Test data exclusivity (TDE) is a regulatory mechanism of suspending price competition in the drug market rationalised on the grounds of protecting innovation incentives of originator companies. Under international trade law, it is considered a subset of intellectual property (IP).1 While its impact on innovation remains ambiguous, TDE has been criticised at length as an impediment to affordable medicine and the right to health,2 an obstacle to transparency in medical research,3 a case of ‘ratcheting up’ of international IP standards,4 and a threat to TRIPS flexibilities.5

This chapter focuses on the legal protection of sound recordings. Recorded music is the kind of music people usually listen to in various ways, for example, while enjoying a vinyl spinning at 33 or 45 rpm or songs broadcast by radio or selected via dedicated smartphone applications. Recorded music must be distinguished from music played live. Generally (and technically) speaking, sound recordings are registrations or fixations of sounds embodied in a tangible medium. The latter can be a vinyl record, a cassette tape or an MP3.1 The sounds embodied in these forms of consumption media are traditionally captured and created in recording studios but the introduction of sampling and the digital audio workstation (DAW) has encouraged a music production process where digitised sounds, often originating from diverse geographical regions and time frames, can be harnessed and arranged in a process of music programming, and this affords the production of music in domestic settings without the costly infrastructure of a recording studio or the need to acquire specialised skill sets.

The grant of a patent for a genuinely new chemical entity (NCE) provides for 20 to 25 years protection from generic competition, allowing the patent owner to set prices to recoup the cost of the invention. Evergreening is a strategy by which patent owners extend the life of a patent monopoly, surrounding an original inventive patent with numerous additional patents for modifications or variations to the original invention (secondary patents). The sub-set of secondary patents owned by the originator company are known as ‘evergreening patents’, that is, patents designed to further delay generic entry to the market. Only a small number of evergreening patents achieve this effect. Numerous articles on pharmaceutical marketing consider such patenting an important part of ‘lifecycle management’, ensuring continuing high profits from the original invention are kept ‘evergreen’.

One of the most controversial acts of EU harmonization in the field of copyright law, and one of the first copyright directives, was without doubt Directive 96/9/EC on the legal protection of databases.1 Many of its definitions, the narrow scope of its exceptions and the lack of coordination with general copyright law have been heavily criticized. Yet, the most challenged and discussed provision was and remains its Article 7, which introduced as a worldwide novelty the so-called sui generis right.

Artificial intelligence (AI) has captured the attention of copyright lawyers fascinated by the thought of machines creating works of art, music and literature. There is no doubt that, as has often happened in the past during previous waves of technological advances, AI platforms – and especially, machine learning – have brought with them new opportunities as well as challenges. Machine learning is an AI application enabling programs to learn and progress automatically from experience. Its main feature is accessing data and often using it for the purpose of creating outputs, including music, literature, movies and art. Amounts of data are observed and analysed by the machine, which enables the latter to learn and then make creative decisions leading to final outputs that, as precise works of art, are often not foreseeable by the people who developed and started the initial program. Such a process is characterised by the absence of substantial human intervention or assistance after the program is operated, and by using algorithms – namely a sequence of instructions aimed at solving a problem or performing a computation. This can be labelled ‘algorithmic creativity’, that is, the way by which AI creates new works.

Much ink has been spilt by legislators, judges and scholars over the last 150 years in trying to answer this deceptively simple question: what is a trade mark?1 The reason that this is a deceptively simple question is that any attempt to answer it leads to further questions, which lead to yet other questions. Take the definition contained in section 3 of the Trade Marks Act 1905, which was the first definition in a UK statute: ‘A “trade mark” shall mean a mark used or proposed to be used upon or in connexion with goods for the purpose of indicating that that they are the goods of the proprietor by virtue of manufacture, selection, certification, dealing with or offer for sale.’ This somewhat cumbersome wording gave rise to a number of difficulties of interpretation and failed to allow for trade marks for services.2 Correcting that omission and putting the definition into more contemporary and simpler language, we might say that a trade mark is a sign whose function is to indicate the trade origin of goods or services. But that leads to questions such as: what is a sign for this purpose? And what exactly is meant by the trade origin of goods or services? It also leads to the questions which have become much debated in European trade mark law over the last 20 years or so: do trade marks have other functions in addition to their function of indicating trade origin, if so, what are those other functions and what effect does recognising such functions have on the scope of protection of trade marks?

The terms “plant variety” and “investment” may at first appear unrelated. While “plant variety” may bring concepts such as “food,” “nature,” and “farming” to our mind, the word “investment” echoes money and profit. In a market economy, all these concepts are interrelated because money is the medium of exchange that measures and gives value to good and services. While plants and their varieties existing in nature are a result of nature’s “creativity,” any kind of improvement made upon these products of nature is due to intellectual and financial investment. Since the dawn of time, farmers have dedicated considerable time and effort to improving seed and domesticating wild varieties. The importance of plant breeding for agriculture and for other industrial sectors led countries to invest in the seed industry and further develop the sector. For example, the Italian agronomist Nazareno Strampelli helped Italy become self-sufficient in wheat production, which was thereafter exported.1 His work was followed by the “Green Revolution,” for which Normal Borlaug was awarded the Nobel Peace Prize for his valuable contributions in the field.

This collection sets out to show how intellectual property is not really ‘intellectual’ at all. How there has been a move towards rights being granted to protect monetary investment rather than originality and creativity. This chapter is slightly different. Design right is a British invention which has not been replicated elsewhere: it remains unique.1 It was born out of a desire to protect the investment in functional designs and so it would appear to sit nicely within the collection, but as it grew up it became more creative and, as will be seen, it may no longer deserve its place among the ‘investment’ rights. To understand design right’s story and growth the first part of this chapter will show its lineage, that is: how and why it came into being in the first place. The second part looks at its passage through Parliament, where it was clearly born as a right to protect investment, before concluding in the third part how during its adolescence the rebellious right found its own way and became creative and left investment behind.

