Dealing with investment protection: an overview through the unfair competition glass

Abstract

This section is dedicated to the review of ideas, articles, books, films and other media. It will include replies (and rejoinders) to articles, the evaluation of new ideas or proposals, and reviews of books and articles both directly and indirectly related to intellectual property law. This book under review deals with some borderline areas in the protection of intangibles—usually the subject matter of intellectual property—and conflicting interests within that field. It starts with an introduction which provides the reader with a clear synopsis of the book's contents. Determining the extent to which a legal system protects (or should protect) investment is at the heart of intellectual property law. Although unfair competition (UC) law is not intellectual property (the former is a conduct-based regulation, whereas IP is a rights-based solution), it nonetheless plays an important role in the protection of intangibles, such as reputation or aesthetic beauty. The domain of laws governing UC allow appropriation of value in these intangibles was often where solutions to certain market failures were first developed. That was the case of neighbouring rights in certain jurisdictions, which were first protected under a general UC clause before being established as full property rights. The meaningful relationship between these two areas (IP and UC) is also evidenced in the fact that UC laws are used somewhat interchangeably with IP rights. For instance, a demanding threshold of originality in copyright is usually compensated by robust protection of investment at the unfair competition level. Conversely, a low threshold of copyright protection (such as that which existed pre-Infopaq in the UK) allows for a restrictive or dismissive attitude towards unfair competition. It is safe to conclude that, to a certain extent, IP and UC are functional equivalents. Naturally, when applied simultaneously, they might pose additional risks to competing interests, such as freedom of expression, creation, and competition, thereby endangering the public domain.