Leiderschap, managementstijl & communicatie - Programmaopzet - Beoogde resultaten - Relatie tot de onderzoeksschool - Academische reputatie - Effecten van de samenwerking

Leiderschap, managementstijl & communicatie

Het programma wordt geleid door de aan de Universiteit Utrecht verbonden onderzoeksleider Frederik Willem Grosheide en de aan de Universiteit Maastricht verbonden onderzoeksleider Anselm Kamperman Sanders, die de coördinatie van de werkzaamheden binnen het programma voor hun rekening nemen.

Vanuit de coördinatoren wordt regelmatig via e-mailcorrespondentie met andere onderzoekers overlegd over te ondernemen activiteiten, bijvoorbeeld gezamenlijke congressen of de te organiseren workshop op de jaarlijkse Ius Commune conferentie.

Daarnaast vinden regelmatig workshops plaats waaraan een groot deel van de bij het programma betrokken onderzoekers deelnemen. Alle onderzoekers binnen het programma treffen zich derhalve minstens éénmaal per jaar tijdens de jaarlijkse Ius Commune conferentie. Daarnaast wordt ook in het kader van vele onderzoeksprojecten samengewerkt, in welk kader ook workshops worden georganiseerd.

Programmaopzet

a. Summary and Contents of the research programme

Ever since its emergence in the later 19th century (Paris Convention 1883; Berne Convention 1886) intellectual property in today’s Information Society is by its very nature international in character. International in this respect means both transnational, reflected in new legal instruments such as the TRIPS Agreement 1994 and the WIPO Copyright Treaty 1996, and European, evidenced in a host of legislation and court decisions within the EU/EC Treaty (Regulations and Directives), the CE (ECHR) and ad hoc bonds (European Patent Convention 1975). However, on the international as well as on the European front the coherence and consistency of ipr-law is lacking. This is in particular detrimental to the furthering of the international market within the EU.

The research programme aims to acquire a clear view of the feasibility and desirability of the harmonisation and unification of ipr-law in Europe, more particularly the EU, taking account of the international agenda of WIPO and WTO in this respect. Proper attention will also be given to cultural constraints in general and the effect of the subsidiary principle in the EU in particular.

Intellectual property law in this respect has to be considered in a broad sense, not only referring to the domains of copyright law and patent law in particular but also encompassing communication and media law.

The research programme will contribute by means of Ph.D. theses, monographs, articles and conference papers to furthering and elaborating the study both the foundations and the technical set-up of intellectual property law in general and copyright law and patent law and communication and media law in particular, all this within the perspective of a possible harmonisation and unification of substantive law. In doing so, the following steps will be taken:

• selecting on the basis of an overview of substantive national intellectual property law in the EU and the US, a number of sub-themes that are most appropriate in this respect, bearing in mind determining factors in the EU, such as differences in national legal cultures and legal techniques;
• indication whether and how harmonisation or unification with regard to the selected sub-themes can be attained, leading to proposals concerning issues where harmonisation or unification appears to be within reach.

Teaching and dissemination of research is a strong feature of the programme. Many participants in the programme teach and lecture in advanced courses for professionals and post-graduate students in international networks in Europe and Asia, such as the European Intellectual Property Institutes Network and the IEEM Intellectual Property Law School (see under point 5 below).

The programme also has strong links with teaching at master level at Utrecht University and Maastricht University. This strengthens the research in this programme in the sense that dissemination, teaching and discussion in the classroom provides the participants in the programme with the opportunity to revisit, re-assess and fine-tune their research. Course taught in Utrecht and Maastricht:

