intellectual property law research paper

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• J Adv Pharm Technol Res
• v.2(2); Apr-Jun 2011

Intellectual property rights: An overview and implications in pharmaceutical industry

Chandra nath saha.

Quality Assurance Department, Claris Lifesciences Ltd., Ahmedabad, Gujarat, India

Sanjib Bhattacharya

1 Pharmacognosy Division, Bengal School of Technology (A College of Pharmacy), Sugandha, Hooghly, West Bengal, India

Intellectual property rights (IPR) have been defined as ideas, inventions, and creative expressions based on which there is a public willingness to bestow the status of property. IPR provide certain exclusive rights to the inventors or creators of that property, in order to enable them to reap commercial benefits from their creative efforts or reputation. There are several types of intellectual property protection like patent, copyright, trademark, etc. Patent is a recognition for an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial application. IPR is prerequisite for better identification, planning, commercialization, rendering, and thereby protection of invention or creativity. Each industry should evolve its own IPR policies, management style, strategies, and so on depending on its area of specialty. Pharmaceutical industry currently has an evolving IPR strategy requiring a better focus and approach in the coming era.

INTRODUCTION

Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time.[ 1 ] These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time. It is very well settled that IP play a vital role in the modern economy. It has also been conclusively established that the intellectual labor associated with the innovation should be given due importance so that public good emanates from it. There has been a quantum jump in research and development (R&D) costs with an associated jump in investments required for putting a new technology in the market place.[ 2 ] The stakes of the developers of technology have become very high, and hence, the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D.[ 3 ] IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/creator of an IP, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in this way aids the economic development of a country by promoting healthy competition and encouraging industrial development and economic growth. Present review furnishes a brief overview of IPR with special emphasis on pharmaceuticals.

BRIEF HISTORY

The laws and administrative procedures relating to IPR have their roots in Europe. The trend of granting patents started in the fourteenth century. In comparison to other European countries, in some matters England was technologically advanced and used to attract artisans from elsewhere, on special terms. The first known copyrights appeared in Italy. Venice can be considered the cradle of IP system as most legal thinking in this area was done here; laws and systems were made here for the first time in the world, and other countries followed in due course.[ 4 ] Patent act in India is more than 150 years old. The inaugural one is the 1856 Act, which is based on the British patent system and it has provided the patent term of 14 years followed by numerous acts and amendments.[ 1 ]

Types of Intellectual Properties and their Description

Originally, only patent, trademarks, and industrial designs were protected as ‘Industrial Property’, but now the term ‘Intellectual Property’ has a much wider meaning. IPR enhances technology advancement in the following ways:[ 1 – 4 ]

• (a) it provides a mechanism of handling infringement, piracy, and unauthorized use
• (b) it provides a pool of information to the general public since all forms of IP are published except in case of trade secrets.

IP protection can be sought for a variety of intellectual efforts including

• (i) Patents
• (ii) Industrial designs relates to features of any shape, configuration, surface pattern, composition of lines and colors applied to an article whether 2-D, e.g., textile, or 3-D, e.g., toothbrush[ 5 ]
• (iii) Trademarks relate to any mark, name, or logo under which trade is conducted for any product or service and by which the manufacturer or the service provider is identified. Trademarks can be bought, sold, and licensed. Trademark has no existence apart from the goodwill of the product or service it symbolizes[ 6 ]
• (iv) Copyright relates to expression of ideas in material form and includes literary, musical, dramatic, artistic, cinematography work, audio tapes, and computer software[ 7 ]
• (v) Geographical indications are indications, which identify as good as originating in the territory of a country or a region or locality in that territory where a given quality, reputation, or other characteristic of the goods is essentially attributable to its geographical origin[ 8 ]

A patent is awarded for an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial or commercial application. Patents can be granted for products and processes. As per the Indian Patent Act 1970, the term of a patent was 14 years from the date of filing except for processes for preparing drugs and food items for which the term was 7 years from the date of the filing or 5 years from the date of the patent, whichever is earlier. No product patents were granted for drugs and food items.[ 9 ] A copyright generated in a member country of the Berne Convention is automatically protected in all the member countries, without any need for registration. India is a signatory to the Berne Convention and has a very good copyright legislation comparable to that of any country. However, the copyright will not be automatically available in countries that are not the members of the Berne Convention. Therefore, copyright may not be considered a territorial right in the strict sense. Like any other property IPR can be transferred, sold, or gifted.[ 7 ]

Role of Undisclosed Information in Intellectual Property

Protection of undisclosed information is least known to players of IPR and also least talked about, although it is perhaps the most important form of protection for industries, R&D institutions and other agencies dealing with IPR. Undisclosed information, generally known as trade secret or confidential information, includes formula, pattern, compilation, programme, device, method, technique, or process. Protection of undisclosed information or trade secret is not really new to humanity; at every stage of development people have evolved methods to keep important information secret, commonly by restricting the knowledge to their family members. Laws relating to all forms of IPR are at different stages of implementation in India, but there is no separate and exclusive law for protecting undisclosed information/trade secret or confidential information.[ 10 ]

Pressures of globalisation or internationalisation were not intense during 1950s to 1980s, and many countries, including India, were able to manage without practising a strong system of IPR. Globalization driven by chemical, pharmaceutical, electronic, and IT industries has resulted into large investment in R&D. This process is characterized by shortening of product cycle, time and high risk of reverse engineering by competitors. Industries came to realize that trade secrets were not adequate to guard a technology. It was difficult to reap the benefits of innovations unless uniform laws and rules of patents, trademarks, copyright, etc. existed. That is how IPR became an important constituent of the World Trade Organization (WTO).[ 11 ]

Rationale of Patent

Patent is recognition to the form of IP manifested in invention. Patents are granted for patentable inventions, which satisfy the requirements of novelty and utility under the stringent examination and opposition procedures prescribed in the Indian Patents Act, 1970, but there is not even a prima-facie presumption as to the validity of the patent granted.[ 9 ]

Most countries have established national regimes to provide protection to the IPR within its jurisdiction. Except in the case of copyrights, the protection granted to the inventor/creator in a country (such as India) or a region (such as European Union) is restricted to that territory where protection is sought and is not valid in other countries or regions.[ 1 ] For example, a patent granted in India is valid only for India and not in the USA. The basic reason for patenting an invention is to make money through exclusivity, i.e., the inventor or his assignee would have a monopoly if,

• (a) the inventor has made an important invention after taking into account the modifications that the customer, and
• (b) if the patent agent has described and claimed the invention correctly in the patent specification drafted, then the resultant patent would give the patent owner an exclusive market.

The patentee can exercise his exclusivity either by marketing the patented invention himself or by licensing it to a third party.

The following would not qualify as patents:

• (i) An invention, which is frivolous or which claims anything obvious or contrary to the well established natural law. An invention, the primary or intended use of which would be contrary to law or morality or injurious to public health
• (ii) A discovery, scientific theory, or mathematical method
• (iii) A mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine, or apparatus unless such known process results in a new product or employs at least one new reactant
• (iv) A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance
• (v) A mere arrangement or re-arrangement or duplication of a known device each functioning independently of one another in its own way
• (vi) A method of agriculture or horticulture
• (vii) Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products
• (viii) An invention relating to atomic energy
• (ix) An invention, which is in effect, is traditional knowledge

Rationale of License

A license is a contract by which the licensor authorizes the licensee to perform certain activities, which would otherwise have been unlawful. For example, in a patent license, the patentee (licensor) authorizes the licensee to exercise defined rights over the patent. The effect is to give to the licensee a right to do what he/she would otherwise be prohibited from doing, i.e., a license makes lawful what otherwise would be unlawful.[ 12 ]

The licensor may also license ‘know-how’ pertaining to the execution of the licensed patent right such as information, process, or device occurring or utilized in a business activity can also be included along with the patent right in a license agreement. Some examples of know-how are:

• (i) technical information such as formulae, techniques, and operating procedures and
• (ii) commercial information such as customer lists and sales data, marketing, professional and management procedures.

Indeed, any technical, trade, commercial, or other information, may be capable of being the subject of protection.[ 13 ]

Benefits to the licensor:

• (i) Opens new markets
• (ii) Creates new areas for revenue generation
• (iii) Helps overcome the challenge of establishing the technology in different markets especially in foreign countries – lower costs and risk and savings on distribution and marketing expenses

Benefits to the licensee are:

• (i) Savings on R&D and elimination of risks associated with R&D
• (ii) Quick exploitation of market requirements before the market interest wanes
• (iii) Ensures that products are the latest

The Role of Patent Cooperation Treaty

The patent cooperation treaty (PCT) is a multilateral treaty entered into force in 1978. Through PCT, an inventor of a member country contracting state of PCT can simultaneously obtain priority for his/her invention in all or any of the member countries, without having to file a separate application in the countries of interest, by designating them in the PCT application. All activities related to PCT are coordinated by the world intellectual property organization (WIPO) situated in Geneva.[ 14 ]

In order to protect invention in other countries, it is required to file an independent patent application in each country of interest; in some cases, within a stipulated time to obtain priority in these countries. This would entail a large investment, within a short time, to meet costs towards filing fees, translation, attorney charges, etc. In addition, it is assumed that due to the short time available for making the decision on whether to file a patent application in a country or not, may not be well founded.[ 15 ]

Inventors of contracting states of PCT on the other hand can simultaneously obtain priority for their inventions without having to file separate application in the countries of interest; thus, saving the initial investments towards filing fees, translation, etc. In addition, the system provides much longer time for filing patent application in the member countries.[ 15 , 16 ]

The time available under Paris convention for securing priority in other countries is 12 months from the date of initial filing. Under the PCT, the time available could be as much as minimum 20 and maximum 31 months. Further, an inventor is also benefited by the search report prepared under the PCT system to be sure that the claimed invention is novel. The inventor could also opt for preliminary examination before filing in other countries to be doubly sure about the patentability of the invention.[ 16 ]

Management of Intellectual Property in Pharmaceutical Industries

More than any other technological area, drugs and pharmaceuticals match the description of globalization and need to have a strong IP system most closely. Knowing that the cost of introducing a new drug into the market may cost a company anywhere between $ 300 million to $1000 million along with all the associated risks at the developmental stage, no company will like to risk its IP becoming a public property without adequate returns. Creating, obtaining, protecting, and managing IP must become a corporate activity in the same manner as the raising of resources and funds. The knowledge revolution, which we are sure to witness, will demand a special pedestal for IP and treatment in the overall decision-making process.[ 17 ]

Competition in the global pharmaceutical industry is driven by scientific knowledge rather than manufacturing know-how and a company's success will be largely dependent on its R&D efforts. Therefore, investments in R&D in the drug industry are very high as a percentage of total sales; reports suggest that it could be as much as 15% of the sale. One of the key issues in this industry is the management of innovative risks while one strives to gain a competitive advantage over rival organizations. There is high cost attached to the risk of failure in pharmaceutical R&D with the development of potential medicines that are unable to meet the stringent safety standards, being terminated, sometimes after many years of investment. For those medicines that do clear development hurdles, it takes about 8-10 years from the date when the compound was first synthesized. As product patents emerge as the main tools for protecting IP, the drug companies will have to shift their focus of R&D from development of new processes for producing known drugs towards development of a new drug molecule and new chemical entity (NCE). During the 1980s, after a period of successfully treating many diseases of short-term duration, the R&D focus shifted to long duration (chronic) diseases. While looking for the global market, one has to ensure that requirements different regulatory authorities must be satisfied.[ 18 ]

It is understood that the documents to be submitted to regulatory authorities have almost tripled in the last ten years. In addition, regulatory authorities now take much longer to approve a new drug. Consequently, the period of patent protection is reduced, resulting in the need of putting in extra efforts to earn enough profits. The situation may be more severe in the case of drugs developed through the biotechnology route especially those involving utilization of genes. It is likely that the industrialized world would soon start canvassing for longer protection for drugs. It is also possible that many governments would exercise more and more price control to meet public goals. This would on one hand emphasize the need for reduced cost of drug development, production, and marketing, and on the other hand, necessitate planning for lower profit margins so as to recover costs over a longer period. It is thus obvious that the drug industry has to wade through many conflicting requirements. Many different strategies have been evolved during the last 10 to 15 years for cost containment and trade advantage. Some of these are out sourcing of R&D activity, forming R&D partnerships and establishing strategic alliances.[ 19 ]

Nature of Pharmaceutical Industry

The race to unlock the secrets of human genome has produced an explosion of scientific knowledge and spurred the development of new technologies that are altering the economics of drug development. Biopharmaceuticals are likely to enjoy a special place and the ultimate goal will be to have personalized medicines, as everyone will have their own genome mapped and stored in a chip. Doctors will look at the information in the chip(s) and prescribe accordingly. The important IP issue associated would be the protection of such databases of personal information. Biotechnologically developed drugs will find more and more entry into the market. The protection procedure for such drug will be a little different from those conventional drugs, which are not biotechnologically developed. Microbial strains used for developing a drug or vaccine needs to be specified in the patent document. If the strain is already known and reported in the literature usually consulted by scientists, then the situation is simple. However, many new strains are discovered and developed continuously and these are deposited with International depository authorities under the Budapest Treaty. While doing a novelty search, the databases of these depositories should also be consulted. Companies do not usually go for publishing their work, but it is good to make it a practice not to disclose the invention through publications or seminars until a patent application has been filed.[ 20 ]

While dealing with microbiological inventions, it is essential to deposit the strain in one of the recognized depositories who would give a registration number to the strain which should be quoted in the patent specification. This obviates the need of describing a life form on paper. Depositing a strain also costs money, but this is not much if one is not dealing with, for example cell lines. Further, for inventions involving genes, gene expression, DNA, and RNA, the sequences also have to be described in the patent specification as has been seen in the past. The alliances could be for many different objectives such as for sharing R&D expertise and facilities, utilizing marketing networks and sharing production facilities. While entering into an R&D alliance, it is always advisable to enter into a formal agreement covering issues like ownership of IP in different countries, sharing of costs of obtaining and maintaining IP and revenue accruing from it, methods of keeping trade secrets, accounting for IP of each company before the alliance and IP created during the project but not addressed in the plan, dispute settlements. It must be remembered that an alliance would be favorable if the IP portfolio is stronger than that of concerned partner. There could be many other elements of this agreement. Many drug companies will soon use the services of academic institutions, private R&D agencies, R&D institutions under government in India and abroad by way of contract research. All the above aspects mentioned above will be useful. Special attention will have to be paid towards maintaining confidentiality of research.[ 1 – 18 ]

The current state of the pharmaceutical industry indicates that IPR are being unjustifiably strengthened and abused at the expense of competition and consumer welfare. The lack of risk and innovation on the part of the drug industry underscores the inequity that is occurring at the expense of public good. It is an unfairness that cannot be cured by legislative reform alone. While congressional efforts to close loopholes in current statutes, along with new legislation to curtail additionally unfavorable business practices of the pharmaceutical industry, may provide some mitigation, antitrust law must appropriately step in.[ 21 ] While antitrust laws have appropriately scrutinized certain business practices employed by the pharmaceutical industry, such as mergers and acquisitions and agreements not to compete, there are several other practices that need to be addressed. The grant of patents on minor elements of an old drug, reformulations of old drugs to secure new patents, and the use of advertising and brand name development to increase the barriers for generic market entrants are all areas in which antitrust law can help stabilize the balance between rewarding innovation and preserving competition.[ 20 ]

Traditional medicine dealing with natural botanical products is an important part of human health care in many developing countries and also in developed countries, increasing their commercial value. The world market for such medicines has reached US $ 60 billion, with annual growth rates of between 5% and 15%. Although purely traditional knowledge based medicines do not qualify for patent, people often claim so. Researchers or companies may also claim IPR over biological resources and/or traditional knowledge, after slightly modifying them. The fast growth of patent applications related to herbal medicine shows this trend clearly. The patent applications in the field of natural products, traditional herbal medicine and herbal medicinal products are dealt with own IPR policies of each country as food, pharmaceutical and cosmetics purview, whichever appropriate. Medicinal plants and related plant products are important targets of patent claims since they have become of great interest to the global organized herbal drug and cosmetic industries.[ 22 ]

Some Special Aspects of Drug Patent Specification

Writing patent specification is a highly professional skill, which is acquired over a period of time and needs a good combination of scientific, technological, and legal knowledge. Claims in any patent specification constitute the soul of the patent over which legal proprietary is sought. Discovery of a new property in a known material is not patentable. If one can put the property to a practical use one has made an invention which may be patentable. A discovery that a known substance is able to withstand mechanical shock would not be patentable but a railway sleeper made from the material could well be patented. A substance may not be new but has been found to have a new property. It may be possible to patent it in combination with some other known substances if in combination they exhibit some new result. The reason is that no one has earlier used that combination for producing an insecticide or fertilizer or drug. It is quite possible that an inventor has created a new molecule but its precise structure is not known. In such a case, description of the substance along with its properties and the method of producing the same will play an important role.[ 23 ]

Combination of known substances into useful products may be a subject matter of a patent if the substances have some working relationship when combined together. In this case, no chemical reaction takes place. It confers only a limited protection. Any use by others of individual parts of the combination is beyond the scope of the patent. For example, a patent on aqua regia will not prohibit any one from mixing the two acids in different proportions and obtaining new patents. Methods of treatment for humans and animals are not patentable in most of the countries (one exception is USA) as they are not considered capable of industrial application. In case of new pharmaceutical use of a known substance, one should be careful in writing claims as the claim should not give an impression of a method of treatment. Most of the applications relate to drugs and pharmaceuticals including herbal drugs. A limited number of applications relate to engineering, electronics, and chemicals. About 62% of the applications are related to drugs and pharmaceuticals.[ 1 – 24 ]

CONCLUSIONS

It is obvious that management of IP and IPR is a multidimensional task and calls for many different actions and strategies which need to be aligned with national laws and international treaties and practices. It is no longer driven purely by a national perspective. IP and its associated rights are seriously influenced by the market needs, market response, cost involved in translating IP into commercial venture and so on. In other words, trade and commerce considerations are important in the management of IPR. Different forms of IPR demand different treatment, handling, planning, and strategies and engagement of persons with different domain knowledge such as science, engineering, medicines, law, finance, marketing, and economics. Each industry should evolve its own IP policies, management style, strategies, etc. depending on its area of specialty. Pharmaceutical industry currently has an evolving IP strategy. Since there exists the increased possibility that some IPR are invalid, antitrust law, therefore, needs to step in to ensure that invalid rights are not being unlawfully asserted to establish and maintain illegitimate, albeit limited, monopolies within the pharmaceutical industry. Still many things remain to be resolved in this context.

Source of Support: Nil

Conflict of Interest: Nil.

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AI and IP: Theory to Policy and Back Again – Policy and Research Recommendations at the Intersection of Artificial Intelligence and Intellectual Property

• Open access
• Published: 20 June 2023
• Volume 54 , pages 916–940, ( 2023 )

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• Peter Georg Picht 1 &
• Florent Thouvenin 2  

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The interaction between artificial intelligence and intellectual property rights (IPRs) is one of the key areas of development in intellectual property law. After much, albeit selective, debate, it seems to be gaining increasing practical relevance through intense AI-related market activity, an initial set of case law on the matter, and policy initiatives by international organizations and lawmakers. Against this background, Zurich University’s Center for Intellectual Property and Competition Law is conducting, together with the Swiss Intellectual Property Institute, a research and policy project that explores the future of intellectual property law in an AI context. This paper briefly describes the AI/IP Research Project and presents an initial set of policy recommendations for the development of IP law with a view to AI. The recommendations address topics such as AI inventorship in patent law; AI authorship in copyright law; the need for sui generis rights to protect innovative AI output; rules for the allocation of AI-related IPRs; IP protection carve-outs in order to facilitate AI system development, training, and testing; the use of AI tools by IP offices; and suitable software protection and data usage regimes.

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1 Introduction

The interaction between artificial intelligence (AI) and intellectual property rights (IPRs) is one of the key areas of development in intellectual property law. After much, albeit selective, debate, it seems to be gaining increasing practical relevance through intense AI-related market activity, an initial set of case law on the matter, and policy initiatives by international organizations (e.g. WIPO, EPO) and lawmakers.

