Martin Husovec | How Difficult Is It to Repeal New Intellectual Property Rights?

MARTIN: So today I'd like to talk about something that might seem abstract, but I think it's very interesting, because it might inform our thinking about whether we should introduce new IP rights, and under which conditions we should perhaps introduce new IP rights.

 

So essentially the background of this is that you know today we still hope that the policy should be made based on evidence and I'm pretty sure that people in Glasgow are very well aware of that because Martin and the entire create is at a forefront of pushing this idea that IP law and copyright law in specific should be based on on on the sound evidence so we shouldn't be introducing new IP rights when there's no evidence that they will do something good or when there's evidence that will do something bad for the society and the question is how far the evidence can take us and the question also is what to do if evidence tells us evidence tells us that that actually the rights as we as we have legislated them do not really work and we would preferably want to get rid of them and how realistic it is to really do that so perhaps is the starting point you all are aware that IP rights are sort of understood among citizens but also among policy makers mainly as a sort of a toolkit to achieve something that is to to steer creativity to stimulate innovation and perhaps also to distribute the benefits of innovation in a particular way through the market but providing the tools to the creators and innovators who can then take advantage of them and trade them on the market for money and use the money to sustainable and an innovation so if you take sort of the European look to the policy making I think it's fair to say that in the past so in the very early days for for EU IP was mostly conceived as obstacle namely as an obstacle to cross-border trade so we had many IP cases that were about you know someone having an IP right in Germany someone else having an IP right in France and they try to use these right to partition the markets or even the same order having the rights in two different countries and trying to prevent the cross-border trade and as you know the idea of the of the EO was to actually facilitate the prosper frame so the the first view was actually the one of the obstacles so that's why also when the legislation in this area was coming up the idea was that we want to harmonize the differences between different legal systems so that we can so we can have a smooth post border frame now this has changed later when together with the idea of of IPs an obstacle we understood that IP IP rights are also about incentives so you know with with some directives such as biotech the record if it was recognized that what we are doing is introducing legislation to on one hand steer innovation in a particular area and also to remove the barriers in the in the European European space now if you look at what is happening recently it's all of these things and on top I would suggest that we also see that now the European legislature is also looking at a landscape wholly through the prism of incentives also any situations where no obstacles really need to be removed in other words the really no different approaches in the Member States that would somehow to be harmonized and overcome by legislation rather than legislature comes up with the new tool with hope of some benefits that it tries to achieve and and this is I would suggest the example we see this with a couple of initiatives that came up in the last couple of years so this is sort of a shift but what this does is when I come back to evidence is that money coming with new on the European let'em that are not really piston before on the national level you really have no idea what they will do your very little precedently are very little you know in terms of trig record so it's very black box that you are putting on the European level and essentially my question is okay if you do that then was what can happen if you figure out later on that it was it was a bad idea so to get some some context what kind of rights I'm talking about so the example of this where I would suggest that he used sort of a came up with a unique legislative framework for the first time was database right he motivated in 90s with idea that we buy idea that we should and we should spur the database industry this is how they called it back in the days and that Europe is somehow lagging behind and you know the way to do it is to introduce new exclusive but of course at the same time to some extent there were already some ways how to protect database and this directive also prevents that kind of fragmentation on the national level but I would suggest the main main sort of way of looking at the database directive was okay we want to simulate certain type of activity in that case database creation so that we can have brighter futures now we'll discuss that in a second whether that happened but the same thing I think is happening also with some other words they're being proposed discussed such as data producers right so you might have heard about that the idea that you know pushed by car manufacturers that they should get some right to the data that are collected by by their machines or news publishers right the idea that a publishers should also have some right in parallel to authors to their today news publications or sports organizers right the idea that those who organized sports events should perhaps have some exclusive rights with respect to the the actual events that are taking place in the same way as our IP so those are all ideas or proposals in different stages you know the news / news publishers right is now in the in the package for the copyright reform data producers right it was kind of on fire but it's not anymore and it sports organizers right somehow ended up in the proposal but is likely to be kicked out now my question here is how sticky these legislative choices so if the EU decides to have these how sticky artists now what do I mean by sticky obviously whenever those opposed often you if you read the first questions you ask yourself first question you ask yourself will benefit outweigh the costs well the new creativity that I will gain thanks to these two be outweighed by the cost social calls that I will trigger by creating this new IPA and that's obviously the most important question that we always ask ourselves this is