overlapping segment and whether effectiveness of this segment to advance its purposes will be impeded by such use. The book considers experiences of different jurisdictions with the overlaps, the US, the UK, and Canada in particular.

The book also presents solutions to identified and potentially objectionable uses of overlapping rights in an attempt to provide judiciary and law practitioners with analytical framework for resolving disputes involving overlaps in the intellectual property system. In particular, it suggests that a properly construed doctrine of misuse of intellectual property rights would provide an adequate response to the challenge posed by improper use of overlapping intellectual property rights.

Keywords: Patents, Trademarks, Copyrights, Industrial Designs, Plant Breeder’s Rights, Semiconductor Topographies, Publicity Rights, Personality Rights, Misuse Doctrine, Ex Turpi Causa, Clean Hands, Public Interest, Balance of Rights, Appropriation of Personality

JEL Classification: K11, K12, K33, K42, L12, L21, O32, O33, O34

Suggested Citation

Tomkowicz, Robert, Intellectual Property Overlaps (December 22, 2010). Robert J. Tomkowicz, INTELLECTUAL PROPERTY OVERLAPS, Routledge, 2011, Available at SSRN: https://ssrn.com/abstract=1729795

Robert Tomkowicz (Contact Author)

Vancouver, British Columbia, Canada

Vancouver, British Columbia
Canada

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