Against this background, Zurich University’s Center for Intellectual Property and Competition Law (CIPCO) is conducting, together with the Swiss Intellectual Property Institute (IPI), Footnote 1 a research and policy project (hereinafter the “AI/IP Research Project” or “Project”) that explores the future of intellectual property law in an AI context. This paper briefly describes the AI/IP Research Project (Sect. 2 ) and presents (Sect. 3 ) an initial set of policy and research recommendations (“Recommendations”) for the development of IP law with a view to AI. It concludes (Sect. 4 ) with a look at possible topics for additional recommendations. For a terminological and technical description of artificial intelligence, Footnote 2 and for further background to the Recommendations below, as well as for AI/IP aspects that they do not address, this paper refers to the rich existing literature. Footnote 3

2 The AI/IP Research Project

Initiated in 2021, the AI/IP Research Project aims at (i) gaining an overview of the current state of affairs in AI/IP, (ii) assessing issues crucial at the present stage, and (iii) deriving policy recommendations for how European jurisdictions, including Switzerland, should position themselves in international collaboration and in national law-making regarding AI/IP. Methodologically, the Project chooses a multi-component approach that has included, so far, mainly a comparative analysis of the AI/IP law situation – across the range of major IP rights Footnote 4 – in various jurisdictions, the gathering of first-hand empirical evidence through stakeholder input (e.g. industry representatives, specialized counsel, members of state and supra-state IP administrations), and an interdisciplinary exchange with innovation economists and computer scientists specializing in AI. As a backbone of its 2021/2022 activities, besides desk research work, the Project conducted a series of workshops Footnote 5 in which legal, economic and technical experts, as well as company representatives and other stakeholders, presented and discussed key AI/IP aspects. Footnote 6 Our warmest thanks go to all those who have participated and are participating in the Project. Footnote 7 Their support is invaluable in the attempt to further an appropriate IP law framework for AI. At its next stage, the Project will, inter alia , intensify the intra-disciplinary legal discourse with scholars working on AI from angles other than core IP law, e.g. data law, contract law, and liability law.

3 Policy Recommendations

We distinguish three types of Policy Recommendations: Implementation Recommendations intend to guide the next steps in law and policy-making. We think, based on previous discourse and experience, that their beneficial effects are likely enough to put them into practice. Consideration Recommendations describe courses which the law should probably take. Some further reflection and research seem, however, advisable before implementing them. Research Recommendations identify issues that research should address, to produce consideration recommendations on these matters as well.

3.1 Implementation Recommendations

3.1.1 inventorship in patent law, 3.1.1.1 recommendation.

The law should be amended to allow the designation of AI systems as inventors. Meanwhile, patent applications should be free to designate persons as “proxy inventors” while also describing the inventive activity of the AI system. There should be more disclosure on such inventive activity. AI systems’ innovative abilities must become part of the PHOSITA concept and related protectability thresholds.

Where an AI system generated inventive output without inventive human intervention, the patent application should be permitted to say so and name the AI system as the inventor, along with a natural person or legal entity who claims ownership of the patent application and a resulting patent.

Until legal rules have (where necessary) been changed to accommodate the above Recommendation, natural persons should – as a temporary workaround – be allowed to act and register as “proxy inventors”, as long as they disclose this role and the AI system for which they act as proxy. Such disclosure should be provided in the description.

More honest recognition of the increasingly innovative role AI systems play in invention processes, however, also calls for stricter requirements for patent applications to disclose details regarding the nature, extent, and mechanism of an AI system’s inventive contribution.

Furthermore, AI system abilities must become part of the PHOSITA Footnote 8 concept and related protectability thresholds. A potential raising of the protectability bar resulting therefrom is welcome as it mitigates the risk of AI patent thickets.

3.1.1.2 Background

The question of whether patent law can and should recognize AI systems as inventors, if they generate otherwise patentable technical solutions without an inventive contribution by humans, is arguably the most conspicuous issue in the current AI/IP landscape. Besides academic debate, Footnote 9 the multi-pronged DABUS litigation plays a key role as it probes into a range of the most important patent jurisdictions on whether their existing rules permit AI system inventorship. So far, the track record of patent applications based on the inventions (allegedly) made by DABUS is not a very successful one and the rejecting patent offices or courts seem right in finding that the currently applicable patent law rules are oriented to human, not AI inventorship. Footnote 10

De lege ferenda , however, at a forward-looking policy level, important reasons weigh in favour of patent applications that openly describe the role AI systems have played in the invention process. A need to definitively assess whether the human contribution to an invention, relative to the contribution made by an AI system, is sufficient to establish human inventorship, and thus patentability, unnecessarily harms legal certainty and uses patent office resources. It is one of the functions of the patent system to instruct the public about the progress of innovation and, thereby, to induce further innovation, for instance in the form of follow-on inventions. Necessitating patent applicants to disguise the true relation between human and AI contributions to an invention, because they must otherwise fear that their application will be rejected, hampers this function. Such impairment becomes even stronger where AI-generated inventions are not submitted for patenting at all but remain confined to the realm of trade secrets. In fact, industry participants in the Project state that companies do prefer trade secrets over patents for AI-generated inventions where they perceive a high risk of ending up – after having to disclose their invention in a patent application – without IP protection because the determinant role of their inventive AI systems, if admitted, prevents patentability.

Remarkably, these and further advantages of openness regarding inventive AI systems have made courts creative in searching for solutions even de lege lata , under the provisions of current patent law. The German Federal Patent Court (“ Bundespatentgericht ”) and the EPO Boards of Appeal now seem to accept a sort of proxy human inventorship. According to this concept, an application must still formally name a natural person as the inventor, but it can, at the same time, explain that the inventive acts were performed by an AI system. Footnote 11 Although unnecessarily complicated and formalistic, the proxy human inventor approach presents an acceptable transitional solution until patent laws can be changed as recommended here.

Even if this patent law reform occurs, it will not obviate the need to designate the natural – or possibly legal ( cf . Sect. 3.2.1 ) – person who becomes the initial owner of the granted patent and who, consequently, acquires the rights and obligations related to this position. Our Recommendation does not advocate patent ownership of AI systems. Since innovative human activity cannot be the parameter for determining initial ownership of patents on purely AI-generated inventions, the law must develop a set of different criteria ( cf . Sect. 3.3.2 ). This exercise is all the more worthwhile because its results are key for many an AI/IP setting: where increasing prowess and independence of AI systems render it difficult to assign legal rights to their output based on human inventorship, creatorship, or similar concepts, other parameters must step in to safeguard an allocation that is economically sound and apt to fulfil the goals of the IP system.

This is not to ignore the fact that a large part of the inventions made today and in the near future result (also) from a human contribution substantial enough to acknowledge human inventorship without difficulties. The pertinent part of the above Recommendation does not deal with AI-assisted inventions but with truly AI- generated ones. These hard cases may be rare – some would even say: non-existent – at present. But their relevance seems very likely to increase, and the law should be prepared by then.

Assessing the novelty of an invention against the state of the art researched with the help of AI systems, and only accepting steps as inventive which so appear from the perspective of a PHOSITA equipped with an ordinarily skilled AI system, will most probably raise the bar for patent protection. Footnote 12 In their contributions to the Project, some stakeholders voiced the concern that, as a result, only resourceful players, commanding exceptionally performant AI systems, may be able to acquire patents in the future. While we acknowledge the theoretical validity of this point, we do not see any empirical evidence that such a development is underway in larger sectors of the economy. Furthermore, it has always been the case that greater resources – such as laboratories with superior equipment, larger research departments, the ability to pay high wages to attract the best researchers, etc. – increased the chance of a market player to accumulate patents. In sum, we do not currently think that unlevel-playing-field concerns should prevent the integration of AI system capacities into the patentability assessment.

3.1.2 Human Authorship in Copyright Law

3.1.2.1 recommendation.

The principle of human authorship should prevail in copyright law – at least in the droit d’auteur systems. Hence, copyright protection should not be extended to works of literature and art created by an AI system without a human contribution even if they amount to a creation in the sense of copyright law. This result is achieved by applying the established criteria of human creation. At the same time, this allows for granting copyright protection for content that has been collectively created by an AI system and a natural person provided that the human contribution is sufficiently creative.

3.1.2.2 Background

Intellectual property law is traditionally based on the idea of one (or several) human creator(s). That is especially true for copyright law, at least for the droit d’auteur systems. In these systems, the idea of a human author is firmly rooted in many key provisions.

The human author plays a key role in the conditions for the protection of a work. According to settled case law of the ECJ, the concept of a work entails an original subject matter which is the author’s own intellectual creation. Footnote 13 Accordingly, there is no work without an author and such author must always be a natural person. Footnote 14 The situation is similar in Swiss law which only protects intellectual creations with an individual character (Art. 2(1) Copyright Act). The requirement of the intellectual creation means that only works created by natural persons can be protected by copyright. Footnote 15 The link of the intellectual character to a human author may be less direct but it is no less important; according to the key test, the requirement of individual character is met if no other individual would have created an identical or highly similar work. Footnote 16 The human being is also the key figure for copyright ownership as the original rightholder is always the author, i.e. the natural person who created the work. Footnote 17 In addition, droit d’auteur systems provide for a series of personality rights, such as the right to recognition as the author and the right to determine the author’s designation, Footnote 18 the right to decide on the first publication of the work, Footnote 19 the right to decide if the work may be altered and/or used to create a derivative work, Footnote 20 and the right to oppose a distortion of the work. Footnote 21 Finally, all copyright systems calculate the term of protection starting from the death of the author. Footnote 22

While some copyright systems have granted copyright protection for machine-generated content for years, Footnote 23 the droit d’auteur systems are hardly suitable to do so. A fundamental shift in these systems would be necessary to accommodate protection of machine-generated content by rethinking and adapting the provisions on the requirement of protection, the initial rightholder, the granting (and exercising) of personality rights and the duration and calculation of the term of protection. However, there are no convincing reasons why this should be done. While we acknowledge that there are some arguments for granting copyright protection to AI-generated works, these arguments seem rather weak. Most importantly, it may not necessarily be convincing to treat works that seem to be similarly “creative” in a fundamentally different way, just because one has been produced by a machine and the other by a human being. However, works of literature and art are public goods and granting exclusive rights to such goods requires a sound justification. Given that all other rationales for the justification of copyright protection (namely personality rights and the labour theory) are closely linked to human creators, the only potential rationale for granting copyright protection for machine-generated works is the need to provide incentives for creative activities. However, once an AI system has been developed, it can produce content such as text, images, music, films, and the like at almost zero marginal cost. While it may be important to grant some form of IP protection for the AI system, there is no need to incentivize the use of these systems by granting copyright protection to their output. Footnote 24

There are other instruments for protecting output that has been created in a fully automated manner and lawmakers (and courts) could improve such instruments, if necessary. Most importantly, the “copy paste” and use of AI-generated content may be captured by unfair competition law, namely by applying the general clause of most European unfair competition acts that allow to capture imitations and the copy-pasting of third-party content if certain conditions are met. Footnote 25 In Switzerland, Art. 5(c) Unfair Competition Act seems to be a good match. This provision captures all instances of taking over and exploiting another person’s marketable work product by means of a technical reproduction process without reasonable effort of the person or company that takes over and exploits the work product. Should unfair competition law prove to be insufficient to accommodate justified needs for protection, lawmakers could consider creating specific neighbouring rights for content generated by AI systems. Footnote 26 From today’s perspective, however, there seems to be no need for such new rights. Footnote 27 In addition, creative software output of AI systems – potentially including settings where an AI system creates another AI system – may be covered by the software protection regime envisaged in these Recommendations ( cf . Sect. 3.3.1 ).

In addition, it is important to bear in mind that denying copyright protection to AI-generated content does not mean that the producer cannot exploit such content on the market. Most importantly, such content can be protected by access restrictions and other technical measures, e.g. digital watermarks, to ensure that others cannot use it without paying a remuneration.

3.2 Consideration Recommendations

3.2.1 corporate iprs, 3.2.1.1 recommendation.

The law should consider allowing corporations and other legal entities to acquire initial ownership of (AI-generated) patents and patent-related IPRs (e.g. utility patents, but not copyrights), at least in cases of AI inventorship.

3.2.1.2 Background

The discussion whether legal entities should be able to acquire the right to a patent and – following the grant of the patent – initial patent ownership is not new. So far, and though dissenting ( de lege ferenda ) views always existed, Footnote 28 the prevailing response has been negative, Footnote 29 not least because today’s patent laws give much weight to a personalistic notion of inventorship, according to which there cannot be an invention without a (human) inventor. Footnote 30 When, however, an invention is generated by an AI system, this conception seems much less convincing. The assignment of legal rights and economic benefits relating to such inventions relies less on personalistic criteria. For instance, companies, and not their employees, will frequently bear the costs for building an inventive AI system and they, not their employees, will exercise legal and economic control over these systems. Insisting on human initial patent ownership in such settings risks distorting a coherent assignment of legal and economic rights to non-human inventions. The law should, therefore, consider relaxing the rules that allow for human initial patent ownership only. Footnote 31

3.2.2 Need for New IPRs Doubtful

3.2.2.1 recommendation.

Currently, there is no need to establish new sui generis IPRs for AI output. Neither current research insights nor current market realities suggest a need for new (sui generis) IPRs (including neighbouring rights) for innovative or creative AI output. Unless future research, including work done as part of the AI/IP project, proves the opposite, lawmakers should abstain from establishing such new types of IPRs.

Furthermore, there are currently no sound reasons for a two-tiered system of differing protection for human and AI inventions and creations. On the contrary, such a system seems prone to generate delimitation predicaments and to entice concealment or deliberate distortion of the genuine innovative process.

Such restraint does not exclude improvements of the current protection regime, for instance, in order to better accommodate software (including AI systems) produced by an AI system ( cf . Sect. 3.3.1 ), the way data rights are allocated, or the framework for trade secret protection.

Should future AI systems generate inventive output at a high rate and in a process that clearly lacks human inventive contribution, the situation may have to be reconsidered. Patent-like protection for such output, which is however weaker than the protective level of current patents, may become a preferable mechanism for allocating exploitation and transaction rights while avoiding over-protection.

3.2.2.2 Background

In academic discourse, proposals have been made for new types of intellectual property rights to protect the innovative or creative output of AI. Footnote 32 Sufficient IPR protection for the AI systems that generate such output seems, on the other hand, less of a concern. Our Patent Law Inventorship Recommendation ( cf . Sect. 3.1.1 ) helps to guarantee the structural availability of IPR protection for technical AI inventions. According to our Authorship in Copyright Law Recommendation ( cf . Sect. 3.1.2 ), restricted copyright protection for creative AI output constitutes not a failure but a virtue of the IPR system. A consensus against the establishment of distinct protection systems for human and AI-generated innovations has already been formed. Footnote 33 Mainly for the reasons stated in the above Recommendation, we support this position. Regarding inventive/creative output or other instances of valuable output generated by AI systems without substantial, innovative human contributions, neither the AI/IP Project nor – to our knowledge – other empirical or economic research ( cf . also Sect. 3.3.3 ) has proven current market failures or insufficient innovation incentives that necessitate the creation of new IPRs. Growing new plants in the already lush garden of IP rights comes at a cost – e.g. anti-commons problems, Footnote 34 transaction costs or interaction issues between the various IPRs – that should only be incurred based on solid evidence of their necessity. Putting another dent in the enthusiasm for new sui generis rights, none of the new IP rights introduced in the last 50 years has proven a real success. This applies, in particular, to the protection of databases through a sui generis right Footnote 35 and the legal protection of topographies of semiconductor products. Footnote 36 Even though it seems premature to assess the impact of the new neighbouring right for the protection of press publications, the chances of success of this new IP right seem doubtful as well. Footnote 37

We cannot, however, exclude the possibility that this picture may change in the future. New ways of detecting and deciding, with sufficient certainty, whether a human or an AI system generated a particular innovation may remove some qualms regarding a two-pronged protection system for human and AI inventions and creations. Extending patent protection at its current level (duration, scope of exclusivity, etc.) to AI-generated inventions may become an unacceptable impairment of dynamic efficiency and freedom to do business, if previsions come true that powerful AI systems will swamp the markets with innovative output at high rates and high quality. Then – and only then – should the law consider conceptualizing new types of limited IP protection, mainly for technical inventions. Such IPRs could combine the transactional benefits of a clear allocation of rights, Footnote 38 incentivization for the creation and maintenance of high-quality AI-systems, Footnote 39 disclosure of innovations to the public, and – for instance, through suitable licensing mechanisms – balanced access to protected content by other market participants. Utility patents do not necessarily provide a blueprint for such AI-specific, “narrow” IPRs, but at least they show that varying levels of protection for technical inventions is a concept that is workable and familiar to the IP system.

3.2.3 Broadened Research Exemption

3.2.3.1 recommendation.

Subject to further research, IP and data law should likely stipulate clearer and more permissive protection carve-outs to facilitate development, training, and testing of AI systems.

The development, training, and testing of AI systems requires the processing of very large amounts of data. Given the extremely broad definition of personal data in data protection laws, Footnote 40 much of these data are to be qualified as personal data and their use is thus subject to the provisions of the General Data Protection Regulation (GDPR) and other data protection laws. In many instances, the data used by AI systems are digital representations of works of literature and art. This is usually the case when AI systems are to recognise or produce text, images, music or films, and therefore need to be trained with corresponding copyright content. In addition, many data used by AI systems will be protected by the sui generis database right. Trade secret or patent protection, for instance, can also come into play. Using data for the development, training, and testing of AI systems may thus violate the provisions of the GDPR or infringe copyrights, the sui generis right in databases, or other intellectual property rights.

Patent and copyright laws, as well as other IP protection systems, contain provisions that allow the use of protected content for research and development, but it seems doubtful whether the existing exemptions are sufficiently broad and homogeneous across jurisdictions to allow for the desired use level of such content by AI systems. Footnote 41 The Database Directive, for instance, does not contain any research exemption for the sui generis right. European lawmakers should thus consider introducing broader research exemptions in copyright law, and creating a research exemption for the sui generis right in databases. Footnote 42

While the GDPR contains provisions that amount to a potentially quite broad research exemption, Footnote 43 it remains unclear if and to what extent this exemption can be applied to privilege the processing of personal data for the development, training, and testing of AI. Given the key importance of data (including personal data) and the lack of harm caused to data subjects by the processing of personal data in the development, testing, and training of AI systems as such (note though that harm may be caused to data subjects by using AI systems Footnote 44 ), we recommend that the GDPR’s research exemption should be interpreted in a way that facilitates such processing. Ideally, this interpretation should be explicitly promoted in an Opinion of the European Data Protection Board (EDPB) to provide legal certainty.

3.2.3.2 Background

Today’s IP and data protection laws were developed prior to the rise of AI. Footnote 45 Although patent, copyright, and data protection laws contain research exemptions, it is unclear if and to what extent these provisions can capture the use of personal data and IP-protected content if the respective data are used for the development, training, and testing of AI systems.

Regarding copyright law, the two exceptions for text and data mining introduced by the Digital Single Market (DSM) Directive Footnote 46 may mitigate the problem. The mandatory exception, however, only covers uses for scientific research by research organisations and cultural heritage institutions, thus excluding text and data mining in a commercial context. Footnote 47 The non-mandatory exception that also applies to commercial uses only covers cases in which text and data mining has not been expressly preserved by the rightholder. The scope of these exceptions is therefore limited. Moreover, the DSM Directive does not mention the use of text and data by AI systems. It is therefore unclear whether the exceptions also cover the use of copyright content for the development, training, and testing of AI systems. The recently introduced research exemption of the Swiss Copyright Act is substantially broader, covering all research and development (including for commercial purposes) and all reproductions that are necessary for technical reasons. Its deliberately broad wording should also cover the use of copyright-protected content by AI systems, both in a research and in a commercial setting.

The sui generis right allows the maker of a database to prohibit the extraction and/or re-utilization of the whole or a substantial part of the contents of a database. However, insubstantial parts may be used by lawful users of the database. While this certainly limits the restrictions of the sui generis right with respect to the use of data by AI systems, one must assume that there are many cases in which it would be useful to extract and re-use all or substantial parts of a database. Thus, the sui generis right imposes relevant restrictions on the use of data by AI systems. As opposed to copyright law, the Database Directive does not even contain an exception for text and data mining. In consequence, adding a broad research exemption to the Directive that also covers the use of data for the development, training, and testing of AI systems seems to be key. Importantly, such an exemption would not confer a standalone right of access to the data contained in a database. It would merely allow the use of data for research purposes if access to such data has already been granted, most often on a contractual basis and against remuneration.

European data protection laws, especially the GDPR, create significant obstacles to the use of data by AI systems, such as the principle of data minimization and purpose limitation, as well as the need to provide a legal basis for the processing of personal data. Footnote 48 Additional barriers stem from restrictive rules on the transfer of personal data to third countries and the increasingly impractical distinction between personal and non-personal data. While the GDPR contains provisions that potentially amount to a quite broad research exemption, Footnote 49 it remains unclear if and to what extent this exemption can be applied to privilege the processing of personal data for the development, training, and testing of AI. However, a suitable application of the research exemption can only be a first step. As outlined below, further research is needed to develop a suitable data usage framework. Footnote 50 In addition, clear and comprehensive data access and/or data use rights Footnote 51 should be established, regarding both personal and non-personal data, to facilitate the development, training, and testing of AI systems.

At the same time, protection carve-outs must not become a carte blanche for IPR infringement. Generative art (art with and through AI) is, for instance, a field in which legal rules need to carefully balance access to and protection of IPR-protected content. AI is a powerful tool for creating works such as films, music, or architectural designs. Such tools are already being offered to the general public for free. The conditions for use of such tools and their output (including sale as non-fungible tokens) vary greatly and can have important effects on the operating modes and business models of the artistic community. Some developers are not sufficiently aware of, or are not willing to abide by, copyright protection rules. Others miss out on advantageously structuring the use of their tools through contractual arrangements. Working, together with stakeholders, from this situation towards a more appropriate legal and factual framework for generative art constitutes a worthy task both for IP offices and for the general discourse on AI protection carve-outs.

