Freedom of Expression and Intellectual Property Law

This module considers various ways in which Freedom of Expression (F0E) and Intellectual Property (IP) inter-operate. Some IP rules reinforce F0E; but many IP rules are restrictions upon F0E. We will consider whether

• there is standard pattern of comparative analysis of constitutional protections of F0E;
• initial speakers' IP rights are legitimate restrictions upon subsequent speakers' F0E;
• subsequent speakers' F0E can limit initial speakers' IP rights, either by constraining the interpretation of the instrument affording the IP right in question, or by striking down that instrument, or by simply relying directly upon a constitutional protection of F0E; and
• exceptions (eg, fair use, fair dealing, parody) provide scope for the protection of subsequent speakers' F0E?

We will discuss, compare, and contrast treaties, legislation, caselaw, policy documents, scholarship, and other materials and online resources, from a wide range of common law, civilian, and international jurisdictions. We will see cases involving (in)famous people, characters, companies, NGOs, and products, such as: Andy Warhol, Audrey Hepburn, Barbie, Dom Perignon, Donald Trump, Google, Greenpeace, Ginger Rogers, Jack Daniel's, Jeff Koons, Kraftwerk, Leonardo da Vinci, Mickey Mouse, Victor Hugo, Zorro, etc etc.  And we will look at leading F0E and IP cases from many Courts, considering such questions as:

• what do dog toys tell the US Supreme Court about fair use of trademarks;
• what do German teen movies tell the Court of Justice of the EU about immoral trademarks;
• what do commemorative stamps tell the ECHR about copyright;
• what do music samples tell the German Federal Supreme Court about copyright exceptions; and
• what does advertising tell the Irish Supreme Court about F0E?

Learning Outcomes:

On successful completion of this module, students should be able to:

• comprehend and critically understand key debates in modern IP law;
• critique the intellectual foundations of the law and theory relating both to IP and to F0E;
• assess IP doctrines in the context of policy, politics and the economy;
• address current and emerging issues relating to the protection of IP online;
• engage with such doctrines and issues from the perspective of F0E; and
• apply the insights gained in the course to current debates about reform of IP.

Assessment:

Essay (85%) and Continuous Assessment (15%)

The Essay (85%) must be:

• no more than 6,000 words (INCLUDING footnotes),
• settled on or before the class in week 6 of term,
• referenced according to the OSCOLA Ireland system of legal citation, and
• submitted, ONLY via Turnitin on Blackboard, by 4:00pm on the Friday of the week after the end of teaching term.

The Continuous Assessment (15%) will consist of marks for

• ongoing participation in the module (5%), and
• participation in one of the in-class moots in the module (10%) - topics are likely to include political exploitation of Louboutin shoes, parody of naming rights for Croke Park, and alcohol labelling requirements.

There will be more details about these assessments on Blackboard.

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