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The music and film content providing industry asserts that unauthorised widespread Online Service Provider (OSP) enabled use of their works has played a large part in the factually evident decline in unit sales of the industry’s essential products such as CDs and DVDs, and has thus also allegedly diminished revenue and profits. In this regard, content providing industry legal recourse against OSPs takes two forms. The first is to claim primary copyright infringement, and the second to establish third-party copyright liability for the infringing acts of an OSP’s users. The choice is dictated by the specific facts in individual cases. The latter important and complex case law based category, which applies to a spectrum of OSP connections to infringements, some more direct than others, is specifically treated in this thesis. This thesis examines the, it is argued, inadequate case law based operation of UK third-party copyright liability. By firstly comprehensively studying UK copyright law as it pertains to OSPs, including primary liability as well as exceptions and limitations, UK third-party copyright liability is suitably extrinsically defined. Its intrinsic operation is then analysed. Severe deficiencies having been found and explained in this regard, a basis for reform is sought by conducting a similar examination of US third-party copyright liability, said law being more developed. Thus, a mirrored approach to the preceding UK analysis is taken in the analysis of US copyright law; carefully defining third-party copyright liability and ensuring overall systemic compatibility. Having established the need for reform and having provided a second compatible but more developed source, both strands of third-party copyright liability are compared and contrasted and entirely novel changes to the UK concepts are proposed for legislative adoption. The reformulations allow for apposite future risk analysis by market actors, resulting in greater legal certainty for all parties concerned.

The reconciliation of patents within the Taiwanese Law of Things has received negligible attention from legal scholars. The primary reason for this is the hesitation, by courts and scholars alike, to construct a new property paradigm, referring instead to treat patents under the existing rules on physical things. This dominating stance has had an impact on the manner in which Taiwanese courts adjudicate on the nature of patents, and dealings therewith. The aim of the thesis is to show that this stance is theoretically illogical. The underlying issue is the different classification of patents within the civil and common law systems. The study employs a historical and comparative law methodology in order to inform an intra-law solution to the problem of how to overcome the classification dilemma. It does this by critically analysing the evolution of patent categorisation as personal property in common law and, by employing this foundation, seeks to distinguish the substantial differences in the concept of property between the common and civil law traditions. In light of these differences, and to establish a consolidated way of reconciling patents into the current Taiwanese legal framework, the thesis further analyses the similarity of the property notion under English common law and Taiwanese customary law, both of which are shaped by exclusion rules. The hypothesis is that ownership of land within these two systems, in similar with that of patents, was not an absolute and outright ownership of land governed by inclusion rules, but was instead a freehold which granted intangible rights that could be divided by the duration of the holding. It is suggested that a theoretically more coherent property model can be achieved by adopting this approach, and analogising patents to the tenure systems that existed within both English common law and Taiwanese customary law. To this end, the thesis proposes to contextually rebuild the property model for patents within Taiwanese law by the insertion of five new reform clauses into the Patent Act and the Civil Code.

The Moral Dimensions of Intellectual Property Rights explores the various aspects of IPRs in which moral evaluation and claims play a role. According to R M Hare, moral concepts and reasoning are characterized by the universalization of prescriptions. Universalization links the various dimensions in a way that rationally forces us to revise the moral basis of the various claims we make for, about and of IPRs, and ultimately provides grounds for their reform. The method of reflective equilibrium is focused in the first place on Hare’s meta- ethics, to derive a reformulation which is herein called fundamental prescriptivism. This requires a foundational set of moral principles to work. Our expectation that moral principles and values must serve to guide us, and resolve conflict between us, with objective rational force, provides the basis for adopting such a set of fundamental prescriptions. These sum up in the equal right to freedom and well- being as the ultimate basis for moral evaluation of our institutions. An implication of this right is that property in IPR systems must be balanced with participation rights (moral and legal) of the public to a public domain which allows individuals to have access to, and use, objects of intellectual property. When, in seeking reflective equilibrium, this is applied to the various aspects of IPRs, the result is an exploration of the inter-connectedness of following: justification of IPRs based on this equal right to freedom and well-being; explanation of the function of, and justification for, the presence of moral concepts and terms in national and international IPR rules; the commitments implied by use of these moral ideas for our obligations in respect of the way we enjoy, exploit and enforce our IPRs, and, ultimately, our duty to reform of IPRs in ways that respects the participation rights implied by this principle.