3.3 Research Recommendations

3.3.1 new software protection regime, 3.3.1.1 recommendation.

Future research should develop a novel IP protection regime for software that could replace today’s two-tiered approach.

The current IP system does not provide a convincing protection regime for software. The interaction of its main instruments, copyright and patent protection, is far from ideal. The regime has evolved over time, driven by the approach to somehow incorporate software protection into the traditional IP system. However, software differs in important respects from both works of literature or art and from technical inventions. Fitting it into copyright and patent law thus necessitates many compromises. Software produced and employed by AI systems is a recent challenge of particular importance to today’s approach. Therefore, the development of AI systems makes it more urgent than ever to remedy the deficiencies of the current regime for software protection.

The dual system combining copyright and patent protection should be rethought and possibly replaced by a single IPR for software (including AI systems). Such a regime may combine a very limited sui generis protection (regarding both substance and duration) for unregistered software with a stronger protection for software registered in a software register. The granting of a strong IP right could come with (source code) disclosure requirements. Better tailored to promote innovation and to avoid overprotection, such a system may also allow for the closing of current protection loopholes, e.g. regarding complex, highly innovative modelling software.

Given the huge economic importance of software, the implementation of such far-reaching changes in its protection regime resembles open-heart surgery. These changes cannot be undertaken without thorough prior research and discussion. Such research must be interdisciplinary, involving not only legal scholars but also computer scientists and economists. All stakeholders’ (software developers, industry, IP offices, the open source community, and key user groups, etc.) views need to be collected and novel protection approaches need to be tested in a discourse with them.

Given the existing framework of IP treaties, a novel software protection regime could hardly replace the current system over night. But novel approaches could be introduced at a national and regional (e.g. EU) level alongside the existing regimes. If these approaches prove workable, they may well replace the current protection regimes de facto, namely if companies stop applying for software patents and enforcing copyrights. Traditional approaches for software protection may either continue to (formally) exist or be abandoned altogether at a later point in time.

3.3.1.2 Background

Software has always been a sort of outsider among the subject matters of the IP system. The protection regimes that are applied to computer programs were developed long before software even existed. As it seemed virtually impossible to create an entirely new IP right to capture software in the 1980s and 1990s, national lawmakers and international organisations had no choice but to accommodate software in the existing IP regime. The obvious choice was copyright as it came with a series of benefits, the most important ones arguably being that the existing international regime allowed for an almost worldwide protection without the need for application, examination, registration, and payment of fees. In addition, the inclusion of software in patent law was blocked (at least) for the member states of the European Patent Convention as Art. 52(2)(c) EPC states that programs for computers cannot be considered inventions. The “linguistic approach”, focussing on the expression of algorithms in the source code, permitted software to be treated similarly to works of literature and art, Footnote 52 thus allowing copyright protection. With partial amendments to copyright law, e.g. on decompilation Footnote 53 or shortened protection terms, Footnote 54 some steps were taken towards a software-specific protection regime, but without accomplishing this task.

Irrespective of this integration process, businesses also sought the benefits of patent protection for their software. In the US, such patents were granted on a relatively broad basis following a series of Supreme Court decisions in the 1970s and 1980s, culminating in Diamond v. Diehr in 1981, Footnote 55 and subsequent decisions by the Court of Appeal for the Federal Circuit. Footnote 56 Europe remained reluctant, given the provisions in the EPC that excluded patents for computer programs as such (Art. 52(2)(c) and (3) EPC). While patents were (and still are) unavailable for mere computer programs, they were eventually granted for so-called “computer-implemented inventions”. Footnote 57 Over time, the more permissive US and the more restrictive European approach have converged to a certain extent. Inter alia , the US system became more stringent, and moved much closer to the European approach, with the Supreme Court’s Alice decision. Footnote 58

As a result of these historical developments, software can be protected by both patents and copyrights in the major jurisdictions. While it is not uncommon for several IP rights to protect a given object – e.g. copyright, design, patent, and trade mark rights to protect the design of a car – it is quite unusual for a given subject matter category to be explicitly covered by more than one IP right. Not surprisingly, this two-tier system of protection leads to contradictory results. For instance, despite the expiry of patent protection after 20 years, previously patented software does not fall into the public domain but remains protected by copyright for a much longer period of time.

A major problem of the current software protection regime is the fact that neither copyright nor patent law are well suited for this subject matter. Software is different from both technical inventions and works of literature and art. IP protection granted to it should be keyed to these particularities. For example, many software products (e.g. operating systems) cannot be substituted by others because they have become de jure or de facto standards. Software products need to be integrated into a (usually pre-existing) framework of hardware and software, which requires interoperability that can only be ensured if application programming interfaces (API) are provided or – where necessary – lawfully developed through reverse engineering. In digital economies, software assumes a sort of infrastructure role for ever more products and services. Also, in view of these characteristics, the strong protection (duration, degree of exclusivity, etc.) granted by the combination of copyrights and patent rights seems problematic at least for certain types of software (e.g. update patches). Licensing transactions ensuring freedom to operate are hampered by difficulties in determining software ownership and by multi-owner IPR thickets. Fragmented statutory rules and market developments, such as the “open source” movement, have patched some of these issues. Others have led to highly complex and year-long proceedings before competition authorities. Footnote 59 A well-tailored protection framework, including built-in limitations that secure access rights where needed, promises many advantages over these makeshift approaches. It becomes all the more desirable with a view to AI systems consisting, in essential parts, of software and generating large-scale software output the protection status of which is far from evident. Footnote 60

While it seems that software developers and the industries producing and using software have learned to cope with the current software protection framework, important issues remain unresolved. Moreover, the mere fact that developers and the industry have learned to make the best of the current software protection regime in no way precludes that a much better system could be created, i.e. a system that leads to faster and cheaper innovation and raises fewer competition issues.

3.3.2 AI Inventorship and IPR Allocation Parameters

3.3.2.1 recommendation.

Future research should develop a comprehensive grid for the allocation of entitlements resulting from innovations generated by AI systems.

As a key consequence of loosening the ties between the generation of innovative output (by AI systems) and the ownership of resulting IPRs (by natural or legal persons), research must work out a more comprehensive grid for the sound allocation of IP entitlements resulting from innovations generated by AI systems. This concerns a broad range of IPRs (e.g. patents, utility patents, design rights, and new forms of software protection), as well as settings where complementary innovative activity is undertaken by AI systems and human individuals or teams.

3.3.2.2 Background

An appropriate allocation of AI output-related IPRs to natural or legal persons sets the conditions for achieving the IP system’s goals, particularly the incentivization of innovation and the fostering of IP transactions – licensing in particular, but for instance also the use of IP as collateral in M&A and venture capital transactions – which help to disperse and implement protected content. The conduct-steering effect of liability as well as clear responsibilities in the IP system’s self-protection through the enforcement of IPRs against infringing use are further allocation-related benefits. Allocating rights and responsibilities to AI systems themselves is not an option due to these systems’ lack of personality in the legal sense.

There is already some discussion about parameters for allocating IPRs resulting from AI innovation. Footnote 61 Among the main candidates are creatorship of or investment in the output-generating AI system, control over the system at the time of innovation, and responsibility for task and output selection (choice-making). Furthermore, some jurisdictions have adopted statutory rules that assign – be it for AI settings or at a more general level – initial IPR ownership to persons other than the factual inventor. Footnote 62 However, these allocation elements do not yet form a sufficiently comprehensive framework. The additional questions such a framework would have to answer are manifold. What, for instance, is the – possibly sector-specific – hierarchy or relative weight of several applicable allocation parameters? In case different persons fulfil different allocation criteria, does this always result in co-ownership Footnote 63 or do certain allocation parameters (sometimes) outweigh others? For settings in which co-ownership turns out to be the result, are IP law’s present rules on co-ownership appropriate, even though there are no non-economic inventor/author rights to be protected? Assuming that certain groups of (co-)rightholders yield to requests that they waive their position, e.g. for fear of otherwise losing downstream clients, Footnote 64 should the law accept such contractual arrangements?

Arranging the answers to such questions into a suitable allocation regime requires profound research. Such research needs to include legal, economic and technological aspects, including an incentives analysis ( cf . 3.3.3) for accommodating novel allocation approaches.

3.3.3 Revisit Incentivization Necessities and Ownership Approach

3.3.3.1 recommendation.

The IPR system must not mechanically extend its traditional incentivization rationale to innovative AI output. AI systems themselves do not require incentivization. Effective and efficient incentives for natural/legal persons to engage in the development and use of high-quality AI systems, as well as in the implementation of and transactions over their innovative output, need not necessarily parallel traditional IPR incentives for human innovativeness. Traditional notions of ownership may have to be rethought and protection may be oriented more towards securing monetary rewards and freedom to operate than towards non-economic ownership rights.

3.3.3.2 Background

Economists point out that incentivization of AI outputs as such may be unnecessary or even detrimental, whereas it may drive innovation and dissemination to incentivize the commercialization of such outputs (including transactions over them) and the development of AI systems that generate them. Footnote 65 In view of the potentially high innovative output of (future) AI systems, granting full-fledged IPRs to each such output may, in particular, generate overcompensation and excessive IPR thickets. Research, in which economics looms large, must therefore explore incentivization exigencies and dynamics in the AI innovation field. It is crucial to avoid the unwanted effects of over- or under-protection on dynamic efficiency. Such research must also explore whether, and in which ways, the growing relevance of AI systems and data change the role IPRs play for businesses, both in daily practice and at a strategic level. Footnote 66

3.3.4 Data Usage Framework

3.3.4.1 recommendation.

Future research should develop a legal framework focusing on access, sharing and usage of (personal and non-personal) data for the common good while providing a suitable protection of privacy and workable means to protect individuals against harm resulting from data processing.

Next step research should specify legal cornerstones for enhancing the access to, usage and sharing of (personal and non-personal) data for the development, training, and testing of AI systems. Topics include novel approaches to data (protection) law, common data spaces, data pools, interoperability requirements, technical standards regarding syntax and semantics of data, and the (non-)mandatory, sector-specific licensing of data portfolios to AI users/developers on a FRAND basis.

These approaches must apply both to personal and non-personal data since access to and use of both types of data are key conditions for the development, training, and testing of many AI systems. Further research is needed on whether and to what extent the usage of personal data by AI systems risks engendering an infringement of data protection laws or personality rights, such as the right to protection of privacy. A potential way forward could be an in-depth analysis of the scope of current research exemptions in data protection laws (particularly the GDPR) to assess if these exemptions can be applied broadly to cover the usage of personal data by AI systems. But research should also consider entirely novel approaches that go beyond the idea of an all-encompassing regulation of the processing of personal data (as in the GDPR) but rather provide a workable protection of privacy and means to protect individuals against harm resulting from the processing of personal data (e.g. manipulation and discrimination) while opening up the usage of personal data for the common good. Footnote 67

This research must include both an interdisciplinary and an intra-disciplinary component. Obviously, workable data transaction frameworks cannot be conceived without the input of computer and data scientists. But even from a purely legal perspective, there are manifold issues that need to be considered beyond IP and data law, such as contract, competition and procedural law. Equally, the analysis of pertinent business models promises to be very fruitful, including collaboration between holders of large data sets and controllers of powerful AI systems.

In addition to opening up access to and use of data, in-depth research is needed to clarify the legal consequences if an AI system has been developed, trained, or tested with data that have been accessed or used unlawfully. Should this “infect” the AI system in some way, even if the system does not contain the unlawfully used data? Should the consequences be the same regardless of whether the data were used for the development, the training, or the testing of an AI system? And, should it matter whether vast or small amounts of data have been used in an unlawful way – possibly even just a single data point?

3.3.4.2 Background

Data are a key resource for AI operations, especially for AI systems that are based on machine learning. But use of and access to data are often restricted for various reasons. While the use of non-personal data is much less regulated and thus largely permissible, European data protection laws, especially the GDPR, impose significant restrictions on the use of personal data, the most important ones being: The principle of data minimization which requires that the processing of personal data be adequate, relevant and limited to what is necessary in relation to the purposes for which the data are processed; Footnote 68 this principle may inhibit the use of personal data for the training, and testing of an AI system. The principle of purpose limitation according to which data may only be collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; Footnote 69 often, personal data would be a great resource for the development and training of an AI system, but that system might have a purpose which is different from the purpose for which the data were collected, e.g. geo-localization data collected by telecom service providers that could be used to train an AI system that helps to fight traffic jams and to balance public transportation occupancy. A major barrier for the use of personal data by AI systems is that some data protection laws, namely the GDPR, require a basis for the lawfulness of any processing of personal data, the most important ones being the data subject’s consent, Footnote 70 an overriding legitimate interest of the controller, Footnote 71 the need to process personal data for the performance of a contract to which the data subject is a party Footnote 72 or the need to process data for compliance with a legal obligation. Footnote 73 Although the range of possible reasons for the lawfulness of processing is quite broad, such a basis will often be lacking for the use of personal data for the development, training, and testing of AI systems.

Restrictions on access to data are another severe impediment. Companies are increasingly aware that they possess vast amounts of data that can be used in a productive way, e.g. for the training and testing of AI systems. This potential is tapped in a growing number of cases, either in house by the data holding company or through data transactions. In many other settings, though, data access and use fail. Some lawmakers, especially the EU, are enacting certain rules which aim at fostering data exchange and usage. For instance, the Open Data Directive Footnote 74 requires public sector bodies and public undertakings to make data available, including publicly funded, high-value research data. The Data Governance Act Footnote 75 should allow for the re-use of certain public sector data that cannot be made available as open data, e.g. health data. The Draft Data Act Footnote 76 will allow users of IoT devices to gain access to data generated by these devices and to share such data with third parties, thus mitigating their exclusive harvesting by initial data collectors and holders. In addition, the act will include means for public sector bodies to access and use, in exceptional circumstances, data held by the private sector. The Digital Markets Act Footnote 77 obliges gatekeepers to provide data access and portability in various ways. However, research will have to investigate whether these measures and their impact on business models generate sufficient data access for the development, training, and testing of AI.

3.3.5 Use of AI Tools by IP Offices

3.3.5.1 recommendation.

IP offices should strive to exploit the capacity of AI systems in their own operations. This may include the determination of whether an application fulfils the respective protectability requirements (e.g. novelty and inventive step). As a sound medium-term prospect, AI tools will not replace humans in the examination of IPR applications but will become one element of an interactive approach in which human and AI skills are combined to complement each other.

AI tools could help to establish more coherent decision-making within and across IP offices. At the same time, the digitization and automation of IP office processes must maintain, or should even improve, the procedural protection for applicants and further parties to their procedures. As part of such protection, IP offices should strive to render their AI tools transparent and explainable, to the extent possible and reasonable. This could include the establishment of a freely available AI tools database that enables applicants and their agents to improve the quality of their IP filing and IP management and even pre-test the chances of success of their applications.

IP offices should, among themselves, pursue an approach of transparency, insight-sharing and cooperation, which does not exclude friendly competition for benchmark solutions. WIPO may pioneer such an approach.

3.3.5.2 Background

AI can be a tool, and not only a subject, for the work of IP offices. In fact, a number of AI pertinent projects are already run by offices such as Singapore’s IPOS, UKIPO, IPI, WIPO, and EPO. Footnote 78 Much more would be possible, however, and IP offices should engage in intense, cooperative research and discussion on how to implement the above recommendation. More generally, AI has much potential to optimize administrative processes. By reaping this potential, IP office processes could become blueprints for other branches of public administration. Research topics include the identification of suitable AI application fields, e.g. automatic patent/design classification, harmonization of lists of goods and services, computer vision treatment of pictures and similar items in IPR applications, natural language processing of application content, machine translation of applications and prior art searches, and tailor-made AI systems, e.g. adversarial networks, for protectability assessments. In addition, hands-on concepts for integrating AI skills into the PHOSITA standard and similar tests could be developed and data pools for training IP office AI systems could be established, including data-sharing between offices/jurisdictions and the usability of other government agencies’ data. In its network of IP office representatives, the AI/IP Research Project has detected much interest in these topics and enthusiasm to pursue them cooperatively. The Project aims at becoming a catalyst for such cooperation.

The Zurich AI/IP Group fully recognizes that the interplay between AI and IP involves many further aspects. At this stage, the Policy and Research Recommendations cannot specifically address all of them. This section presents a – very much non-exhaustive – list of additional AI/IP topics, which may also become a focus of the Group’s future work.

Patterns of AI innovativeness and creativeness How do AI systems actually go about innovating and creating, both in the field of technical inventions and in areas such as “generative art”, today and in the foreseeable future? This topic is highly interdisciplinary, likely even driven by non-legal, technical/IT disciplines.

Liability regime for IPR/data law infringements by AI systems For instance, the ramifications of the black-box nature of AI systems; ways to increase predictability of use of IPR-protected content by AI systems; ways to build IP law compliance into AI systems; consequences of AI systems processing data the use of which is (partially) unlawful, e.g. lack of a basis for the lawfulness of processing; partial switch to a liability rule regime instead of injunctions; parameters for allocating liability to be in sync with entitlement allocation rules; and the need for mandatory precautions (insurance, reserves, etc.) by small providers of AI systems.

Consistency of the broader legal framework for AI Lawmakers around the globe are working on solutions to address the challenges caused by the use of AI systems in general, beyond the aspect of AI and IP. Important proposals, such as the EU Commission’s draft AI Act, do not specifically address IP issues. AI-related changes to the IP system must aim at consistency with general AI regulation and potential sector-specific AI regulations. Documentation, notification, and disclosure obligations on AI system users present an example for an area where AI/IP considerations and general AI regulation may overlap.

Both institution and Office anonymized for the purposes of this submission.

We are fully aware that there are important differences between the systems we lump together under the term “artificial intelligence” and that there is an ongoing debate on how the term can be defined from the perspective of the law. We thank the reader for bearing with the generalizations made in this Project, permitting a more concise Recommendations document.

See , for instance, European Commission’s High-Level Expert Group on AI (2018); OECD High-Level General Definition of AI Systems, https://oecd.ai/en/wonk/a-first-look-at-the-oecds-framework-for-the-classification-of-ai-systems-for-policymakers ; Chen et al. ( 2017 ); Krafft et al. ( 2020 ), p. 73 et seq .; Schuett ( 2021 ), p. 3 et seq .; Ongsulee ( 2017 ); Van Roy et al. ( 2019 ), p. 5 et seq .; Klinger et al. ( 2018 ), p. 4. Insights on the state of AI/IP affairs gained so far by the Project are canvassed, in greater detail, in Picht et al. ( 2023 ).

So far, the AI/IP discussion shows a certain, understandable focus on patent law. However, a conceptual, holistic policy project on AI/IP, such as the Project described here, must not overlook the important issues and developments in other areas of IP law, especially copyright and trade secrets law.

To the extent these workshops were conducted online, recordings are available at https://www.cipco.uzh.ch/de/veranstaltungen/IP-KI (all web sources last accessed 16 February 2023).

For an account of important findings thus gained, see Picht et al. ( 2023 ).

In particular Abraham Bernstein (University of Zurich), Alberto Russo (EUIPO), Alessandro Curioni (IBM), Alexander Klenner-Bajaja (EPO), Alicia Daly (WIPO), Anaic Cordoba (Swiss IPI), Angel Aledo Lopez (EPO), Beat Weibel (Siemens), Begonia Gonzalez Otero (Max Planck Institute for Innovation and Competition), representatives of the Intellectual Property Office of Singapore, Craig MacMillan (Canadian IPO), Daryl Lim (Penn State University), Emily Miceli (UKIPO), Felix Addor (Swiss IPI), Fernando Peregrino Torregrosa (EUIPO), Gaetan de Rassenfosse (EPFL), Hansueli Stamm (Swiss IPI), Heli Pihlajamaa (EPO), Ian Grimstead (UKIPO), Joseph Walton (UKIPO), Juan Bernabe-Moreno (IBM), Kate Gaudry (Kilpatrick Townsend), Martin Bader (University of St Gallen), Michael May (Siemens), Michael Schröder (ERNI AG), Naomi Häfner (University of St Gallen), Nicki Curtis (UKIPO), Peter R. Thomsen (Novartis), Pierre Olivier (UKIPO), Ryan Abbott (University of Surrey, DABUS Project), Sabrina Konrad (Swiss IPI), Samir Ghamir-Doudane (INPI), Sita Mazumder (Lucerne University of Applied Sciences and Arts), Ulrike Till (WIPO) and Yann Ménière (EPO, MINES ParisTech).

Person having ordinary skills in the art (“ Durchschnittsfachmann ”).

See , for instance, Bonadio et al. ( 2021 ), pp. 48–66; Konertz and Schönhof ( 2018 ), pp. 379–412; Shemtov ( 2019 ).