where a lot of this debate that you hear about the Google tax for the news publishers right is is it a good idea will actually create more money for the for the news publishers yes or no and if it will create at what cost for for other people citizens or out of businesses now this is not what I mean when I asked for the rights whether these rights are sticky obviously I what I'm interested in is can we undo these legislative choices if we have decided for them in the past and if so how difficult is it and and even at this question you can look from two different ways one is looking at sort of from political economy perspective essentially asking okay is it feasible that the legislature will ever decide in a political climate that it will be a political will to abandon some rights and won't there be a strong lobbying against a position of such rights all right so that's one of the ways that you can look at that but that's not the one that I'm interested what I'm interested in a sort of a very easy a view of okay so if you put this right in the legal system that legal system has some institutional as well as legal safeguards and those will prevent a change for better or worse and which might make it difficult for you to actually undo your ptosis fully or will make it subject to some constraints so let me be more more concrete so let's first look at the institutional setup and how that can limit whether the legislature can do so here think about this experiment that we have started with in 90s 1996 the directive about the legal protection law databases was passed on to you and the idea was as I said we should boost database industry now this directive was since evaluated twice where it used the benefits that we we have talked for and consistently in the first and second evaluation the picture that is emerging is essentially well the sue Jenna's dead base rights are one of the rights that was created to actually spur this investments in this area did not bring any substantial benefits to society but at the same time it did not harm the industries okay so you can see the EU based on the evidence then they got her actually admitting which is very you know doesn't happen that often admitting that the the experiment itself didn't breeding work now you know we used to shoot through this IP right that most of the world doesn't have and you know it doesn't seem to doesn't seem to bring much evidence that it does and at the same time you know they find that there's no hardware much much harder for these this new right leader and hence they decide not to repeal now this can sort of become intuitive because you would ask yourself well but if it turned out that it's not working I mean it would be natural to respond by this repeating right so why keep it if it's not working so I was kind of triggered by this and I won't break okay so what does it tell us about what does it tell us about the system if you actually even admit in public that a right is not working but then you're not ready to take a step to actually repeal it and when you start thinking about the institutional setup and I think this starts making more sense though it pains a little bit of mourning picture namely that if you think about it you and many things in the you are having us through the rares so not everything that many things are harmonized through the rectus which is the case also the database directive and a contract reform that is upcoming which might bring the news publishers right now visas directives or directives to the member states and then the state's and then have to implement the loss in order to effectuate change so yet this yet the EU obviously composed of the Member States telling the Member States and the Member States passed the law and tell the citizens and then citizens of Jeff's okay not a problem of that is in case we want to repeal the rights that means obviously you can always repeal the European Park so you repeal the directive but if you repeal the direct it doesn't do much because you just repealed the directive you repeal and take away the European identity and the national laws that were there to implement the director will stay in place so essentially you're not changing anything you just remove the European identity and if the Moscow State so the national walls are still ending which is essentially the explanation why the database directly story so far played out the way they did this was because well they could repeal to the directive but they wouldn't do too much the national loss then actually the loss would stay in place now V so you can say well but the you could also tell the Member States to repeal the national laws that were passed to implemented the records right obviously but the only situation where this would make sense is if the you would also say that he should appeal them and not pass anything alive essentially through enemies any legislation that would look like the protection that is abolished but that is a tricky thing because what you would have to say is essentially that you are as a member say not allows to create an accurate so sort of a negative legislation we don't have that it doesn't exist but if you will do that it would have to argue that it's actually harmful for the member states who have it and of course you have to provide evidence and as you know you could exercise a competence but it's subject to subsidiarity and proportionality so would active should bring the evidence that all the EU level it should be prohibited that this kind of protection should not exist on the national level and that's all had a lot of trouble to me and that's why I think it's actually unlikely that you would have a legislation that would sort of negatively prevent the member states from heaping protection in a particular area and that's why the tendency would be that actually you keep what you have perhaps you transform it as I'll get to it in a second okay but this is actually something that you are the first thing that's is sort of inherent in the federal model but it's not actually in the European model rules and regulations regulations speak to citizens directly so you don't happen to meet area of the state you can speak directly to the citizens so there's no implementation stage which means that if you remove the regulation you remove the underlying implementation now obviously that doesn't mean so obviously if there's a regulation as you can see here if there was ever ever any national law that