Vol. 15 No.4 (April 2005), pp.329-331
INTELLECTUAL PROPERTY RIGHTS IN EU LAW: FREE MOVEMENT AND COMPETITION LAW (Vol. 1), by David T Keeling. Oxford: Oxford University Press, Oxford European Community Law Library, 2004. 456pp. Hardback. $135.00 / £75.00. ISBN: 0198259182.
Reviewed by Mark Perry, Faculty of Law, University of Western Ontario. Email: email@example.com .
As one of a series of volumes on the European Union from Oxford University Press, INTELLECTUAL PROPERTY RIGHTS IN EU LAW promises to provide an in-depth analysis of the relationship between intellectual property rights and European Union law. The book examines intellectual property rights within the European Union by focusing on the relationship between such rights and fundamental principles of the Treaty of Rome that established the European Community (much amended and reformulated, and referred to by Keeling and herein as the Treaty), namely non-impedance of trade in goods and services between member states, the avoidance of abusive practices by dominant undertakings, and the distorting competition by restraint of trade agreements. The key problem, nicely illustrated by Keeling through his selection of cases, is the need to balance intellectual property rights, within the sole jurisdiction of member states, with the public interest of those states as members of the European Union as formulated within the Treaty. The analysis in this volume is accomplished by examination of the approach taken by the European Court of Justice, an entity that is constantly required to negotiate the fine balance between giving effect to both the principles and formulation of the Treaty as well as recognising the jurisdictional sovereignty and limitations of the intellectual property laws of member states.
After introducing the work and the basic principles of free movement of goods and services in the European Union, Keeling looks at the inherent conflict between intellectual property rights, designed to constrain the movement of intellectual property and the demands of the European Union. The first six substantial chapters are dedicated to looking at the problem by placing intellectual property within the framework of European Union. For those not familiar with the operation of EU principles, Chapter Two condenses into 17 pages an introduction to four fundamental freedoms of the Treaty—the free movement of goods, persons, services, and capital. This chapter sets the tone for the first three-quarters of the book, with analysis of leading cases that have come before the European Court of Justice. These concepts form the foundation of free trade within the EU and, indeed, were the basis for the formation of the ‘Community’ in the first place. Chapter 3 introduces the primary dichotomy between Treaty and intellectual property protection throughout the community, namely that lack of harmonization can bring unenforceable incongruence in the treatment of goods among neighbouring states, and without border controls there [*330] is little that a member can do. Keeling indicates that the key to minimising this tension must lie not simply in further harmonization of member legislation and individual jurisdictional rights, but rather in the adoption of Community intellectual property rights.
Chapters Four and Five directly address the European Court of Justice’s approach to the dichotomy between allowing these national rights and the problems associated with their exercise in the EU. Indeed, given the lack of harmonisation, let alone a set of overarching community intellectual property laws, it is hard for the Court to avoid engaging in fancy footwork between abdicating control over the grants of exclusive rights to national courts and requiring justification for any restriction on free movements of goods. Chapter Six addresses the problems stemming from the Court’s introduction of the concept of “specific subject-matter” of an intellectual property right, and various criticisms of this approach. These three chapters are narrow in scope and correspondingly short. Chapter Seven is more substantial, dealing with exhaustion of rights, particularly difficult to normalise within the European Union given the very different approaches of some member nations.
The first seven chapters consume but one-third of the book, addressing particular issues introduced by Treaty free movement provisions. In the next three chapters Keeling looks at the core areas of intellectual property – trademark, patent and copyright – and again focuses on the treatment of cases at the hands of the European Court of Justice.
Chapter 11, the final chapter, takes up one-quarter of the book, focusing on the application of Articles 81 and 82 of the Treaty that, in short, prohibit agreements between undertakings that restrict competition and abuse of market power. As with free movement stipulations, these terms often clash with national intellectual property rights, which, although not dependant on agreements concerning particular activities, amount to monopoly rights. This long single chapter is broken into four major subsections, an introduction, a short section on the prohibition of anti-competitive collusion under the Treaty, one on the relationship between such agreements and intellectual property, and one on Treaty prohibition of abuse of market power.
My main criticism of the book is in its organisation into some very short chapters in the beginning, then the major Chapter 11 that has sub-sub-sub-parts, such as “188.8.131.52 Non-territorial restraints under the Regulation” (p.337), which is almost double the length of Chapter Three. Many of the themes discussed in the earlier chapters could have been integrated into those on specific intellectual property rights. However, having only the three distinct chapters on Trademark, Patent, and Copyright is taking a limited view of intellectual property. The omission of deep discussion of trade secrets, confidential information, passing off, integrated circuit protection, designs (although several design cases do appear in the earlier chapters), plant protection or other rights within the ambit of intellectual property, is strange, and again is the result of choices made in the organisation of chapters and their content. For example, the EU [*331] Commission has be moving to harmonise some of these issues, such as Community Plant Variety Rights, but plant breeder rights are noted to be a “more esoteric species of intellectual property” (p327), and discussion comes within a section on patent licensing. Consideration of criticisms of treating software as a literary work are placed in the competition section of the book (p.363). Admittedly this classification of software is strange, but this is now fait-accompli with TRIPS requiring protection for computer programs, and discussion of this aspect would have been better served within the copyright chapter.
These criticisms aside, this is a high-quality work. Though tempting, it would be unfair to compare in detail INTELLECTUAL PROPERTY RIGHTS IN EU LAW with Tritton’s INTELLECTUAL PROPERTY IN EUROPE (2002). The latter is a much longer, costlier, reference tome that is to be dipped into as required, whereas Keeling’s book is a highly readable work with a subtle sense of humour that can be read from cover to cover. It is written in a lilting and comfortable style. Keeling gives insight into the European Court of Justice and how it manages to operate in the intellectual property domain that, from its jurisprudential basis in culture, science and consumer protection, has been an antithesis to cross-border cooperation. A second volume promised from Keeling is to deal with the steady progression towards legislative harmonization of intellectual property rights throughout the European Union. This will be a welcome and necessary companion to the first part reviewed here, as otherwise one is left with only half the story having been told. It is hoped that this will have a more political perspective to balance view of the European Court of Justice in INTELLECTUAL PROPERTY RIGHTS IN EU LAW. Indeed, intellectual property is a ‘very fine thing.’
Tritton, Guy. 2002. INTELLECTUAL PROPERTY IN EUROPE. London: Sweet & Maxwell.
© Copyright 2005 by the author, Mark Perry.
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