The Copyright/Trademark Interface: How the Expansion of Trademark Protection Is Stifling Cultural Creativity

The Copyright/Trademark Interface: How the Expansion of Trademark Protection Is Stifling Cultural Creativity

Kluwer Law International, 2020, Series: Information Law Series, ISBN: 9789403523705

Abstract

The Copyright/Trademark Interface is an exceptional analysis of the clash between culture and commerce, and the imbalances caused by protection overlaps arising from cumulative copyright and trademark protection. This book highlights the corrosive effect of indefinitely renewable trademark rights. It underscores the necessity to safeguard central preconditions for the proper functioning of the copyright system in society at large: the freedom to use pre-existing works as reference points for the artistic discourse and building blocks for new creations need to ensure the constant enrichment of the public domain. The registration of cultural icons as trademarks has become a standard protection strategy in contemporary cultural productions. It plays an augmented role in the area of cultural heritage. Attempts to register and ‘evergreen’ the protection of cultural signs, ranging from ‘Mickey Mouse’ to the ‘Mona Lisa’, are no longer unusual. This phenomenon, which is characterized by the EFTA Court as trademark registrations and is triggered by ‘commercial greed’, has become typical of an era where trademark law is employed strategically to restrain or eliminate cultural symbols from the public domain.

Auteursrecht, Kluwer Information Law Series, Merkenrecht

RIS

TY  - BOOK
AU  - Senftleben, M.
PY  - 2020
DA  - 2020-11-12
T1  - The Copyright/Trademark Interface: How the Expansion of Trademark Protection Is Stifling Cultural Creativity
NV  - 44
AB  - The Copyright/Trademark Interface is an exceptional analysis of the clash between culture and commerce, and the imbalances caused by protection overlaps arising from cumulative copyright and trademark protection. This book highlights the corrosive effect of indefinitely renewable trademark rights. It underscores the necessity to safeguard central preconditions for the proper functioning of the copyright system in society at large: the freedom to use pre-existing works as reference points for the artistic discourse and building blocks for new creations need to ensure the constant enrichment of the public domain. The registration of cultural icons as trademarks has become a standard protection strategy in contemporary cultural productions. It plays an augmented role in the area of cultural heritage. Attempts to register and ‘evergreen’ the protection of cultural signs, ranging from ‘Mickey Mouse’ to the ‘Mona Lisa’, are no longer unusual. This phenomenon, which is characterized by the EFTA Court as trademark registrations and is triggered by ‘commercial greed’, has become typical of an era where trademark law is employed strategically to restrain or eliminate cultural symbols from the public domain.
K1  - Auteursrecht
K1  - Kluwer Information Law Series
K1  - Merkenrecht
ER  -

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Bibtex

Book{nokey,
	title = {The Copyright/Trademark Interface: How the Expansion of Trademark Protection Is Stifling Cultural Creativity},
	author = {Senftleben, M.},
	year = {2020},
	date = {2020-11-12},
	number = {44},
	abstract = {The Copyright/Trademark Interface is an exceptional analysis of the clash between culture and commerce, and the imbalances caused by protection overlaps arising from cumulative copyright and trademark protection. This book highlights the corrosive effect of indefinitely renewable trademark rights. It underscores the necessity to safeguard central preconditions for the proper functioning of the copyright system in society at large: the freedom to use pre-existing works as reference points for the artistic discourse and building blocks for new creations need to ensure the constant enrichment of the public domain. The registration of cultural icons as trademarks has become a standard protection strategy in contemporary cultural productions. It plays an augmented role in the area of cultural heritage. Attempts to register and ‘evergreen’ the protection of cultural signs, ranging from ‘Mickey Mouse’ to the ‘Mona Lisa’, are no longer unusual. This phenomenon, which is characterized by the EFTA Court as trademark registrations and is triggered by ‘commercial greed’, has become typical of an era where trademark law is employed strategically to restrain or eliminate cultural symbols from the public domain.},
	keywords = {Auteursrecht, Kluwer Information Law Series, Merkenrecht},
}

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Protecting Works of Fact: Copyright, Freedom of Expression and Information Law external link

Dommering, E. & Hugenholtz, P.B.

