Friday, January 15, 2016
After spending an extremely enjoyable part of last week at The Many Faces of Innovation conference, hosted jointly by Bar-Ilan University and Ono Academic College in Israel (http://www.ono.ac.il/37235/), I started to reflect on the question, Is there really is any such thing as “comparative intellectual property law” anymore?
I’ve pondered the question off and on for a while now, but a comment made by Prof. Marty Adelman (Geo. Wash. Univ. Law) at the conference seemed directly on point. In chairing one of the panels, Prof. Adelman observed that a number of us had failed to specify exactly which nation’s IP laws were the focus of our conference papers. His observation was a valid one, as we were an international group, but most of us considered our work to apply to multiple jurisdictions. After all, so much of intellectual property law has been harmonized due to both globalization and international treaties and agreements such as TRIPS and the Berne Convention. Is there – and should there be – any real remaining differences between countries to compare?
The answer is, of course, yes. Most commentators, for example, seem to agree that developing economies need different approaches to IP than do developed countries, the TRIPS agreement notwithstanding. But even among developed countries, variations in government taxation on or support for intellectual property or additions to international minimum protection standards are widespread. This latter point in particular was brought home in a presentation on Israel’s proposed new industrial design law by Asa Kling, Commissioner of Patents at the Israel Patent Office. Protection for industrial designs covers things such as the shape, color, configuration, pattern, or other aesthetic elements of what would otherwise be purely utilitarian articles. In the U.S., industrial designs can be protected under both copyright and design patents, although neither are a seen as particularly satisfactory. Israel’s proposed industrial design law will be a replacement for its current Patents and Designs Ordinance, which dates back to 1924 and is ill-suited to address modern industrial designs such as GUIs, computer icons, and so on. Part of the Israel Patent Office’s intent in drafting the proposed law is also to prepare for accession to the Hague Agreement Concerning the International Deposit of Industrial Designs, which, like many of the international intellectual property agreements, sets some minimum baselines for protection but leaves up to its respective signatories many other details, including duration and formalities.
And not surprisingly, it is in these details that we can see plenty of fodder for comparative analysis. Both the United States and Japan acceded to the Hague Agreement in 2015, for example, but in doing so the U.S. changed its design patent term from fourteen years to fifteen years whereas Japan had already changed its design patent term from fifteen to twenty years back in 2008. The European Union, by contrast, not only grants registered industrial designs protection for twenty-five years but also grants protection to unregistered designs, albeit much more limited in scope and only for three years. In its proposed law, Israel has opted to follow the E.U.’s example, changing Israel’s protection for registered designs from fifteen to twenty-five years and providing three years of protection for unregistered designs.
There are many other significant provisions in the proposed bill as well as differences from other jurisdictions, of course, but the bill is a good example of the diversity still remaining among IP laws. This diversity is undoubtedly a good thing: despite globalization, culture, economics, governmental intervention, and a variety of other factors relevant to IP still vary as well.