Book Review: Harmonizing Intellectual Property Law for a Trans-Atlantic Knowledge Economy

A meow-velous cover!

This is a book review of “Harmonizing Intellectual Property Law for a Trans-Atlantic Knowledge Economy”, edited by Péter Mezei, Hannibal Travis, and Anett Pogácsás. The book employs comparative and analytical methods to explore the harmonization of intellectual property (IP) law within the Trans-Atlantic context, with a strong focus on the intersections of culture and trade.

Organized into four parts and containing 16 chapters in total, the volume provides a detailed analysis of both the successes and challenges in aligning IP laws —particularly copyright— between the United States and the European Union. The content is based on research presented at the Fifth Annual Workshop on Intellectual Property Rights in Szeged in April 2021, offering perspectives that are pertinent for those involved in the ongoing discourse around international IP law.

The first section delves into successful aspects of legal harmonization. Laura Ford examines the historical and philosophical underpinnings of harmonization, urging a reexamination of its foundational ideals in contemporary law reform. Hannibal Travis analyzes augmented creativity, particularly the legal treatment of AI-generated content in the US and EU, and explores common grounds in protecting such creations. Ana Lazarova discusses the varied regulations among EU member states concerning neighboring rights and the implications for implementing the new press publishers’ right under Article 15 of the DSMD. Notably, Dénes Legeza reviews the emergence of out-of-commerce rules in Hungary, Germany, and the US, expressing optimism that the DSMD will boost mass digitization efforts in Europe. Legeza’s analysis provides interesting insights relevant to the revocation right under Article 22 of the DSMD. This Kat finds this chapter worthy of a bookmark for its interpretation of “reasonable effort” to determine whether a publication is available to the public or not, stating that:

It cannot be the aim of the regulation for the employees of a library to have to seek out every bookstore and other commercial distributor in existence to prove whether there is one single copy in stock. When the more significant (professional) libraries who routinely utilize the available procurement sources consult them (including by contacting the publishers) with regards to an OOC work, that should be enough. If an institution can prove in a documented manner that it checked availability through these channels and the result was negative, then it can presume in good faith that the item in question is OOC.

The second part addresses 5 areas where harmonization has faced obstacles. Péter Mezei and Caterina Sganga advocate for extending the doctrine of exhaustion to the digital realm, highlighting strong policy arguments for this shift. Lucius Klobucnik calls for a harmonized approach to the categorization of rights in Europe to streamline online music licensing, comparing EU and US perspectives. Anett Pogácsás examines the divergent legal approaches to copyright waivers, discussing how to mitigate the lack of uniformity. Giulia Dore emphasizes the differing treatments of moral rights between civil law and common law countries, cautioning against harmonization that overlooks these distinctions. Karolyna Sztobryn assesses whether EU IP laws adequately consider disability perspectives, highlighting potential gaps and advocating for greater inclusivity.

Focusing on artificial intelligence, the third section explores how technological advancements challenge IP harmonization. Hannibal Travis analyzes the potential risks of innovation, particularly in the context of the EU’s AI Act, questioning whether harmonization might inadvertently stifle knowledge generation. He highlights concerns that technological advancements, from genetic engineering to quantum technologies, may have crossed the line from beneficial to harmful. Mauritz Kop, in his chapter, makes a very intriguing – to say the least – proposal for new public domain model for autonomous AI creations, termed “Res Publicae ex Machina“, seeking to rejuvenate public domain principles for the benefit of innovation and society.

This model addresses the legal public domain status of both physical and intangible AI creations and inventions. The creations and inventions will be enshrined in a permission-free space where creativity and inventiveness can flourish. (emphasis added)

David Linke critically examines the uncertain treatment of AI training data under copyright law, highlighting the lack of a uniform definition for “data” and “artificial intelligence” while exploring potential copyright exceptions and limitations, comparing approaches in the DSMD and – surprisingly for a book on transatlantic harmonization – Japanese law.

The final part addresses IP harmonization in the context of other emerging technologies. Peter Menell traces the evolution of design protection law in the US and Europe, focusing on the non-functionality doctrine to prevent overreach in IP protection. Ioanna Lapatoura discusses the impact of 3D printing on copyright law from both EU and US perspectives, suggesting digital watermarking as a tool to enhance anti-infringement measures. Bohdan Widła highlights the divergence in copyright protection for application programming interfaces (APIs) between the US and EU following the Google LLC v. Oracle America, Inc. decision, advocating for a broader interpretation of exceptions in the EU. Last but not least, Luis Javier Capote Pérez examines the legal nuances of orthophotographs, contributing to the debate on distinguishing between photographic works and mere photographs.

All in all, this book offers a highly engaging and insightful examination of the ongoing efforts and challenges in harmonizing IP law, particularly in the context of technological innovation. The thorough analysis and diverse perspectives make it an invaluable resource for readers interested in the intersection of culture, trade, and IP law. While each chapter contributes meaningfully to the discussion, certain chapters stand out for their depth and critical analysis, warranting multiple readings. This Kat looks forward to a second edition that expands its scope to include a broader range of IP rights beyond copyright, further enriching the discourse and providing an even more comprehensive understanding of the field.

ISBN: 978-90-04-68620-5 (Hardback) 978-90-04-68621-2 (E-Book)

Publication Date: 2024

Publisher: Brill | Nijhoff

Extent: xvi, 420 pp.