For an overview of the litigation and discussion, see Picht, Brunner and Schmid ( 2023 ); for continuous updates on the DABUS applications and litigations, see also https://artificialinventor.com/patent-applications/ .

Boards of Appeal of the European Patent Office, J 0008/20 – 3.1.01 and J 0009/20 – 3.1.01, 4.3.7; Federal Patent Court, 11 W (pat) 5/21, II.2.c.

Abbott ( 2016 ), pp. 1079, 1125; Ménière and Pihlajamaa ( 2019 ), p. 334; Bonadio et al. ( 2021 ), p. 54; Fabris ( 2020 ), p. 691 et seq .; Fraser ( 2016 ), p. 321; Käde ( 2021 ), p. 558; Lim ( 2018 ), p. 863; sceptical regarding an impact of AI on the PHOSITA tests, Burk ( 2021 ), p. 308 and Simon ( 2013 ), p. 377.

ECJ decision of 13 November 2018, Levola Hengelo BV/Smilde Foods BV , C-310/17, para. 37; ECJ decision of 4 October 2011, Football Association Premier League , C-403/08 and C-429/08, para. 159; ECJ decision of 16 July 2009, Infopaq International , C-5/08, para. 39.

Senftleben and Buijtelaar ( 2020 ), p. 7; de Cock Buning ( 2016 ), p. 314; Bullinger ( 2022 ), para. 15; Loewenheim and Pfeifer ( 2020 ), para. 2  et seq .

Egloff ( 2020 ), para. 2; Hug ( 2012 ), para. 3  et seq .

Swiss Federal Supreme Court, BGE 142 III 387, para. 3.1.; von Büren and Meer ( 2014 ), para. 178.

For European law, see : Sec. 7 of the German Copyright Act; Art. L111-1 of the French Intellectual Property Code (IPC); Sec. 10(1) of the Austrian Copyright Act. For Swiss law: Art. 6 Copyright Act.

For European law, see : Sec. 13 of the German Copyright Act; Art. L121-1 of the French Intellectual Property Code (IPC); Sec. 20(1) of the Austrian Copyright Act; Art. 8 of the Italian Copyright Statute. For Swiss law: Art. 9 Copyright Act.

For European law, see : Sec. 12(1) of the German Copyright Act; Art. L121-2 of the French Intellectual Property Code (IPC); Art. 12 of the Italian Copyright Statute. For Swiss law: Art. 9(2) Copyright Act.

For European law, see : Art. L121-1 of the French Intellectual Property Code (IPC); Sec. 21(1) of the Austrian Copyright Act; see also Sec. 23 of the German Copyright Act; Art. 18 of the Italian Copyright Statute. For Swiss law: Art. 11(1) Copyright Act.

For European law, see : Sec. 14 of the German Copyright Act; Art. L121-1 of the French Intellectual Property Code (IPC); Sec. 21(3) of the Austrian Copyright Act; Art. 25 of the Italian Copyright Statute. For Swiss law: Art. 11(2) Copyright Act.

Art. 7(1) Berne Convention for the Protection of Literary and Artistic Works (as amended on 28 September 1979).

E.g ., UK ( cf . Sec. 9(3), Sec. 12(7) and the definition of “computer-generated” in Sec. 178 CDPA, although some exceptions apply, cf . Sec. 79(2)(c) and Sec. 81(2) CDPA); Ireland ( cf . Sec. 21(f), Sec. 30, and the definition of “computer-generated” in Sec. 2(1) of the Copyright and Related Works Act); Hong Kong ( cf . Sec. 11(3), Sec. 17(6) and the definition of “computer-generated” in Sec. 198 of the Copyright Ordinance, although some exceptions apply, cf . Sec. 91(2)(c) and Sec. 93(2) of the Copyright Ordinance).

Note that this may be different if AI systems are used to produce inventions. Cf . Senftleben and Buijtelaar ( 2020 ), pp. 18–20, 23, who recommend to instead adopt a neighbouring rights approach.

Cf . Sec. 4(3) of the German Unfair Competition Act; Sec. 1(1)(1) of the Austrian Unfair Competition Act; regarding Scandinavian countries, Viken Monica (2020), passim .

Senftleben and Buijtelaar ( 2020 ), passim ; Dornis ( 2020 ), p. 44 et seq .

See Sect. 3.2.2 .

Staehelin ( 2006 ), p. 18 et seq .; Andermatt ( 2008 ), p. 285; Fabian ( 2019 ), p. 283 et seq .

See , for Germany, BGH, Ia ZR 110/64 – Spanplatten ; BGH, X ZR 54/67 – Wildverbissverhinderung ; Busse and Keukenschrijver ( 2016 ), Sec. 6, note 17 et seq .; Mellulis ( 2015 ), Sec. 6, note 35; on German patent law before 1936, which allowed for corporate patents, Schmidt ( 2009 ), p. 234 et seq . For Switzerland, Botschaft , BBl 1967 II, p. 364; BGer 4A_78/2014; BPatGer O2012_001; Brehmi ( 2012 ), Art. 3, note 5 et seq .; Zuberbühler ( 2012 ). For the UK, Rhone-Poulenc Rorer International Holdings Inc v. Yeda Research & Development Co Ltd [2007] UKHL 43. For the US, Murphy ( 2012 ).

Cf ., for instance, BGH, GRUR 1966, 558, 559 et seq .

Against corporate patent ownership in AI settings, Ann ( 2022 ), Sec. 1, note 25 et seq .; Sec. 19, notes 17–35.

Senftleben and Buijtelaar ( 2020 ), pp. 3, 19; Ramalho ( 2017 ), p. 16; Papastefanou ( 2020 ), p. 295; Lauber-Rönsberg and Hetmank ( 2019 ), p. 647. For parallel reflections in patent law, see Konertz and Schönhof ( 2018 ), p. 411; AIPPI German Delegation 2019, https://aippi.soutron.net/Portal/Default/en-GB/RecordView/Index/254 , p. 18 et seq .

Abbott ( 2016 ), pp. 1079, 1125; Lim ( 2018 ), p. 863 et seq .; dissenting view, Bonadio et al. ( 2021 ), p. 66, advocating a different regime for AI-generated inventions and human inventions, rather than denying AI-generated inventions patent protection altogether.

In general on them, Heller ( 2013 ).

See , for instance, Derclaye and Husovec ( 2022 ), pp. 3–5; EU Commission Staff Working Document, Evaluation of Directive 96/9/EC on the legal protection of databases of 25 April 2018, p. 46; Hoeren ( 2016 ), p. 787.

Hoeren ( 2016 ), p. 790  et seq ., with further references.

Broughton Micova et al. ( 2019 ), p. 242; Geiger et al. ( 2017 ), p. 209  et seq .; Hugenholtz and Quintais ( 2019 ), p. 1010  et seq .

See , for instance, Merges ( 1994 ).

Cf . Sect. 3.3.3 .

“Personal data means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person” (Art. 4(1) GDPR).

Cf . also Picht et al. ( 2023 ).

In recent case law, the ECJ may have (unintentionally) opened a backdoor to research use of databases by stating that “the main criterion for balancing the legitimate interests at stake must be the potential risk to the substantial investment of the maker of the database concerned, namely the risk that that investment may not be redeemed” (ECJ decision of 3 June 2021, CV-Online Latvia v. Melons , C-762/19, para. 44). According to the Court, the sui generis right in databases is only infringed in case of “a risk to the possibility of redeeming that investment through the normal operation of the database in question” (para. 47, emphasis added), which could be interpreted as a research exemption.

Namely, Art. 5(1)(b) GDPR and Art. 89 GDPR.

Cf ., for instance, the Compas system used in the US to generate predictions about recidivism risks of a person accused of a crime, which was found to predict higher risks for black defendants (Liptak ( 2017 )). In the Netherlands, a court halted the use of an automated system to find welfare fraud, finding that the system disproportionately targeted poorer people (Henley and Booth ( 2020 )).

In fact, neither the provisions nor the recitals of the more recent regulations, such as the GDPR and the DSM Directive, even mention AI.

Arts. 3 and 4 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

Geiger, Frosio and Bulayenko ( 2018 ), p. 10.

See Sect. 3.3.4.2 .

Art. 5(1)(b) GDPR and Art. 89 GDPR.

See , for instance, Art. 4 WIPO Copyright Treaty; Art. 1 Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (EU Software Directive); Sec. 2(1)(1) German Copyright Act; Sec. 3(1)(b) UK Copyright, Designs and Patents Act; Art. 2(3) Swiss Copyright Act.

E.g . Art. 6 Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (EU Software Directive); Sec. 69e German Copyright Act; Art. L122-6-1 (IV) French Intellectual Property Code (IPC); Sec. 50B UK Copyright, Designs and Patents Act; Art. 21 Swiss Copyright Act.

E.g . Art. 29(2)(a) Swiss Copyright Act.

US Supreme Court decision of 3 March 1981, Diamond v. Diehr , 450 U.S. 175 (1981).

Cf . in detail, D ragoni ( 2021 ).

On the concept and requirements, see EPO Examination Guidelines, Sec. G-II, 3.3 et seq ., G-VII, 5.4.

US Supreme Court decision of 19 June 2014, Alice Corp. v. CLS Bank International , 573 U.S. 208 (2014).

For example: ongoing proceedings regarding Apple Pay by the European Commission (EC press release of 2 May 2022, Antitrust: Commission sends Statement of Objections to Apple over practices regarding Apple Pay, https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2764 (accessed 20 September 2022)); proceedings regarding Google’s search engine by the European Commission between 2010 and 2017 (EC press release of 27 June 2017, Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service – Factsheet, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_17_1785 (accessed 20 September 2022)); proceedings regarding Microsoft’s Internet Explorer by the European Commission between 2007 and 2013 (BBC News, Microsoft fined by European Commission over web browser, 6 March 2013, https://www.bbc.com/news/technology-21684329 ); United States of America v. Microsoft Corporation , with subsequent settlement between Microsoft and the DOJ in late 2001 (implications discussed by Weinstein ( 2002 )).

On the unavailability of copyright protection for AI-generated works, see Sect. 3.1.2 .

Konertz and Schönhof ( 2018 ), pp. 379, 412; Hugenholtz and Quintais ( 2019 ), pp. 1190, 1208.

On examples, such as the works made for hire doctrine (not AI-specific) or the UK and Irish legislation on ownership of AI-generated works (AI-specific), see Picht, Brunner and Schmid ( 2023 ).

Cf . for instance, on co-authorship of groups of choice-makers, Hugenholtz and Quintais ( 2019 ), pp. 1190, 1208 et seq .; AIPPI German Delegation, pp. 7, 12.

Cf . Hugenholtz and Quintais ( 2019 ), pp. 1190, 1209.

See , for instance, Rassenfosse et al. ( 2023 ).

For some initial research on this, see Picht et al. ( 2023 ). See further Furman and Seamans ( 2018 ).

For an analysis of the fundamental flaws of current European data protection laws and potential ways forward, see Thouvenin ( 2023 ); Thouvenin ( 2021 ); Thouvenin ( 2019 ).

Art. 5(1)(c) GDPR.

Art. 5(1)(b) GDPR.

Art. 6(1)(a) GDPR.

Art. 6(1)(f) GDPR.

Art. 6(1)(b) GDPR.

Art. 6(1)(c) GDPR.

Directive 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information.

Cf . Proposal for a Regulation of the European Parliament and of the Council on European data governance (Data Governance Act) of 25 November 2020.

Cf . Proposal for a Regulation of the European Parliament and of the Council on harmonised rules on fair access to and use of data (Data Act) of 23 February 2022.

Cf . Proposal for a Regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act) of 15 December 2020.

For an overview, see Picht et al. ( 2023 ).

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Picht, P.G., Thouvenin, F. AI and IP: Theory to Policy and Back Again – Policy and Research Recommendations at the Intersection of Artificial Intelligence and Intellectual Property. IIC 54 , 916–940 (2023). https://doi.org/10.1007/s40319-023-01344-5

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Welcome to the realm of intellectual property law research paper topics , where we aim to guide law students on their academic journey by providing a comprehensive list of 10 captivating and relevant topics in each of the 10 categories. In this section, we will explore the dynamic field of intellectual property law, encompassing copyrights, trademarks, patents, and more, and shed light on its significance, complexities, and the diverse array of research paper topics it offers. With expert tips on topic selection, guidance on crafting an impactful research paper, and access to iResearchNet’s custom writing services, students can empower their pursuit of excellence in the domain of intellectual property law.

100 Intellectual Property Law Research Paper Topics

Intellectual property law is a dynamic and multifaceted field that intersects with various sectors, including technology, arts, business, and innovation. Research papers in this domain allow students to explore the intricate legal framework that governs the creation, protection, and enforcement of intellectual property rights. To aid aspiring legal scholars in their academic pursuits, this section presents a comprehensive list of intellectual property law research paper topics, categorized to encompass a wide range of subjects.

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• Fair Use Doctrine: Balancing Creativity and Access to Knowledge
• Copyright Infringement in the Digital Age: Challenges and Solutions
• The Role of Copyright Law in Protecting Creative Works of Art
• The Intersection of Copyright and AI: Legal Implications and Challenges
• Copyright and Digital Education: Analyzing the Impact of Distance Learning
• Copyright and Social Media: Addressing Infringement and User Rights
• Copyright Exceptions for Libraries and Educational Institutions
• Copyright Law and Virtual Reality: Emerging Legal Issues
• Copyright and Artificial Intelligence in Music Creation
• Copyright Termination Rights and Authors’ Works Reversion
• Patentable Subject Matter: Examining the Boundaries of Patent Protection
• Patent Trolls and Innovation: Evaluating the Impact on Technological Advancement
• Biotechnology Patents: Ethical Considerations and Policy Implications
• Patent Wars in the Pharmaceutical Industry: Balancing Access to Medicine and Innovation
• Standard Essential Patents: Analyzing the Role in Technology Development and Market Competition
• Patent Thickets and the Challenges for Startups and Small Businesses
• Patent Pooling and Collaborative Innovation: Advantages and Legal Considerations
• Patent Litigation and Forum Shopping: Analysis of Jurisdictional Issues
• Patent Law and Artificial Intelligence: Implications for Inventorship and Ownership
• Patent Exhaustion and International Trade: Legal Complexities in Global Markets
• Trademark Dilution: Protecting the Distinctiveness of Brands in a Global Market
• Trademark Infringement and the Online Environment: Challenges and Legal Remedies
• The Intersection of Trademark Law and Freedom of Speech: Striking a Balance
• Non-Traditional Trademarks: Legal Issues Surrounding Sound, Color, and Shape Marks
• Trademark Licensing: Key Considerations for Brand Owners and Licensees
• Trademark Protection for Geographical Indications: Preserving Cultural Heritage
• Trademark Opposition and Cancellation Proceedings: Strategies and Legal Considerations
• Trademark Law and Counterfeiting: Global Enforcement Challenges
• Trademark and Domain Name Disputes: UDRP and Legal Strategies
• Trademark Law and Social Media Influencers: Disclosure and Endorsement Guidelines
• Trade Secrets vs. Patents: Choosing the Right Intellectual Property Protection
• Trade Secret Misappropriation: Legal Protections and Remedies for Businesses
• Protecting Trade Secrets in the Digital Age: Cybersecurity Challenges and Best Practices
• International Trade Secret Protection: Harmonization and Enforcement Challenges
• Whistleblowing and Trade Secrets: Balancing Public Interest and Corporate Secrets
• Trade Secret Licensing and Technology Transfer: Legal and Business Considerations
• Trade Secret Protection in Employment Contracts: Non-Compete and Non-Disclosure Agreements
• Trade Secret Misappropriation in Supply Chains: Legal Implications and Risk Mitigation
• Trade Secret Law and Artificial Intelligence: Ownership and Trade Secret Protection
• Trade Secret Protection in the Era of Open Innovation and Collaborative Research
• Artificial Intelligence and Intellectual Property: Ownership and Liability Issues
• 3D Printing and Intellectual Property: Navigating the Intersection of Innovation and Copyright
• Blockchain Technology and Intellectual Property: Challenges and Opportunities
• Digital Rights Management: Addressing Copyright Protection in the Digital Era
• Open Source Software Licensing: Legal Implications and Considerations
• Augmented Reality and Virtual Reality: Legal Issues in Content Creation and Distribution
• Internet of Things (IoT) and Intellectual Property: Legal Challenges and Policy Considerations
• Big Data and Intellectual Property: Privacy and Data Protection Concerns
• Artificial Intelligence and Patent Offices: Automation and Efficiency Implications
• Intellectual Property Implications of 5G Technology: Connectivity and Innovation Challenges
• Music Copyright and Streaming Services: Analyzing Legal Challenges and Solutions
• Fair Use in Documentary Films: Balancing Copyright Protection and Freedom of Expression
• Intellectual Property in Video Games: Legal Issues in the Gaming Industry
• Digital Piracy and Copyright Enforcement: Approaches to Tackling Online Infringement
• Personality Rights in Media: Balancing Privacy and Freedom of the Press
• Streaming Services and Copyright Licensing: Legal Challenges and Royalty Distribution
• Fair Use in Parody and Satire: Analyzing the Boundaries of Creative Expression
• Copyright Protection for User-Generated Content: Balancing Authorship and Ownership
• Media Censorship and Intellectual Property: Implications for Freedom of Information
• Virtual Influencers and Copyright: Legal Challenges in the Age of AI-Generated Content
• Intellectual Property Protection in Developing Countries: Promoting Innovation and Access to Knowledge
• Cross-Border Intellectual Property Litigation: Jurisdictional Challenges and Solutions
• Trade Agreements and Intellectual Property: Impact on Global Innovation and Access to Medicines
• Harmonization of Intellectual Property Laws: Prospects and Challenges for International Cooperation
• Indigenous Knowledge and Intellectual Property: Addressing Cultural Appropriation and Protection
• Intellectual Property and Global Public Health: Balancing Innovation and Access to Medicines
• Geographical Indications in International Trade: Legal Framework and Market Exclusivity
• International Licensing and Technology Transfer: Legal Considerations for Multinational Corporations
• Intellectual Property Enforcement in the Digital Marketplace: Comparative Analysis of International Laws
• Digital Copyright and Cross-Border E-Commerce: Legal Implications for Online Businesses
• Intellectual Property Strategy for Startups: Maximizing Value and Mitigating Risk
• Licensing and Franchising: Legal Considerations for Expanding Intellectual Property Rights
• Intellectual Property Due Diligence in Mergers and Acquisitions: Key Legal Considerations
• Non-Disclosure Agreements: Safeguarding Trade Secrets and Confidential Information
• Intellectual Property Dispute Resolution: Arbitration and Mediation as Alternative Methods
• Intellectual Property Valuation: Methods and Challenges for Business and Investment Decisions
• Technology Licensing and Transfer Pricing: Tax Implications for Multinational Corporations
• Intellectual Property Audits: Evaluating and Managing IP Assets for Businesses
• Trade Secret Protection and Non-Compete Clauses: Balancing Employer and Employee Interests
• Intellectual Property and Startups: Strategies for Funding and Investor Relations
• Intellectual Property and Access to Medicines: Ethical Dilemmas in Global Health
• Gene Patenting and Human Dignity: Analyzing the Moral and Legal Implications
• Intellectual Property and Indigenous Peoples: Recognizing Traditional Knowledge and Culture
• Bioethics and Biotechnology Patents: Navigating the Intersection of Science and Ethics
• Copyright, Creativity, and Freedom of Expression: Ethical Considerations in the Digital Age
• Intellectual Property and Artificial Intelligence: Ethical Implications for AI Development and Use
• Genetic Engineering and Intellectual Property: Legal and Ethical Implications
• Intellectual Property and Environmental Sustainability: Legal and Ethical Perspectives
• Cultural Heritage and Intellectual Property Rights: Preservation and Repatriation Efforts
• Intellectual Property and Social Justice: Access and Equality in the Innovation Ecosystem
• Innovation Incentives and Intellectual Property: Examining the Relationship
• Intellectual Property and Technology Transfer: Promoting Innovation and Knowledge Transfer
• Intellectual Property Rights in Research Collaborations: Balancing Interests and Collaborative Innovation
• Innovation Policy and Patent Law: Impact on Technology and Economic Growth
• Intellectual Property and Open Innovation: Collaborative Models and Legal Implications
• Intellectual Property and Startups: Fostering Innovation and Entrepreneurship
• Intellectual Property and University Technology Transfer: Challenges and Opportunities
• Open Access and Intellectual Property: Balancing Public Goods and Commercial Interests
• Intellectual Property and Creative Industries: Promoting Cultural and Economic Development
• Intellectual Property and Sustainable Development Goals: Aligning Innovation with Global Priorities

The intellectual property law research paper topics presented here are intended to inspire students and researchers to delve into the complexities of intellectual property law and explore emerging issues in this ever-evolving field. Each topic offers a unique opportunity to engage with legal principles, societal implications, and practical challenges. As the landscape of intellectual property law continues to evolve, there remains an exciting realm of uncharted research areas, waiting to be explored. Through in-depth research and critical analysis, students can contribute to the advancement of intellectual property law and its impact on innovation, creativity, and society at large.