might have conflicted with the regulation it's preempted right because it was European law saying something different so you is just gonna put best is even taller other cases now if you repeal the regulation obviously that law there was there will not be anymore pre-emptive because your key law is not anymore there so you don't necessarily remove the fragmentation but the important difference is that unlike in the situation of the regulation of the derivative the natural implementations that were created just because of this European law are not there so you essentially force the number six to come up with something and then you say not anymore need it but you didn't force it for repeal but with regulation on the other hand you tell that this is necessary we're doing directly that you remove it and then of course notice states can proactively come up with some policy but you can see that it requires action as opposed to in the directive Solari in action creates the fragmentation so that's a very different that's a very different set up so in this case obviously if you remove the regulation then the Member States can deviate and obviously if you want to prevent deviation yeah run into the same problem with competences as we have discussed just a while ago with the reference now regulations are usually perceived as a sort of a more sort of a bigger interference because you prescribe directly how it should look like as opposed to just say the direction but if you look at the policy making today directives are as restrictive as regulation so it's really just a matter of form very often but if you think about it well this tells you is that it would actually make a lot of sense if the evidence for on IPRA is we and if you nevertheless decide to experiment with new IP right that is untested that you should rather bring it to the market through the regulation then use directives from which you cannot scale back so easily so you use regulation and impose it through a regulation so these publishers right for instance if you go through the directive is it's the course election now it's very unlikely that would be removed because because even if the European identity will be removed the National these have to be introduced now to comply and then international member states would have to scale back if they want to remove it from the system and so you will have much more fragmentation because any moment to remind you they're two member states who did have some some form of publishers now interestingly enough there's an argument on competence to be made that regulations actually even required as a form of legislation in case you're dealing with a situation when there is little obstacle the national level so the little experimentation the national level so even really smooth the differences but you actually are rolling sort of a new policy there's an argument to be made that on competence you actually should be required to use use regulation because there's no defragmentation but i won't bore you with with that just if you interested you can look at airports speak to me later okay so the insight number one from this is what i call status corps inertia so essentially if you experiment and it's very questionable what the results will be you should really do it through regulations because what you risk if you do it through the directives as the case of database directive or maybe soon paris publishers right in the digits in the market is that the effective repeal of these laws will be prevented by the fact that it would be very hard to coordinate repeal the national level even if there is a political will both on the European level a national level to actually get rid of this can get rid of this right so the offices inside is if you are lobbies anyone to keep a right in the system go for directive instead of regulation because because you force the solution all the members say without unanimity and and will be very hard to get get from this not only because of this but also a second part that I will tell you in a second so this time score inertia is really interesting because you really have a trouble to coordinate appeal because of subsidy a and B also because of because of the way that things are legislated and because of the fact that to empty some form of IP rights on the national levels just for say is is something that is not easy easy to do okay but if you overcome this hurdle there is not one that is obviously we have legal safeguards for good reasons rule of law tells us that you know if someone promises you something for 50 years or 70 years after you die you know the legal system is here device to make sure that there are some sort of protection against the legislature completely changing its mind so if you want to see that in action you can think about the the standardized packaging cases so you might know that in the UK very recently there was a high-profile challenge against the law that is for in forcing to standardize packaging and one of the grounds of the complaint was that what standardized packaging of tobacco products is doing its depriving tobacco companies of their property that is their trademarks because it takes it away by essentially making it not very useful when you want to market your tobacco products so that we're trying to use IP rights the fundamental right to IP so human rights to property intellectual property to actually prevent the change which in this case was standardized faculty now that other Avenue where this is happening is invested in law which is long within the national system that is on the international system were the same argument about expert creationists taking place because if you prove expropriation in the international investment treaties then then then the states can be responsible to pay some damages for the logistic exchange to have introduced on the national level so changing your perspective on what IP rights should look like can trigger protection in law which means that the state will be obliged to pay you no money to Tucson right holders or it can trigger eternal most usual challenges as two fundamental rights and human rights to intellectual property and and and we can see that happening and this this is the first high-profile example as you might know in this particular case the tobacco companies were very successful and the reason for that is because judges did not sign with tobacco companies on the argument that they are deprived de facto deprived