13 August 2012

NOTICE: Comparative Law on SSRN (by way of the Irish Society of Comparative Law)

Additional articles from SSRN have been noted by our friend in the Irish Society of Comparative Law:

Ryan, Daniel P., Essential Principles of Contract and Sales Law in the Northern Pacific: Federated States of Micronesia, the Republics of Palau and the Marshall Islands, and United States Territories (January 29, 2009). Ave Maria International Law Journal, Vol. 1, No. 1, 2009.

The Northern Pacific region, which includes Micronesia, the State of Hawaii, the American territories of Guam, the Commonwealth of the Northern Mariana Islands and American Samoa, and the Republics of Palau and the Marshall Islands, either follows or are heavily influenced by the Anglo-American common law tradition and statutes governing contract and sales. Islands in this region have made efforts to adopt recognized uniform international contract standards, particularly the Restatement (Second) of Contracts, but customary law and traditional rights still have a significant impact upon the development of contract and sales law creating a unique amalgam of substantive law in the Northern Pacific region.

The author includes a comparison to contract and sales law that is prevalent in the United States and applicable in its Northern Pacific State of Hawaii and in its Pacific territories of Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Other U.S. territories in the Northern Pacific including Midway, Wake, Johnston Atoll, Baker, Howland and Jarvis, Palmyra, and Kingman are outside the scope of his anaylsis. The article emphasizes divergence, and highlights regional anomalies in the substantive law of contract and sales. It also examines the inter-relationship between customary and traditional law and the law of contract and sales. This anthropological approach highlights how regional custom and traditional law have interacted with Anglo-American concepts of contract and sales law to produce a unique blend of contract and sales law in this Northern Pacific region.

The author notes two significant developments; 1) that the American Law Institute’s Restatements of Law have been elevated from simply persuasive authority to the rule of decision in some of these Pacific Island nations, and 2) that the anthropological implications of local custom and traditional law in substantive contract and sales law have created a unique regional amalgam.

Dusollier, Severine, Pruning the European Intellectual Property Tree - In Search of Common Principles and Roots (April 10, 2011). Constructing European Intellectual Property: Achievements and New Perspectives, C. Geiger, ed., Edward Elgar Publishing, 2012.

The European Union knows a multiplicity of IP rights, from classical ones (copyright, patent, trademark or design) to more marginal ones, in terms of economic sectors concerned (rights in database, in plant varieties, in semiconductors, in geographical indications). This paper aims at identifying and assessing the existing similarities or common principles in the intellectual property rights in the European Union. Despite their apparent diverging functions, subject matter and scope of protection, copyright, trademark, patent and the other intellectual property rights share at least the fact that they belong to a set of rules granting some exclusive rights in intangible assets, whether creation or signs. Their inclusion under the same label ‘Intellectual Property’ should at least count for something and induce some joint ends and means that could serve as a first skeleton for a reform of intellectual property. This quest for common principles follows successive steps: the justification of the granted protection, the subject matter, the requirements for protection, as well as the exclusions from protection, the scope of protection, the limitations and exceptions to such protection, the duration.

This survey concludes that the principles common to all intellectual property rights are rather scarce. There is the overarching principle, laid down in the EU Charter of Fundamental Rights, that protection of intellectual property should be. The fact that ideas should remain free is another important motto in European intellectual property. The principle of exhaustion applies across all exclusive rights, and enforcement and remedies are almost similar whatever the right infringed. Beyond these common lines, traces of similarities can maybe be detected in formalities (save for copyright and related rights), in exclusive rights conferred, or in the rule of a limited duration. However, justifications, subject matter, rights and exceptions largely remain fragmented and leave ample manoeuvre for uncontrolled extension of intellectual property and overlapping of rights.

I argue that the EU IP tree should at least common roots in the form of an overall foundation sustaining intellectual property and based on innovation and promotion of knowledge, including a necessary balance, and a solid trunk based on some overarching principles. Those principles should be a proper limitation of subject matter, a registration-based grant of the protection, a unitary right of exploitation for all intellectual property rights, though adjustable to the subject matter concerned, a common catalogue of exceptions and limitations, as well as an effective public domain. The branches of intellectual property could then develop under their own rules and specificity to cater to the needs and mechanics of the diverse subject-matter concerned. 

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