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Ottolia Maria Quaderni di AIDA n. 19 Andrea Ottolia The Public Interest and Intellectual Property Models G. Giappichelli Editore – Torino © Copyright 2010 - G. GIAPPICHELLI EDITORE - TORINO VIA PO, 21 - TEL. 011-81.53.111 - FAX 011-81.25.100 http://www.giappichelli.it ISBN/EAN 978-88-348-0058-4 Stampa: Stampatre s.r.l. - Torino Fotocopie per uso personale del lettore possono essere effettuate nei limiti del 15% di ciascun volume/fascicolo di periodico die- tro pagamento alla SIAE del compenso previsto dall’art. 68, comma 4 della legge 22 aprile 1941, n. 633 ovvero dall’accordo sti- pulato tra SIAE, AIE, SNS e CNA, CONFARTIGIANATO, CASA, CLAAI, CONFCOMMERCIO, CONFESERCENTI il 18 dicembre 2000. Le riproduzioni ad uso differente da quello personale potranno avvenire, per un numero di pagine non superiore al 15% del pre- sente volume, solo a seguito di specifica autorizzazione rilasciata da AIDRO, via delle Erbe, n. 2, 20121 Milano, telefax 02- 80.95.06, e-mail: [email protected] ai miei genitori – VI – INDEX INDEX pag. Preface by Robert P. Merges XI Acknowledgments XV CHAPTER I INTRODUCTION 1. The public interest and intellectual property models 1 2. Functional description of the work. US and Europe: contin- gent and structural difficulties in dealing with IPR expan- sionism 6 CHAPTER II UTILITARIANISM AND INSTITUTIONAL RELATIONS 3. Utilitarianism: definition and sliding boundaries 11 4. Utilitarianism and IPR expansionism: why institutional re- lations matter in the US IP model 18 5. Distinguishing the “institutional relations issue” from the constitutional intellectual property debate 29 VII THE PUBLIC INTEREST AND INTELLECTUAL PROPERTY MODELS pag. CHAPTER III STANDARDS OF JUDICIAL REVIEW AND U.S. INTELLECTUAL PROPERTY 6. Standards of judicial review and Supreme Court intellectual property cases 35 7. Standards of judicial review and the Carolene principle 40 7.1. Early Supreme Court Jurisprudence 41 7.2. From the Lochner era to the Carolene principle 43 7.3. Defining Carolene “fundamental values” 47 7.4. Defining Carolene “economic regulation” 48 7.5. A different reading of the Carolene principle 49 8. Standards of judicial review and (weak) alternative argu- ments 52 8.1. Judicial activism and the malfunctioning of the demo- cratic process 53 8.2. Judicial activism and Commerce Clause jurispru- dence 56 8.3. Conservative thinking and the “neutrality” of the pu- blic domain argument 63 CHAPTER IV THE INTERESTS PROTECTED UNDER THE INTELLECTUAL PROPERTY CLAUSE 9. Looking for the appropriate constitutional basis: IP Clause instead of Commerce Clause 69 10. Looking for the nature of intellectual property legislation 73 10.1. The IP Clause structure 74 10.2. The original understanding of the IP Clause 78 10.3. Copyright and First Amendment cases 85 10.4. Patent cases 88 11. Whether the international human rights framework may in- fluence the nature of US intellectual property 90 VIII INDEX pag. CHAPTER V THE BALANCE OF INTERESTS IN INTELLECTUAL PROPERTY INTERPRETATION 12. The balance of interests in intellectual property interpreta- tion 99 13. The role of the Court of Appeals for the Federal Circuit 100 13.1. The TMS test 101 13.2. The automatic injunction rule 104 13.3. The refusal to incorporate policy reasoning 106 14. Legislative reform or solutions within intellectual property law: the need for new institutional competition 107 15. Copyright exceptions: proprietization of fair use in courts’ interpretation 114 CHAPTER VI LOOKING FOR INTELLECTUAL PROPERTY BALANCE IN EUROPE 16. Shifting issues in the European model 123 17. IPR foundations in European law 125 17.1. Article 27 of the Universal Declaration of Human Rights and its “horizontal value” 126 17.2. Article 1 Protocol 1 of the European Convention on Human Rights 129 17.3. Article 17 of the Charter of Fundamental Rights of the European Union and the Lisbon Treaty 136 18. IPRs v. public interest: conflicts 143 18.1. The social function of property 143 18.2. Free speech and article 10 of the European Conven- tion on Human Rights 146 19. IPRs v. public interest: bottom-up solutions 150 19.1. Member state competition in lawmaking 151 19.2. The Italian case 152 IX THE PUBLIC INTEREST AND INTELLECTUAL PROPERTY MODELS pag. 19.3. National counter-limits to Community primacy 157 20. External bodies of law 159 21. Possible alternative tools of balance 160 21.1. Article 12 of the Enforcement Directive 160 21.2. Article 5.5 of the Copyright Directive 164 CHAPTER VII INTELLECTUAL PROPERTY BALANCE AND TRIPS 22. Introduction 167 23. Mechanics of regulatory competition: divergent incentives to higher protection rules 172 24. Public interest rules in a neofederalistic framework 180 25. Various phenomena against TRIPs open architecture: WTO panels’ formalism 186 25.1. Reduction of national IP internal antidotes. 