Kluwer Law International, 1991, Series: Information Law Series, ISBN: 9789065445674

Abstract

With the year 2000 in sight, the information industry is changing into second gear. New information services are introduced each day, using telecommunications networks or newly developed carrier media. Factual information, such as stock market data, weather reports, topographical data and business news, is rapidly becoming a very valuable commodity. And wherever business is booming, piracy is looming. Can copyright law provide adequate protection? Is there a conflict between a copyright in works of fact and the freedom of expression? Are information monopolies compatible with the EEC Treaty? 'Protecting Works of Fact' is about these and other dilemma's of information law. The book contains a collection of articles written by legal scholars and practitioners. Most articles were originally presented at the `Copyright in Information' conference of the Institute for Information Law (University of Amsterdam), which was held in Amsterdam on December 1, 1989. In addition, the book contains a general introduction to information law.

Links

https://www.ivir.nl/publicaties/download/1_9789041180742.pdf

Auteursrecht, Informatierecht, Kluwer Information Law Series, Vrijheid van meningsuiting

RIS

TY  - BOOK
AU  - Dommering, E.
AU  - Hugenholtz, P.B.
PY  - 1991
DA  - 1991-01-01
T1  - Protecting Works of Fact: Copyright, Freedom of Expression and Information Law
VL  - 1
UR  - https://www.ivir.nl/publicaties/download/1_9789041180742.pdf
AB  - With the year 2000 in sight, the information industry is changing into second gear. New information services are introduced each day, using telecommunications networks or newly developed carrier media. Factual information, such as stock market data, weather reports, topographical data and business news, is rapidly becoming a very valuable commodity. And wherever business is booming, piracy is looming. Can copyright law provide adequate protection? Is there a conflict between a copyright in works of fact and the freedom of expression? Are information monopolies compatible with the EEC Treaty?
\'Protecting Works of Fact\' is about these and other dilemma\'s of information law. The book contains a collection of articles written by legal scholars and practitioners. Most articles were originally presented at the `Copyright in Information\' conference of the Institute for Information Law (University of Amsterdam), which was held in Amsterdam on December 1, 1989. In addition, the book contains a general introduction to information law.
K1  - Auteursrecht
K1  - Informatierecht
K1  - Kluwer Information Law Series
K1  - Vrijheid van meningsuiting
ER  -

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Bibtex

Book{nokey,
	title = {Protecting Works of Fact: Copyright, Freedom of Expression and Information Law},
	author = {Dommering, E. and Hugenholtz, P.B.},
	year = {1991},
	date = {1991-01-01},
	volume = {1},
	abstract = {With the year 2000 in sight, the information industry is changing into second gear. New information services are introduced each day, using telecommunications networks or newly developed carrier media. Factual information, such as stock market data, weather reports, topographical data and business news, is rapidly becoming a very valuable commodity. And wherever business is booming, piracy is looming. Can copyright law provide adequate protection? Is there a conflict between a copyright in works of fact and the freedom of expression? Are information monopolies compatible with the EEC Treaty?
\'Protecting Works of Fact\' is about these and other dilemma\'s of information law. The book contains a collection of articles written by legal scholars and practitioners. Most articles were originally presented at the `Copyright in Information\' conference of the Institute for Information Law (University of Amsterdam), which was held in Amsterdam on December 1, 1989. In addition, the book contains a general introduction to information law.},
	keywords = {Auteursrecht, Informatierecht, Kluwer Information Law Series, Vrijheid van meningsuiting},
}

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Copyright, Limitations and the Three-step test. An Analysis of the Three-Step Test in International and EC Copyright Law external link

Senftleben, M.

