An extraordinary event demands an exceptional location. Following this premise, the final conference of the DFG-Research-Training-Group “Intellectual Property and the Public Domain“ took place at the mahogany-clad “Landratssaal” at the District Government of Upper Franconia in Bayreuth from February 6th - 7th, 2015. This historical hall has been designed by the Wroclaw-born architect Martin Duelfer. Before its installation it had been displayed at the Louisiana Purchase Exposition held in St. Louis, Missouri, in 1904. Having successfully completed the long round-trip from Bayreuth to St. Louis and back, the location perfectly mirrored the purpose of the conference as the closing symposium of a journey through nine years of research in the field of “Intellectual Property and the Public Domain”. However, the conference did all but stand still at a review. In accordance with its title “Results and Perspectives”, it combined both retrospective and forward-looking speeches and statements.
1. Welcome Remarks and Introduction
About 100 participants were warmly welcomed by remarks of Prof. Dr. Michael Grünberger, LL.M. (NYU), professor of the University of Bayreuth and spokesperson of the Graduate School, of Prof. Dr. Stefan Leible, president of the University of Bayreuth, of Prof. Dr. Martin Leschke, vice dean of the Faculty of Law, Business Management and Economics of the University of Bayreuth, and of Sophia Probst, LL.M., representative of the doctoral candidates of the Graduate School. Following this, Prof. Dr. Diethelm Klippel, professor emeritus of the University of Bayreuth and former spokesperson of the Graduate School, gave a brief introduction to the Bayreuth Graduate School focusing on its origins, goals and results.
2. Reinvigorating the Public Domain
The first session of the conference was hosted by Prof. Dr. Karl-Nikolaus Peifer, University of Cologne, who first gave the floor to Prof. Dr. Ansgar Ohly, LL.M, Ludwig-Maximilians-University, Munich, and a former spokesperson of the Graduate School as well. Rather than pleading a case for either stronger intellectual property rights or the broadening of the public domain, Ohly stated that the fine-tuning of intellectual property rights had become more important than implementing large changes. In order to support this statement, he outlined the biggest assignments in intellectual property law from the past decade up to this day. In doing so, Ohly formed three main headings: “Europeanisation”, “Flexibilisation/Constitutionalisation” and “Embedding”. According to him, each of the main intellectual property rights, namely patent, copyright and trade mark law, and the complementary unfair competition law had been confronted with different recent developments in each of these categories. For instance, Ohly commented on the case ECJ – C-170/13 Huawei v ZTE, which is currently pending at the ECJ. The central question of the request for a preliminary ruling is whether the proprietor of a standard-essential patent who informs a standardisation body that he is willing to grant any third party a licence abuses his dominant market position if he seeks an injunction against a patent infringer although the infringer has declared that he is willing to negotiate concerning such a licence. With hint towards this case, Ohly gave an example for the category patent law and “Embedding”, namely the integration of IP law and competition law. Additionally, Ohly’s speech was peppered with references to doctoral theses, which had been written at the graduate school.
Prof. Dr. Alexander Peukert, Goethe University Frankfurt am Main, was the respondent to Ohly’s speech. He based his reply on his book “Die Gemeinfreiheit” (“The Public Domain”). As liberal western legal and market orders were built on and around the concept of subjective or individual rights, Peukert focused on the problems resulting from the “no-rights-conception” of the public domain. He outlined a positive and a negative approach to tackle this fundamental issue. According to Peukert, the negative approach is addressed to public authorities. It acts on the assumption that rights form an exception to the basic principle of equal negative liberty to use information. Consequently, the positive approach disapproves the extension of exclusivity beyond the statute as well as the restrictive reading of limitations. In contrast, the positive approach was addressed to private actors claiming exclusivity where there was none. Peukert reminded the audience that such private appropriations of public domain knowledge also called for legal sanctions. The positive approach therefore required an active protection of the public domain.
In the subsequent discussion, there was agreement that the restrictive reading of limitations could certainly not be the right method and that one should rather aim at a balanced handling.
