Leadership, management style and communication - Programme Structure - Intended results - Relation to the Research School - Academic reputation - Effects of cooperation

Leadership, management style and communication

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.

Programme Structure

a. Summary and Contents of the research programme

Introduction

Ever since its emergence in the late 19th century (Paris Convention 1883; Berne Convention 1886) intellectual property law in today's Information Society is by its very nature international in character. International in this respect means both transnational, reflected in legal instruments such as the TRIPS Agreement 1994 and the WIPO Copyright Treaty 1996, as well as European, evidenced in a host of legislation and court decisions within the EU and ad hoc bonds that surpass the EU such as the European Patent Convention 1975. Whereas both national and international intellectual property law traditionally focus on the economic interests of right owners (producers), in recent years the social and cultural aspects of intellectual property law, and as a consequence the interests of users (consumers and the public interest), have become prominent. This development is reflected in the first place by the ever more active role of UNESCO in this domain. Intellectual property law is now also placed in the perspective of protection, promotion and preservation of the cultural heritage of mankind. This development has induced other stakeholders and actors in the field such as WB and IMF, to also take the social and cultural impacts of intellectual property law into account. In this respect the Development Agenda for the World Intellectual Property Organisation 2004, together with the related so-called Geneva Declaration 2004, issued by civil society, can be seen as consolidating developments so far. As a consequence, today's intellectual property law is of a rather global nature.

However, the indicated state of affairs, on the international as well as on the European front, has led to a considerable fragmentation of actual intellectual property law. The lack of coherence and consistency of intellectual property law which follows from the indicated developments is the more pressing since the traditional conceptual framework of intellectual property law has also come under strain due to the technological changes which today's society is experiencing. From a European perspective all this is not only detrimental to furthering the internal market within the EU, but also requires a reassessment of the policy issues underlying actual intellectual property law. In this sense the programme takes a pivotal view of the EU's role as an actor in shaping international intellectual property policy, as well as a recipient, conduit and implementer of international intellectual property policy in its Member States.

General Approach

The research programme aims to acquire a clear view of the feasibility and desirability of the harmonisation and unification of intellectual property law in Europe, more particularly the EU, taking account of the international agendas of WIPO, WTO and UNESCO in this respect. Proper attention will also be given to cultural constraints in general and the effect of the principles of proportionality and subsidiarity in the EU in particular. Intellectual property law in this respect has to be considered in a broad sense, not only referring to the traditional intellectual property law domains of copyright law and patent law but also encompassing communication and media law as well as the protection of cultural expressions and indigenous knowledge and that of cultural property. In that perspective the research will concentrate on the tension between intellectual property law seen from a proprietarian perspective and intellectual property law seen from a human rights perspective.

The research programme will contribute by means of Ph.D. theses (see the annexed overview) monographs, articles and conference papers to furthering and elaborating the study of both the foundations and the technical set-up of intellectual property law, all this within the perspective of a possible harmonisation or 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 laws in the EU and the US, a number of sub-themes (e.g. copyright contract law, protection of cultural property, cross-border enforcement), that are most appropriate for being taken into account in this respect, bearing in mind the determining factors in the EU such as differences in national legal cultures and legal techniques; indicating 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.

Seminars will be organised on a regular basis so as to publicly communicate the developments in the research fields. Reporting on the activities of the research group (publications) will take place according to the capabilities of the participating faculties and individual researchers in the programme.

Teaching

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. Courses taught in Utrecht and Maastricht:

• Intellectuele Eigendom 1 (Industriële eigendom) (UU)
  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) (UU)
  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) (UU)
  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) (UU)
  The aim of this course is to provide a broad insight into patent law, both in the EU context and on a worldwide scale.

• Intellectuele Eigendom (Comparative Copyright) (UU)
  The aim of this course is to provide an insight into the world's major copyrights traditions: the European authors' 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 (UM)
  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.

• Intellectual Property and the Information Society (UM)
  This course is offered as an elective course in the master ‘Infonomics’ of the Maastricht Faculty of Economics and Business Administration, but it is also open to law students. It covers the origin and history of current economic theory on providing incentives to innovation in the information society. Substantive legal aspects of industrial and intellectual property and the management of IPRs is juxtaposed with technological developments in the vibrant market for multimedia, (open source) software, file sharing, domain name grabbing, and placed in the context of competition, management of IPR and electronic commerce.

• Media Law (UM)
  Media Law is offered at the Faculty of Law and is also part of a minor ‘Art and Law’ that is offered in cooperation with the Faculty of Arts and Culture. The course approaches media as a communications phenomenon and touches upon aspects of freedom of expression and plurality of the media, telecom, internet and ICT sectors from the perspective of human rights and sector-specific regulation in the context of European and economic law.

