'The Cloud as Enclosure 3.0' - David Lametti: CIPIL Seminar

Speaker: Dr Alvaro Fernandez-Mora, KCL Abstract: As trade marks have evolved to perform an expressive function, courts and scholars on both sides of the Atlantic have devoted increased attention to elucidating when, and how, marks and speech interact. Three forms of interaction can be identified in European and US case law. First, in infringement litigation, a defendant can invoke speech with a view toward insulating from liability his unauthorized use of plaintiff’s mark for expressive purposes, usually for parody or commentary. Second, in trade mark registration, unsuccessful applicants can invoke speech to challenge the validity of a refusal of registration. And third, in constitutional challenges, a trade mark owner can invoke speech in seeking to strike down public measures encroaching on trade mark use. Regrettably, to date, commentators have had a tendency to focus on one form of interaction at a time, placing special emphasis on infringement cases. Their analyses and proposals for reform have privileged this form of interaction in an effort to avoid the severe repercussions that unbridled enforcement of trade mark rights could have on defendants’ speech. This has led to an impoverished understanding of the interaction between marks and speech, broadly considered. In the absence of comprehensive studies covering the diversity of instances where both sets of rights interact, conventional wisdom posits that their interaction is unidirectional, in the sense that trade mark rights chill expression. My ongoing research seeks to redress this misconception by engaging in a taxonomic analysis of the diverse scenarios in which marks and speech interact. Their joint study reveals that this interaction is best understood as a two-way street, where freedom of expression can simultaneously limit and validate trade mark rights. The proposed reconceptualization of the interaction between marks and speech can contribute significantly to the advancement of the field. Biography: Dr Alvaro Fernandez-Mora is a Lecturer in Intellectual Property Law at The Dickson Poon School of Law. Alvaro joined King's College London in 2024, having previously worked as a Lecturer in Law at the University of York (2021-2024). Alvaro has earned degrees from the University of Oxford (DPhil), Harvard Law School (LLM) and Universidad Pontificia Comillas de Madrid ICADE (LLB). Before pursuing his doctoral studies, Alvaro worked as an associate lawyer at Hogan Lovells LLP’s intellectual property litigation department in Madrid. Alvaro's research interests lie at the intersection between intellectual property law and other fields –notably human rights, competition law and economics–, often from a comparative perspective. Alvaro's work has been published in the Berkeley Journal of International Law (BJIL), the International Review of Intellectual Property and Competition Law (IIC) or the Intellectual Property Quarterly (IPQ). For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars

Speaker: Dr Alvaro Fernandez-Mora, KCL Abstract: As trade marks have evolved to perform an expressive function, courts and scholars on both sides of the Atlantic have devoted increased attention to elucidating when, and how, marks and speech interact. Three forms of interaction can be identified in European and US case law. First, in infringement litigation, a defendant can invoke speech with a view toward insulating from liability his unauthorized use of plaintiff’s mark for expressive purposes, usually for parody or commentary. Second, in trade mark registration, unsuccessful applicants can invoke speech to challenge the validity of a refusal of registration. And third, in constitutional challenges, a trade mark owner can invoke speech in seeking to strike down public measures encroaching on trade mark use. Regrettably, to date, commentators have had a tendency to focus on one form of interaction at a time, placing special emphasis on infringement cases. Their analyses and proposals for reform have privileged this form of interaction in an effort to avoid the severe repercussions that unbridled enforcement of trade mark rights could have on defendants’ speech. This has led to an impoverished understanding of the interaction between marks and speech, broadly considered. In the absence of comprehensive studies covering the diversity of instances where both sets of rights interact, conventional wisdom posits that their interaction is unidirectional, in the sense that trade mark rights chill expression. My ongoing research seeks to redress this misconception by engaging in a taxonomic analysis of the diverse scenarios in which marks and speech interact. Their joint study reveals that this interaction is best understood as a two-way street, where freedom of expression can simultaneously limit and validate trade mark rights. The proposed reconceptualization of the interaction between marks and speech can contribute significantly to the advancement of the field. Biography: Dr Alvaro Fernandez-Mora is a Lecturer in Intellectual Property Law at The Dickson Poon School of Law. Alvaro joined King's College London in 2024, having previously worked as a Lecturer in Law at the University of York (2021-2024). Alvaro has earned degrees from the University of Oxford (DPhil), Harvard Law School (LLM) and Universidad Pontificia Comillas de Madrid ICADE (LLB). Before pursuing his doctoral studies, Alvaro worked as an associate lawyer at Hogan Lovells LLP’s intellectual property litigation department in Madrid. Alvaro's research interests lie at the intersection between intellectual property law and other fields –notably human rights, competition law and economics–, often from a comparative perspective. Alvaro's work has been published in the Berkeley Journal of International Law (BJIL), the International Review of Intellectual Property and Competition Law (IIC) or the Intellectual Property Quarterly (IPQ). For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars This entry provides an audio source for iTunes.

