Estelle Derclaye and Matthias Leistner, Intellectual Property Overlaps: A European Perspective, Oxford: Hart Publishing, 2010, 406 pp, hb £70.00.

AuthorDev Gangjee
Publication Date01 Sep 2012
DOIhttp://doi.org/10.1111/j.1468-2230.2012.00920_1.x
Estelle Derclaye and Matthias Leistner,Intellectual Property Overlaps:A European
Perspective, Oxford:Har t Publishing, 2010, 406 pp, hb £70.00.
The ever popular Lego brick neatly illustrates the central concerns of Derclaye
and Leistner’s timely, extensively researched and useful book.For several decades
the basic brick enjoyed a sheltered life under the protective umbrella of copyright
law (based on its technical drawings), patent law (due to the technology behind
its interlocking ability) or the law of design protection (for its aesthetic aspects)
in various European jurisdictions.Yet since these regimes offer finite protection,
there have been recent attempts to accommodate the toy brick within the
indefinitely renewable registered trade mark system (as a sign indicating com-
mercial origin), supplemented by the option of unfair competition law. IP
regimes are designed to prevent copying in carefully calibrated circumstances,
since the freedom to imitate is otherwise desirable for competitive, cultural or
pedagogical reasons.The existence of multiple overlapping layers of protection is
therefore a matter of genuine concern.The book traces the extent to which the
same subject matter can be incorporated within more than one intellectual
property (IP) regime, whether this is desirable and the manner in which category
conflicts are managed when they arise.
There is undoubtedly a need for research addressing this phenomenon. An
expanding field of IP legislation coupled with an expansion of subject matter
under individual regimes, the lowering of thresholds to qualify for protection,the
ballooning of the scope of protection, relentless interest group lobbying as well as
legal strategising of the ‘ifA fails, try B’ variety have steadily fuelled these overlaps.
Overlaps in turn are defined as the situation arising when IP rights der ived from
more than one regime apply to the same physical object, or more helpfully, to
the same legal subject matter.This strategic deployment of subject matter across
regimes gives rise to three undesirable outcomes – an impoverished public
domain as content remains exclusively owned, the potential for clashes between
regimes and consequently a more expensive,uncertain and complex IP system to
navigate (Chapter 1). While these issues are of general concern to everyone
whose actions are subjected to the effects of IP rules, the book is written for a
legal audience familiar with IP law.The analysis is self-consciously technical and
formalistic in approach, being intended for those already conversant with the
doctrinal contours of IP law.
This would be a good point at which to discuss the approach in more detail.
While the coverage is primarily European, this project begins at a level of
generality and works its way down to more specific details.After the initial stage
setting and problem identification, Chapter 2 considers the extent to which
overlaps are regulated by international IP treaties. Chapter 3 then considers the
same issues within European law,where the differences between harmonised and
non-harmonised regimes are significant.This investigation continues in Chapters
4 to 6, in the context of the national regimes of France, Germany and the UK.
Here richer seams of case law and secondary literature add valuable detail,
while these chapters also provide convenient outlines of individual regimes at the
national level. For Chapters 2 to 6, the analysis is structured according to eight
pairs of overlaps: (1) Copyright & Designs; (2) Copyright & Trade Marks; (3)
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Reviews
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 943
(2012) 75(5) MLR 936–950

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