2004

Abstract

The three-step test - by which limitations on exclusive copyrights are confined to 'certain special cases' which do not conflict with a 'normal exploitation of the work' and do not 'unreasonably prejudice the legitimate interests of the author'- is among the most enduring of standards affecting limitations on intellectual property rights. Its field of application is the delicate balance between exclusive rights and sufficient breathing space for the free flow of ideas and information. However, the emerging information society has thrown numerous unforeseen obstacles in the once-clear path of its implementation. Can the traditional balance between grants and reservations of copyright law be recalibrated along the lines of the three-step test in order to meet current and future needs? Controversies over this crucial question - in Europe, the U.S., Australia, and elsewhere, as well as in two significant WTO panels in 2002 - have brought the three-step test into focus, the essential principle governing copyright limitations in the information society. Investigating the development, structure, and function of the three-step test in international copyright law with thoroughness and precision, Copyright, Limitations and the Three-Step Test offers a close and insightful analysis of its continuing utility for the twenty-first century. The book includes: - viable restatements of the rationales of copyright protection for the emerging IP environment; - new insights into the relationship between copyright protection and copyright limitations; - in-depth explanation of the structure and functioning of the three-step test; - detailed interpretations of each criterion of the test; - discussion of the two WTO panel reports dealing with the test; - a proposal for the further improvement of the copyright system and the international rules governing copyright law; - detailed information about international conference material concerning the test; and - discussion of potential future trends in copyright law. The author provides many examples that demonstrate the test's impact on different types of limitations, such as private use privileges and the U.S. fair use doctrine. He explains the test's role in the European Copyright Directive. The detailed examination and explanation of the three-step test will be of extraordinary value to policymakers, judges, and lawyers in the field of intellectual property law seeking to react adequately to the challenges of the digital environment.

Links

https://pure.uva.nl/ws/files/3645247/37378_Thesis.pdf

Auteursrecht, Kluwer Information Law Series

RIS

TY  - THES
AU  - Senftleben, M.
PY  - 2004
DA  - 2004-02-17
T1  - Copyright, Limitations and the Three-step test. An Analysis of the Three-Step Test in International and EC Copyright Law
UR  - https://pure.uva.nl/ws/files/3645247/37378_Thesis.pdf
AB  - The three-step test - by which limitations on exclusive copyrights are confined to \'certain special cases\' which do not conflict with a \'normal exploitation of the work\' and do not \'unreasonably prejudice the legitimate interests of the author\'- is among the most enduring of standards affecting limitations on intellectual property rights. Its field of application is the delicate balance between exclusive rights and sufficient breathing space for the free flow of ideas and information. However, the emerging information society has thrown numerous unforeseen obstacles in the once-clear path of its implementation. Can the traditional balance between grants and reservations of copyright law be recalibrated along the lines of the three-step test in order to meet current and future needs? Controversies over this crucial question - in Europe, the U.S., Australia, and elsewhere, as well as in two significant WTO panels in 2002 - have brought the three-step test into focus, the essential principle governing copyright limitations in the information society. Investigating the development, structure, and function of the three-step test in international copyright law with thoroughness and precision, Copyright, Limitations and the Three-Step Test offers a close and insightful analysis of its continuing utility for the twenty-first century. The book includes:

- viable restatements of the rationales of copyright protection for the emerging IP environment;
- new insights into the relationship between copyright protection and copyright limitations;
- in-depth explanation of the structure and functioning of the three-step test;
- detailed interpretations of each criterion of the test;
- discussion of the two WTO panel reports dealing with the test;
- a proposal for the further improvement of the copyright system and the international rules governing copyright law;
- detailed information about international conference material concerning the test; and
- discussion of potential future trends in copyright law.

