Privacy, Property and Personality :Civil Law Perspectives on Commercial Appropriation ( Cambridge Intellectual Property and Information Law )

Publication subTitle :Civil Law Perspectives on Commercial Appropriation

Publication series :Cambridge Intellectual Property and Information Law

Author: Huw Beverley-Smith;Ansgar Ohly;Agnes Lucas-Schloetter;  

Publisher: Cambridge University Press‎

Publication year: 2005

E-ISBN: 9781316899427

P-ISBN(Paperback): 9780521820806

P-ISBN(Hardback):  9780521820806

Subject: D913 民法

Keyword: 法律

Language: ENG

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Description

A detailed comparative analysis of intellectual property rights in Europe and the United States. The protection of privacy and personality is one of the most fascinating issues confronting any legal system. This book provides a detailed comparative analysis of intellectual property rights in an individual's name, voice or likeness in the major legal systems: France, Germany, the United Kingdom and the United States. The protection of privacy and personality is one of the most fascinating issues confronting any legal system. This book provides a detailed comparative analysis of intellectual property rights in an individual's name, voice or likeness in the major legal systems: France, Germany, the United Kingdom and the United States. The protection of privacy and personality is one of the most fascinating issues confronting any legal system. This book provides a detailed comparative analysis of the laws relating to commercial exploitation of personality in France, Germany, the United Kingdom and the United States. It examines the difficulties in reconciling privacy and personality with intellectual property rights in an individual's identity and in balancing such rights with the competing interests of freedom of expression and freedom of competition. This analysis will be useful for lawyers in legal systems which have yet to develop a sophisticated level of protection for interests in personality. Equally, lawyers in systems which provide a higher level of protection will benefit from the comparative insights into determining the nature and scope of intellectual property rights in personality, particularly questions relating to assignment, licensing, and post-mortem protection. Preface; Table of cases; Table of statutes; Table of abbreviations; 1. Introduction; 2. Property, personality and unfair competition in England and Wales, Australia and Canada; 3. Privacy and personality in the common law systems; 4. German law; 5. French law; 6. Conclusions; Bibliography; Index. ' a much needed contribution to the literature in this field … this book is well written and its thorough coverage makes it a valuable point of reference for all further research and debate in this area.' Modern Law Review

Chapter

Abbreviations

1 Introduction

The commercial value of aspects of personality

Commercial and non-commercial interests

Personality, privacy and intellectual property

Competing doctrinal bases of protection

Unfair competition

Privacy and publicity

Personality rights

Synopsis

2 Property, personality and unfair competition in England and Wales, Australia and Canada

Introduction

Liability based on misrepresentation: the tort of passing off in English and Australian law

Goodwill and reputation

Misrepresentation

Endorsement and misappropriation

Damage

Damage through an injurious association

Damage through exposure to liability or risk of litigation

Damage through loss of control

Damage through loss of a licensing opportunity

Damage through dilution

Summary

Liability based on misappropriation: the Canadian tort of appropriation of personality

The protected interest

Damage to the claimant

The defendant’s conduct

Conclusions

3 Privacy and personality in the common law systems

Introduction

From property to inviolate personality

Inviolate personality and the accretion of proprietary attributes

Conceptions of privacy

The reductionist paradigm

A holistic conception

A core conception of privacy

Privacy as principle

Reconciling privacy and commercial exploitation: the birth of the right of publicity in the United States

The scope and limits of the right of publicity

Misappropriation

Assignability and descendibility

The balance with freedom of expression

Privacy in English law

Piecemeal statutory provisions

Common law protection of privacy

Personal privacy and defamation

Personal privacy and breach of confidence

Conclusion

4 German law

Introduction

History

Protection of personality in the Bürgerliches Gesetzbuch (1900)

The ‘right to one’s image’ (1907)

The ‘general personality right’ (1954)

Recent developments: Caroline and Marlene

Substantive legal protection

Personality rights I: the right to one’s image (§ 22 KUG)

Personality rights II: the right to one’s name (§ 12 BGB)

Personality rights III: the author’s personality right (moral right)

Personality rights IV: the general personality right

Unfair competition

Trade mark law

Post-mortem protection

Assignment and licensing

Historical development

Waiver

Consent I: the medical law model

Consent II: irrevocable consent

Personality licensing

Validity requirements

Remedies

Injunction

Destruction, correction

Publication of a counter-statement

Unjust enrichment

Damages

Solatium

5 French law

Framework and history

Protection of economic interests

The characteristics of the patrimonial right of exploitation of the personality de lege ferenda

Objections to the acknowledgement of a patrimonial right of the personality

The protection of the economic interests without any patrimonial right to personal attributes: acknowledging a new tort of appropriation

Protection of non-economic interests

Assessment of the infringement of the personality rights

Restrictions to Personality rights: defences

Remedies providing for prevention or cessation of the infringement: injunctions

Remedies providing for legal redress

Moral damage

Economic damage

Transfer

Are personality rights really inalienable under French law?

Transmission by succession

6 Conclusions

Introduction

Common features and contrasts

The three basic models of protection

Property, intellectual property and personality

Privacy, freedom of expression and commercial appropriation under the European Convention on Human Rights

Conclusions: a gradual convergence?

Bibliography

Index

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