Exploring the Range of Topics in Human Rights Law

Human rights law is a vital field of study that delves into the protection and promotion of fundamental rights and freedoms for all individuals. As a cornerstone of international law, human rights law addresses various issues, ranging from civil and political rights to economic, social, and cultural rights. It aims to safeguard the inherent dignity and worth of every human being, regardless of their race, religion, gender, nationality, or other characteristics. In this section, we will explore the diverse and expansive landscape of intellectual property law research paper topics, shedding light on its significance and the vast array of areas where students can conduct meaningful research.

• Historical Perspectives on Human Rights : Understanding the historical evolution of human rights is essential to comprehend the principles and norms that underpin modern international human rights law. Research papers in this category may explore the origins of human rights, the impact of significant historical events on the development of human rights norms, and the role of key figures and organizations in shaping the human rights framework.
• Human Rights and Social Justice : This category delves into the intersection of human rights law and social justice. Intellectual property law research paper topics may encompass the role of human rights in addressing issues of poverty, inequality, discrimination, and marginalization. Researchers can analyze how human rights mechanisms and legal instruments contribute to advancing social justice and promoting inclusivity within societies.
• Gender Equality and Women’s Rights : Gender equality and women’s rights remain crucial subjects in human rights law. Research papers in this area may explore the legal protections for women’s rights, the challenges in achieving gender equality, and the impact of cultural and societal norms on women’s human rights. Intellectual property law research paper topics may also address specific issues such as violence against women, gender-based discrimination, and the role of women in peacebuilding and conflict resolution.
• Freedom of Expression and Media Rights : The right to freedom of expression is a fundamental human right that forms the basis of democratic societies. In this category, researchers can examine the legal dimensions of freedom of expression, including its limitations, the role of media in promoting human rights, and the challenges in balancing freedom of expression with other rights and interests.
• Human Rights in Armed Conflicts and Peacebuilding : Armed conflicts have severe implications for human rights, necessitating robust legal frameworks for protection. Topics in this category may focus on humanitarian law, the rights of civilians during armed conflicts, and the role of international organizations in peacebuilding and post-conflict reconstruction.
• Refugee and Migration Rights : With the global refugee crisis and migration challenges, this category addresses the legal protections and challenges faced by refugees and migrants. Research papers may delve into the rights of asylum seekers, the principle of non-refoulement, and the legal obligations of states in providing humanitarian assistance and protection to displaced populations.
• Economic, Social, and Cultural Rights : Economic, social, and cultural rights are integral to human rights law, ensuring the well-being and dignity of individuals. Topics may explore the right to education, health, housing, and adequate standards of living. Researchers may also examine the justiciability and enforcement of these rights at national and international levels.
• Human Rights and Technology : The digital age presents new challenges and opportunities for human rights. Research in this category can explore the impact of technology on privacy rights, freedom of expression, and the right to access information. Intellectual property law research paper topics may also cover the use of artificial intelligence and algorithms in decision-making processes and their potential implications for human rights.
• Environmental Justice and Human Rights : Environmental degradation has significant human rights implications. Researchers can investigate the intersection of environmental protection and human rights, examining the right to a healthy environment, the rights of indigenous communities, and the role of human rights law in addressing climate change.
• Business and Human Rights : The responsibilities of corporations in upholding human rights have gained increasing attention. This category focuses on corporate social responsibility, human rights due diligence, and legal mechanisms to hold businesses accountable for human rights violations.

The realm of human rights law offers an expansive and dynamic platform for research and exploration. As the international community continues to grapple with pressing human rights issues, students have a unique opportunity to contribute to the discourse and advance human rights protections worldwide. Whether examining historical perspectives, social justice, gender equality, freedom of expression, or other critical areas, research in human rights law is a compelling endeavor that can make a positive impact on the lives of people globally.

How to Choose an Intellectual Property Law Topic

Choosing the right intellectual property law research paper topic is a crucial step in the academic journey of law students. Intellectual property law is a multifaceted and rapidly evolving field that covers a wide range of subjects, including patents, copyrights, trademarks, trade secrets, and more. With such diversity, selecting a compelling and relevant research topic can be both challenging and exciting. In this section, we will explore ten practical tips to help students navigate the process of choosing an engaging and impactful intellectual property law research paper topic.

• Identify Your Interests and Passion : The first step in selecting a research paper topic in intellectual property law is to identify your personal interests and passion within the field. Consider what aspects of intellectual property law resonate with you the most. Are you fascinated by the intricacies of patent law and its role in promoting innovation? Or perhaps you have a keen interest in copyright law and its influence on creative expression? By choosing a topic that aligns with your passions, you are more likely to stay motivated and engaged throughout the research process.
• Stay Updated on Current Developments : Intellectual property law is a dynamic area with continuous developments and emerging trends. To choose a relevant and timely research topic, it is essential to stay updated on recent court decisions, legislative changes, and emerging issues in the field. Follow reputable legal news sources, academic journals, and intellectual property law blogs to remain informed about the latest developments.
• Narrow Down the Scope : Given the vastness of intellectual property law, it is essential to narrow down the scope of your research paper topic. Focus on a specific subfield or issue within intellectual property law that interests you the most. For example, you may choose to explore the legal challenges of protecting digital copyrights in the music industry or the ethical implications of gene patenting in biotechnology.
• Conduct Preliminary Research : Before finalizing your research paper topic, conduct preliminary research to gain a better understanding of the existing literature and debates surrounding the chosen subject. This will help you assess the availability of research material and identify any gaps or areas for further exploration.
• Review Case Law and Legal Precedents : In intellectual property law, case law plays a crucial role in shaping legal principles and interpretations. Analyzing landmark court decisions and legal precedents in your chosen area can provide valuable insights and serve as a foundation for your research paper.
• Consult with Professors and Experts : Seek guidance from your professors or intellectual property law experts regarding potential intellectual property law research paper topics. They can offer valuable insights, suggest relevant readings, and provide feedback on the feasibility and relevance of your chosen topic.
• Consider Practical Applications : Intellectual property law has real-world implications and applications. Consider choosing a research topic that has practical significance and addresses real challenges faced by individuals, businesses, or society at large. For example, you might explore the role of intellectual property in facilitating technology transfer in developing countries or the impact of intellectual property rights on access to medicines.
• Analyze International Perspectives : Intellectual property law is not confined to national boundaries; it has significant international dimensions. Analyzing the differences and similarities in intellectual property regimes across different countries can offer a comparative perspective and enrich your research paper.
• Propose Solutions to Existing Problems : A compelling research paper in intellectual property law can propose innovative solutions to existing problems or challenges in the field. Consider focusing on an area where there are unresolved debates or conflicting interests and offer well-reasoned solutions based on legal analysis and policy considerations.
• Seek Feedback and Refine Your Topic : Once you have narrowed down your research paper topic, seek feedback from peers, professors, or mentors. Be open to refining your topic based on constructive criticism and suggestions. A well-defined and thoughtfully chosen research topic will set the stage for a successful and impactful research paper.

Choosing the right intellectual property law research paper topic requires careful consideration, passion, and a keen awareness of current developments in the field. By identifying your interests, staying updated on legal developments, narrowing down the scope, conducting preliminary research, and seeking guidance from experts, you can select a compelling and relevant topic that contributes to the academic discourse in intellectual property law. A well-chosen research topic will not only showcase your expertise and analytical skills but also provide valuable insights into the complexities and challenges of intellectual property law in the modern world.

How to Write an Intellectual Property Law Research Paper

Writing an intellectual property law research paper can be an intellectually stimulating and rewarding experience. However, it can also be a daunting task, especially for students who are new to the intricacies of legal research and academic writing. In this section, we will provide a comprehensive guide on how to write an effective and impactful intellectual property law research paper. From understanding the structure and components of the paper to conducting thorough research and crafting compelling arguments, these ten tips will help you navigate the writing process with confidence and proficiency.

• Understand the Paper Requirements : Before diving into the writing process, carefully review the requirements and guidelines provided by your professor or institution. Pay attention to the paper’s length, formatting style (APA, MLA, Chicago/Turabian, Harvard, etc.), citation guidelines, and any specific instructions regarding the research paper topic or research methods.
• Conduct In-Depth Research : A strong intellectual property law research paper is built on a foundation of comprehensive and credible research. Utilize academic databases, legal journals, books, and reputable online sources to gather relevant literature and legal precedents related to your chosen topic. Ensure that your research covers a wide range of perspectives and presents a well-rounded analysis of the subject matter.
• Develop a Clear Thesis Statement : The thesis statement is the central argument of your research paper. It should be concise, specific, and clearly convey the main point you will be arguing throughout the paper. Your thesis statement should reflect the significance of your research topic and its contribution to the field of intellectual property law.
• Create an Outline : An outline is a roadmap for your research paper, helping you organize your thoughts and ideas in a logical and coherent manner. Divide your paper into sections, each representing a key aspect of your argument. Within each section, outline the main points you will address and the evidence or analysis that supports your claims.
• Introduction : Engage and Provide Context: The introduction of your research paper should captivate the reader’s attention and provide essential context for your study. Start with a compelling opening sentence or anecdote that highlights the importance of the topic. Clearly state your thesis statement and provide an overview of the main points you will explore in the paper.
• Literature Review : In the early sections of your research paper, include a literature review that summarizes the existing research and scholarship on your topic. Analyze the key theories, legal doctrines, and debates surrounding the subject matter. Use this section to demonstrate your understanding of the existing literature and to identify gaps or areas where your research will contribute.
• Legal Analysis and Argumentation : The heart of your intellectual property law research paper lies in your legal analysis and argumentation. Each section of the paper should present a well-structured and coherent argument supported by legal reasoning, case law, and relevant statutes. Clearly explain the legal principles and doctrines you are applying and provide evidence to support your conclusions.
• Consider Policy Implications : Intellectual property law often involves complex policy considerations. As you present your legal arguments, consider the broader policy implications of your research findings. Discuss how your proposed solutions or interpretations align with societal interests and contribute to the advancement of intellectual property law.
• Anticipate Counterarguments : To strengthen your research paper, anticipate potential counterarguments to your thesis and address them thoughtfully. Acknowledging and refuting counterarguments demonstrate the depth of your analysis and the validity of your position.
• Conclusion : Recapitulate and Reflect: In the conclusion of your research paper, recapitulate your main arguments and restate your thesis statement. Reflect on the insights gained from your research and highlight the significance of your findings. Avoid introducing new information in the conclusion and instead, offer recommendations for further research or policy implications.

Writing an intellectual property law research paper requires meticulous research, careful analysis, and persuasive argumentation. By following the tips provided in this section, you can confidently navigate the writing process and create an impactful research paper that contributes to the field of intellectual property law. Remember to adhere to academic integrity and proper citation practices throughout your research, and seek feedback from peers or professors to enhance the quality and rigor of your work. A well-crafted research paper will not only demonstrate your expertise in the field but also provide valuable insights into the complexities and nuances of intellectual property law.

iResearchNet’s Research Paper Writing Services

At iResearchNet, we understand the challenges that students face when tasked with writing complex and comprehensive research papers on intellectual property law topics. We recognize the importance of producing high-quality academic work that meets the rigorous standards of legal research and analysis. To support students in their academic endeavors, we offer custom intellectual property law research paper writing services tailored to meet individual needs and requirements. Our team of expert writers, well-versed in the intricacies of intellectual property law, is committed to delivering top-notch, original, and meticulously researched papers that can elevate your academic performance.

• Expert Degree-Holding Writers : Our team consists of experienced writers with advanced degrees in law and expertise in intellectual property law. They possess the necessary knowledge and research skills to create well-crafted research papers that showcase a profound understanding of the subject matter.
• Custom Written Works : We take pride in producing custom-written research papers that are unique to each client. When you place an order with iResearchNet, you can be assured that your paper will be tailored to your specific instructions and requirements.
• In-Depth Research : Our writers conduct thorough and comprehensive research to ensure that your intellectual property law research paper is well-supported by relevant legal sources and up-to-date literature.
• Custom Formatting : Our writers are well-versed in various citation styles, including APA, MLA, Chicago/Turabian, and Harvard. We will format your research paper according to your specified citation style, ensuring accuracy and consistency throughout the paper.
• Top Quality : We are committed to delivering research papers of the highest quality. Our team of editors reviews each paper to ensure that it meets the required academic standards and adheres to your instructions.
• Customized Solutions : At iResearchNet, we recognize that each research paper is unique and requires a tailored approach. Our writers take the time to understand your specific research objectives and create a paper that aligns with your academic goals.
• Flexible Pricing : We offer competitive and flexible pricing options to accommodate students with varying budget constraints. Our pricing is transparent, and there are no hidden fees or additional charges.
• Short Deadlines : We understand that students may face tight deadlines. Our writers are skilled in working efficiently without compromising the quality of the research paper. We offer short turnaround times, including deadlines as tight as 3 hours.
• Timely Delivery : Punctuality is a priority at iResearchNet. We ensure that your completed research paper is delivered to you on time, allowing you ample time for review and any necessary revisions.
• 24/7 Support : Our customer support team is available 24/7 to assist you with any queries or concerns you may have. Feel free to contact us at any time, and we will promptly address your needs.
• Absolute Privacy : We value your privacy and confidentiality. Your personal information and order details are treated with the utmost confidentiality, and we never share your data with third parties.
• Easy Order Tracking : Our user-friendly platform allows you to easily track the progress of your research paper. You can communicate directly with your assigned writer and stay updated on the status of your order.
• Money-Back Guarantee : We are committed to customer satisfaction. If, for any reason, you are not satisfied with the quality of the research paper, we offer a money-back guarantee.

When it comes to writing an exceptional intellectual property law research paper, iResearchNet is your reliable partner. With our team of expert writers, commitment to quality, and customer-centric approach, we are dedicated to helping you succeed in your academic pursuits. Whether you need assistance with choosing a research paper topic, conducting in-depth research, or crafting a compelling argument, our custom writing services are designed to provide you with the support and expertise you need. Place your order with iResearchNet today and unlock the full potential of your intellectual property law research.

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3 Comparative Legal Analysis and Intellectual Property Law: A Guide for Research

I thank Ahmed Abdel-Latif, Martha Chikowore, Lillà Montagnani, Nari Lee, and Jacques de Werra for comments on previous drafts of this chapter, and Katie Kruisselbrink for research and editorial assistance.

• Published: May 2021
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This chapter addresses the intersection between comparative law and intellectual property (IP) law and the role of comparative legal analysis as a research methodology for IP scholars. Due to the high level of international harmonization of IP laws, comparative legal analysis has traditionally played a prominent role for IP scholars. However, this methodology has become even more fundamental in recent decades because of the further integration of legal systems due to the process of globalization of trade and the fast-evolving worldwide technological developments. As a result of this economic and technological integration, different legal traditions have converged to an unprecedented level. In particular, after an overview of Comparative Law and the process required to conduct comparative analysis, this chapter offers several examples in the context of IP research.

I. Introduction

In this chapter, I address the intersection between comparative law and intellectual property (IP) law and the role of comparative legal analysis as a research methodology for IP scholars. Although several generations of IP scholars have engaged in comparative legal analysis as part of their research agenda for many decades, a limited number of contributions can be found addressing the role of comparative law in IP research from a methodological and conceptual perspective. In this chapter, I build upon my previous research in this area 1 and hope to offer some useful observations to fill this gap.

In particular, I start from the premise that due to the high level of international harmonization of IP laws, comparative legal analysis has traditionally played a prominent role for IP scholars. I argue that this role has become even more fundamental in recent decades because of the further integration of legal systems due to the process of globalization of trade and the fast-evolving worldwide technological developments. As a result of this economic and technological integration, different legal traditions have consequently converged to an unprecedented level. For example, historic differences between common law and civil law have increasingly been blurred. IP laws today are based mostly on statutes—a traditional staple of the civil law—but with an increasingly relevant role of judicial precedents to interpret these statutes—the main feature of the common law. Some differences remain, however, which make of comparative legal analysis a very relevant, if not fundamental, methodology to use in order to analyse both the similarities and differences of national laws.

In this chapter, I also emphasize that comparative legal analysis is an important research methodology not only for scholars typically exploring international and comparative IP issues, but for all scholars, including those who may analyse a specific research question only at the national level. 2 I additionally support that comparative legal analysis can be usefully combined with other research methodologies, for example social science or humanities-based methodologies, many of which are analysed in detail in this book. 3 Above all, I hope to highlight that this research methodology remains one of the most effective instruments for scholars to build legal bridges and international understanding, whose importance is critical far beyond IP scholarship.

The chapter proceeds as follows. In Section II , I offer a brief overview of comparative law and describe the process designed by scholars to conduct comparative analysis in any field of law. In Section III , I address the application of this research methodology to IP scholarship. In Section IV , I offer some specific examples of the application of comparative legal analysis in the context of IP research based on some of my past publications. In this Section, I refer to what are, in my view, the main takeaways for scholars interested in this area of law. In Section V , I briefly conclude.

II. A Brief Overview of Comparative Law and Comparative Legal Analysis

Different from most other legal fields, there is not a specific branch of positive law identified as ‘Comparative Law’. Instead, Comparative Law is generally defined as the body of law focusing on the ‘comparison of different legal systems of the world’, to ‘detect[] their differences and similarities’. 4 Scholars across the world engage in Comparative Law as an area of study to explore a variety of research questions through conducting a comparison between different legal systems, legal traditions, national, regional, or international laws, and more. Furthermore, scholars mostly agree that the relevance of Comparative Law goes beyond the understanding of legal systems and extends to international relations, economics, political science, and diplomatic studies. 5 Accordingly, the objective of Comparative Law is not the assessment of any specific positive branch of law. Instead, the objective is the legal comparison per se and, with it, the findings resulting from this comparison—that is, evaluating the solutions utilized in different legal systems—and whether these findings may highlight similarities or differences between the legal systems being compared. 6

Comparative legal analysis—the action of identifying and comparing the findings resulting from the analysis of different legal systems, traditions, national, regional, or international laws, organizations, etc.—is the methodology at the heart of Comparative Law. In this context it is crucial to note that, while the two terms are distinct—one refers to the method used to conduct the research, while the other identifies the field of law—they are intrinsically intertwined. As highlighted by prominent scholars, Comparative Law is ‘an intellectual activity with law as its object and comparison as its process’. 7 In past decades, many discussions have taken place to determine whether Comparative Law constitutes its own independent legal field, or whether it only represents a research methodology (comparative legal analysis) that can be applied across a variety of legal disciplines. 8 Supporters of the latter position have pointed to the fact that Comparative Law does not have a specific set of written rules, but instead relies on the comparison of existing rules, judicial decisions, or alternative sources in other fields—for example, Constitutional Law, Family Law, Labour Law, or IP Law. 9 As such, it becomes difficult to identify Comparative Law as a legal discipline, per se. On the contrary, those supporting a more substantive view of the field as an area of law have argued scholars have generated a large body of the epistemological debate and literature on both public and private Comparative Law over the years, and this has certainly created a specialized field of research. 10 Thus, this group supports that Comparative Law is, if not a fully independent field of law, at least a legitimate and scientifically based model for comparative legal studies. 11

Despite these controversies, it is nonetheless agreed that the process of conducting comparative legal analysis involves a four-step process, 12 which is: (1) gathering the information about the legal systems (or legal traditions, national, regional, or international laws, organizations, etc.) to be compared; (2) evaluating the ‘ external law ’, which is the law as it is expressed in the words, written or otherwise, of the legal systems analysed; (3) evaluating the ‘ internal law ’, or how the law operates in the specific societies compared; and (4) conducting the actual comparison by juxtaposing the information collected and presenting the result of the comparison. Through this process, scholars can compare one or more foreign legal systems (or legal traditions, national, regional, or international laws, organizations, etc.), and juxtapose the findings related to this system against the findings of another system. Additionally, scholars can extend the comparison beyond two or more national systems. They can compare national systems with the international framework, or with a regional system, or regional systems with the international framework. 13

To begin the comparison, scholars should first assemble the information about the legal systems (or legal traditions, national, regional, or international laws, organizations, etc.) being compared. While doing so, scholars should try to analyse this information without any biases they may possess from their individual national experiences (different challenges apply for scholars comparing only foreign jurisdictions as they may be unfamiliar with the systems being compared). During the information gathering stage, scholars should also try to understand the customs, economy, and social issues of the individual legal systems they are comparing as much as possible to understand if they are effectively retrieving the correct information, including, if applicable, the legal and procedural history related to the specific inquiry. 14 Scholars should also avoid expressing judgments on the information and findings of their analysis in these early stages of research. 15

Second, scholars should evaluate the ‘ external law ’ related to their research questions and the legal systems (or legal traditions, national, regional, or international law, national, regional, or international organizations, etc.) being compared. 16 In particular, scholars should conduct this evaluation by carefully assessing the information collected in light of the content, meaning, letter, and legal context of the national or regional jurisdictions being analysed. This again includes an attempt to fully understand the legislative history, legislative reforms, case law developments, etc. of these jurisdictions. The analysis should include a careful examination of the history of the countries or regions at issue, how long these countries have been independent, and the influence of other legal systems on the development of their national laws. The analysis should encompass the possible process of accession of the countries examined to relevant international organizations, international agreements, and similar important factors regarding the area of research at issue. Scholars should then compare and evaluate the differences and similarities between the systems they are comparing based on all of the factors constituting the ‘ external law ’. As it has been observed, ‘[t]he end result of systematic [analysis] is that we will uncover the concrete meaning of the legal data point under review’. 17

Third, scholars should attempt to evaluate the ‘ internal law ’ of the systems being analysed regarding the topics of their research questions. 18 This analysis involves the examination of how the law operates in practice within the relevant culture and legal traditions of the jurisdictions compared. It is often based on a law and society examination of the topic of the research, which should ideally be conducted by taking into account the ‘underlying forces that operate within a society to help form and influence law and give it substance’. 19 These ‘underlying forces’ include the economic and social issues, as well as the history, religion, and philosophy of the countries being compared. 20 Certainly, this step in the comparative legal analysis may prove particularly challenging for scholars, and legal scholars should not be expected to become experts in fields beyond their legal discipline. However, it is important that scholars attempt to consider the legal questions and the findings of the comparison based on a context that takes into account the ‘ internal law ’ as much as the ‘ external law ’. 21

Finally, to compare the information acquired, scholars need to assemble the results of their investigation and use that information to answer their research questions. 22 In doing so, scholars can follow one of the two majoritarian approaches of ‘how to conduct comparison’: the ‘convergence approach’, 23 focusing primarily on the similarities between legal systems and seeking to bring uniformity and ‘functional solutions to problems [that] tend to be similar’ across different legal systems; or the ‘non-convergence approach’, which assesses not only the similarities but also the differences and does not aim at convergence but rather at understanding different positions on similar issues across diverse systems. 24 Ultimately, whether scholars prefer to follow the convergence or non-convergence approach depends on their specific research questions and the systems being compared. Scholars can additionally combine a variety of methodologies while addressing their research questions. These methods include approaches based on ‘historical, functional, evolutionary, structural, thematic, empirical, and statistical comparison[s]’ 25 that can assist scholars while assessing the ‘ external law ’ or the ‘ internal law ’ regarding the comparison findings. 26

III. The Role of Comparative Legal Analysis in Intellectual Property Law

Comparative legal analysis is undoubtedly a widely adopted methodology in IP research in many countries today. IP scholars, law-makers, judges, and legal practitioners have historically recognized the importance of understanding how foreign legal systems work to have a better knowledge of their own national systems. Universities, research institutions, and professional training centres have also long recognized the importance of comparative legal training. Because of its significant importance to the legal field, these institutions offer classes on subjects related to International and Comparative IP Law, both at the undergraduate and postgraduate level. 27 Interestingly, however, despite the popularity of this research method, IP scholars seldom receive specific training on how to use and engage in this research methodology. Still, a large number of IP scholars, including this author, have long been accustomed to simply using comparative legal analysis as a necessary research method to address research questions in an increasingly internationalized and harmonized field of law. 28 In this chapter, I hope to provide some guidance for IP scholars interested in using this methodology in their research.