3. "Westwards the gaze wanders" - Or Should It Not? - Comparative Narratives in IP Law (Not) To Be Followed
Prof. Dr. Niklas Bruun, IPR University Center, University of Helsinki hosted the second session, whose title was – as Prof. Grünberger later revealed - based on the first lines sung by the young sailer in Wagner’s Tristan and Isolde.
As first speaker of this session, Prof. Jerome Reichmann, Duke University, Durham, demonstrated the importance of a comparative legal perspective on the basis of the implementation of international agreements such as TRIPS. By means of his established and recent publications, Reichmann explained various different approaches of several countries such as India and Brazil in the treatment of flexibility provisions.
The first respondent, Prof. Dr. Nari Lee, Hanken School of Economics (Helsinki/Vaasa), emphasised that she rather used a comparative perspective in law as a tool than as a means in itself. Therefore, Lee illustrated the functions of both internal and foreign laws comparisons. According to her, an internal comparison fulfilled the task of identifying inconsistencies in law. However, the comparison of foreign laws served to build theories (which might even be on a global or cosmopolitan level) in order to learn more about one’s own laws, and to prepare harmonization measures. As to the topic of the session – “Westwards the Gaze Wanders” – Lee pointed out that from her eastern perspective gazing westwards might in many cases simply be a question of origin and thus a result of legal history. Yet, Lee supported a different development, which she had observed: an increasing interest of western jurists to look eastwards rather than westwards.
The second respondent of the session, Dr. Franz Hofmann, LL.M., Ludwig-Maximilians-University, Munich, balanced the reasons for gazing westwards or for retaining a European perspective. As arguments for gaining inspiration in the US, Hofmann named that the US was a cradle of new technologies and innovative business models. Furthermore, he stated that there was an innovative jurisprudence. Additionally, Hofmann recalled the tradition of comparative law and its gaze westwards. However, Hofmann also presented arguments for a rather European gaze. First, he referred to traditional comparative law, which was just as rooted on European level than on US level. Second, there was a rich tradition of European comparative law. Third, Hofmann stressed the common European framework as an argument for further legal comparison in Europe. In the end Hofmann concluded that a comparative legal analysis of the US law was not at all a concept of yesterday but that it was rather a question of prioritising the different sources of inspiration with respect to the purpose of research.
4. Intellectual Property and Economics – Can You Have One Without The Other?
The first of two afternoon sessions focused on the relationship between Intellectual Property and Economics and the necessity of economic analysis in IP law. Session Host Prof. Dr. Heermann, LL.M., emphasized the increasing interest in understanding the impact of economics on IP over the past decades.
First, Prof. Dr. Thomas F. Cotter, University of Minnesota, argued that the IP system could be a useful tool to promote economic development. In his presentation, Cotter proposed to consider the ideas of legal pragmatism when applying IP rights. After illustrating the theoretical basics of legal pragmatism, Cotter stressed not only the importance but also the limitations of economic analysis when predicting the consequences of IP law implication.
The second speaker, Prof. Dr. Dipl.-Biol. Herbert Zech, University of Basel, agreed with his former speaker on the importance of legal pragmatism in IP Law. In contrast to Cotter however, Zech demonstrated the impact of economic analysis by making reference to examples in patent, copyright and trademark case law. Zech proposed to carefully consider the necessity of economic analysis in each case and the importance to apply economic considerations in a proper way. He argued that an instrumentalist view was important for IP, that practical reason in teleological interpretation could lead to flexibility and that the different legal cultures would have to be considered when applying the principles of legal pragmatism. Similarly, in the following discussion the audience elaborated on the chances and limitations of economic analysis in IP.
5. Knowledge Commons Governance
In the second afternoon session Prof. Katherine Strandburg, NYU School of Law, and Prof. Ioannis Lianos, University College London, lectured on “Knowledge Commons Governance” with Prof. Dr. Marcus Norrgård, University of Helsinki, hosting.