• Intellectuele Eigendom 1 (Industriële eigendom). The aim of this course is to provide an introduction to Dutch industrial property law from a EU perspective. The course is based upon Dutch national law, EU law (Regulations and Directives) and other European legal instruments (EPC among others), and international law (Paris Convention among others).
• Intellectuele Eigendom 2 (Auteursrecht 1). The aim of this course is to provide an introduction into Dutch Copyright law from a EU perspective. The course is based upon Dutch national copyright law, EU law (Directives), and international law (Berne Convention, WIPO CT among others).
• Intellectuele Eigendom 3 (Mediarecht). The aim of this course is to provide an insight into the structure and cohesion of media and communication law, in particular the private law aspects of the free flow of information.
• Intellectuele Eigendom 4 (Octrooirecht). The aim of this course is to provide a broad insight into patent law, both in the EU context and on worldwide.
• Intellectuele Eigendom (Comparative Copyright). The aim of this course is to provide an insight into the world’s major copyrights traditions: the European authors’s right (droit d’auteur; Urheberrecht) tradition and the Anglo-American (copyright) tradition. The course is based on the study and comparison of Dutch, French, German, English, and American copyright law within the international framework of the Berne Convention, the Universal Copyright Convention, the WIPO Copyright Treaty, the TRIPS Agreement and the Treaty of Rome on Neighbouring Rights. After a general introduction to the historical background, ideology and structure of the different national legal systems, attention will focus on the work of authorship concept (idea/expression dichotomy, publisher’s interests) exploitation contracts and databases.
• European and International Intellectual Property Law. The aim of this course is to provide a comprehensive overview of industrial and intellectual property rights in a globalised trade environment. As such issues of regional integration and harmonisation of national ipr-law in the EU is juxtaposed with international developments in the WTO and WIPO. Special emphasis is placed on the challenges that globalisation of trade and information infrastructures present for the legitimacy and balance of the ipr-regime.

b. Actualisering

Since 2003 a common focus for this research programme on the role of ipr in regional and international integration processes has been found in the relation between intellectual property law and human rights. Preparatory work was carried out to highlight this theme at future conferences and a special issue of the Molengrafica Series. Furthermore at least two dissertations are written in this area. The dissertations by Thomas Hays and Bart Lenselink.

Beoogde resultaten

a. General nature

Modern ipr-law is an invention of the 19th century. It gained its actual shape not later than 1883 and 1886 when the Paris Convention and the Berne Convention were established. In those days ipr-law was part of the public debate and figured on the political agenda all over Europe. Ipr-law was no longer a limited concept, relevant only to certain interest groups, as it had been for a long time previously. The explosion of mass culture coinciding with a rapid emergence of new technologies had thrust ipr-law into an environment where immense political, social, cultural and economic forces were operating. And although it was considered from the outset to be in the public interest that ipr-law should balance the interests of rights owners and society at large, this objective has not always been attained.

Since these early days things did not change very much during the largest part of the 20th century. The same issues still inflamed the public debate and dominated the political agenda, albeit in a more articulate way. An articulation that found its origin mainly in societal and technological developments leading to the transformation of the Industrial Society, into the Information Society. The societal developments that merit attention here are the advent of the welfare state, the increase in cultural participation and the establishment of new forms of entrepreneurial activities. The technological developments once and for all concern the exponential growth of the possibilities to produce ipr-protected material driven and dominated by the computer or biotechnology.

From the ipr-point of view, the advent of the information era within the ‘epistemic communities’ of ipr-law is seen as being at the roots of challenges facing ipr-law, there being basically three main problems:

• problems with respect tot the societal acceptance of the law of ipr (consumerism; enforcement problems; ethics);
• problems with regard to legal concepts of the law of ipr (elasticity and consistency of the available legal conceptual terms;
• problems with regard to existing differences in legal technique.

A reply to these challenges is the development of a new field of legal comparative activity: the comparative research-based drafting of European principles on different fields of private law, Dutch as an intellectual property law.

Communication and media law comes into play here in as far as the interaction between copyright law and the freedom of expression is concerned.

b. Research subject chosen

The following fields of international property law will be the subjects of the research.

• General
  • Monograph on the enforcement of intellectual property law in the Netherlands from a EU perspective;
  • Monograph on the relationship between Dutch private law and Dutch intellectual property law for a EU perspective;
  • Molengrafica-series, Issue 2001, Congress Papers on Protection of cultural expression and indigenous knowledge;
  • PhD thesis on the transfer of technology between developed and developing nations.
• Copyright law
  • Various studies with regard to aspects of harmonisation and unification of European and international copyright;
  • Loose-leaf commentary on the Dutch Copyright Act;
  • PhD thesis on the legal status of the licensing contract.
• Patent law
  • Various studies with regard to aspects of harmonisation and unification of European and international patent law;
  • Loose-leaf commentary on the Dutch Patent Act.
• Unfair competition law: Ph.D. thesis with regard to harmonisation and the unification of unfair competition law in the EU.
• Communication and Media law: Second edition of the Commentary on Dutch Communication and Media Law (2000).