The author provides many examples that demonstrate the test\'s impact on different types of limitations, such as private use privileges and the U.S. fair use doctrine. He explains the test\'s role in the European Copyright Directive. The detailed examination and explanation of the three-step test will be of extraordinary value to policymakers, judges, and lawyers in the field of intellectual property law seeking to react adequately to the challenges of the digital environment.
K1  - Auteursrecht
K1  - Kluwer Information Law Series
ER  -

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Bibtex

PhD Thesis{nokey,
	title = {Copyright, Limitations and the Three-step test. An Analysis of the Three-Step Test in International and EC Copyright Law},
	author = {Senftleben, M.},
	year = {2004},
	date = {2004-02-17},
	abstract = {The three-step test - by which limitations on exclusive copyrights are confined to \'certain special cases\' which do not conflict with a \'normal exploitation of the work\' and do not \'unreasonably prejudice the legitimate interests of the author\'- is among the most enduring of standards affecting limitations on intellectual property rights. Its field of application is the delicate balance between exclusive rights and sufficient breathing space for the free flow of ideas and information. However, the emerging information society has thrown numerous unforeseen obstacles in the once-clear path of its implementation. Can the traditional balance between grants and reservations of copyright law be recalibrated along the lines of the three-step test in order to meet current and future needs? Controversies over this crucial question - in Europe, the U.S., Australia, and elsewhere, as well as in two significant WTO panels in 2002 - have brought the three-step test into focus, the essential principle governing copyright limitations in the information society. Investigating the development, structure, and function of the three-step test in international copyright law with thoroughness and precision, Copyright, Limitations and the Three-Step Test offers a close and insightful analysis of its continuing utility for the twenty-first century. The book includes:

- viable restatements of the rationales of copyright protection for the emerging IP environment;
- new insights into the relationship between copyright protection and copyright limitations;
- in-depth explanation of the structure and functioning of the three-step test;
- detailed interpretations of each criterion of the test;
- discussion of the two WTO panel reports dealing with the test;
- a proposal for the further improvement of the copyright system and the international rules governing copyright law;
- detailed information about international conference material concerning the test; and
- discussion of potential future trends in copyright law.

The author provides many examples that demonstrate the test\'s impact on different types of limitations, such as private use privileges and the U.S. fair use doctrine. He explains the test\'s role in the European Copyright Directive. The detailed examination and explanation of the three-step test will be of extraordinary value to policymakers, judges, and lawyers in the field of intellectual property law seeking to react adequately to the challenges of the digital environment.},
	keywords = {Auteursrecht, Kluwer Information Law Series},
}

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Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps external link

Sax, M.

Wolters Kluwer, 2021, Series: Information Law Series, ISBN: 9789403537917

Abstract

Between Empowerment and Manipulation is an extensive ethical analysis with novel interpretations of European unfair commercial practices law on health apps and commercial digital choice environment. Health apps are incredibly compelling in their own right. Despite the promise of empowerment they offer, the tensions introduced by their data-driven, dynamically adjustable digital environments engender a potential for manipulation to which their designers and operators can easily succumb. In this important book, the author develops an ethical framework on how apps use their complete power over the design and operation of the digital environments to shape user-app relationships.

Links

https://www.ivir.nl/sax_info_47-2/

Consumer law, health apps, Kluwer Information Law Series, manipulation, unfair commercial practices

RIS

TY  - BOOK
AU  - Sax, M.
PY  - 2021
DA  - 2021-09-30
T1  - Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps
UR  - https://www.ivir.nl/sax_info_47-2/
AB  - Between Empowerment and Manipulation is an extensive ethical analysis with novel interpretations of European unfair commercial practices law on health apps and commercial digital choice environment. Health apps are incredibly compelling in their own right. Despite the promise of empowerment they offer, the tensions introduced by their data-driven, dynamically adjustable digital environments engender a potential for manipulation to which their designers and operators can easily succumb. In this important book, the author develops an ethical framework on how apps use their complete power over the design and operation of the digital environments to shape user-app relationships.
K1  - Consumer law
K1  - health apps
K1  - Kluwer Information Law Series
K1  - manipulation
K1  - unfair commercial practices
ER  -

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Copyright Reconstructed: Rethinking Copyright’s Economic Rights in a Time of Highly Dynamic Technological and Economic Change external link

Hugenholtz, P.B.