First, Strandburg gave a presentation about her recently published book “Governing Knowledge Commons”. According to Strandburg, “Knowledge Commons” described the institutionalized community governance of the sharing and creation of intellectual and cultural resources. She pointed out that a deeper understanding of what makes commons institutions work was essential for policymaking. Making reference to Elinor Ostrom`s work in Economics, Strandburg argued that the focus should thus shift to private ordering and governance. After Strandburg had illustrated a framework for studying knowledge commons, she described systematic aspects of her research project and finished her presentation with selected case studies of the book.
Second, Lianos demonstrated how the framework proposed by Strandburg could be integrated into his research field of competition law. In his presentation, Lianos highlighted the challenges and chances of knowledge commons governance by discussing certain practical aspects such as patent pools, creative commons licenses and cross licensing. In the following discussion, parallels were drawn to the first session of the day that had dealt with the public domain. Commentators argued whether “Knowledge Commons Governance” could in fact be seen as a “third way” in contrast to IP and the public domain, as proposed by Strandburg.
6. Constitutional Foundations & Constitutionalization of IP
Saturday morning started off with a session about “Constitutional Foundations and Constitutionalization of IP“, hosted by Prof. Dr. Oliver Lepsius, University of Bayreuth.
The first speaker, Prof. Dr. Jens Schovosbo, University of Copenhagen, commenced his speech with the metaphorical question whether IP law was a sports car that chased fast amendments while the constitution only faced slow changes as a tractor. This picture led him to an analysis of cases by the European court that had dealt with IP law and Fundamental Rights. In the “Laserdisken”-Case (12 Sept 2006 – C-479/04) for example, which primarily covered the question of the European jurisdiction regarding the harmonization of copyright law, the court stressed the exclusivity of intellectual property rights and the necessity of their protection to safeguard the independence and creativity of right holders. Therefore, the court decided that an alleged restriction of the freedom of information was justified in order to protect the copyright law of its owners. Later the court decided in the “Pro Musicae”-Case (29 Jan 2008 – C-275/06) that the Member States of the European Union had to balance fundamental rights when interpreting IP directives. Furthermore, national courts and authorities must not only apply national law in accordance with European directives but also respect fundamental rights and general principles of European Law when interpreting. From the presented court decisions Schovosbo reached the conclusion that property rights were no absolute rights but needed to be balanced. He held that the exercise of IP law was limited by constitutional principles, which had to be thoroughly balanced before limiting an IP-law holder. This view has two consequences. The first consequence is a shift in power from legislator to courts. The courts gain influence by being enabled to value interests (which might not have been foreseen by the legislator). Second, an external perception of IP law replaces an internal. While the latter considers that IP rights grant exclusivity, which is limited by the constitution, the external perception assumes that more interests can be taken into consideration when IP law is constitutionalized from which the users of IP laws benefit. Since, according to Schovsbo, a fair balance enables an effectiveness of the exception, he concluded his presentation with a modification of his opening picture: a sports car and a racing monster tractor.
The second speaker, Prof. Dr. Andreas L. Paulus, University of Göttingen and Justice of the German Federal Constitutional Court, Karlsruhe, pointed out that the consideration of constitutional foundations was a matter of justification since balancing interests limited IP law. He held that IP law was an aspect of property right with high value; consequently it could be used by others, but not for free. Therefore, the existing constitutional aspects of IP law had to be balanced in the following order: first, it is the legislator’s task to influence the balance of interests; second, the national courts balance them; and third, the constitutional court reviews the balancing. Subsequently, Paulus summarized his presentation in one thesis: “constitutionalization: no; constitutional foundations: yes”.
Lastly, Dr. Michael Goldhammer, LL.M., post-doc at the University of Bayreuth, was the respondent. He agreed with both of his former speakers but reminded the audience of the possible danger that constitutionalization of IP law could contradict constitutional foundations if social aspects (“Sozialbindung”) were not considered. According to Goldhammer, tension could appear between intellectual property law and its human rights core and social dimension. He argued that it was the task of the constitution to solve this. Whereas the Constitutional Court’s strategy to this problem is to balance the contradicting interests according to the principle of proportionality, Goldhammer favored a different strategy. He proposed to move the problem from second level, the level of balancing, to first level, the level of scope of protection: this way the conflict of interests would be already a matter of the range of the term “intellectual property”. Social aspects should be right away part of its definition.