Relatie tot de onderzoeksschool

As is clear from the description, this programme contributes to the central theme of the Ius Commune Research School in that it focuses on the role of ipr in regional and international integration processes thus highlighting its social and scientific relevance in relation to:

• EU. Although the general law of ipr has not been affected in all sectors of EU legislation, nevertheless there are by now several specific fields of law concerning ipr in which relevant EU legislation applies. The scope of this legislation is constantly developing as part of the gradual evolution of European Community Law.
• International. The need, and as a consequence, the social and scientific relevance of the harmonisation and unification of intellectual property law in an international setting speaks for itself, taking into account the observations made above. It is particularly reflected in the drafting of inter-governmental and non-governmental legislative instruments such as EC Regulations and Directives or the WIPO Dispute Settlement Regulation as well as the case law of the European Court of Human Rights, the European Court of Justice and the WTO Dispute Settlement Body.

Furthermore the programme’s innovative aspect is to approach the planning of ipr-law within the perspective of European integration with an integral approach. Ipr-law is seen as a coherent subsection of private law as regards to the underlying principles into which ipr-law is bound. A less frequented and more general view of the various bodies of ipr-law is therefore required.

In a more practical context all participating researchers are actively involved in the research programme of the Ius Commune Research School. Seminars have and will be organised on a regular basis so as to inform each other and other researchers about the developments in the research field. Reporting on the activities of the research group (publications) takes place according the capabilities of the faculty, the university and the research school.

Academic reputation

Many researchers in this programme participate in international networks and publish in English language and peer reviewed journals or book series. Members of the programme have acted as rapporteur for various EC Commission Expert Group reports.

Furthermore there is cooperation and active participation in the European Intellectual Property Institutes Network (Queen Mary London, CEIPI Strasbourg, ETH Zurich, Magister Lucentinus Alicante, Max-Planck Institut Munich), the AHRB Copyright Research Network, Birkbeck University School of Law London, the AHRC Research Centre for Studies in Intellectual Property and Technology Law Edinburgh, and the Institute of European Studies of Macau Intellectual Property Law School.

Prof. A. Kamperman Sanders has acted as Appraiser/Consultant for the EC Multilateral Trade Assistance for Cambodia on two projects in 2003 and 2004 carried out by the Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ); the training at the Royal School of Judges and Prosecutors and training and curriculum development at the Royal School of Law and Economics of Cambodia.

Prof. F.W. Grosheide acted as specialist for the World Intellectual Property Organisation in Dubai.

Effecten van de samenwerking

Cooperation has led to many projects, publications and conferences that would otherwise not have been possible, especially where it concerns access to and the ability to build international networks.

Prof. F.W. Grosheide is serving both as a member of the Executive Committee of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) and as a member of the Executive Committee of the Association Litteraire et Artistique Internationale (ALAI), in that capacity contributing to the organisation of several seminars and conferences worldwide.

Over the course of several years cooperation with the Institute of European Studies of Macau (IEEM), China, with Prof. A. Kamperman Sanders acting as initiator, academic director and convenor of the annual IEEM Intellectual Property Seminar, has enabled participants to the programme to attend and act as speaker at the seminar. A book series published by Kluwer Law International and subsequently Hart Publishing has been firmly established as a result.

This cooperation furthermore led to the inception of the IEEM Intellectual Property Law School in 2004. The aim of the IEEM IPLS is to provide advanced post-graduate teaching in European and International Intellectual Property Law, student and researcher exchange between Asia and Europe, and funding for PhD research. To this end the IEEM now acts as sponsor to a chair of European and International Intellectual Property Law at Maastricht University.

The CIER and the Faculty of Law at Maastricht University participate in a consortium on a European Commission project on the effect of software patents. The MERIT (Maastricht Economic Research Institute on Innovation and Technology) is the consortium’s administrative beehive.