Kluwer Law International, 2018, Series: Information Law Series, ISBN: 9789041191038

Abstract

The historical evolution of copyright has led to a growing disconnect between the legal definitions of economic rights and the business and technological realities they regulate, eroding copyright’s normative content and distorting the scope of its economic rights. This book, which consolidates the results of a major trans-European research project funded by Microsoft Europe, re-examines the core economic rights protected under EU copyright law, with the aim of bringing these rights more in line with economic and technological realities.

Links

https://www.ivir.nl/publicaties/download/ILS_41_flyer.pdf

Copyright, Kluwer Information Law Series

RIS

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Reconstructing Rights: Project Synthesis and Recommendations external link

Hugenholtz, P.B. & Kretschmer, M.

0503

Abstract

In: Copyright Reconstructed: Rethinking Copyright's Economic Rights in a Time of Highly Dynamic Technological and Economic Change, P.B. Hugenholtz (ed.), Information Law Series, vol. 41, Alphen aan den Rijn: Wolters Kluwer 2018, ISBN: 978-90-411-9103-8.

Links

https://www.ivir.nl/publicaties/download/Reconstructing_rights.pdf

Copyright, frontpage, Kluwer Information Law Series

RIS

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Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law external link

Quintais, J.

Kluwer Law International, 2017, Series: Information Law Series, ISBN: 9789041186676

Abstract

This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.

Links

https://pure.uva.nl/ws/files/7607912/QUINTAIS_Doctoral_Dissertation_Final_Manuscript.pdf

Berne Convention, Charter of Fundamental Rights of the European Union, CJEU, collective rights management, communication to the public right, compensation systems, Copyright, Digital Single Market, EU copyright law, exceptions and limitations, fair balance, Internet, Kluwer Information Law Series, online intermediaries

RIS

TY  - BOOK
AU  - Quintais, J.
PY  - 2017
DA  - 2017-05-29
T1  - Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law
VL  - 40
UR  - https://pure.uva.nl/ws/files/7607912/QUINTAIS_Doctoral_Dissertation_Final_Manuscript.pdf
AB  - This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.
K1  - Berne Convention
K1  - Charter of Fundamental Rights of the European Union
K1  - CJEU
K1  - collective rights management
K1  - communication to the public right
K1  - compensation systems
K1  - Copyright
K1  - Digital Single Market
K1  - EU copyright law
K1  - exceptions and limitations
K1  - fair balance
K1  - Internet
K1  - Kluwer Information Law Series
K1  - online intermediaries
ER  -

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Bibtex

Book{Quintais2017,
	title = {Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law},
	author = {Quintais, J.},
	year = {2017},
	date = {2017-05-29},
	volume = {40},
	abstract = {This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.},
	keywords = {Berne Convention, Charter of Fundamental Rights of the European Union, CJEU, collective rights management, communication to the public right, compensation systems, Copyright, Digital Single Market, EU copyright law, exceptions and limitations, fair balance, Internet, Kluwer Information Law Series, online intermediaries},
}

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European Intermediary Liability in Copyright: A Tort-Based Analysis external link

Angelopoulos, C.

Kluwer Law International, 2016, Series: Information Law Series, ISBN: 9789041168351

Abstract

European Intermediary Liability in Copyright provides a clarification on the existing rules of the European Union on the liability of internet intermediaries for third party copyright infringement. On this basis, it formulates a plausible model for a potential future further harmonisation of this complicated area. In step with its rapid progress to the centre of modern social, political and economic life, the internet has proven a convenient vehicle for the commission of unprecedented levels of copyright infringement. Given the significant practical obstacles to the successful pursuit of actual perpetrators, it has become common for internet intermediaries – the providers of internet-related infrastructure and services – to face liability as accessories. Despite advances in policy at the European level however, the law in this area remains fragmented between Member States. This is the first book to take a law-based approach towards exploring the possible substantive harmonisation of the rules of intermediary liability at the EU level. The thesis on which the book was based won Proxime Accessit in the 2016 European Law Faculties Association Award for Outstanding Doctoral Theses in European Law.