The following discussion revealed two main conflicts of interests: Why do we protect IP? What is the appropriate institution to solve the conflict between IP rights holders and users?
7. Innovation & Competition - The New Paradigm in IP Law?
The last session of the conference concentrated on the question of whether innovation and competition should be the new paradigms in IP law. Prof. Dr. Rupprecht Podszun, University of Bayreuth, introduced the speaker, Prof. Dr. Reto M. Hilty from the Max Planck Institute for Innovation and Competition in Munich, and his respondent, Prof. Lionel Bently of the University of Cambridge.
As an introduction to the subject, Hilty referred to the recent change of name of the Max Planck Institute in Munich, from “Institute for Intellectual Property and Competition Law” to “Institute for Innovation and Competition”, in which the term “law” was dropped. Hilty held that presently IP protection did not generate the best possible positive effects at the highest protection level. Furthermore, IP policy required a fair balance between the protection and the common freedom. Therefore, the dilemma of IP regulation was to find the best compromise. Hilty answered this dilemma by determining that the statutory rules had to find a middle ground between exclusivity and reasonable limitation of IP rights and that patent law, trademark law and copy right law were three sizes that had to fit all, but still needed to be differentiated. In addition to an appropriately balanced regulation, Hilty considered the implementation of a supplemental fine-tuning system necessary. In his opinion, compulsory licenses could offer this kind of fine-tuning mechanism: Although they already exist, they are not sufficiently put into practice so far. Hilty remarked that interdisciplinary research would help to find an appropriate way to use compulsory licenses as the required fine-tuning tool. On the one hand, according to this purpose, legislators should develop a regulatory framework that encourages market agents to actually make use of a tool and allows the parties involved to appropriately respond to the dynamics of IP markets. On the other hand, economists should elaborate theories about the functioning of markets – particularly IP markets – and deliver insights about actual situations on specific IP markets. Hilty suggested that instead of a “three-sizes-fit-all-approach” the new paradigm of IP law could be “a more economic approach”.
In the following response Bently reflected the statements of Hilty’s presentation by posing three main questions: 1) What was wrong with the old paradigm “Intellectual Property” and what was wrong with IP law? 2) Is “innovation” a useful paradigm? and 3) Are “compulsory licenses” the new regulatory tool for innovation? To the first question Bently responded that “IP” had been transformed from a category of laws to a legal category. In his opinion, the term “IP” is misleading because some matters are neither intellectual (trademarks) nor property (unfair competition and trade secrets). Furthermore, he said that “IP” included no reference to the aim of conferring rights, but the declaration of this aim was required because in the past, not enough care had been exercised in the process of conferring rights.
As a reply to his second question, Bently enumerated the advantages of “innovation” as a new paradigm, with the result that “innovation” foregrounds the purpose of patents, allows for focus on how innovation occurs, how that process is managed, and removes the assumption that exclusivity is its primary engine. On the other hand, Bently deemed the term “innovation” over-inclusive, because it implicates a great many of influences other than law and economics. Besides, he said, some IP rights – such as copy rights and trademarks – were concerned with creativity, not “innovation”. As a result, “innovation” at least could not be “the” paradigm for IP.
His third question Bently answered by admitting that compulsory licenses seemed a good compromise and worth further exploration. However, he concluded, since there was only a restricted scope of application and, until now, rare practical use of compulsory licenses, they could just be one tool among many to complement the legal framework.
Prof. Grünberger closed the conference with brief remarks about “What’s next?”. He suggested three topics for future research: First, Europeanization in a broader sense than traditionally understood, second, the contexualisation of individual rights, or to be more specific, of subjective rights by fostering the public domain, deepening the constitutionalization and developing stronger access rules, and, third, the question of how IP law should deal with conflicting social theories.