of their trademark so their argument was we are the de facto the title trademarks because we cannot use them directly on the products in a way we want and trademark law in their view should essentially guaranteed that possibility now the judges say well this is not necessarily the privation of property you can still use trademarks in other contexts what it is is a control of property which is sort of a less serious interference with property which has different treatment in the human rights law because it doesn't figure compensation in particular so that's where in this case the judges eventually clarified that this is just control of property which is very recently I think last week Court of Justice decided in a very similar case also saying it's just a control of property and there if it's not in this proportion that's completely justified but what you see is trajectory of using fundamental right to intellectual property as a way how to to undermine the autonomy of the legislature to to make it make it shows us now if you look at article 72 of the new chapter which is you know the source of this it doesn't say much it says intellectual property shall be protected and that's a car graph two and a quarter of one says something about protection off other types of property and in particular what it says is that in case you expropriate property then you should provide timely and fair compensation right so if you think about our comics you know getting rid of Rights the really two different scenarios that you can imagine so first in our you I mean look at this timeline here so first in re always there's a right that is granted today and will last fifteen years so it will expire in fifteen years so if I grant to the right if you create a work today and I'm going to repeal your right to let it work and I promise that we're 250 250 you will get it over to 15 years and the first repeal is after 15 years so if I say I'm repeal a any rights that would be there would arise from tomorrow this is today's last day when you get some form of protection in that case what you're dealing with this sort of a new promises so you just say well as of today I'm not giving any more protection numbers obviously that means that you have to tolerate in the system all the rights that were already granted today or before today so if the protection was 15 years you have to wait for 15 years until the last right will expire that's a long time if it's saying maple right that might be 70 years after the death of the author so that can be pretty long long period to wait so that's why the future-oriented repeals so the repeals that will happen only for future situations so a lot more promises is Rohrer it's run unlikely because it's all very useful you can do it essentially you're admitting that it's not too acute to remove IP right from your system because you're willing to tolerate it for quite some quite some time to come now what is more likely to happen is that you want to actually interfere in the system and you will just say well I know I have promised you for 15 years there's new sue Jenner's database trade but nevertheless unable to change my promise and I will this to end in two years so ice fact effectively you just gets evidence right so in this case you were shortened they're shutting your rights for some some period and obviously in this case you are interfering with your past promises so it's pretty clear that you will trigger protection through article 72 now the current situation is that when it comes to the future orient and repeals so just changing your mind for the future as you can imagine there is very little that the legislature is limited because it's changing just for for the future now what you have to keep in mind here is that there are international treaties you know international public well and my for serve as a Member States or as a as a state to actually have a particular arrest but when it comes to some rights they're not in the international public law necessarily so sue genders database where as an example where you could just abolish it and there will be no first forcing a different outcome on on the member states so what do you know if you overcome that in some countries there is an argument that certain essence of rights shouldn't be taken away by the legislature at all so in particular Germany is an example and then the concept of constitutional guarantee which essentially says princes for for-profit authors for corporate owners it says that certain core of Cochran law should be taken away by the legislature and has to be respected so irrespective so let us look at the broad margin hair it will structure carpet law but there's a certain essence there should it be capable now we need to only hear people either we don't have a case law really articulating that which doesn't mean that a court of justice cannot come up with that because you control upon cost or tradition of the Member States and Germany is not involved with and in doing this but if it does so I think what should happen is that we have differentiation because it's different to guarantee some core of copyright protection to authors and is different to guarantee a core if there should be any to database producers which is a pure investment protection so but we can I think assume that for the future or into the peel repeals really I think the legislature has rather open open field now for the pastoral repeals obviously article 17 - kicks in and that means that you have to make a case that what you're doing is in public interest and since you're repealing the right possibly compensate and I think here essentially had three strategies how you can approach this so the first strategy is you can say well I'll just wait as a legislature which is essentially saying I'm not cutting back on the promises that I made but I'm not promising anything new okay so as of today and won't be any rights but all those rights that were promised will expire as I promised in issue so that's the first strategy as I said I think it might work for instance for things like sue Jenna's database right with it doesn't seem to be evidence that is doing anything to the market so perhaps you're fine with repealing that right and keeping the rights that were promised upcoming 15 years and in 15 years it will expire but obviously there's acute need for change because you actually see that we introduced news publishers right and it's doing not that it doesn't do