Gustavo Ghidini, Rethinking Intellectual Property

Author:Séverine Dusollier
Position:Sciences Po Paris, Law School
Séverine Dusollier
Gustavo Ghidini, Rethinking
Intellectual Property
Balancing Conflicts of Interest in the Constitutional Paradigm,
Edward Elgar, 2018, 421 p.
by Séverine Dusollier, Sciences Po Paris, Law School.
© 2018 Séverine Dusollier
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
Recommended citation: Sé verine Dusollier, Book Review: Gust avo Ghidini, Rethinking Intellectual Pr operty – Balancing
Conflicts of Interes t in the Constitutional Paradigm, 9 (2018) JIPIT EC 332 para 1.
Some books have the ambition of rethinking the whole
regime of a legal eld, despite its complexities and
expansive realm. Gustavo Ghidini’s last book belongs
to such endeavours. Armed with his comprehensive
knowledge of all elds of intellectual property, his
long experience, and his savvy incursions in the
economics and competition dimensions of creation
and innovation, Professor Ghidini succeeds in
convincing his readers that something is wrong in
the IP kingdom, but also that it could be repaired
with some changes and adjustments.
From the freedom of economic enterprise and
the freedom of expression, two constitutional
principles that underpin modern IP law and promote
a pro-dynamic innovation, intellectual property
has increasingly integrated mere protectionist
tendencies, such as the extension of the scope of
protection afforded by the exclusive rights, the
replacement, in the IT-sector, of patent protection by
the copyright regime that is more pro-monopolistic,
or the extension of duration of rights, notably in
copyright and related rights. Ghidini opposes such
excessively protectionist trends that bear the risk
of (over)protecting a few dominant enterprises and
slow down the dynamic processes of innovation. He
pleads instead for a balanced reconstruction of IP
regimes on the grounds of key underlying paradigms
which should guide a consistent interpretation within
and across each IP right and a renewed attention
to the dialectic between exclusion and access. A
rst line followed by Ghidini is holistic and aims
at analysing the discrete IP rights in their mutual
connections in order to avoid contradictions. This
contrasts with the increasingly separate evolution of
each IP right with no transversal examination of the
impact any change in one IP system could have on
others. A second line is more functional: it addresses
the conict of interests arising in each IP right in a
systemic consistency with the satisfaction of what
is proposed as the two main goals of the overall IP
system: the promotion of “sciences and useful arts”
for copyright and patent, and the pursuit of effective
market transparency through reliable information
for trademark.
The demonstration is then carried out in the
three main elds of IP, patent, copyright and
trademark, which constitute three key chapters,
before concluding on the topic of the interface
between IP and competition law, in which Ghidini
is an expert. An overview of the architecture and
underlying principles justifying and organising each
eld is provided, and its evolution is outlined and
sometimes criticized, before a conclusion in the
form of recommendations and legislative reforms
is drawn. Each chapter concludes with an extensive
bibliographical list, which is valuable to pursue the
reection and research.
Book Review

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