02 June 2007

Country AND Western

I'm still very much out of it, unfortunately. I thought that tonsillectomies were supposed to take care of ear infections. Right now, though, between the drugs and the tinnitus I can't hear the little voices in my head that help me keep this blawg creative.

In any event, an item at the IPKat today brings up some practical and theoretical issues.

The June issue of the Sweet & Maxwell monthly European Intellectual Property Review is quite eventful. This issue leads with a note by Herman Cohen Jehoram on a case that the poor Kat is really struggling to understand as a legal proposition — G-Star v Benetton (the Elwood jeans case). The Dutch Supreme Court appears to have evolved a doctrine of "dilution of copyright" through "degeneration of a work into unprotected style". Says the IPKat, what seems to be happening is that, while in other countries it is the law of trade marks/passing off that protects acts of (alleged) unfair competition, in the Netherlands this seems to be the task of copyright — especially since it's not so long since the Dutch declared that you can have copyright in a scent.

"Recent Publications" (02 June 2007) (typography altered to US style). Take an extra muffin for yourself as a prize if you can make the connection between the title of this post and the case being described by the only worthwhile feline in blogdom. Yes, this is a dog-worshipping household — did you really need to ask?

In any event, this should sound somewhat familiar. There's a substantial area of copyright law that already does this in the US: the protection of fictional characters and settings. I outlined some of this quite some time ago on the blawg.

As a side comment, this is one of the best refutations of the pure "intellectual property is a creature of statute, and reflects no natural rights whatsoever" positions that I can think of: If one studies the jurisprudence with any sensitivity at all, one finds both statutory and natural/common-law tools working in both directions, strongly implying that statutory law is a necessary, but not sufficient, foundation for IP... and the same for natural law, common law, political expediency, etc. In short, IP is an ideologically impure mongrel, just like every other area of law; statutory law may form the foundation of how it gets formalized and expressed, but the statutes simply don't answer enough real-world questions to be sufficient of themselves.