any benefit to the news publishers but is actually harming then perhaps what you want to do is to repeal immediately with very small transfer period but if you want to do that obviously you're repealing you're depriving of someone of property and in that case you have to compensate but compensating of course means that you have to design and you know allocate a budget and that's these are the scheming allocated budget which is not necessarily something that that is easy easy to do or governments are not really ready to do so if you are seeing what the most likely scenario is it is to actually use substitution instead so instead of really repealing repealing the rights you substitute them with something else so you repeal database protection and because we won't do the voice and obligates you to compensate you say I transformed this form of protection into something else and that's something else is either conceived as compensation or as conceived as preventing this to be seen as a form of expropriation but it's just a redesign of your right but in either case you can avoid compensation from being paid which then means that you have to think hard about how to redesign the right but that means that you don't necessarily remove the right part of the system you just keep it in your system and change the way the operates because you don't want to pay you're not prepared to pay the compensation of course unless you're not going to wait so in either case a time to is that I'm doing the choices that you have made in the past it's costly you need a case because obviously waiting means that you waste time and possibly here some opportunity cost if you compensate obviously you have to pay so that is costly too so so really that's why I think the middle ground is essentially substitution but then actually think about okay perhaps there will be some choices that I make there will be really hard to transform in something else that is that is very sensible so if you ask me on how sticky are the IP rights [Applause] [Music] we're essentially get rid of electric you just transform anything else so you get a message if you think about how to repeal IP rights I think in reality the outcome is well yeah the situation in which you will repeal fully repeal is so unlikely because of the institutional setup and the safeguards that we have and if you were really courageous as legislature to do something you're more likely to transform it into something else more fitting to something else than to actually remove it from the system because it might be costly unless you willing to wait then I guess what really applies here is this typical cover of measure twice cut once and some people have these days curse three times so I think it's it's boils down to something as simple but it's very useful because if you pay it through the consequences like this it reminds you how important it is to think it through before you allow it into the system and how exactly you allow it into the system because it might be just very difficult to come back and if you just take a sort of a quick glance at the landscape of 19th century until today and think about how many different IP rights were repealed until today I cannot think of too many examples that really countries that really scale back on their IP choices and that's I'd like to thank you for attention look forward to your questions [Applause] thank you very much you just eat with the bees when you think that that being a good idea precisely the technical problems you're going to run into which I think that how to actually that was treated very well so the questions I think the recording is just going but bigger thank you so we have just talked before that I don't necessarily think of cock reg when I think of repealing I hear it's I think it's super unlikely and possibly even not constitutional in many countries to repeal copper entirely so what I'm thinking about more is sort of a purely Tillet Aryan rights they're sort of being added in the last couple of years because people realize that it's easy to add something new to the toolkit that safeguards the interest and looks makes them look very legitimate when it comes to the distribution of the money now if I was to think this exercise through on the example of copyright law however unlikely there is and I and Siddeley I'm not this is not the sort of opposed to charge for my thinking and I think one important difference when it comes to copyright wall but to some extent even patent law is that in the international framework human rights framework we also have this concept of so-called creators rents this is in the Universal Declaration of Human Rights this is in the International Covenant on cultural and economic rights and and the idea there is that the creators and inventors should benefit morally materially from from their creations and inventions to some extent now that doesn't mean that we need to have a copyright law as it stands on the books today but it means that that we view this and this is applicable to at least as it's seen today to the natural persons only not firms we see that as somehow mandated that to some extent material actually we see it as a mandated by the dignity of these people that creators and in ventures as physical as natural persons should have some form of subsistence for their word and recognition for the world so I think these business creators right in the international framework would actually force you so if you even if you would go to future-oriented repeals and it would want to see what the essence of these of the right is that you're willing to want to repeal I think with respect to copyright so author's words you would really limit the possibility of the states who take away the right entirely and I'm I'm pretty sure about the Constitution tradition of many countries would we'll do that now what I see as a problem is that this logic that makes lot of sense for creators and inventors it's taken away and by analogy applies to other right owners in IP that don't have necessarily same claim in terms of human rights interests but also sort of a moral interest in the game just to give an example and the recent case that you might have discuss in the class the sampling case which ended up before court of justice but previously was before the Jim Federal Supreme Court the German Federal Supreme Court extended the idea of core of essence to also memory ones so previously this case were concerned situations