Luke McDonaghLuke McDonagh

Email: l.t.mcdonagh@lse.ac.uk
Room: New Academic Building 5.11
Tel. 020-7106-1159

Luke holds a PhD from Queen Mary, University of London (2011), an LLM from the London School of Economics (2006-7) and a BCL degree from NUI, Galway (2002-05). He has previously taught in the areas of Public Law, Administrative Law and EU Law at Queen Mary as well as Constitutional Law and Tort Law at NUI Galway.
 

Research interests


Intellectual Property Law, Public Law, Cultural Property and Heritage Law, Information Technology Law

   

External Activities


Luke is a regular contributor to the Kluwer Copyright Blog http://kluwercopyrightblog.com/2011/06/18/uk-examining-the-hargreaves-review-of-intellectual-property-by-luke-mcdonagh/

Luke has previously written opinion pieces for the online edition of Dissent http://dissentmagazine.org/online.php?id=431 and for The Guardian ‘Comment Is Free’ section http://www.guardian.co.uk/commentisfree/2009/jan/28/recession-politics

Luke has contributed to the LSE Politics and Policy blog on the government's copyright policy http://blogs.lse.ac.uk/politicsandpolicy/2012/08/14/the-governments-copyright-policy-causes-both-frustration-and-excitement-in-the-music-industry/

 

Teaching


Selected articles
and chapters in books
 

(With Christian Helmers) 'Patent litigation in England and Wales and the issue-based approach to costs' Civil Justice Quarterly (2013) 32(3), 369-384

‘Copyright, Contract and Consequences,’ in Free and Open Source Software: Policy, Law and Practice (N. Shemtov and I. Walden eds.) (2013, Oxford University Press) [FORTHCOMING]

Over the course of this chapter three crucial aspects of the law’s relationship with FOSS licenses are reviewed. Firstly, a comparison of the licenses themselves is outlined with particular regard to copyright provisions. In this respect, it is noted that while there is a great diversity of FOSS licenses, the licenses broadly fall into one of three categories – ‘no copyleft’, ‘weak copyleft’ and ‘strong copyleft’. Secondly, the debate over enforcement is discussed, focusing on the question of whether these licenses typically operate as ‘bare licenses’ or whether they are in fact ‘contracts’. This is an important issue because different legal consequences flow with regard to each category. Moreover, this is an issue which is difficult to resolve given the fact that FOSS typically operates online, across national boundaries, while different legal rules apply in various national jurisdictions. Thirdly, the compatibility of the most significant FOSS licenses is examined.

With Jonathan Griffiths, 'Fundamental Rights and European Intellectual Property Law - The Case of Art 17(2) of the EU Charter,' in Constructing European IP: Achievements and New Perspectives (Christoph Geiger ed.) (Edward Elgar, 2013)

The enhanced status of the rules and jurisprudence of fundamental rights law under the Lisbon arrangements is likely to have an impact in a number of different areas of EU intellectual property law. In this chapter, we on one particularly interesting aspect of the relationship between these two bodies of law. Art 17(2) of the EU Charter grants intellectual property fundamental status, providing that: ‘Intellectual property shall be protected.’ The intention and effect of this provision are uncertain. Nevertheless, it has already been referred to on a number of occasions within the EU’s intellectual property system. In this chapter, we seek to address some of the uncertainty concerning the aim and scope of Art 17(2) by exploring the interpretation of its historical antecedents. In so doing, we hope to dispel a number of misconceived claims that have been made about its supposed effects.

With Christian Helmers, 'Patent Litigation in the UK' LSE Law, Society and Economy Working Paper No. 12/2012

We construct a dataset that contains the complete set of patent cases filed at the courts in England and Wales during the period 2000-2008. The data cover all types of patent-related cases brought before the Patents County Court, the Patents Court at the High Court, the Court of Appeal, as well as the House of Lords/Supreme Court. We combine the detailed information on court cases with information on the patents in dispute as well as firm-level data for the litigating parties. We employ the dataset to analyse characteristics of the (a) court cases, (b) litigating parties, as well as (c) the contested patents. We also provide detailed discussion of the cases that were heard by the House of Lords/Supreme Court as well as of the costs involved in patent litigation before the courts in England and Wales.

With Christian Helmers, 'Trolls at the High Court?' LSE Law, Society and Economy Working Paper No. 13/2012

This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (PAEs), often referred to as ‘patent trolls’, within the legal system of the Patents Court (PHC) of England and Wales during the period 2000-2008. Our analysis shows that patent suits involving PAEs at the PHC are rare – they account for less than 6% of all patent cases. We suggest two reasons why the PHC does not provide a welcome venue for PAE litigation. Firstly, the majority of patent cases which reach a judgment in the UK result in a ruling invalidating the patent. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side. In other words, even if its own costs are kept low, a PAE which loses a case may have to spend a substantial amount of money in order to cover the costs of the other side. When taken together, it is likely that these two aspects discourage litigation by PAEs at the PHC, which accounts for the low volume of cases when compared with other jurisdictions such as the US. We also offer interesting insights to the wider debate concerning whether it is likely that in the near future there will be a similar increase in PAE litigation in Europe as has already occurred in the US over the last decade. This article also discusses potential implications for the design of the proposed European Unified Patent Court.

'Is Creative use of Musical Works without a licence acceptable under Copyright?' International Review of Intellectual Property and Competition Law (IIC) 4 (2012) 401-426.

'Rearranging the Roles of the Performer and the Composer in the Music Industry – the Potential Significance of Fisher v Brooker,' Intellectual Property Quarterly 1 (2012), 64-76

Case Comment - ‘Headlines and hyperlinks: UK copyright law post-Infopaq,’ Queen Mary Journal of Intellectual Property 1 (2) (2011), 184–187

'Linguistic Diversity in the UK and Ireland – Does the Meaning of Equality Get Lost in Translation?' in Equality, Inequalities and Diversity (Healy, Noon & Kirton eds.) (Palgrave MacMillan, 2010)

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