Links

https://pure.uva.nl/ws/files/2738365/172299_Angelopoulos_thesis_complete.pdf

aansprakelijkheid, Auteursrecht, Copyright, intermediaries, Kluwer Information Law Series

RIS

TY  - BOOK
AU  - Angelopoulos, C.
PY  - 2016
DA  - 2016-11-18
T1  - European Intermediary Liability in Copyright: A Tort-Based Analysis
UR  - https://pure.uva.nl/ws/files/2738365/172299_Angelopoulos_thesis_complete.pdf
AB  - European Intermediary Liability in Copyright provides a clarification on the existing rules of the European Union on the liability of internet intermediaries for third party copyright infringement. On this basis, it formulates a plausible model for a potential future further harmonisation of this complicated area.

In step with its rapid progress to the centre of modern social, political and economic life, the internet has proven a convenient vehicle for the commission of unprecedented levels of copyright infringement. Given the significant practical obstacles to the successful pursuit of actual perpetrators, it has become common for internet intermediaries – the providers of internet-related infrastructure and services – to face liability as accessories. Despite advances in policy at the European level however, the law in this area remains fragmented between Member States. This is the first book to take a law-based approach towards exploring the possible substantive harmonisation of the rules of intermediary liability at the EU level.

The thesis on which the book was based won Proxime Accessit in the 2016 European Law Faculties Association Award for Outstanding Doctoral Theses in European Law.
K1  - aansprakelijkheid
K1  - Auteursrecht
K1  - Copyright
K1  - intermediaries
K1  - Kluwer Information Law Series
ER  -

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Bibtex

Book{Angelopoulos2016,
	title = {European Intermediary Liability in Copyright: A Tort-Based Analysis},
	author = {Angelopoulos, C.},
	year = {2016},
	date = {2016-11-18},
	abstract = {European Intermediary Liability in Copyright provides a clarification on the existing rules of the European Union on the liability of internet intermediaries for third party copyright infringement. On this basis, it formulates a plausible model for a potential future further harmonisation of this complicated area.

In step with its rapid progress to the centre of modern social, political and economic life, the internet has proven a convenient vehicle for the commission of unprecedented levels of copyright infringement. Given the significant practical obstacles to the successful pursuit of actual perpetrators, it has become common for internet intermediaries – the providers of internet-related infrastructure and services – to face liability as accessories. Despite advances in policy at the European level however, the law in this area remains fragmented between Member States. This is the first book to take a law-based approach towards exploring the possible substantive harmonisation of the rules of intermediary liability at the EU level.

The thesis on which the book was based won Proxime Accessit in the 2016 European Law Faculties Association Award for Outstanding Doctoral Theses in European Law.},
	keywords = {aansprakelijkheid, Auteursrecht, Copyright, intermediaries, Kluwer Information Law Series},
}

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A Few Legal and Economic Questions external link

Dommering, E.

0812, pp: p. 104-110

Links

http://www.ivir.nl/publicaties/download/LOOP.pdf

Database right, frontpage, Intellectual property, Kluwer Information Law Series

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Something Completely Different: Europe’s Sui Generis Database Right external link

Hugenholtz, P.B.

0915, Series: Information Law Series, pp: 205-222

Abstract

This chapter traces the sui generis database right’s historic roots, describes its main features, compares it to copyright, questions its legal nature especially in the light of international intellectual property agreements, and finally examines to what extent the goals of the Directive have been met.

Links

http://www.ivir.nl/publicaties/download/Chapter9_ILS37.pdf

Database right, frontpage, Intellectual property, Kluwer Information Law Series

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