of copyright law now in this case the neighboring ray which is investment right and you could really question whether we needed today when the investment in and sound recordings doesn't require that much upfront investment has to be used to whether it should have any core guaranteed by the Constitution so the legislature cannot take it away I think the moral claim there is very different than when it comes to the core right in copyright law which is the author's right so I think there's sort of internal differentiation between IP rights but the kind of Rights that I'm sort of thinking about here are really sort of this sort of a new new rights that are being sort of created as we speak these these days [Music] [Music] if there is sort of experiments food place of you little shit right that's an appeal yep this may actually just that's fun testing example server so I'm gonna pretend that but this is exactly what I was so when I was doing this exercise I was thinking the first question is when does you chop to apply right and a son obviously applies if you would like to repeal European legislation that's obvious but what about if European legislation causes national protection to be repealed because it's preempted so a good example for this giving its protection of not original writings under the Dutch copyright law that used to exist but now it's preempted by the European law European copyright law after a football because because this protection didn't require originality where's the the in some specific for writings whereas the the European system requires originality of some sorts now eventually that's registered aesthetically even explicitly step in and repealed it but it didn't say so whether that's only for future for the past whatever but in any case what happens there is that even it without step stepping in off the national legislature European legislature actually the bridges some national pre-existing rates so to the extent that the European system provides you less rights or to a different subset of the right owners you indeed kind of extra create the type of property some some arms but that sort of makes you think okay well in that case we really cannot be super harsh because if you realize that what they will do to the European harmonization if you would have to think hard about implications for all the national systems when doing European legislation because of potential claims under the human rights law my cancer right to property so the sensible response is to say well actually EU Charter applies in these cases because otherwise you could have a natural Constitution sort of attacking the the harmonization on the basis of Oh buddy you've breached my records in this case in a way that is not applicable so you should take it on board but so even these effects of the national law but obviously then you have to engage with that you have to look into that but I think what happens in these cases is that these cases are always cases of transformation so you're not necessarily completely taking away some rights but you're actually transforming in something else so maybe you cuts down on the copyright protection but you gave us some generous database protection steps or the UK example for you know the previous tightening a little bit the originality standard on one hand but then giving some sort of a investor protection America now doesn't mean that the right owners are completely identical when you're transforming it so I think we can certainly vey you could say this is just sort of a controlling or redefining the property as opposed to you know completely expropriating now it's you know completely case-by-case racism possible to sort of resolve that you know in abstract but I think it's very interesting because that makes you think that you know if it would be very strict on how you protect and how much you save guard these rights through 7 through 17 to which you can end up with is is a really hard maneuvering space for the EU legislature when it tries to harmonize things because you will always stumble upon some national precedence and if you would have to take them too seriously in sense of always sort of lower down the threshold just to be on line with them then essentially this would be race to the bottom you know if one country or two countries have a very low threshold for protecting something you would have to lower it down because you're always inevitably expropriate someone which is obviously not something you want to do because there's not how sensible policies make but it's very interesting think and yes practically I haven't seen many people thinking about that and I must be my challenge too the to these kind of things I've seen these kind of expropriation challenges in some other areas where a sort of European law was for instance preventing farmers from using their land for press over this and in one of the strangest variety by Caesar they are exclusive because the posse of sheep yes baby success skill of force express your film starfish which is extremely IP virus would be great though yeah yes chemistry it is to say the point of dentistry yeah well as you once you happen it's just a hair so if you feel great and yeah completely now you can move this project so it could be then that the approach of these dudes because logic to the system you know that way the only way it can changes is by how that change or by people switching out of a us you see the both yeah this is possible to the other this form Marshall base compensation or substitutions assessing or are we basically the other way well that's that's great I mean I haven't thought about the fact that it yeah indeed I mean it's very cheap and but actually expensive on the backend so that's this was a very that's a very interesting realization yeah so well I think there's obviously there's a there's a value to evidence even if you never end up repeating my appearance and first it is because courts inevitably also end up responding to evidence I think the best example that I can bring is the eBay decision in the US and the flexibility with respect to injunctive relief as a response that a problem of patent trolls in the US you could even say over response but their response for sure that you know made a big difference so a I think the evidence helps also judges to sometimes overcome some issues be sometimes even if we rethink the way we interpret the law although the law stays the same we can actually do a lot to