CROSSROADS OF INTELLECTUAL PROPERTY

CROSSROADS OF INTELLECTUAL PROPERTY

CONTENTS

PREFACE

PART I – INTELLECTUAL PROPERTY AND CIVIL LAW

INTELLECTUAL PROPERTY AND CONSUMER LAW

1. INTRODUCTION: INTELLECTUAL PROPERTY IN THE KNOWLEDGE ECONOMY

2. THE CURRENT IP LEGAL ISSUES AND THE INTERSECTION WITH CONSUMER LAW

3. DEFINITIONS OF CONSUMER AND RIGHTFUL USER

4. REMOTE STORAGE AND PRIVATE COPY

5. ILLEGAL FILE SWAPPING: P2P AND STREAMING

6. TECHNICAL PROTECTION MEASURES

CONCLUSION

INTELLECTUAL PROPERTY AND CONTRACT LAW. CONTRACTS INVOLVING INDUSTRIAL PROPERTY RIGHTS – SOME TENTATIVE THOUGHTS

1. OVERVIEW

2. LICENSES

2.1. Licenses versus Franchising

3. TRADEMARK MERCHANDISING

3.1. Notion

3.2. The Admissibility of Merchandising

4. TECHNOLOGY TRANSFER AGREEMENT

PART II – INTELLECTUAL PROPERTY AND CRIMINAL LAW

THE CRIMINALIZATION OF OFFENCES AGAINST INTELLECTUAL PROPERTY RIGHTS – AN OVERVIEW OF THE EUROPEAN AND ITALIAN LEGAL FRAMEWORKS

1. INTRODUCTION

2. THE EUROPEAN LEGISLATIVE FRAMEWORK

3. THE BUDAPEST CONVENTION ON CYBERCRIME

4. THE ITALIAN LEGISLATION

5. CASE STUDY NO. 1: THE „SCHWIBBERT‟ CASE. CONTRASTS BETWEEN EUROPEAN AND ITALIAN LEGISLATION

6. CASE STUDY NO. 2: THE „PROMUSICAE‟ AND „PEPPERMINT‟ CASES. THE CONTRAST BETWEEN PRIVACY AND COPYRIGHT

7. NEW TRENDS IN EUROPE

CONCLUSION

CRIMINAL LAW AND IP LAW – DRAWING THE BORDERLINE

1. INTRODUCTION

2. THE DRAFT CRIMINAL ENFORCEMENT DIRECTIVE: ORIGIN AND COMMENTS

3. IP CRIMINAL OFFENCE: DEFINITION

3.1. General Observations

3.2. Elements of IP Crimes

3.3. Defining IP Crime under National Laws: the Baltic Countries

A. Criminalization Criteria

B. IP piracy and Counterfeiting in the Baltics

C. Current IP Criminal Legislation

4. SOME ASPECTS OF IP CRIME ELEMENTS

4.1. The Subject-Matter of Infringing Activities and the Objective Elements of IP Crime

4.2. The Infringer‟s Intent

4.3. The “Commercial Scale” of Infringing Activities

5. CRIMINAL PENALTIES AND ADJUDICATION OF CIVIL DAMAGES IN CRIMINAL IP CASES

5.1. Criminal Penalties

A. Under the Draft Criminal Enforcement Directive

B. Under Baltic Criminal Legislation

5.2. Adjudication of Civil Damages in Criminal IP Cases

CONCLUSION

PART III – INTELLECTUAL PROPERTY AND COMPETITION LAW

INTELLECTUAL PROPERTY AND COMPETITION LAW – SOME PRESENT TENETS

1. INTRODUCTION: POLICY ISSUES AND LEGAL TOPICS

2. SOME ECONOMIC INSIGHTS AND IDEAS

3. A LEGAL PORTRAY OF THE INTERFACE BETWEEN IP AND COMPETITION LAWS

4. THE OBJECTIVES OF COMPETITION AND IP LAWS

5. THE US AND EU CASE LAW ABOUT DOMINANT FIRMS REFUSING TO LICENSE THEIR IPRS: A REMINDER

6. SOME ARGUMENTS FOR SOLVING THE CONFLICT CASE

CONCLUSION

WHEN AN UNDERTAKING ENJOYING A DOMINANT POSITION REFUSES TO LICENSE INTELLECTUAL PROPERTY RIGHTS

1. INTRODUCTION

2. REFUSAL TO GRANT A LICENSE

3. UNDERTAKING IN A DOMINANT POSITION IN THE UPSTREAM MARKET AND THE EFFECTS OF A REFUSAL ON THE DOWNSTREAM MARKET6

3.1. Meaning of Upstream and Downstream Markets in the Context of an Abusive Refusal to License Intellectual Property Rights

4. THE POSSIBILITY OF THE REFUSAL LEADING TO THE ELIMINATION OF COMPETITION IN THE DOWNSTREAM MARKET

5. ESSENTIALNESS OF THE LICENCE FOR EFFECTIVE COMPETITION IN THE DOWNSTREAM MARKET

6. THE REFUSAL MUST PREVENT THE APPEARANCE OF A NEW PRODUCT ON THE MARKET WHICH DID NOT EXIST PREVIOUSLY AND FOR WHICH THERE IS CONSUMER DEMAND

6.1. The Meaning of a New Product

7. THE LACK OF AN OBJECTIVE REASON FOR THE REFUSAL

7.1. Intellectual Property Rights as Objective Justification for the Refusal

CONCLUSION