• International Intellectual Property Law and Policy (UM)
  This course if offered in the ‘Track Globalization, Trade and Development’ of the Master Public Policy and Human Development (MPP) of the Maastricht Graduate School of Governance. It provide an introduction to policy aspects of international intellectual property issues and their connection with efforts to free world trade (WTO) and of regional integration, such as the European Union, NAFTA, and ASEAN, to create an internal market with a level playing field for the protection of intellectual property and economic development in innovation and creativity.

• Masters Intellectual Property Law and Knowledge Management (UM)
  During 2006-2007 a lot of time has been spent on setting up two full post-graduate master programmes on Intellectual Property Law and Knowledge Management (LL.M/MSc.), which will start from 1 September 2008. The programmes will train graduates at an advanced level to work in legal practice, management in knowledge-intensive industries (e.g. high-tech, biotech, life sciences) and research institutes. Although both degrees will each have their own specialization and focus, they will also have a large number of courses in common, so as to train lawyers and non-lawyers to work together across their respective disciplines. The MSc. programme will furthermore prepare graduates for work as patent attorneys. In this context there will be a strong emphasis on practical technical language training and skills training in respect of patent drafting, interpretation and litigation. The LL.M degree trains its graduates for legal practice or consultancy in the field of intellectual property and knowledge management. The programmes will also prepare graduates for further academic studies and research-oriented career prospects as PhD candidates. Most of all, the programmes offer graduates with a degree in law or related fields and graduates with a degree in science or medicine to jointly learn about the role of intellectual property law in commerce, research and innovation policy, from validation of knowledge and registration of intellectual property, to transfer of technology and the management and commercialization of all human intellectual and industrial creativity. The programmes will be taught by residential and non-residential staff from academia, practice and the judiciary, among them a lot of members of the OZIC IP programme hailing from Maastricht and Utrecht. The prestigious Stockholm Network has pledged three scholarships of US$9000 each for outstanding postgraduate students wishing to enter these programmes. See http://www.law.unimaas.nl/masters then click ‘Intellectual Property Law and Knowledge Management’ for more information. The inception of these programmes furthermore enables the IP research group to participate in the European Intellectual Property Institutes Network (http://www.eipin.org) in the years to come.

b. Revision

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. To highlight this theme a conference resulting in a special issue of the Molengrafica Series was organised on 3-4 July, 2006 ‘The Human Rights Paradox in Intellectual Property Law’ (http://www2.law.uu.nl/priv/cier/CIER%20Conference/index.htm). On the basis of this focus of the CIER lustrum conference more work was undertaken on the increasing societal awareness of the role and place of IPR in international economic development and the protection of cultural heritage. This was reflected by the substantial input from UU and Maastricht IP researchers to the conference ‘The Protection of Cultural Diversity from and International and European Perspective’, 18-19 March, 2007. Much of 2007 has been spent on collecting and editing of materials from the CIER lustrum conference of 2006. The publication with Edward Elgar is foreseen in an English language CIER series. Parallel to this elaboration on the research theme, a conference was organised in Maastricht around the inaugural lecture of Prof. Kamperman Sanders in 2005, which in part resulted in the publication of volume four in the Heath/Kamperman Sanders edited International Intellectual Property Law Series with Hart Publishing. Volume four is entitled ‘Intellectual Property and Free Trade Agreements’. Currently volumes five and six are being edited. These volumes will equally deal with the core issues of the research programme, covering: ‘Intellectual Property, Spares and Repairs’ and ‘Industrial Property and Pharmaceuticals’. Dutch law was covered by the CIER publication of the second and totally new edition of ‘Hoofdstukken Communicatie- en Mediarecht’, edited by Grosheide and De Cock Buning. The review period also saw the inaugurations of De Cock Buning in 2006 at the UU as extraordinary professor Media en Communicatierecht and Van Englen, also at the UU, in 2007 as extraordinary professor Overdracht en Licentiering van Technologie.

Progress has been made in bolstering the numbers and breath of expertise of the research group, especially in the years 2006-2007. More efforts are, however, necessary. Van Engelen will strengthen the ranks of the IP programme in future, and a new PhD candidate, Anke Dahrendorf (UM) has commenced work on a thesis dealing with ‘Intellectual Property Rights in International Trade and Investment: Multilateral versus Bilateral/Regional Options’. It is furthermore foreseen that non-residential staff teaching in the Masters IP and Knowledge Management and the EIPIN network can be brought on board. The inclusion of Prof. Jan Brinkhof, and Bas Pinckaerts, both from the UU, to the IP research group has already been put to the board of the board of the OZIC.

