‘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.
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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.
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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.
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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.
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'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)
Luke McDonagh