RICERCA ITALIANA     

The Protection of Intellectual Property in the EU and China Law

Università degli Studi di Palermo

Abstract

Intellectual property right - essentially, copyright, trademark and patent - is the subject matter of this research.

It is characterised by a core of incisive national, international and communitarian law makers' intervantions that aim on one side to extend the implementation of copyright rules to software, database and industrial design and, on the other side, aim to enlarge the author's prerogatives and also to reenforce the remedies.
The purpose of the research is to keep up with these modern legal trends. It focuses its attention in particular on the possibly distorted outcomes of the competition caused by iperprotective policies, such as the EU policy, as well as on the innovatory capacity and real effectiveness of the legal remedies.Concerning legal remedies the research will pay particular attention to the examination of damage quantification techniques as well as to the reconstruction of the relationship between compensatory protection and unjust enrichment protection at present characterised by the enforcement of restituition of profits measure both in Trip's Agreement and in the imminent EU directive.
At last it will be examined the intellectual property regulation introduced in Chinese Popular Republic after acceding to the O.M.C., both to verify the degree of adjustment of this regulation to the new international or supranational trends, both to value the correctness and the specific utility of some protectionist or strongly protectionist policies introduced by the main protagonists of international trade, first of whom the European Union, just to face the chinese menace. <<<

Principal Investigator

Luca NIVARRA Università degli Studi di PALERMO

Research Objectives

The reasearch programme proposes the following objectives:
a) to ascertain the compatibility of the communitarian tendancy to iperprotect traditional industrial property rights with the procompetitive attitude of property right, on one side, and with the balances guaranteed by the 'fair use' legal regime, on the other side.
b) to verify the capacity for innovation and the effectiveness of the measures contemplated in the imminent EU directive concerning the enforcement of intellectual property rights, in particular with regards to damages quantification techniques and also regarding the relationship between compensatory protection and unjustified enrichment protection after the introduction of the restituition of profits measure by the EU Lawmaker.
c) to check to what extent the level of the EU legislation corresponds to modern internatioanl law trends.
At last it will be examined the intellectual property regulation introduced in Chinese Popular Republic after acceding to the O.M.C., both to verify the degree of adjustment of this regulation to the new international or supranational trends, both to value the correctness and the specific utility of some protectionist or strongly protectionist policies introduced by the main protagonists of international trade, first of whom the European Union, just to face the chinese menace. <<<

First Results

As for the first stage, the expected aim is represented by a complete gathering of the normative material concerning the sphere of the research; as for the second stage, the expected aim is represented by the settlement of this material in accordance with the line inspiring the research. <<<

Timescale

24 months

National and international background

Historically, intellectual property - trademark, patent and copyright - has always been covered by transnational legislation because every national legislation is the result of international agreements.
This particular point is confirmed by present real events (Trip's Agreement and the two Wipo Agreements are just emblematic cases), however, also seems to be contradicted by the national statute law trend (including the communitarian one) which tends to widen the traditional property right area - its purpose being twofold: to protect 'native' cultural products and to draw the attention of foreign authors and inventors to those products.
The widespread diffusion of digital technologies and world wide web have given a new strenghth to that phenomenon producing different results: institutions of news rights, progressive reduction of the area which is traditionally reserved to 'fair uses', enforcement of remedies.
There are a lot of questions regarding this phenomenon.
Firstly, the enforcement of the author's prerogatives is not always along the same line as the procompetitive attitude of intellectual property rights.

Secondly, this hypertrophy could compromise in an irreversible way the traditional balance between property rights - due to the author or to the inventor for the creative effort - and public exploitation of intellectual work (in the same way are the reduction of the 'fair uses' area and the drawing out of the property rights).

Thirdly, the enforcement of the remedies, evident on a normative level, has to compete with a serious and difficult question: the difficulty to estimate damage correctly in the perpetual conflict between under and overcompensation.
The question concerning a satisfactory settlement of the dispute between compensatory protection and enjust enrichment protection has presently become more problematic because of the introduction of the ambiguous restituition of profits remedy, expressly introduced in overnatioanl(art.41 Trip's) amd communitarian legislation (art. 17 imminent EU directive reguarding the enforcement of intellectual property rights) - have in this way gained fundamental theoretical importance even full of practical implications.
As for concerning particularly the study of evolution of the intellectual property regulation in China and its adjustment to the TRIPs previsions, it seems to be important both to allow a more correct evaluation of the trends of chinese legislative choices and their conformity with duties assumed on international level, both to give a technical contribution to the debate about the obstacles to the international integration of China, both, at last, to value the correctness and utility of some protectionist and strongly protectionist choices going to be introduced in European Union just to face the chinese menace. <<<