Comparative legal analysis’ prominent role in the area of IP law started with the adoption of the 1883 Paris Convention for the Protection of Industrial Property 29 and the 1886 Berne Convention. 30 The end of the nineteenth century marked the beginning of the ‘internationalization’ of IP Law and the resulting implementation of harmonized principles in several countries around the world. 31 This trend continued in the twentieth century 32 and led to the adoption of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. 33 Several other relevant WIPO treaties were also adopted in the 1990s and over the past two decades, 34 including a number of agreements related to the harmonization procedures of national IP offices regarding the registration of trademarks and patents. 35 At the same time, bilateral and regional international trade agreements (FTAs) have become an additional forum for IP norm-setting, leading to a series of changes in national laws of countries entering into some of these agreements. 36 Finally, last century saw the rise of several regional organizations, including the European Union (EU), the African Intellectual Property Organization (OAPI), the African Regional Intellectual Property Organization (ARIPO), the Association of Southeast Asia Nations (ASEAN), and the Southern Common Market (MERCUSUR). 37 These organizations have developed considerable administrative co-operation and harmonization of IP laws, including the creation of region-wide IP rights in some regions (e.g. in the EU for trademarks, design, and geographical indications, and in OAPI for trademarks, patents, design, and geographical indications), or the creation of a centralized system for national registrations in others (e.g. ARIPO facilitates national registrations for all IP rights across member states, while the European Patent Office facilitates the filing and registration of patents across members states).

This system of harmonization of IP laws as well as the centralization of registration procedures have proven useful for the holders of IP rights. However, this process has also been criticized on the basis that it often benefits primarily large businesses operating internationally. Critics have argued that the international harmonization of IP law has generally led to the importation (and not rarely the imposition) of developed countries’ higher standards of protection into the national laws of developing countries. It has been argued that these standards have imposed a level of protection that was unnecessary, or excessive, for the level of development of some of the receiving developing countries at the time. 38 This has certainly been the case and, in several instances, still is. Yet, in the past decades, developed countries have also exported some limitations to IP rights, in particular with respect to copyright fair use. 39 Meanwhile, some developing countries have shown an increasing interest in IP laws as their economies have grown. 40 Nevertheless, an effective system of international harmonization requires a sufficient level of flexibilities to adapt to national circumstances and different levels of development, which may change over time.

Against this background of harmonization and (perhaps higher need for) flexibilities, it is not surprising that a large number of IP scholars has turned to comparative legal analysis to address research questions related to IP law, both to assess the current national and international laws as well as propose amendments to these laws. The number of topics that IP scholars can explore in this context is very large and can vary greatly based on the area of interest. In addition, comparative legal analysis can be used not only to study and compare the process of IP harmonization in several countries, but also to better understand the implementation of international laws into individual national laws. In this respect, it can also assist scholars in assessing the effectiveness or the possible problems that can arise after the implementation of new laws in their country and other jurisdictions. This can involve the comparison of legal text, national legal decisions, or other aspects of national legal practice in different systems. 41 In addition, the impact of comparative legal analysis in academic research can go beyond academic papers. For example, scholars frequently write reports and comparative studies to assist (by supporting or criticizing) policy-makers at the international, regional, and national level in evaluating the advantages and disadvantages of possible legislative reforms. In this context, comparative analysis can include the revision of existing laws, or the implementation of new standards deriving from international or other free trade agreements, or from national initiative. 42

Methodologically, scholars generally follow (or should be advised to follow) a process, which is similar to the four-step process highlighted in Section II , 43 to conduct comparative legal analysis in IP law. In particular, the first step is again to acquire the relevant information about the foreign legal systems, traditions, institutions, etc. that scholars are comparing. In addition to gathering this information with an open mind, scholars should attempt to immerse themselves in the context of the systems they are comparing. For example, scholars should include the analysis of the law’s legislative history, as well as the leading cases decided based on those laws. The second step is to compare the information gathered based on the ‘external law’, that is, the law as written, but in a larger context than the actual text of the law. The third step is to examine the same information based on the ‘internal law’, and thus within the culture, history, and social and economic background of the compared systems. The fourth and final step is to evaluate the information and answer the initial research question. As part of this process, scholars need to analyse the similarities and differences between the systems they are exploring and they have highlighted as part of the comparison. As mentioned in Section II , scholars can combine additional research methodologies to the traditional approach of studying and comparing foreign systems. For example, they can combine historical and archival research to traditional comparative analysis, 44 use empirical analysis and other social science-based research methods, 45 or review the findings through the lens of critical theories. 46 For a comprehensive overview of the methodologies to potentially combine with comparative legal analysis, the readers can review the table of contents and other chapters in this book.

Ultimately, the objective of comparative legal analysis in IP law remains the comparison of different legal systems. 47 This comparison can again lead to convergence or non-convergence based on the research question and the findings of the legal comparison. Yet again, neither the convergence nor non-convergence of scholarly opinions are the purpose of the comparison, but instead, the purpose focuses on the gathering of new information to offer a better-informed evaluation of the research question at issue.

Still, whether scholars agree or disagree based on the outcome of a specific comparison, as mentioned above, IP scholars are presently dealing with national rules that are increasingly harmonized. The process of harmonization has additionally led to a growing blurring of the traditional differences between legal traditions, in particular Civil Law (historically based on codes and statutory interpretation without considerable deference to judicial precedents) and Common Law (historically based on the authority of judicial precedents rather than statutes). 48 Today, IP laws worldwide are primarily based on national statutes in Common Law countries, while judicial precedents have also become increasingly relevant in Civil Law countries. The process of legal harmonization of national IP laws has been further accelerated by the globalization of trade, the rise of the service and digital economy, and the Internet. In limited instances, national laws are even directly applied beyond borders without the need for national harmonization, as in the Uniform Domain-Name Dispute-Resolution Policy (UDRP), which was established by the Internet Corporation for Assigned Names and Numbers (ICANN) for the resolution of disputes regarding the registration of domain names. 49 The UDRP applies today to all generic top-level domains and some country code top-level domains worldwide. Since the contract provisions in the domain registration agreements oblige the registrant to apply the UDRP, the law is applied by several dispute resolution bodies internationally, including the WIPO Arbitration and Mediation Center. 50

Comparative legal analysis remains crucial for scholars to also assess the differences that still exist between legal systems and the areas where national IP laws have not been harmonized. 51 Differences between the legal traditions certainly still exist, and the international IP framework continues to have a series of flexibilities for countries to use in their national territories based on their different levels of development. 52 This reality makes comparative legal analysis a very important tool for IP scholars to grasp the existing similarities and differences between different legal traditions and specific national provisions in order to better understand their national and foreign laws as well as the regional and international frameworks.

Certainly, one of the major benefits of the development in digital technology and the Internet is that scholars have considerably more access to foreign laws, judicial decisions, legal documents, and academic literature across many countries. These developments have eliminated many of the previous barriers for scholars who would like to conduct comparative IP research. For example, scholars can easily access the actual text of most foreign laws on the WIPO Lex databases, which also frequently provide translated versions of these laws through special software. 53 Scholars can also access a large number of IP related publications on online repositories, which provide important resources for comparative IP research. 54 In addition, a large number of these resources are written in, or translated to, English, a language increasingly more commonly read and studied worldwide. 55 International collaborations between scholars and academic institutions have also become easier as scholars travel and spend time in foreign countries. 56 Through these exchanges, scholars can become acquainted not only with the legal systems of foreign countries, but also with their cultural, social, and economic environments. In summary, thanks to the increased availability of sources and exchanges with foreign experts, comparative legal analysis has become a more accessible methodology for a larger number of IP scholars today.

Finally, an increasing number of IP scholars engaging in comparative legal analysis have additional expertise in other fields, such as history, sociology, economics, international relations, or political science, and can combine these methodologies as part of their comparative research. 57 This is certainly a positive development in the field, allowing for an even larger use of comparative legal analysis by IP scholars. However, this development does not necessarily entail that all scholars interested in comparative research should know, or use, these additional methodologies. As mentioned in Section II , scholars should approach comparative legal analysis at their individual level of expertise and the methodology should not become overcomplex or a barrier to entry for scholars who are not expert. 58 Instead, all IP scholars should be welcome to engage to some degree in comparative legal analysis and thus acquire relevant information regarding the topic of their research.

IV. Examples of Comparative Intellectual Property Research, Takeaways, and Suggestions

In this Part, I elaborate on some specific examples of Comparative IP research and delve into what I think are useful takeaways and suggestions for scholars who are interested in conducting comparative research in IP law. The examples below are based primarily on recent articles and books, which I wrote and edited. There are, of course, many more relevant and very important contributions to this field authored and edited by a large number of colleagues in many different jurisdictions. However, due to the limited scope of this chapter, it is not possible to refer to these works exhaustively and comprehensively in this Section. 59 For this reason, I chose to reflect on my experience in conducting Comparative legal analysis in IP law.

A. Examples of Comparative Intellectual Property Research

“Growing up” as a junior academic in Europe in the late 1990s, comparative legal analysis was the methodology many researchers in Europe used at that time. Accordingly, my early publications reflected this reality and mostly related to EU law as compared to Italian and UK law. 60 After moving to the US in the early 2000s, comparative legal analysis continued to be an integral part of my scholarship as I compared US law with International law and EU law. 61 More recently, my comparative IP journey has expanded to Asia-Pacific. In the past year, I have also compared regional organizations in Africa and South America, two continents from which I believe IP scholars can, and should, learn important information. 62 The publications I refer to in this Section are primarily from this recent group.

In particular, since the 1990s, one of my areas of research has been the topic of IP exhaustion and parallel imports. Comparative research in this area is particularly relevant because art. 6 of the TRIPS Agreement leaves for signatory nations to determine their national policies. 63 Accordingly, countries across the world follow different rules and these rules have also changed over time in different jurisdictions. In my scholarship, I have addressed the topic of IP exhaustion from several comparative perspectives: the EU system and the process of EU harmonization, the comparison between the EU, the US, NAFTA, and ASEAN, and more. 64 For example, in a publication, co-authored with Mary LaFrance, we compare the existing provisions on copyright exhaustion in Australia, Singapore, and the US. The article, titled ‘The Case for a Legislative Amendment Against ‘Accessory Copyright’ for Gray Market Products: What Can the US Learn from Singapore and Australia?’ 65 proposes a legislative provision to be implemented by the US Congress prohibiting copyright protection for incidental product features in the context of parallel imports. This proposal followed a change in national policy on copyright exhaustion in the US following the 2013 US Supreme Court in Kirstaeng v. Wiley & Sons. 66 To support our proposal, we compared the US legal system with those of Australia and Singapore. In 1994, Singapore pioneered the adoption of a provision allowing the parallel imports of goods carrying ‘accessory’ copyrights. 67 A few years later, in 1998, Australia incorporated a similar amendment to the Australian Copyright Act of 1968. 68 Based on these experiences, we suggest, in the article, a specific language to be considered by the US Congress, including ad hoc adaptations from the Australia and Singapore laws to take into account the specific US context and background. 69

More recently, I addressed the topic of IP exhaustion in the book Exhausting Intellectual Property Rights: A Comparative Law and Policy Analysis , 70 co-authored with Shubha Ghosh. The purpose of this book is to map and understand why different jurisdictions adopt different policies regarding the issue of exhaustion. In the book, we describe the various national policies on relevant IP rights: patents, trademark, and copyright. From these descriptions, we elaborate on the data that we found, and based on this, we confirm that differences across types of IP exhaustion policies reflect mostly the effect of a particular IP regime on national industries. Notably, we highlight that nations with national intensive industries in pharmaceuticals, software, consumer electronics, book publishing, and film distribution adopted different approaches as compared to nations that are primarily users of these products. 71 In the book, we compare the following countries and regions: the US, the EU, Canada, and Mexico under the North American Free Trade Agreement (NAFTA), as well as Australia, New Zealand, India, the People’s Republic of China, and the Association of Southeast Asian Nations (ASEAN). 72 However, the discussion could have included Switzerland, Russia, and countries in the African and South American continents, and we will include additional countries to any future edition.

Thinking comparatively has also been a guiding principle for edited books. Methodologically, the most important aspect of these books, for the purpose of comparative research, becomes their structure. In particular, comparative collections are composed of a series of contributions, which can individually address a specific topic within the theme of the book comparatively. However, these collections frequently include nationally focused contributions. Yet, a series of nationally focused contributions is also an effective means to comparatively analyse the theme addressed in these collections.

Also with respect to edited collections, comparative legal analysis can be particularly useful to address research areas that are still not harmonized or have recently been harmonized to highlight the similarities and differences between countries. A recent example in this respect is the book Geographical Indications at the Crossroads of Trade, Development, and Culture: Focus on Asia-Pacific , edited with Ng-Loy Wee Loon. 73 Historically, few topics have proven to be so controversial than the protection of geographical indications (GIs). The adoption of the TRIPS Agreement did not resolve these disagreements and countries worldwide continue to quarrel on the nature and scope of this protection. In this context, several countries in Asia-Pacific have actively promoted GIs as a mechanism to foster local development and safeguard local culture, while others have been more sceptical. However, there was little literature addressing this issue from the viewpoint of countries in the Asia-Pacific region. This book intends to fill this gap and offers the first comprehensive scholarly collection on GI protection, focusing in Asia-Pacific. In particular, the book includes several chapters focusing on the national analysis of the law of GIs in individual Asia-Pacific jurisdictions; chapters reviewing the international agreements related to the topic; and chapters addressing the current treatment of GIs in the EU and in the US. 74 Since GIs have become increasingly important in the negotiations of bilateral and plurilateral trade agreements (FTAs) in the region, the book includes the topic of trade negotiations in the book with the objective to assist the decision-making process of trade negotiators as part of the ongoing FTA negotiations between the EU, the US, and several countries in Asia-Pacific. 75

Comparative legal analysis is also at the core of the Cambridge Handbook of International and Comparative Trademark Law , edited with Jane Ginsburg. 76 This book is the first collection to addresses systematically, and from a comparative perspective, the law of trademarks with the objective to present a useful resource to those interested in research and practice in this area. The book starts from the premise that, while the trade in goods and services is more global, trademark law remains territorial, yet territorial principles today are largely harmonized across countries. Trademark lawyers, academics, and legislators working in the field need to navigate both the national law on trademarks as well have an understanding of its international framework. In particular, the book focuses on and compares Common Law and Civil Law approaches, paying particular attention to the US and EU trademark systems. 77 In the first part, each contribution describes and analyses the international framework of trademark law. 78 In the second part, contributors provide a national or comparative review of either the Common Law or Civil Law approach on a specific substantive issue in trademark law and related fields, such as geographic indications, advertising law, domain names, and trademark transactions. 79 The book also takes into account other jurisdictions, both common law and civil law, on the Asia-Pacific, African, and South American continents, though not as thoroughly. In particular, Coenraad Visser and I authored the chapter focusing on comparing the regional trademark harmonization between the EU, OAPI, ARIPO, ASEAN, and MERCOSUR. 80

Finally, I would like to mention the book where this chapter is published, the Handbook on Intellectual Property Research , edited with Lilla’ Montagnani. This book may not seem, at first sight, an example of comparative legal analysis under the traditional definition—if we intend this comparison strictly as the comparison of different legal systems or institutions and thus a comparison of foreign, or at least separate, jurisdictions. 81 Instead, this book addresses ‘methods, lenses, and perspectives’ to investigate IP research questions. Yet, this book represents an example of collaboration between scholars from different countries working from different perspectives on IP research. It also compiles a remarkable number of different contributions in terms of topics, authors’ nationality, legal systems, legal training, and more. This diverse group of scholars additionally use different national examples of laws, case law, and doctrine from different countries to illustrate the specific research methodology in their respective contributions. 82 Accordingly, even if this book does not fit into the ordinary definition of comparative scholarship, it certainly constitutes an important example of comparative approaches to IP research.

B. Main Takeaways and Suggestions for Intellectual Property Scholars

Based on the discussion in this chapter, what are the main takeaways and suggestions for IP scholars interested in conducting comparative legal analysis? As elaborated below, the following list summarizes takeaways and suggestions regarding the intersection between Comparative Law and IP law: (1) comparative legal analysis is a research methodology potentially useful to most scholars, as it provides relevant information for almost any IP research question—not only specifically comparative topics; (2) scholars have an increasingly larger set of tools to better understand the systems being compared, thanks to online access to information and the growing international exchanges of foreign scholars; (3) comparative legal analysis can be combined with other research methodologies, yet its objective remains the comparison of different systems and the information that is collected as part of this comparison; and (4) no matter how experienced scholars are in the field, most comparisons cannot explore the entire ‘research iceberg’ and often need to address just a part of it. Above all, comparative legal analysis remains a crucial tool to promote international understanding in the scholarly community and beyond.

In particular, even though not all scholars consider comparative legal analysis one of the core methodologies for their research, this does not diminish the importance of this methodology for all IP scholars. Today, almost all national provisions are derived from or otherwise linked to the international system. Thus, scholars researching legal questions regarding primarily national law can also benefit from knowing the international or comparative origins of the nationally related topics they are addressing. For example, the US laws on geographical trademarks had to change as a result of both NAFTA and the TRIPS Agreement. 83 Likewise, the US federal law on anti-dilution protection for trademarks was implemented following the adoption of the TRIPS Agreement, even though the law as adopted in the TRIPS Agreement was largely influenced by both EU and US state trademark law. 84 In this respect, comparative legal analysis can also assist scholars in understanding the origin of their national laws when addressing the topic from a national perspective. Moreover, even though similar national provisions have been adopted across the world, different national frameworks can impact the extent to which, and the process through which, these provisions have been implemented. This can lead to differences in implementation and, in turn, different national decisions. 85 In each of these instances, comparative legal analysis is the key to unlocking relevant information for a variety of purposes regarding research questions focusing on both comparative and national legal contexts.

