The nature and content of intellectual property law, which is heavily contingent on the state of technology and on social and market developments, have always been subject to ongoing transitions. How those transitions are effected and the shape they take is crucial to the ability of intellectual property (IP) to achieve its stated goals and to provide the necessary climate for investment in creativity, innovation and brand differentiation. The first half of this book explored those questions, as discussed more fully below in section 42.2.

Trademark law and unfair competition law share common purposes. Causing a likelihood of confusion with another trader’s mark is the classical and typical case of trademark infringement. At the same time, creating confusion is one of the examples of unfair competition listed in Article 10bis of the Paris Convention for the Protection of Industrial Property (Paris Convention). In recent decades, trademark law has extended beyond this core area. In both the United States and the European Union, well-known marks are now protected against dilution, and in the EU well-known marks are also protected against misappropriation. Before trademark law entered this field, protection against denigration and misappropriation was mainly provided via unfair competition law, although national laws differ in this respect, particularly as regards misappropriation. It thus comes as no surprise that US law considers both fields of law as closely related.

Introduction

Commercial appropriation of personality has generally been approached from two basic perspectives in the major common law and civil law jurisdictions analysed in the preceding chapters: (i) the unfair competition or intellectual property perspective aligning the problem most closely with the common forms of intellectual property rights such as patents, copyright and trade marks and (ii) the privacy and personality perspective, focusing on the damage to human dignity. The differences in substantive legal protection examined in the preceding chapters remain quite significant and a number of legal concepts have been employed to address the same basic problem. Despite these differences, a surprising number of common trends may be identified from the discussions of the individual systems. This chapter draws together some of the common features and patterns of development that emerge from the individual systems. While the developments have at times been systematic, they have more often been rather more haphazard, although they may be distilled into three basic models. These basic models inevitably attempt to reconcile the economic and non-economic aspects of personality, which often conflict in the development of intellectual property rights in aspects of personality. This is a problem that pervades the analysis in the preceding chapters and is summarised in a subsequent section. Finally, we examine the effects of European human rights law both in raising the threshold of protection for privacy interests and in marking the boundaries, which are often difficult to identify, between privacy and freedom of expression.

Framework and history

The term ‘privacy’ used in the common law literature corresponds in France to the topic of ‘protection of the personality’ or ‘rights of personality’. This concept is relatively new in French legal history, since it appeared only in the second half of the nineteenth century. Indeed, the French civil code, or Code Napoléon of 1804, does not contain any provision concerning the protection of the personality. Rather, the most important theme of the Code civil is ‘property’, even if it has a philosophical connotation stemming directly from the natural rights doctrine.

As early as the middle of the nineteenth century, the reproduction of a person's likeness began to attract the attention of jurists and was soon considered to be the subject of an exclusive right, the exact nature of which remains, however, unclear. The judicial decision in the Rachel case, concerning a famous actress who was portrayed on her deathbed, is seen as the birth of the right to one's image in France. In this judgment, dated 16 June 1858, the civil court stated that

Introduction

Four predominant approaches to problems of invasions of privacy may be identified. First, the adjustment of existing causes of action to cover invasions of privacy. The traditional common law approach has involved stretching statutory provisions and well-established torts such as defamation, trespass and the action for breach of confidence to embrace interests in privacy. Second, the piecemeal addition of new causes of action, either by reference to the circumstances in which liability is imposed (e.g., harassment or appropriation of personality) or by explicitly labelling them as invasions of privacy. A number of common law jurisdictions have adopted this piecemeal approach. Property and reputation remain the primary protected interest, and protection for other interests is parasitic. Third, a general remedy declaring that, in principle, every invasion of privacy is actionable, subject to necessary qualifications limiting recovery: this might be non-exhaustive, leaving the terms and scope open-ended or exhaustive, defining the terms and circumstances for recovery comprehensively. Fourth, the declaration that every person has a right to privacy in a general and open-ended way, without specifying the circumstances in which privacy can be invaded. English law has traditionally been reluctant to develop beyond the first two approaches. In the United States, the casuistic approach was abandoned in favour of a general remedy for invasion of privacy, cast rather unusually in rights based terminology. This is an approach which other common law systems have, thus far, refused to adopt.