During the last few decades new technologies – such as the Internet – have disrupted publishers’, and especially press publishers’, business models. New online services, such as Google and Facebook, meant that people increasingly abandoned paid printed presses. Online platforms enabled sharing of news among users without paying back to press publishers, which led to the decrease in revenue for the press publishing industry. Accordingly, press publishers have been fighting to get copyright laws updated to address the challenges posed by new technological developments. In order to address these requests, the EU has recently introduced a new right for press publishers,1 analysed in this volume by Stavroula Karapapa, that is currently being implemented in the EU Member States. Press publishers hope that this new right will help protect their investment, ensure new streams of revenues and help them survive in a new technological and business environment.

Trade marks have never needed to be creative to benefit from protection.1 In fact, trade marks that are too creative may be ‘punished’, in the sense that when a mark adds substantial (non-reputation-related) value to the goods, it should be refused registration or declared invalid.2 Distinctiveness, not creativity, is the customary dividing line between those signs which are worthy of trade mark protection, and those which are not. A sign will only be protected as a trade mark if it is able to ‘guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin’.3 This is known in Europe as the essential function of a trade mark. Preventing confusion is key, but it is equally important to ensure that the trade mark remains distinctive to consumers.

In the 2021 best-seller Exponential,2 Azhar explores social evils that will invariably result from exponential technological leaps such as excessive resource extraction, destabilization of social, economic and political institutions, and the dramatic rise of corporate power in societal and economic terms. Like Polanyi, he fixes the industrial revolution as the point of genesis of current social problems. And, akin to the Polanyian ‘double movement’, Azhar suggests that a dystopian world is not inevitable if we accept the vital importance of institutional norms – such as the rule of law or international intellectual property (IP) agreements – in protecting the social and economic fabric of humanity. Reform, he argues, should lie in forging new customs and norms based on collective ownership and commonality principles such as interoperability. Or even in instituting a global data body which creates ‘a consistent approach towards artificial intelligence, citizens’ data and intellectual property’.3 This chapter is a simpler narrative which nevertheless suggests, as Azhar does, that the solution to IP conundrums lies in the recognition that global IP norms are vital and that their reformation must be in accordance with societal motivations.

Most countries in Africa – with the exception of North African countries – were part of the global cinema system almost from inception. African countries were primarily importers and consumers of low-budget films from Hollywood, Bollywood and Hong Kong.1 These films were outside of their usual cultural orientation even though they were entertaining. But that changed when Nigeria took a bold step with the development of Nollywood. This step, ironically, was not intentional: a businessman (Kenneth Nnbue) found it difficult to sell a consignment of video cassettes due to newer versions of video cassettes on the market.2 He was ingenious enough to invest in the production of a film in Igbo language titled Living Bondage. Then he sold copies of this film on his cassettes. The sale of these cassettes resulted in a new trend in filmmaking now known as Nollywood. While a few African countries have developed their film industries to a limited extent, Nigeria appears to be ahead of the pack with the success stories of Nollywood.

It seems, once again, that intellectual property law is shifting beneath our feet. As Robert Merges put it a decade ago, if IP were a city, then the old city centre is today ‘surrounded by new buildings and new neighbourhoods, knots of urban growth, budding in every direction, far off into the distance’.1 That old city centre was built during the nineteenth-century age of possessive individualism.2 Ideologies of the romantic author and sole inventor helped erect the city’s foundational principle that one deserves ownership in the products of mental labour.3 Yet, in the early twentieth century, US Supreme Court Justice Louis Brandeis could still write that ‘the general rule of law is, that the noblest of human production – knowledge, truths ascertained, conceptions, and ideas – become, after voluntary communication to others, free as the air to common use’.4 A century later, that general rule rings less true.5 Investment-driven rights, and investment-driven extensions to old rights, have helped expand the city’s boundaries. What started out as a small cadre of related rights, sui generis rights, and quasi-IP rights now contribute to an urban sprawl of new neighbourhoods spreading as far as the eye can see. New denizens – the trivially creative and insignificantly innovative goods explored in this volume – now are protected inside the city’s walls. What was the city of Intellectual Property has become the city of Investment Property.

The press publishers’ right available under Article 15 of Directive (EU) 2019/790 on Copyright in the Digital Single Market (the ‘DSM Directive’) is one of the most recent additions to investment-driven intellectual property rights under EU copyright law. The right was introduced with a view to address the dramatic changes in the creation, distribution and consumption of news online. With the advancement of digital technologies and the Internet, news is no longer solely available directly from press publishers through their print editions and news websites but is increasingly accessed via other sources, such as news aggregators and social media platforms. The changes in news consumption trends have resulted in a drop of the revenues of press publishers since 2000, a progressive decline in the circulation of printed newspapers,1 and a dramatic increase of consumption of online news content. Because of these changes, the revenues and advertising sales of press publishers have substantially dropped despite their efforts and investment in making news accessible. It is to reward these efforts and this investment that a sui generis press publishers’ right was introduced initially at the level of EU Member States, such as Germany2 and Spain,3 and was later included in Article 15 of Directive (EU) 2019/790 on Copyright in the Digital Single Market. The right was envisaged as one that would improve the bargaining power of press publishers when negotiating licensing deals with online services and web platforms that re-use their content.

Software plays a crucial role in most parts of today’s society. It is now an indispensable feature of the world of commerce, finance, industry and manufacture, education and research, medicine, government, entertainment, law and generally daily life. Furthermore, software stands at the heart of all disruptive technologies, such as artificial intelligence, automation and robotics, Internet of Things, biometric and digital identification, and virtual reality, to name but a few.