Wednesday, May 1, 2013

Injunctions Outside of Tort Law?

Thanks to crowd funding call orchestrated by Jeremy and several extraordinary people from around the world (some of them anonymous), to whom I am greatly indebted for their spontaneous support, I will be able to share one of my recent work-in-progress papers with audience at INTA next week in Dallas. The working version of the paper already sits on my SSRN page here (Husovec, Martin, In Rem Injunctions: Case of Website Blocking (April 27, 2013)).

The paper discusses a concept of protection of the intellectual property rights by so called 'in rem injunctions' (actio in rem negatoria), i.e. tort-law-independent system of injunctive protection of absolute rights. One type of such injunctions, website blocking, is currently appearing in a spotlight around various European jurisdictions as a consequence of the implementation of Art. 8(3) of the Information Society Directive and Art. 11 of the Enforcement Directive. Website blocking injunctions are in this paper used only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing. Author of this paper maintains that the theoretical framework for these injunctions is not in the tort-law, but in an old Roman law concept of so called 'in rem actions'. Thus the term in rem injunctions is coined to describe this concept. Besides the theoretical foundations, the paper explains how this system fits into the private law regulation of negative externalities of on-line technology and also what are expected dangers of derailing injunctions from the tracks of the tort law. The important question of the justification of an extension of the intellectual property entitlements by in rem injunctions [and their limits] however, which is author's PhD project, is left out from the paper.

As an outcome of the paper, following is being presented:

Website blocking is a manifestation of derailing injunctions from the tracks of the tort law in the recent jurisprudence. This phenomenon leads to an extension of the rights by extending the scope of enforcement of the rights against persons that are too far for the tort law, but have resources, factual and legal means how to reduce the negative externalities. In this paper I argued that theory behind such extension can be found in Roman notion of 'in rem action' (remedy of law of property). And also that justification for such extension shall not be mechanical, but subject to thorough justification analysis. In this respect, I have tried to demonstrate arising problems on the praxis of the website blocking. The article also suggests that if we now shift to this new paradigm of injunctions, we should also start discussing new positive intellectual property limitations not only on the level of the scope of the right, but also on the level of the scope of it's enforcement.
I look forward to hearing any feedback from you from various jurisdictions. After collecting feedback on the draft, I plan to submit it to one of the Open Access Journals towards the end of the month. 

PS: I will add slides from INTA after the presentation as usual.
PS2: Of course, readers coming to Dallas are cordially invited to my talk scheduled on Monday (6.5.), 2:40 pm – 3:15 pm at Omni Dallas Hotel –Deep Ellum A (look for Trademark Scholarship Symposium (Session I), European Trademark Rights and Enforcement).

Update1: Below are my slides from INTA.


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