As mentioned in Section III , conducting comparative research has become increasingly more accessible in present times. An increasingly larger number of scholars can travel, both in person or online, and learn about foreign countries in the most remote corners of our planet, facilitating a more precise evaluation of both the ‘external and internal law’ of the systems compared. 86 This remains a crucial step for the success of comparative research, as this evaluation is fundamental to properly understand the scope of the analysis conducted and, at times, to refine the research question prompting this analysis. One of the main takeaways and suggestions for IP scholars is that this exercise of ‘full-immersion’ in different systems—both its legal framework and its social, economic, and cultural reality—is often the most rewarding and interesting part of the research carried out. Scholars should approach this step of the analysis with an open mind, trying to leave behind their national constructs and experiences, and with a genuine desire to understand new ways to think about legal problems and solutions.

As elaborated extensively in Sections II and III , comparative legal analysis is a methodology that can also be combined with other research methodologies depending on the specific topic and area of inquiry. For example, the comparison between legal systems in two different countries such as India and Malaysia could involve a historical reconstruction of the legal developments of these countries, and thus include a historical analysis as well as a review of these developments based on colonial and post-colonial history of the countries. Depending on the specific topic analysed, an approach based also on the intersection between Comparative law and, for instance, Environmental Law, Criminal Law, or Privacy Law may be needed. The comparison may include methodologies involving social sciences and empirical analysis. In addition, or as an alternative, it could rely on a review of the information found through the data collection before and after the comparison based on critical race theory, or feminist and gender studies. As noted above, these methodologies, and several others, are directly addressed in this book by expert scholars. Still, once again it should be stressed that comparative legal analysis should be ‘feasible and non-threatening’ 87 so that its value becomes evident to a large group of scholars. To the contrary, this would become a challenge that could offset the larger value-added elements that comparative legal analysis provides—the findings of the comparison. 88

Ultimately, scholars should remember that no research inquiry can be fully exhaustive and comprehensive. Of course, the more experienced a scholar may be in the methodology and the longer a scholar has worked on a specific issue, the larger the part of the ‘research iceberg’ the scholar can uncover. 89 Hence, no matter how experienced a scholar may be, there will always be a section of the ‘iceberg’ remaining uncovered. Uncovering the ‘whole iceberg’ also frequently requires addressing issues related to other disciplines—substantive legal fields as well as procedures. Thus, to the question ‘how deep should comparative legal scholars excavate the iceberg?’, there is no single answer, as the depth, length, and overall scope of comparative legal analysis necessarily varies based on the specific research question at issue. This does not take away any value from comparative research, however, because the value of comparative legal analysis largely lies in conducting the comparison and learning new information from it.

V. Conclusion

I would like to conclude this chapter with the words of Professor Martha Minow, who pointedly noted that ‘[n]eglecting … comparative law could vitiate the vitality, nimbleness, and effectiveness of [national] law or simply leave us without the best tools and insights as we design and run institutions, pass legislation, and work to govern ourselves’. 90 Professor Minow was not referring specifically to Comparative IP Law but to Comparative Law in general. However, I hope all IP scholars can agree that comparative legal analysis can be useful and one of the best tools for any type of research question in our field today. Comparative legal analysis can open an endless number of doors for scholars and show a much larger world. After over two decades of using comparative legal analysis as a research methodology, I not only have a better understanding of different legal systems, but of the world in its social, economic, and political perspective. Equally, or more importantly, the opportunity to collaborate with a large number of scholars from many countries has proven invaluable. 91 From each of these scholars, I have learned important lessons. Each of these experiences made me a better academic, but they were even more fundamental for my personal growth.

  See   Irene Calboli , The Role of Comparative Legal Analysis in Intellectual Property Law: From Good to Great? , in Methods and Perspectives in Intellectual Property 3 ( Graeme B. Dinwoodie ed., 2014) [hereinafter Calboli, The Role of Comparative Legal Analysis ] and Irene Calboli , A Call for Strengthening the Role of Comparative Legal Analysis in the United States , 90 St. John’s L. Rev. 609 (2016) [hereinafter Calboli, Strengthening the Role of Comparative Legal Analysis ]. This chapter refers to these previous publications and repeats, in part, my remarks there.

This observation is directed primarily at IP scholars in the United States (US). As I noted before, ‘comparative legal analysis seems to be a methodology that, especially in recent years, is less frequently used by mainstream scholars in the US’: see Calboli, Strengthening the Role of Comparative Legal Analysis, supra note 1 , at 610. See generally   Martha Minow , The Controversial Status of International and Comparative Law in the United States , 52 Harv. Int’l L.J. Online 1, 18 (2010) ; Ugo Mattei , An Opportunity Not to Be Missed: The Future of Comparative Law in the United States , 46 Am. J. Comp. L. 709 (1998) ; Vivian Grosswald Curran , Dealing in Difference: Comparative Law’s Potential for Broadening Legal Perspectives , 46 Am. J. Comp. L. 657 (1998) ; Michael P. Waxman , The Comparative Legal Process Throughout the Law School Curriculum: A Modest Proposal for Culture and Competence in a Pluralistic Society , 74 Marq. L. Rev. 391 (1991) .

For a comprehensive overview of research methodologies, see the chapters published in this volume.

  Konrad Zweigert & Hein Kotz , An Introduction to Comparative Law: The Framework 1, 7 (1977) . For an overview and the debate on the definition of comparative law, see the contributions published in   The Oxford Handbook of Comparative Law ( Mathias Reimann & Reinhard Zimmermann eds., 2006) ; see also   Mathias Siems , Comparative Law ( 2014) ; Comparative Law: A Handbook ( Esin Orücü & David Nelken eds., 2015) ; Comparative Legal Studies: Traditions and Transitions ( Pierre Legrand & Roderick Munday eds., 2011) ; New Directions in Comparative Law ( Antonina Bakardjieva Engelbrekt & Joakim Nergelius eds., 2010) ; Vivian Grosswald Curran , Comparative Law: An Introduction ( 2002) .

  See, e.g. , Pierre Legrand , Foreign Law: Understanding , 6 J. Comp. L. 67, 68 (2011) ; Pierre Legrand , On the Singularity of Law , 47 Harv. Int’l L.J. 517, 524–25 (2006) ; Pierre Legrand , The Same and the Different , in Comparative Legal Studies: Traditions and Transitions ( Pierre Legrand & Roderick Munday eds., 2003) ; Nora V. Demleitner , Combating Legal Ethnocentrism: Comparative Law Sets Boundaries , 31 Ariz. St. L.J. 737, 739–40 (1999) .

  See   George Mousourakis , Comparative Law and Legal Traditions 1 (2019) (noting that ‘comparative law enbraces: the comparison of legal systems with the purpose of detecting their differences and similarities; working with the differences and similarities that have been detected … ; and the treatment of methodological problems that arise in connection with these tasks’). See also   Vernon Valentine Palmer , From Lerotholi to Lando: Some Examples of Comparative Law Methodology , 53 Am. J. Comp. L. 261 (2005) (advocating against a single methodology for comparative law and for a sliding scale of options depending on the specific research); Hiram E. Chodosh , Comparing Comparisons: In Search of Methodology , 84 Iowa L. Rev. 1025, 1066 (1999) .

  Konrad Zweigert & Hein Kotz , An Introduction to Comparative Law 2 (1987) . For a general review of how to conduct comparative legal research, see   Edward J. Eberle , The Methodology of Comparative Law , 16 Roger Williams U.L. Rev. 51, 52 (2011) ; John C. Reitz , How to Do Comparative Law , 46 Am. J. Comp. L. 617 (1998) .

For a review of these discussions, see   Mousourakis,   supra note 6 , at 3–6; Matthias Reimann , The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century , 50 Am. J. Comp. L. 671 (2002) ; James Gordley , Is Comparative Law a Distinct Discipline? , 46 Am. J. Comp. L. 607, 611 (1998) .

This criticism originates primarily from the civil law system, a system that generally uses codes to ‘legitimize[] legal discourse’. See   Fabio Morosini , Globalization and Law: Beyond Traditional Methodology of Comparative Legal Studies and an Example from Private International Law , 13 Cardozo J. Int’l & Comp. L. 541, 543–44 (2005) , citing   Rene David , Les Grands Systèmes Du Droit Contemporain (Droit Comparé) 1 (1964) . According to this position, comparative law scholars engage with already existing rules that are parts of the specific—national or regional—legal norms applicable in the countries that are the objects of the scholarly comparison. Id. For a comprehensive introduction to the civilian tradition, see   John Henry Merryman & Rogelio Perez-Perdomo , The Civil Law Tradition (2007) ; Reinhard Zimmerman , Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001) .

  See the contributions published in Epistemology and Methodology of Comparative Law ( Mark Van Hoecke ed., 2004) .

Morosini, supra note 9 , at 544.

  See , e.g. , Eberle , supra note 7 , at 57–58 (listing the four rules for conducting comparative legal analysis); Reitz, supra note 7 , at 632.

For several examples, see the various scholarly works cited in Section III .

Eberle , supra note 7 , at 58 (stating that scholars ‘need to develop critical reasoning skills that are applied in a scientific and neutral manner’). Eberle refers to Vivian Grosswald Curran , Cultural Immersion, Difference and Categories in US Comparative Law , 46 Am. J. Comp. L. 43, 51 (1998) [hereinafter Curran, Cultural Immersion ] (stressing that scholars should engage in cultural immersion, which ‘requires immersion into the political, historical, economic, and linguistic contexts that mold the legal system, and in which the legal system operates. It requires an explanation of various cultural mentalities’). On these aspects of comparative legal analysis, see also   Mattei Dogan & Dominque Pelassy , How to Compare Nations: Strategy in Comparative Politics 3 (1990) (1984); Gfinter Frankenberg , Critical Comparisons: Re-thinking Comparative Law , 26 Harv. Int’l L.J. 411, 439, 443 (1985) .

Eberle , supra note 7 , at 58–60.

  Id. at 61 (highlighting that ‘[t]he act of comparison requires a careful consideration of the similarities and differences between multiple legal data points, and then using these measurements to understand the content and range of the legal material under observation’.). As part of this evaluation, scholars should focus on ‘external law: law as written, stated, or otherwise made concrete’. Id. However, scholars should also be aware that ‘[w]ords as written are important, but [are] not enough … [and scholars] must also understand what meaning the words have within the context of the case, statute, or other legal norm’. Id.

  Id. at 62.

  Id. at 62–65. See also Curran, Cultural Immersion , supra note 14 , at 51.

Eberle , supra note 7 at 63 (noting that this is ‘the “invisible” dimension of law … [n]ot that this dimension is wholly unknown or unrecognizable, but more that this dimension of law is one we tend to assume, take for granted, or perceive just dimly’).

  Id. at 65: ‘[A] main mission of comparative law is to offer the tools by which to examine the full range of forces that comprise the internal dimension of law so that we can understand how law actually functions within a society.’ Id. Comparative Law scholars ‘are not studying just law, but legal culture as well’. Id.   See also   H. Patrick Glenn , Legal Cultures and Legal Traditions , in Epistemology and Methodology of Comparative Law 7 ( Mark Van Hoecke ed., 2004) ; Mark Van Hoecke & Mark Warrington , Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law , 47 Int’l & Comp. L.Q. 495, 498 (1998) ; Günter Frankenberg , Stranger Than Paradise: Identity and Politics in Comparative Law , Utah L. Rev. 259, 260 (1997) .

Eberle , supra note 7 at 65–68, 72: ‘What is the significance of the data? What have we learned? Has our investigation of a foreign legal system shed light into the operation and meaning of the foreign legal system? Can we now understand the foreign legal system better? What has the foreign system taught us? These are probably some of the most important questions to ask.’ Id. at 65.

For a detailed argument in defence of this approach, see   Basil Markesinis , Foreign Law and Comparative Methodology 6 (1997) . See also   Gerhard Dannemann , Comparative Law: Study of Similarities or Differences? , in The Oxford Handbook of Comparative Law 383 ( Mathias Reimann & Reinhard Zimmermann eds., 2006) .

  Pierre Legrand , European Legal Systems Are Not Converging , 45 Int’l & Comp. L. Q. 55 (1996) ; Pierre Legrand , Fragments on Law-as-Culture (1999) .

Palmer, supra note 6 , at 263.

Some scholars have loudly criticized, however, the trend that has been discussed amongst Comparative Law scholars advising in favour of more complex methodologies in this area. See Palmer, supra note 6 , at 263 (stating that Comparative Law should be based on ‘feasible and non-threatening’ methods). See also   Catherine A. Rogers , Gulliver’s Troubled Travels, or the Conundrum of Comparative Law , 67 Geo. Wash. L. Rev. 149, 150–51, 163 (1998) .

For example, see the programs by the WIPO Academy related to master programs, summer schools, and other relevant initiatives. WIPO Academy, Sharing Knowledge, Building Capacity—The WIPO Academy Year in Review 2019 , https://www.wipo.int/academy/en/news/2020/news_0006.html . See also   Kenneth L. Port , Intellectual Property Curricula in the United States , 46 IDEA 165 (2005) .

The number of scholarly contributions in this area (as well as many unpublished doctoral and master dissertations) corroborates the position that IP scholars engage in comparative legal analysis in large numbers and regularly. For some examples in English, see   Thomas F. Cotter , Comparative Patent Remedies: A Legal and Economic Analysis ( 2013) ; Toshiyuki Kono , Intellectual Property and Private International Law: Comparative Perspectives ( 2012) ; Estelle Derclaye , The Legal Protection of Databases: A Comparative Analysis ( 2008) ; Jane C. Ginsburg , The Concept of Authorship in Comparative Copyright Law , 52 DePaul L. Rev. 1063 (2003) ; Graeme B. Dinwoodie , International Intellectual Property Litigation: A Vehicle for Resurgent Comparativist Thought? , 49 Am. J. Comp. L. 429 (2001) .

Paris Convention for the Protection of Industrial Property, 20 March 1883, 13 U.S.T. 2, 828 U.N.T.S. 107, as last revised at the Stockholm Revision Conference, 14 July 1967, 21 U.S.T. 1538, 828 U.N.T.S. 303.

Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as last revised 24 July 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221.

  G.H.C. Bodenhausen , Guide to the Application of the Paris Convention for the Protection of Intellectual Property (1968) ; Sam Ricketson & Jane C. Ginsburg , International Copyright and Neighboring Rights: The Berne Convention and Beyond (2006) .

  See Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 31 October 1958, 923 U.N.T.S. 189.

Agreement on Trade-Related Aspects of Intellectual Property Rights, 14 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments—Results of the Uruguay Round, Vol. 31, 33 I.LM. 81 (1994) [TRIPs]. See   The Making of the TRIPS Agreement: Personal Insights from the Uruguay Round Negotiations ( Jayashree Watal & Antony Taubman eds., 2015) .

For a list the WIPO administered treaties related to the registration and classification of IP rights, see   https://www.wipo.int/treaties/en/ .

  See, e.g. , Raymundo Valdés & Maegan McCann , Intellectual Property Provisions in Regional Trade Agreements: Revision and update , in Regional Trade Agreements and the Multilateral Trading System 497 ( Rohini Acharya ed., 2016) ; Intellectual Property and Free Trade Agreements in the Asia-Pacific Region ( Christoph Antons & Reto M. Hilty eds., 2015) .

  See   Fernandos dos Santos & Patrick Juvet Lowé Gnintedem , Regional Frameworks for Protection of Intellectual Property in Africa , in Intellectual Property Law, Practice and Management: Perspectives from Africa 592, 593–94 ( Adejoke Oyewunmi et al. eds, 2018) ; International Intellectual Property and the ASEAN Way: Pathway to Interoperability ( Elizabeth Siew-Kuan Ng & Graeme W. Austin eds., 2017) ; John A.E. Vervaele , Mercosur and Regional Integration in South America , 54 Int’l & Comp. L.Q. 387, 390–91 (2005) .

  See generally   Graham Dutfield & Uma Suthersanen , Harmonisation or Differentiation in Intellectual Property Protection? The Lessons of History , 23 Prometheus 137 (2005) (highlighting the need for a more nuanced and differentiated approach in international harmonization and how the modern approach can often be seen as imposition from developed countries to developing countries to the benefit of developed countries’ business interests).

For example, the latest WIPO treaty related to an exception in copyright law. See Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 27 June 2013, 52 I.L.M. 1312 (2013). Similarly, several jurisdictions across the world have implemented a US-style fair-use limitation into national copyright laws. See   Peter Decherney , Fair Use Goes Global, Critical Studies , 31 Media Communication 146 (2014) . See also 17 U.S.C. § 107 (1977).

For example, China has become more respectful of IP law as part of its development strategy. See China Becomes Top Filer of International Patents in 2019 Amid Robust Growth for WIPO’s IP Services, Treaties and Finances , wipo (7 April 2020), https://www.wipo.int/pressroom/en/articles/2020/article_0005.html ; Xuan-Thao Nguyen , The China We Hardly Know: Revealing the New China’s Intellectual Property Regime , 55 St. Louis U. L.J. 773 (2011) .

  See , e.g. , Cyrill P. Rigamonti , The Conceptual Transformation of Moral Rights , 55 Am. J. Comp. L. 67 (2007) ; Jacques de Werra , Moving Beyond the Conflict Between Freedom of Contract and Copyright Policies: In Search of a New Global Policy for On-Line Information Licensing Transactions—A Comparative Analysis Between US Law and European Law , 25 Colum. J.L. & Arts 239 (2003) ; Roberta Rosenthal Kwall , Copyright and the Moral Right: Is an American Marriage Possible? , 38 Vand. L. Rev. 1 (1985) ; Jane C. Ginsburg , A Tale of Two Copyrights: Literary Property in Revolutionary France and America , 64 Tul. L. Rev. 991 (1990) .

  See, supra Section II and related references.

  See Chapter 16 in this volume.

  See infra Section III .

  See infra Section IV .

For a comprehensive analysis of the differences between the Common Law and Civil Law, see   Helge Dedek , From Norms to Facts: The Realization of Rights in Common and Civil Private Law , 56 McGill L.J. 1 (2010) ; E. Allan Farnsworth , A Common Lawyer’s View of His Civilian Colleagues , 57 La. L. Rev. 227 (1996) ; John Henry Merryman , On the Convergence (and Divergence) of the Civil Law and the Common Law , 17 Stan. J. Int’l L . 357 (1981) .

Uniform Domain Name Dispute Resolution Policy, ICANN, https://www.icann.org/resources/pages/help/dndr/udrp-en .

  See WIPO Arbitration and Mediation Center-Domain Name Disputes (New gTLDs), wipo,   https://www.wipo.int/amc/en/domains/gtld/info/sunrise/guide.html#a12 .

For example, several academic and professional organizations regularly present country reports or consider specific questions related to the treatment of IP rights in the various jurisdictions of member. These are, for example, the Association littéraire et artistique internationale (ALAI), the Association for Teaching and Researching in Intellectual Property (ATRIP), the International Law Association (ILA), the International Association for the Protection of Intellectual Property (AIPPI), and the International Trademark Association (INTA).

  See   Toshiko Takenaka , Intellectual Property in Common Law and Civil Law ( 2013) ; Peter Wilner , The Madrid Protocol: A Voluntary Model for the Internationalization of Trademark Law , 13 DePaul-LCA J. Art & Ent. L. 17 (2003) ; Elaine B. Gin , International Copyright Law: Beyond the WIPO & TRIPS Debate , 86 J. Pat. & Trademark Off. Soc’y 763 (2004) ; Graeme B. Dinwoodie , The Integration of International and Domestic Intellectual Property Lawmaking , 23 Colum.-VLA J.L. & Arts 307 (2000) ; Herman Cohen Jehoram , Harmonising Intellectual Property Law Within the European Community , 23 Int’l Rev. Intell. Prop. & Competition L. 622 (1992) .

WIPO Lex Database, World Intellectual Property Organization , http://www.wipo.int/wipolex/en/index.jsp .

Several subscription-based online repositories are available today that provide access to IP related scholarship, cases, legislation, etc. such as Westlaw, LexisNexis, Bloomberg, and Hein. Scholars can also access free databases such as the Social Science Research Network, and academic repositories through BePress, and Academia.org. For a discussion regarding impact of academic repositories on legal scholarship, see   Carol A. Parker , Institutional Repositories and the Principle of Open Access: Changing the Way We Think about Legal Scholarship , 37 N.M. L. Rev. 431 (2007) .

A non-exhaustive sample of publications in English include: Berkeley Technology Law Journal; Harvard Journal of Law & Technology; Stanford Technology Law Review; Columbia Journal of Law & the Arts; Vanderbilt Journal of Entertainment and Technology Law; International Review of Intellectual Property and Competition Law; Journal of Intellectual Property Law & Practice; Journal of World Intellectual Property; Queen Mary Journal of Intellectual Property; and Trademark Reporter. However, on the importance of foreign languages, see   Vivian Grosswald Currant , Comparative Law and Language , in The Oxford Handbook of Comparative Law 675 ( Mathias Reimann & Reinhard Zimmermann eds., 2006) ; see also   David Crystal , English as a Global Language ( 2d ed. 2003) .