Intended results

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; public interest);
• 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

Politico-legal aspects/Legal basis
In the last part of the 20th Century it became clear that issues of legal policy lie at the heart of intellectual property law. This goes right to the heart of this domain since it puts under strain the traditional foundations thereof (the subject and object of protection; the scope of protection; limitations and exceptions). This state of affairs can be well illustrated by pointing at the different attitudes and approaches taken towards intellectual property law by WIPO, WTO and UNESCO.
In the research programme this perspective is prominently taken in the dissertations and concurring articles and papers by Belder (Cultural Property), Koopman (Traditional Knowledge), Kamperman Sanders (Geographical Indications/Antitrust and Research Exemptions/Free Trade Agreements) as well as in the theoretical reflections on the influence of human rights by Grosheide, and the more practice-oriented treatises and monographs by Belder, Brinkhof, De Cock Buning, Firth and Grosheide. Dupont's dissertation on defamation and her article on the freedom of expression equally comes to terms with both politico-legal aspects and aspects of the foundations of the law.

Enforcement
Law enforcement, the importance of which in the field of intellectual property law is underlined by its recent harmonisation in the EU through a directive, is at issue in a monograph to be written as a joint effort by several researchers from the research programme (Brinkhof, De Cock Buning, Grosheide; Bosscher, Deurvorst, De Vreij). The monograph will be both reflective and descriptive.

Applicability and appropriateness
The way in which the various sub-domains of intellectual property law are applied is the subject of a loose-leaf treatise, prepared and published by Brinkhof, Grosheide and an editor not belonging to the research group, and to which, together with the editors, other members of the research group will contribute (De Cock Buning, Dupont; Boscher, Deurvorst).
Other continuing projects such as an Art Law Case Book by Belder fall into this category. The appropriateness of the law in question, particularly copyright law (how does digitisation fit into the existing dogmatics?), is at stake in De Cock Buning's paper for the 2006 conference of the International Academy of Comparative Law.

Relation to the Research School

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:

a. 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.

b. 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 acted as Appraiser/Consultant for the EC Multilateral Trade Assistance for Cambodia in 2006, carried out by the Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ); training the sitting judiciary.

The inception of the Masters Intellectual Property Law and Knowledge Management (LL.M/MSc.) at the UM raises the profile even further, with the Stockholm Network pledging three grants of US$9000 each for outstanding students wishing to pursue post-graduate studies in IP Law.

Effects of cooperation

As can be seen from the achievements, 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 as member of the Vaste Adviescommissie Auteursrecht of the Dutch Ministry of Justice, as member of the Geschillencommissie Stichting ter Exploitatie van Naburige Rechten (SENA), as 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 Littéraire et Artistique Internationale (ALAI), in that capacity contributing to the organisation of several seminars and conferences worldwide. He also serves as member of the board of editors of Intellectuele Eigendom & Reclamerecht. In cooperating with the AHRB Research Center for Studies in Intellectual Property and Technology Law, University of Edinburgh, he has secured contributions from members of this research group to the 2006 CIER conference and the resulting book, and is acting as reviewer for the AHRB digital publication ‘SCRIPT’. He acts as member of an expert group on the Fundamentals of IP Contracts, led by the Max Planck Insitute in Hamburg.

Prof. M. de Cock Buning, is member of the executive of the Vereniging voor Auteursrecht and member of the board of editors of Intellectuele Eigendom & Reclamerecht. She was appointed as extraordinary professor Media- en Communicatierecht at Utrecht University in 2006. She acts as Arbiter, Domain name Dispute Resolution at the World Intellectual Property Organisation. In cooperation with the Ministerie OCW, Nederlands Uitgevers Verbond, Publieke Omroep, she is responsible for the Quickscan Crossmediale publiek-private samenwerking (April 2006).

Prof. A. Kamperman Sanders acted as initiator, academic director and convenor of the annual IEEM Intellectual Property Seminar over the course of several years in cooperation with the Institute of European Studies of Macau (IEEM), China. This 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. He is member of the executive of the Vereniging voor Mededingingsrecht, member of the board of editors of Intellectuele Eigendom & Reclamerecht, and member of the advisory board of the Intellectual Property Quarterly. He has repeatedly acted as external reviewer of PhD research proposals/work in progress for researchers of the EIPIN network.

The CIER and the Faculty of Law at Maastricht University participated in a consortium on a European Commission project on the effect of software patents. The MERIT (Maastricht Economic Research Institute on Innovation and Technology) was the consortium's administrative beehive. The project was successfully completed in December 2007. The PhD thesis by Bakels on ‘Techniekbegrip in the Octrooirecht’ (to be defended early 2008) is in part a by-product of this project.