Ohly, Ansgar --- "Free Access, Including Freedom to Imitate, as a Legal Principle – A Forgotten Concept?" [2011] ELECD 448; in Kur, Annette; Mizaras, Vytautas (eds), "The Structure of Intellectual Property Law" (Edward Elgar Publishing, 2011)

Book Title: The Structure of Intellectual Property Law

Editor(s): Kur, Annette; Mizaras, Vytautas

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448766

Section: Chapter 6

Section Title: Free Access, Including Freedom to Imitate, as a Legal Principle – A Forgotten Concept?

Author(s): Ohly, Ansgar

Number of pages: 22

Extract:

6. Free access, including freedom to
imitate, as a legal principle ­
a forgotten concept?
Ansgar Ohly*

1. GRETCHEN'S QUESTION

In Goethe's drama Faust, Gretchen asks Dr Faustus: `Now tell me: how
do you take religion?'1 Gretchen's question is naïve, but also fundamen-
tal, directly to the point, and it is answered in an evasive way. If we try to
rephrase Gretchen's question in relation to intellectual property law, it
might be: `Now tell me: how about imitation?' What sounds like a ques-
tion asked by a student in an introductory course is in fact a fundamental
issue about which there is a surprising degree of disagreement.
If imitation is unfair, it follows that intellectual property protection
against misappropriation is appropriate, even where there is no evidence
that such protection is beneficial for society. The protection of well-known
marks against dilution and misappropriation of goodwill, for example,
can easily be justified. Overlaps between intellectual property rights are
generally acceptable, and unfair competition law can be relied on in order
to fill gaps between intellectual property rights. If, however, imitation is
a necessary and welcome process in a market economy, the argumenta-
tive threshold for justifying intellectual property rights is significantly
higher. Broad anti-dilution laws, for example, are more difficult to justify
because consumer interests are only marginally affected and because
there is no evident need to create incentives for the creation of luxury
images. Overlaps between intellectual property rights can be worrying
where ...