Some examples of programs for academics and students to collaborate internationally include the Fulbright Scholarship Program ( https://www.cies.org/ ), the Rhodes Scholars Program ( http://www.rhodesscholar.org/ ), and the DAAD German Studies Research Grant ( https://www.daad.org/en/ ), and several others. On the significance of academic mobility, see   Regina G. Sakhieva et al., The Essential, Objective and Functional Characteristics of the Students’ Academic Mobility in Higher Education , 7 Rev. Eur. Stud. 335 (2015) ; Louis F. Del Duca , Emerging Worldwide Strategies in Internationalizing Legal Education , 18 Dick. J. Int’l L. 411 (2000) .

  See, e.g. , Methods and Perspectives in Intellectual Property ( Graeme B. Dinwoodie ed., 2013) ; Jeremy N. Sheff , Symposium, Values, Questions, and Methods in Intellectual Property , 90 St. John’s L. Rev. 549–743 (2016) . For specific examples, see, e.g. , Lisa P. Ramsey & Jens Schvsbo , Mechanisms for Limiting Trade Mark Rights to Further Competition and Free Speech , 44 Int’l Rev. Intell. Prop. & Competition L . 671 (2013) (comparing the US and EU treatment of freedom of expression as a concern in the process of registering and enforcing trademarks); Mark Consilvio & Jonathan R. K. Stroud , Unraveling the USPTO’s Tangled Web: An Empirical Analysis of the Complex World of Post-Issuance Patent Proceedings , 21 J. Intell. Prop. L. 33 (2013) ; Hal Poret , A Comparative Empirical Analysis of Online versus Mall and Phone Methodologies for Trademark Surveys , 100 Trademark Rep. 756 (2010) .

These publications remain essential examples of Comparative IP scholarship. For several references, see supra Section III .

  See, e.g. , Irene Calboli , Recent Developments in the Law of Comparative Advertising in Italy—Towards an Effective Enforcement of the Principles of Directive 97/55/EC under the New Regime? , 33 Int’l Rev. Intell. Prop. & Competition L. 415 (2002) .

  See, e.g. , Irene Calboli , The Case for a Limited Protection of Trademark Merchandising , 2011 U. Ill. L. Rev. 865 (2011) ; Irene Calboli , The Sunset of ‘Quality Control’ in Modern Trademark Licensing , 57 Am. U. L. Rev. 341 (2007) ; Irene Calboli , Trademark Assignment ‘With Goodwill’: A Concept Whose Time Has Gone , 57 Fla. L. Rev. 771 (2005) .

  See the specific references in this Part.

TRIPS, supra note 33 , art. 6 (‘Exhaustion: For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.’).

  See, e.g. , Irene Calboli , The Intricate Relationship Between Intellectual Property Exhaustion and Free Movement of Goods in Regional Organizations: Comparing the EU/EEA, NAFTA, and ASEAN , 9 Queen Mary J. Intell. Prop. 22 (2019) .

  Irene Calboli & Mary LaFrance , The Case for a Legislative Amendment Against ‘Accessory Copyright’ for Gray Market Products: What Can the US Learn from Singapore and Australia? , 2013 Singapore J. Legal Stud. 1 (2013) .

Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013).

Calboli & LaFrance , supra note 65 , at 261–66.

  Id. at 266–72 (referring also to the relevant case law in Australia).

  Id. at 272–76.

  Shubha Ghosh & Irene Calboli , Exhausting Intellectual Property Rights: A Comparative Law and Policy Analysis Cambridge ( 2018) .

  Id. at ch. 9.

  Ghosh & Calboli,   supra note 70 , chs. 4–6 (focusing respectively on trademarks, patents, and copyright exhaustion).

  Geographical Indications at the Crossroads of Trade, Development and Culture: Focus on Asia-Pacific ( Irene Calboli & Ng-Loy Wee Loon eds., 2017) .

  Id. For a related publication, this time advocating a change in US law related to GIs, see   Irene Calboli , Time to Say Local Cheese and Smile at Geographical Indications of Origin? International Trade and Local Development in the United States , 53 Hous. L. Rev. 373 (2015) .

  The Cambridge Handbook of International and Comparative Trademark Law ( Irene Calboli & Jane C. Ginsburg eds., 2020) .

  Id. at chs. 1–8.

  Id. at chs. 9–38.

  See   Irene Calboli & Coenraad Visser , Regional Trademark Protection: Comparing Regional Organizations in Europe, Africa, South East Asia, and South America , in Cambridge Handbook on International and Comparative Trademark Law 103 (Irene Calboli & Jane C. Ginsburg eds. 2020) .

  See supra Section II .

See the various Chapters in this volume.

  See, e.g. , Mary LaFrance , Innovations Palpitations: The Confusing Status of Geographically Misdescriptive Trademarks , 12 J. Intell. Prop. L. 125 (2004) ; Marshall Leaffer , Appellations of Origin and Geographic Indications in US Law After NAFTA and GATT , 2 Int’l Intell. Prop. L. & Pol’y 45 ( Hugh Hansen ed., 1998) .

  See, e.g. , J. Thomas McCarthy , Dilution of a Trademark: European Union and United States Law Compared , 94 Trademark Rep. 1163, 1164 (2004) ; Paul J. Heald , Trademarks and Geographical Indications: Exploring the Contours of the TRIPS Agreement , 29 Vand. J. Transnat’l. L. 635, 637–43 (1996) .

  See, e.g. , Jane C. Ginsburg & Luke Budiardjo , Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives , 41 Columbia J. L. & Arts 153 (2018) ; Christophe Geiger , Daniel J. Gervais & Martin Senftleben , The Three-Step-Test Revisited: How to Use the Test’s Flexibility in National Copyright Law , 29 Am. U. Int’l L. Rev. 581–626 (2014) ; Seagull Song , Reevaluating Fair Use in China—A Comparative Copyright Analysis of Chinese Fair Use Legislation, the US Fair Use Doctrine, and the European Fair Dealing Model , 51 IDEA 453 (2011) ; Jerome H. Reichman , Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options , 37 J. L. Med. & Ethics (2009) ; Giuseppina D’Agostino , Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use , 53 McGill L. Rev. 309 (2008) ; Jean-Luc Piotraut , European National IP Laws Under the EU Umbrella: From National to European Community IP Law , 2 Loy. Int’l L. Rev. 61 (2005) .

  See supra Sections II and III .

Palmer , supra note 6 , at 263.

I would like to credit the use of the metaphor ‘the iceberg’ in the context of comparative legal analysis and IP research to my colleague Jacques de Werra, who mentioned it during a recent presentation of a draft of this chapter to him and our colleagues at the University of Geneva. The possibility to present my research in that occasion was particularly important for the final stage of revisions of this chapter.

Minow, supra note 2 , at 18.

During the past decades, I have been fortunate enough to interact with a large number of distinguished colleagues across the world. To mention and thank them all would take many pages of this book. I am most grateful to each of them for what I have learned from our interactions and our long-standing friendship. Here I would like to especially remember the junior scholars with whom I have worked in these past years and who are interested in comparative legal analysis in IP law. I thank them for continuing to research in this important area of law. They are our future, and hopefully will continue to build bridges, academic respect, and international understanding with their research.

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Intellectual Property Rights: What Researchers Need to Know

Intellectual property rights help protect creations of the mind that include inventions, literary or artistic work, images, symbols, etc. If you create a product, publish a book, or find a new drug, intellectual property rights ensure that you benefit from your work. These rights protect your creation or work from unfair use by others. In this article, we will discuss different types of intellectual property rights and learn how they can help researchers.

Types of Intellectual Property Rights

There are two main types of intellectual property rights (IPR).

• Copyrights and related rights
• Industrial property

Copyrights give authors the right to protect their work.

It covers databases, reference works, computer programs, architecture, books, technical drawings, and others.

By copyrighting your work, you ensure that others cannot use it without your permission.

Industrial property rights include trademarks, patents, geographical indications, and industrial designs.

• A trademark is a unique sign used to identify a product or a service. It can be a single word or a combination of words and numbers. Drawings, 3-D signs, or even symbols can constitute a trademark. For instance, Google is a famous trademark. The trademark application can be filed at national or regional levels depending on the extent of protection required.
• A patent is an exclusive right to an invention that introduces a new solution or a technique. If you own a patent, you are the only person who can manufacture, distribute, sell, or commercially use that product. Patents are usually granted for a period of 20 years. The technology that powers self-driving cars is an example of a patented invention.
• A geographical indication states that a product belongs to a specific region and has quality or reputation owing to that region. Olive oil from Tuscany is a product protected by geographical indication.
• An industrial design is what makes a product unique and attractive. These may include 3-D (shape or surface of an object) or 2-D (lines or patterns) features. The shape of a glass Coca-Cola bottle is an example of the industrial design.

What Do I Need to Know About IPR?

Intellectual property rights are governed by WIPO , the World Intellectual Property Organization. WIPO harmonizes global policy and protects IPR across borders. As a researcher, you rely on the published work to create a new hypothesis or to support your findings. You should, therefore, ensure that you do not infringe the copyright of the owner or author of the published work (images, extracts, figures, data, etc.)

When you refer to a book chapter or a research paper , make sure to provide appropriate credit and avoid plagiarism by using effective paraphrasing , summarizing, or quoting the required content. Remember plagiarism is a serious misconduct! It is important to cite the original work in your manuscript. Copyright also covers images, figures, data, etc. Authors must get appropriate written permission to use copyrighted images before using them in the manuscripts or thesis.

How do you decide whether to publish or patent? Check your local IPR laws. IPR laws vary between countries and regions. In the US, a patent will not be granted for an idea that has already been published. Researchers, therefore, are advised to file a patent application before publishing a paper on their invention. Discussing an invention in public is what is known as public disclosure . In the US, for instance, a researcher has one year from the time of public disclosure to file a patent. However, in Europe, a researcher who has already disclosed his or her invention publicly loses the right to file a patent immediately.

IPR and Collaborative Research

IPR laws can impact international research collaboration. Researchers should take national differences into account when planning global collaboration. For example, researchers in the US or Japan collaborating with researchers in the EU must agree to restrict public disclosure or publication before filing a patent. In the US, it is common for publicly funded universities to retain patent ownership. However, in Europe , there are different options . An ideal collaboration provides everyone involved with the maximum ownership of patent rights. Several entities specialize in organizing international research collaborations. Researchers can also consider engaging with such a company to manage IPR.

What questions do you have about IPR? Have you faced any situation where you need to consider IPR issues when conducting or publishing your research ? Please let us know your thoughts in the comments below.

Wow, I never knew that geographical indication can have a connection to intellectual property if it has distinctions that can be attributed to where it came from. After finishing my master’s degree, I think I’m going to be staying in the academe as a researcher so it’s quite helpful to know more about how the intricacies of IP can affect research. I hope I can one day attend a conference about IP to learn more about its modern day advancements.

I have invented – conceived – a training system. What do I have to do to achieve and retain ownership if I enroll in a university higher degree by research program to develop this idea?

Thank you for sharing your query on our website. Regarding your query, most universities recognize as a general principle that students who are not employees of the university own the IP rights in the works they produce purely based on knowledge received from lectures and teaching. However, there may be some circumstances where ownership has to be shared or assigned to the university or a third party. These include cases when the student is being sponsored by the university, or the project is a sponsored research project or involves the academic staff of the university or university resources. If the training system conceived by you does not involve any of the above mentioned scenarios, ideally you should be able to retain its ownership. For more clarity you can check through the IP rules section of the concerned university.

Please let us know in case of any queries.

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Intellectual Property Laws Research Paper

Trademark protection, point of sale software, swot analysis, reference list.

Intellectual property laws have long been known to serve as market stabilizers. This function is especially achieved by getting rid of the low success rates for upstart companies occasioned by open systems that allow some people to use other individuals’ creations especially for intangible goods like what MoneyGram offers.

Intangible goods are generally viewed as an easy way for earning profits since not much investment is required in terms of physical assets as would be the case in institutions involved in production of tangible goods. Unfortunately, this intangibility has the drawback of it being easy for other people to reproduce the said intellectual creations without any limitations and in the process ‘stealing’ some of the clients from the initial innovators.

In reality, the latter would be losing profits and customers that rightfully belong to them. Intellectual property rules and regulations are thus created to guide and stabilize the market eliminating counterfeits as well as to encourage innovative business ventures. This stability once established in a particular market helps reduce the risk associated with innovation.

As long as rules are in place to protect the respective rights of the creator of a business idea, the more likely are his or her chances of success in the market. In the case of competition, these rules serve to ensure that the competitor does not illegally gain advantage by merely imitating the new product that has been brought into the market.

The Brazilian market has been secured by the introduction of vital measures targeted at ensuring its stability. Corporation laws have over time been improved tremendously with the major aim being the promotion of cooperation among stakeholders as well as safeguarding the interests of minority shareholders.

The Brazilian government has been at the forefront in the creation of suitable environments that encourage innovation of technology based institutions. Stability in such ventures however has been achieved by ensuring that the intellectual property strategies of the companies are well respected. This has been entrenched in the industrial property law that was instituted into the constitution of the country a few years ago.

Developments in the legal systems of the land so the introduction of intellectual property and copyright measures particularly for software. A recent proposal is what is commonly referred to as the Innovation’s Law; a legal measure that is expected to support the transitioning business strategies from paper to the real market.

The Brazilian federal agency for fostering innovation embodies rules and regulations that guide how intellectual property rights will be used in the securing of contracts. This means that the agency promotes full refunding in case a contract is breached. This is particularly important for companies like MoneyGram which enter into the market without distinct goods to use as guarantees.

While presenting the idea to the relevant state authorities for approval, care will be taken to ensure that a proper valuation of the new intangible assets being introduced into the market. The risks involved while going into the venture should be minimalized to ensure that decent gains are made from the project.

Since Money Gram is already in operation in the country, the idea to introduce a multiple send currency remittance will be received as supportive intangible property to the entire enterprise. The ownership of this introduction will be on a third party basis and this is where the intellectual property laws will come in- to ensure that the innovators receive their due rights especially in terms of gains made from the idea.

The multiple send currency remittance feature that is set to be included to the Money Gram program is an independent and autonomous feature. It can therefore stand on its own as a subsidiary under the whole company and will therefore need to have identity features unique to it that will be used to distinguish it from other services offered by the company as well as competitors.

A trademark needs to be registered for this service and this will include features such as the name of the service, a special logo created to distinguish the service, colors designated to be used in the logo. All these have to be registered in compliance with rules applicable within the country.

When filing a trademark in Brazil, it is worth noting that the Industrial Property Law 9279/96 gives innovators the right to withhold information on what they intend to do with the trademark; at least until the time of registration (Garland, 1979). This is very important as it will ensure that intellectual property rights are respected by eliminating the situations that could lead to an individual’s idea being used elsewhere without his/her knowledge.

The Brazilian property law also generally ensures that the first person to file the logo gets full rights to use it. However, article 129(1) allows for the individual who has been using a particular logo (or one similar to it) in good faith for a period of at least six months to have first priority (Gadbaw, & Richards, 1988).

Once a trademark application has been filed, and a legally accepted analysis conducted, the trademark (logo or symbol) is posted on the bulletin board for a period of not less than two months. This will give a chance to anybody that would be willing to challenge the application a period of 60 days in which to present their contention.

If such contention is filed, it is once again posted on the bulletin board and the applicant is once again given a period of 60 days in which to respond to the opposition. If the answer submitted by the applicant is not satisfactory, the application will be turned down and the applicant allowed a further 60 days in which to submit an appeal. If an appeal is not filed within the stipulated time, the application is regarded as abandoned and the decision to reject it stands.

On the other hand, if no contention for the trademark after the application has been posted on the bulletin board for a period of 60 days, a notice is posted on the board to alert the applicant that he or she has a period of 60 days in which to clear the issuance fees. If these fees are not paid within the specified time, the application is declared abandoned and is not allowed to pass through.

Should the fees be paid on time, the final consenting authority allowing for registration is published. In a period not exceeding 180 days, the opposing parties are allowed to seek nullification of registration.

Once a trademark has been registered, it is associated to the person who registered for a period of ten years after which he or she is required to register afresh. If the trademark is not in use for a period of more than five consecutive years, it can be cancelled and therefore anyone willing to use it can file an application (Abbott, Cottier, & Gurry, 1999).

Once the relevant procedures seeking approval to commence delivery of the service have been cleared, a creative panel will be sought to come up with a unique trademark for the new feature of the Money Gram services and the appropriate registration procedures followed to consolidate its legality.

As a new service within the MoneyGram franchise, the multiple send currency remittance feature will need the installation of new software to support its operation. These are programs that will basically support the transfer of various kinds of currencies from the same point without necessarily requiring for the service provider to go through rigorous currency exchange computations.

Since Moneygram already uses DeltaWorks software alongside Agent connect, it will not make much business sense to purchase them again. Instead an upgrade of the existing software is recommended in the various Agent locations. Computer programming service providers and software developers will be contracted to come up with additional software that can either be used alongside DeltWorks and AgentConnect software or if necessary integrated into the two.

These software should have the capability to record an in-depth inventory of all the transactions made on the system as well as being easy enough for the average user in an agent location to perform these transactions effectively. The point of sale software to be used should be installed in both sender locations and on the receiver side in order to provide for accountability.

It would actually not make sense to have the sender transfer funds in one currency only for the transaction to be halted because the recipient has no capacity to handle completion of the funds transfer.

The good thing about this product is that it does not involve the selling of tangible goods or clearly visible services. This means that the software which enables the transaction is most likely the only software needed at the point of sale.

Elaborate software for analyzing the performance of the product in the market and analyzing the profits made in a given time will not be required at the point of sale and most of these functions will be studied at the head office of the company.

The service to be introduced into the MoneyGram franchise particularly in Brazil has the primary strength of being completely new in the country. None of the competing companies offering money transfer services in Brazil have implemented a multiple send currency remittance feature in their service.

This will make Money Gram a pioneer hence providing for the chance to not only secure clientele, but to also maintain customer loyalty in case competition emerges in future. Another strength of this service and probably the more reason why it is bound to receive accreditation from MoneyGram is that it seeks to complement the services already being provided by the company.

This service is also bound to be very attractive to regular users of money transfer services; most of whom have to undergo strenuous currency exchange procedures before transfers are made.

Sometimes a lot of money is deducted from what they original had in order to pay for the exchange service (Terry, 2005). Aside from increasing the revenue earned by MoneyGram international, this service will make the company a competitive giant in the region.

The main weakness of this service is that it is not the kind of product that yields profits immediately. The cost of setting up the new systems may be slightly on the higher side and MoneyGram International may not be willing to let its systems be interfered with in the process of implementing the upgrades.

The project is also based on the premise that a lot of people are now immigrating to Brazil and the assumption is that they would wish to send money to their respective countries in the particular currency formats of these countries. It is however difficult to confirm that these clients will be willing to abandon service providers with whom they have established some degree of loyalty for an off-paper service that has yet to prove itself in the market.

Finally, the project is based on the assumption that the number of multiple send currency remittance requests will be sufficient enough to support the service as a self standing department of Money Gram International.

Opportunities

The opportunities that guide this service include the very fact that the migration of people from countries bordering Brazil into the country is on a rapid upward trend. This means that once the program has been unfolded, the new immigrants will find it the most convenient of all money transfer services available.

The project will capitalize on the newly introduced funding systems introduced by the Brazilian government to fund developing ventures within the country. This will help reduce the burden of funding thus giving the service more chances of picking up in the market. Unlike an exclusively start up company, this service will depend on infrastructure already installed by Money Gram international.

It will also initially rely on the current MoneyGram clientele to spread the word. This therefore means that most of the resources that would have been redirected to equipment purchase would be used to perfect the development of the project-a factor that will immensely contribute to its success.

The major threat to any new innovation is imitation. This will unavoidably present once the service has been proven successful, and competitors begin to see MoneyGram International as a company begin to ‘snatch’ clientele from them. The rules in Brazil like in any other part of the world are not entirely water tight.

They come with loopholes that competitors can capitalize on to create a remarkably similar product but change a few aspects and patent it as a new service altogether. Luckily, since this is an entirely new innovation in the country, the company can count on customer loyalty based on the assumption that an imitation can never be totally as good as the original.

As much as money transfer services are gaining ground in Brazil, so are banking systems. There is a very big possibility that in the prospective future most of the immigrants will prefer to directly transfer funds from their accounts to bank accounts in their destination countries. These threats however are not sealed and ways to circumvent them will develop as the service gets into the market.

Abbott, F.M., Cottier, T., & Gurry, F. (1999). The international intellectual property system: commentary and materials . Netherlands: Kluwer Law International.

Gadbaw, R.M., & Richards, T.J. (1988). Intellectual property rights: global consensus, global conflict? San Francisco: Westview Press.

Garland, P.G. (1978). Doing business in and with Brazil . Brasilia: Banco Lar Brasileiro.

Terry, F.D. (2005). Beyond small change: making migrant remittances count. Washington: Inter-American Development Bank

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