Speaker: Thomas St Quintin, Hogarth Chambers Abstract: Lessons from the decision of the IPEC in Shazam v Only Fools the Dining Experience, and cases referred to in that decision, addressing the findings that copyright can subsist in fictional characters (and the factors that the court relied upon in reaching that conclusion), and the defences of fair dealing for the purposes of parody and pastiche. Biography: Thomas St Quintin is a barrister at Hogarth Chambers. He specialises in intellectual property, media and entertainment. He has been instructed in cases in the Court of Justice of the European Union and the General Court, and has appeared as the sole or lead advocate in each of the Supreme Court, Court of Appeal, High Court, Intellectual Property Enterprise Court, and in the UKIPO. His practice covers all areas of IP law, and is fairly evenly split between patents, trade marks, copyright, designs and confidential information cases (both technical and those involving privacy). He is a co-author of the Modern Law of Trade Marks, of Intellectual Property in Europe, and is a contributor to Copinger and Skone-James on Copyright. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars

Speaker: Thomas St Quintin, Hogarth Chambers Abstract: Lessons from the decision of the IPEC in Shazam v Only Fools the Dining Experience, and cases referred to in that decision, addressing the findings that copyright can subsist in fictional characters (and the factors that the court relied upon in reaching that conclusion), and the defences of fair dealing for the purposes of parody and pastiche. Biography: Thomas St Quintin is a barrister at Hogarth Chambers. He specialises in intellectual property, media and entertainment. He has been instructed in cases in the Court of Justice of the European Union and the General Court, and has appeared as the sole or lead advocate in each of the Supreme Court, Court of Appeal, High Court, Intellectual Property Enterprise Court, and in the UKIPO. His practice covers all areas of IP law, and is fairly evenly split between patents, trade marks, copyright, designs and confidential information cases (both technical and those involving privacy). He is a co-author of the Modern Law of Trade Marks, of Intellectual Property in Europe, and is a contributor to Copinger and Skone-James on Copyright. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars This entry provides an audio source for iTunes.

Speaker: Stuart Baran, Three New Square Abstract: The UK Supreme Court recently gave judgment in Thaler, upholding the refusal of patent applications listing DABUS, an AI, as the inventor. After looking at what the UKSC decided and why, I will consider three broader questions that arise from the litigation: (i) why did the case take the shape it did – in particular, was it driven by questions of procedure more than substance?; (ii) what does the judgment mean for patents arising from AI inventions in future?; and (iii) how do we approach the appropriate division of labour between the courts and Parliament in approaching these questions? Biography: Stuart is Barrister at Three New Square Chambers. He was Legal 500 Junior of the Year in IP, IT and Media for 2018. In 2019 he was appointed to a three-year term as one of two Standing Counsel to HM Comptroller-General of Patents, Designs and Trade Marks. He practises in all areas of intellectual property, including: patents, SPCs, trade marks, passing off, copyright, designs and confidential information. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars

Speaker: Stuart Baran, Three New Square Abstract: The UK Supreme Court recently gave judgment in Thaler, upholding the refusal of patent applications listing DABUS, an AI, as the inventor. After looking at what the UKSC decided and why, I will consider three broader questions that arise from the litigation: (i) why did the case take the shape it did – in particular, was it driven by questions of procedure more than substance?; (ii) what does the judgment mean for patents arising from AI inventions in future?; and (iii) how do we approach the appropriate division of labour between the courts and Parliament in approaching these questions? Biography: Stuart is Barrister at Three New Square Chambers. He was Legal 500 Junior of the Year in IP, IT and Media for 2018. In 2019 he was appointed to a three-year term as one of two Standing Counsel to HM Comptroller-General of Patents, Designs and Trade Marks. He practises in all areas of intellectual property, including: patents, SPCs, trade marks, passing off, copyright, designs and confidential information. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars This entry provides an audio source for iTunes.