change and third I think evidence is still helpful even if you don't end up repealing rights because if I'm right that that what is more viable a substitution some sort of transformation of the right you still need the way I think about how to transform the rights to perhaps cut the edges that are producing more cost to the society and keep the team to keep the parts that are perhaps less producing benefits already these are not as harmful so I think I see sort of the benefit to the evidence in in in either case but the overall picture I think is more problematic is that well what happens is that you are running into more of more problems to solve so to say so if this would be about one IP right that we are watching and then have to react to study and adjust there is a limited number of people who can do that now if we keep expanding like this I'm not sure that I'm not sure even today any IP lawyer can actually oversee the whole field I mean it's become such an impenetrable area that you can specialize in some areas but really on a high level I don't think it's impossible but if you keep adding essentially this would be such a huge area where everyone has to have a specialized people looking into that specialized area to be able to properly assess what is going on and then that is going to be very very costly I'm not even sure of feasible to do if we keep expanding now what can be sort of an way to counter this I mean obviously that what you probably to do is to put the cost on it right but it's hard to put the cost on it if the cost only comes if you want to repeal it right so or you could make it harder for the legislature to introduce new IP rights so you can have some more Titans time to trishul or what I was thinking about when I was thinking about how to get rid of the of a directive and national implementation I was thinking about that in some areas you have so-called sunset clauses so essentially they say well unless something has there's legislation confirming this in five years the rights are automatically repealed so you could have the same thing with IP right so you say okay our energy convinced the Parliament as of 2019 that we should have a news publishers right then it's fine if you use directly okay but then introduces how so far in ten years unless there's a there's legislation confirming this score the rights will - and both on the European national level right so you would have also the same cause have having to be transposed international law or if you go to like a regulation you have it directly in the regulation and I think that would already make it different because suddenly you would have to have again the political consensus you know five years later yes it's not completely evidence-based but you know you perhaps after five years would have a slightly different debate then you have then you have you know when there is cooking machine slap so that's something you could think about you know sort of a very strict on that closest more stricter evidence or them skeptical that this would somehow make too much difference yeah I don't know it's a but it's something to be to be somehow salt structurally right because if it's so cheap to do it will keep on expanding and the more narrow the right is the less people will be interested to fight against it right I mean copyright law is only so contagious these days because so many people feel affected by but if this would be bad I don't know protection of something that is really sort of in a small area then you wouldn't have too many people passion on the balance even IP people wouldn't be too passionate about us yeah that's as much as I can otherwise I'd be possibly you get a quality arms that's fine but you can also also be on to the lecture I know that this small ticker precisely the kind of rule and that's something that you set up to at the very end music well generally this doesn't seem to work there are some places there are some examples where a repeal has works Oh papa system for a while but for a while so Netherlands didn't have repealed its own patent systems is sort of a quintessential example of a country that actually repealed its eye-popping system for how many years 15 years something like that adolescence 20 years and then instituted back because at the end of 19th century there was a controversy about patents I mean we're not completely novel with respect to what we living in and in the Netherlands they decided to actually repeal but then they go them back so I don't actually don't know example of an IP right that was abolished and then didn't make it back but perhaps does my limited knowledge and I kept asking my colleagues and so far no one came up with it right so there are these kind of things on the edges right so things that we're sort of part of copyright law like this did that protection of knowledge of writing so that you know some doctrines here and there's like a small tweaks but I'm not aware sort of like a full-fledged right that would just vanish from the radar yeah you wear the specialist beautiful hire little yeah but in the relation problem yep and assistance of a few countries of hunting a different threshold and maybe one could make the case that you know that right yeah the very very I was intrigued by the fact that the now after break said after No Deal scenario there's debating that the former unregistered protection of designs will be legislated into the system of the different name but essentially of in the same scorer and I thought that's interesting so I understand why after the No Deal scenario you want to preserve the rights that were promised under the old system because that would that definitely would somehow have issues with with article 72 or will never equivalent under the the the UK system which as long as you are na CH are at least a one people if not then I don't know but why would you keep necessarily unregistered designs is it because it's a success story or because of inertia or why because here you have to proactively act and and actually introduce new you act last night's Debbie well I'm sure people just ask questions afterwards I think something that's really quite new and exciting to have come talk to us about it today so thank you very much thank you [Applause] [Applause] [Applause] [Music] [Laughter] [Applause] [Laughter] [Applause] [Laughter] [Music] [Laughter] [Laughter] [Music] [Laughter] [Applause]

 

 

 
 

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