In the online culture of the 21st century, people worldwide re-create and disseminate works by using existing works. Facilitated by the Internet and digital technologies, 'online re-creations' have become much more common, more widespread, and more sophisticated than ever before. Online re-creations are new works created based on pre-existing copyright protected materials: they are for instance fan fiction, parody, mash-up, fanvid, machinima and virtual world. Due to the difficulties to obtain authorisation from right owners of the original works, online re-creations are potentially infringing the rights of copyright holders. Infringements are usually assumed to occur despite the uncertain legal status and the various nature of online re-creation. Nevertheless copyright and online re-creations are both essential. Re-creations and their online culture are beneficial to individuals and the society at large due to the three principles i.e. creativity, freedom of speech and the public interest. This thesis finds that copyright law that should encourage creative expressions has restrained and discouraged creative re-creations. Besides, the existing copyright exceptions are insufficient and ineffective to safeguard the rights of the re-creators and the interest of the public in accessing and reworking from copyright protected works. It is therefore vital to reconcile the conflicting interests: the exclusive rights of the copyright owners, the rights of re-creators and the interest of the public. To achieve a fair and reasonable balance between the conflicting rights and interests, this thesis proposes that everyone should have a right to use existing works in making creative re-use of such works without infringing copyright. The 'right to re-create' will be granted to the person whose re-creation meets all specified criteria.

Thesis (doctoral)--Universität Greifswald.

Thesis (doctoral)--Friedrich-Wilhelm-Universität in Breslau.

Thesis (doctoral)--Ruprecht-Karl-Universität zu Heidelberg.

Thesis (doctoral)--Universität Marburg, 1934. / Includes bibliographical references (p. [5]-6).

This thesis argues that the existing laws of competition and human rights can be combined to limit the rights of owners of intellectual property (IP). The need for this thesis arises from concerns about the impact of enforcement of IP rights, say on patients needing essential medicines or students seeking to obtain important material from the internet. Some steps have been taken to address these concerns, with the World Trade Organization Doha Declaration on the TRIPS Agreement and Public Health and the One Lap Top Per Child project. Yet the owner of a national IP right can still object to a valuable project if it comes within the scope of that IP right, say the supply of providers of emergency services with the only communications technology which will work in extreme conditions in air ambulances. IP law should not be viewed in legal isolation, however, and concerns about the impact of enforcement of IP can also be framed in terms of human rights and competition. This work argues, with a focus on the jurisdictions of the United Kingdom (UK) and on patents, that courts considering patent actions can and must, without the need for any legislative or policy change, combine the UK Human Rights Act 1998 (HRA), the European Convention on Human Rights (ECHR), the UK Patents Act 1977 (PA) and article 82 EC Treaty such that in some limited cases there will be no finding of patent infringement. A Human Rights Emphasis is proposed as a means of evaluating what is meant in a particular case by compatible or incompatible with Convention rights in sections 3 and 6 HRA, given that the potentially conflicting rights to property, life and expression could be engaged in a patent action. The Human Rights Emphasis is then applied to the results of a creative yet legitimate approach to interpretation of the infringement provisions of the PA, to determine whether there should be a finding of infringement. It is also argued, combining the Human Rights Emphasis and a broad approach to abuse of a dominant position and its relationship with IP, that it can be a prohibited abuse of a dominant position to raise an infringement action when the technology the subject of the patent is a market in itself. Finally, the arguments of this work are considered to be consistent with the existing obligations of the UK, and other countries, under the ECHR and the Agreement on Trade Related Aspects of Intellectual Property Rights, and as such of potential application outside the UK.