Speaker: Professor Paul Wragg, University of Leeds Biography: Professor Paul Wragg is Professor of Media Law at the University of Leeds. He has written extensively on privacy and press freedom. His monograph on the compatibility of compulsory press regulation with press freedom was published by Hart in May, 2020. He is co-editor (with Professor András Koltay) of a collection of papers examining comparative privacy and defamation laws, published by Edward Elgar in July 2020 and was previously editor-in-chief of Communications Law (2016-2019). He has been at Leeds since September 2009, having previously taught at Durham University and the University of Birmingham. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars

Speaker: Professor Paul Wragg, University of Leeds Biography: Professor Paul Wragg is Professor of Media Law at the University of Leeds. He has written extensively on privacy and press freedom. His monograph on the compatibility of compulsory press regulation with press freedom was published by Hart in May, 2020. He is co-editor (with Professor András Koltay) of a collection of papers examining comparative privacy and defamation laws, published by Edward Elgar in July 2020 and was previously editor-in-chief of Communications Law (2016-2019). He has been at Leeds since September 2009, having previously taught at Durham University and the University of Birmingham. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars This entry provides an audio source for iTunes.

Speaker: Dr Alina Trapova, UCL Biography: Dr Alina Trapova is a Lecturer in IP Law at University College London (UCL) and a Co-Director of the Institute for Brand and Innovation Law (IBIL) at UCL Laws. Prior to that, she worked at the University of Nottingham as an Assistant Professor in Law and Autonomous Systems and Bocconi University as a Research Assistant and Coordinator of the LLM in European Business and Social Law. Alina's research interests focus on copyright law and the implications of machine learning and artificial intelligence on the creative industries. Alina also has a keen interest in EU law, particularly in examining the EU's law-making powers in the field of IP law. She is also a keen blogger and acts as a Co-Managing Editor of the well-known Kluwer Copyright Blog. Abstract: AI-generated output has been a topic for discussion in the past years in academic, institutional and governmental circles. The topic involves a copyright challenge on both the input and output stage: (i) is an AI system engaging in copyright infringing activities when it processes information for the purposes of training; and (ii) are the outputs of these systems protected with copyright law as original works? While answers to these questions have remained difficult to find, a new type of AI systems have come to light – generative AI. These typically engage in the so-called prompt engineering activity whereby images and music are generated as a result of written text instructions. The copyright law puzzle becomes even more difficult to put together. This seminar will paint the picture of these issues by referring to EU, UK, and US copyright law due to ongoing litigation in these jurisdictions, as well as legislative and policy initiatives. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars

Speaker: Dr Alina Trapova, UCL Biography: Dr Alina Trapova is a Lecturer in IP Law at University College London (UCL) and a Co-Director of the Institute for Brand and Innovation Law (IBIL) at UCL Laws. Prior to that, she worked at the University of Nottingham as an Assistant Professor in Law and Autonomous Systems and Bocconi University as a Research Assistant and Coordinator of the LLM in European Business and Social Law. Alina's research interests focus on copyright law and the implications of machine learning and artificial intelligence on the creative industries. Alina also has a keen interest in EU law, particularly in examining the EU's law-making powers in the field of IP law. She is also a keen blogger and acts as a Co-Managing Editor of the well-known Kluwer Copyright Blog. Abstract: AI-generated output has been a topic for discussion in the past years in academic, institutional and governmental circles. The topic involves a copyright challenge on both the input and output stage: (i) is an AI system engaging in copyright infringing activities when it processes information for the purposes of training; and (ii) are the outputs of these systems protected with copyright law as original works? While answers to these questions have remained difficult to find, a new type of AI systems have come to light – generative AI. These typically engage in the so-called prompt engineering activity whereby images and music are generated as a result of written text instructions. The copyright law puzzle becomes even more difficult to put together. This seminar will paint the picture of these issues by referring to EU, UK, and US copyright law due to ongoing litigation in these jurisdictions, as well as legislative and policy initiatives. For more information see: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars This entry provides an audio source for iTunes.