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Title: De wenselijkheid van de investeringsbescherming geboden door de sui generis intellectuele rechten rond chips, computerprogramma's en databanken.
Other Titles: The desirability of the investment protection schemes offered by the sui generis intellectual property rights concerning chips, computer programs and databases.
Authors: Coene, Bj√∂rn
Issue Date: 3-Feb-2016
Abstract: The PhD examines whether the sui generis intellectual property rights concerning chips, computer programs and databases provide a desirable specialisation, when it comes to providing investment protection, compared to the traditional intellectual property rights and the traditional law on unfair competition concerning 'parasitic competition'. The PhD approaches this question from the viewpoint of a normative legal analysis. This analysis consists of interpreting the legal rules concerned and evaluating them in view of the following parameter: the degree to which they are coherent according to theories which indicate how these rules are to contribute to achieving the goals put forward by beliefs on what the law ‘ought’ to do. In this respect our normative legal analysis buildson a functional approach, which analyses legal rules as a ‘means’ to achieve certain goals in view of certain factual circumstances.

In a first part, the PhD examines which test is suited to evaluate the specialisation which the sui generis intellectual property rights introduce within intellectual property law, in the framework of a normative legal analysis and from the perspective of granting investment protection. To do this, the PhD does as follows. First, it studies the nature of the specialisation which sui generis intellectual property rights introduce within intellectual property when it comes to providing investment protection. This study leads to the conclusion that this specialisation which sui generis intellectual property rights implement, is to be analysed as a further ‘differentiation’ and ‘precision’ of the legal rules within intellectual property law which are aimed at providing investment protection. From this observation, it then follows that the desirability of the specialisation implemented by sui generis intellectual property rights is to be judged in reference to achieving an optimal degree of ‘differentiation’ and 'precision’ of legal rules. In fact, this means that the desirability of the specialisation concerned is to be judged by verifying whether the sui generis intellectual property rights, in reference to the other protection regimes within intellectual property law, do the following concerning chips, computer programs and databases: provide a contribution to a more legitimate protection of investments according to utilitarian and natural law considerations, which maximally exceeds the efforts concerned with applying the rules within intellectual property law which provide investment protection. In view of performing a normative legal analysis, it then proves to be appropriate to fit the testjust mentioned within a comparative test establishing greater or lesseraccordance with the theoretically optimal legal intervention. More in particular, this comparative test is to verify whether applying the sui generis intellectual property rights to provide an investment protection concerning chips, computer programs and databases, is to a greater or lesser extent in accordance with an optimal degree of ‘differentiation’ and ‘precision’ of legal rules, than applying only the traditional protection schemes within intellectual property is.

A second part of the PhD is then aimed at establishing suitable parameters and criteria to perform the appropriate comparative test to evaluate the specialisation which sui generis intellectual property rights implement within intellectual property law, when it comes to providing investment protection. The reason is that it is not obvious to establish parameters and criteria which allow this comparative test to become ‘operational’. To determine these parameters and criteria, we call upon the 'systematics' of an optimal intervention by intellectual property rights and unfair competition law against 'parasitic competition'. These 'systematics' consist of a theory which indicates how the means of an interventionby intellectual property rights and unfair competition law against 'parasitic competition' are to be calibrated in view of distinct factual circumstances to optimally achieve the goals, which this intervention ought to achieve. Such 'systematics' of the optimal intervention byintellectual property rights and unfair competition law against 'parasitic competition' will rely on a particular explanation or theory onthe 'mechanics' of the intervention of intellectual property rights and unfair competition law against 'parasitic competition'. Theseexplanations or theories on the 'mechanics' of these interventionsconcern analyses on the way in which the actual provisions of intellectual property rights and unfair competition law against 'parasitic competition' put into action and calibrate their coordination of human behaviour in reference to the features of sensory perceptible objects and acts. These 'mechanics' and 'systematics’ will provide the following contribution to making the comparative test operational. The insights on the 'mechanics' of the intervention by intellectual property rights will indicate the parameters which control the calibration of this intervention and of which the setting should be taken into consideration in this comparative test. The insights on the 'systematics' ofthis intervention will serve as a point of reference to assess whether a particular setting of these parameters is to a greater or lesser extent in accordance with a theoretically optimal intervention. In this second part, the research will also come to the following findings concerning the 'mechanics' and 'systematics' that should serve as aguideline for performing the comparative test mentioned. In view of performing this comparative test it is best not to explain the ‘mechanics’ of intellectual property rights building on the dominant theory of ‘immaterial goods’ but rather by relying on a theory concerning ‘intellectualservitudes’ and ‘predefined cognitive operations of comparison’. The theoretically optimal intervention can be established more correct and more coherent based on ‘systematics’ which calibrate the intervention strictly in view of tracing and correcting ‘imitation advantage’ than is possible based on the dominant ‘systematics’ within law and economics and legal theory that calibrate the intervention in view of estimates on the merits and shortcomings of providing a certain level of investment protection (‘incentive versus access’-theory).

The third part, then performs the actual evaluation of the specialisation that the sui generis intellectual property rights concerning chips, computer programs and databases implement within intellectual property law when it comes to providing investment protection. To perform this evaluation, the PhD examines whether the sui generis intellectual property rights concerning chips, computer programs and databases, in comparison to the relevant, other protection regimes within intellectual property law, set the parameters that calibrate their intervention in a way that their investmentprotection more closely matches the theoretically optimal intervention concerning chips, computer programs and databases. In particular, it examines whether the desirability of introducing the sui generis intellectual property rights concerning chips, computer programs and databases canfollow from the way in which they set: 1.) the parameters that control the judgment concerning the grant of protection, 2.) the parameters thatcontrol the delimitation of the object of the exclusive right which they provide or 3.) the parameters that control the delimitation of the exclusive right which they provide concerning the object. In addition to that, the research also examines whether the desirability of introducing the sui generis intellectual property rights concerning chips and computer programs can follow from the special arrangements which they provide concerning ‘reverse engineering’.

The actual performance of the comparative test described above, then leads the PhD to the following conclusion: if appropriately interpreted, the sui generis intellectualproperty rights concerning chips, computer programs and the structure of databases can constitute a desirable specialisation in providing investment protection, compared to the traditional intellectual property rights and the traditional intervention of the law on unfair competition against ‘parasitic competition’. Such an appropriate interpretation requires that the provisions of the intellectual property rights concerning chips, computer programs and the structure of databases are viewed as instruction on implementing an ‘intellectual property right’-type of investment protection scheme for shape-related features which are derived from intellectual labour and which are aimed at performing other functions than merely portraying itself and appealing to aesthetic sentiments. With regarding to the sui generis intellectual property right concerning databases as collections of elements, it is unlikely that this will constitute a desirable specialisation in providing investment protection, compared to the traditional regimes within intellectual property law. In fact it shows that it is appropriate to interpret the sui generis intellectualproperty right concerning databases as collections of elements in accordance to the same principles that govern the traditional intervention ofthe law on unfair competition against ‘parasitic competition’.
Publication status: published
KU Leuven publication type: TH
Appears in Collections:Research Unit KU Leuven Centre for IT & IP Law (CiTiP)
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