The Authors' Take - Hosting public domain into a minefield: the resistance to art. 14 of the DSM Directive and to the related rules that transpose it into national law

Hosting public domain into a minefield: the resistance to art. 14 of the DSM Directive and to the related rules that transpose it into national law

by Cristiana Sappa

Art. 14 of the DSM Directive plays a role for both economic and non-economic exploitations of works of visual art’s reproductions. The rule helps provide access to information on cultural heritage and therefore facilitates the educational mission of bodies managing cultural heritage. Besides this, this provision also introduces some additional freedom for exploiting some visual art-related material and elaborating derivative works. These initiatives can be taken by both market operators and public sector bodies managing cultural heritage. Basically, art. 14 confirms the policy initiatives according to which what is in the public domain shall remain into the public domain. 

However, art. 14 is only a prima facie manifesto for public domain, and it merely refers to works of visual art. Its aim is under threat from different perspectives, i.e. copyright and neighbouring rights, let alone unfair practices, contractual provisions and national rules on cultural heritage alone. 

First, this threat depends on the low requirements needed to enjoy copyright protection. The threshold of originality is so low that many reproductions of works of visual art can easily access copyright protection, including 3D reproductions that are currently more and more used, also for elaborating a growing number of derivative works, such as augmented or virtual reality experiences. 

Secondly, several neighbouring rights can interfere with art. 14 and limit its impact on public domain. The reference goes not only to the (obvious) protection on non-creative photographs, but also to critical editions, editions principes, that some countries introduced. It also points out to the sui generis protection of databases, even though the latter is somehow limited by the Directive on Open Data. 

Overall, to accomplish art. 14’s political goal as initially thought, courts shall interpret it in a consistent fashion with modern approaches favouring wide circulation and re-use of cultural heritage’s information.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - Uncovering Trade Secrets in China: An Empirical Study of Civil Litigation 2010–2020

Uncovering Trade Secrets in China: An Empirical Study of Civil Litigation 2010–2020

by Jyh-An Lee, Jingwen Liu, and Haifeng Huang

Trading partners of and foreign investors in China have claimed that trade-secret protection in the country is far from adequate. This intuition is rooted in China’s lack of a stand-alone trade-secret act, deficiencies in China’s civil enforcement mechanisms, the unsatisfactory win rate for plaintiffs and damages awarded, and the excessive burden-of-proof requirements imposed on trade-secret owners. Although these issues have been controversial for more than two decades, relevant debates have often lacked even the barest empirical support.

Against this backdrop, and as a byproduct of the US-China trade disputes in 2018 and 2019, China amended the Anti-Unfair Competition Law (AUCL), being the primary legislation that reflects trade secrets, in 2019 to further strengthen its trade-secret protection. The 2019 Amendment of the AUCL had, among others, substantially reformed the damages and evidence rules so as to lift the damages cap and partially reverse the burden of proof in cases concerning trade secret misappropriation. While these reforms have come under the spotlight, their actual impact has yet to be elucidated.

In this article, we investigate all published civil-litigation cases pertaining to trade-secret misappropriation in China from 2010 through 2020. Our empirical findings, which cover various aspects of trade-secret law enforcement in the country, paint a realistic picture of (1) the number and the spatio-temporal distribution of trade secret litigation, (2) the win rates of trade-secret holders and their available remedies, (3) the percentage of cases involving departing employees, and (4) foreign parties’ participation in the private enforcement of trade secrets. By presenting the empirical data with contextual analyses, this article provides a rigorous reflection of the features and patterns of private trade-secret enforcement in China during the studied period.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]