186 25.2. The three step test. 187 25.3. WTO panels formalism. 192 25.4. The “ideology” of harmonization 193 26. Conclusion 198 CHAPTER VIII CONCLUSION AND PERSPECTIVES 27. Conclusion and Perspectives 201 Bibliography 205 X PREFACE PREFACE It is an honor and a privilege to write a Preface to this book. The author, Andrea Ottolia, studied at U.C. Berkeley as a JSD candi- date, and I was fortunate enough to have extensive interactions with him at this time. I have been graced by the presence of stu- dents from many nations, and indeed all continents, in my time at Berkeley, but Ottolia and the other Italian students I have super- vised hold a special place for me. And so it is with real joy that I agreed to write this Preface to this fine and stimulating volume. I well remember some stimulating lunch-time conversations about the thesis of the book. The author and I would often discuss the importance of IP rights in the emerging world around us – the economic, social, and moral significance of rights over intellectual creations. But we would also comment on the large gap between the importance of these rights and the ways that the political and legal systems were grappling with them. In the US, Congress has increasingly been seen as either captive to powerful IP holders, or at the minimum, tied up in activity through the leverage of nume- rous “veto players” in the legislative context. The courts have done somewhat better, but they too seem not to have risen to the occa- sion as quickly or as thoroughly as we would have liked. The chief problem we identified with the courts was a sort of institutional ti- midity, part of a much larger trend in which concerns with legiti- macy and democratic accountability have reduced the role of the US Supreme Court to a sort of glorified scrivener, so jealous of its reputation for rectitude that it ignores the larger historical/dynamic role assigned to it. At every turn, our conclusion was the same: IP XI THE PUBLIC INTEREST AND INTELLECTUAL PROPERTY MODELS is important, maybe even crucial, to society today; but it often ends up not being treated as fundamental in important ways by the po- litical and legal officers at the top of the US system. Having now read the finished version of his book, I can assure you that Ottolia did not just let these thoughts drift away. He got to work on them. As a result, he has written an important and timely book about a crucial topic: the role of the public interest in the in- terpretation and application of intellectual property (IP) law. His main themes cut to the core of this crucial field of study, and call to mind the grand themes that have always been at the heart of the field: Progress. Innovation. The public interest. Balance. All big concepts, important words – and ones that too seldom find their way into the conversation about IP rights. Along with a tiny hand- ful of US scholars (Netanel, Benkler, and to some extent Lessig), Ottolia wants to return our attention from the technical details of doctrines and technologies (which so often occupy us in this field) to the big, foundational ideas. It is ironic, it seems to me, that the seminal case of Eldred v. Ashcroft has received in this book – by a European author – one of its deepest and most philosophically interesting readings. In Otto- lia’s hands, this case becomes not simply a highly important legal decision permitting the extension of copyrights well beyond their historically bounded temporal limits; it comes to represent a monu- mental milestone that caps a significant negative trend in US IP law, and indeed, in US legal history as a whole. For according to the au- thor, the careful and defensive retreat to a highly deferential stan- dard of review for IP legislation shown by the Supreme Court in Eldred represents a complete wrong turn, a misguided and poten- tially tragic move away from the Court’s role as protector and de- fender of fundamental rights. The simple but powerful argument Ottolia makes is that IP is just such a right. (A right not in a sim- plistic, libertarian sense; but in a fully democratic, and I would say liberal, sense. An excellent contribution of the present book is in fact its nuanced and deep treatment of IP as a right in this full and dynamic sense.) The clear inference is that the Supreme Court must XII PREFACE protect this right against incursion and erosion from Congress. And Ottolia’s straightforward conclusion is that they failed to do so in Eldred. This represents a tremendous lost opportunity. The heavy strain of “formalism” at work in US law today is shown here to have se- rious consequences for US IP law. The roots of this movement to- ward formalism are manifold; and as is his custom, the author does an outstanding job of both documenting the big picture develop- ment and – most importantly – explaining how and why it applies to IP law.
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