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ESTELLE DERCLAYE's Outputs (53)

The Parody Exception in EU Design Law: A Catalyst for Creative Evolution, Innovation and Cultural Discourse (2024)
Journal Article
Jacques, S., & Derclaye, E. (in press). The Parody Exception in EU Design Law: A Catalyst for Creative Evolution, Innovation and Cultural Discourse. European Intellectual Property Review,

This article delves into the recent proposals put forward by the European Commission, presented on the 28th of November 2022, which aim to revise key EU instruments governing the protection of design rights. With design legislation largely remaining... Read More about The Parody Exception in EU Design Law: A Catalyst for Creative Evolution, Innovation and Cultural Discourse.

To what extent is the parody exception truly harmonised? An empirical analysis of the Member States’ case law post-Deckmyn (2023)
Journal Article
Derclaye, E. (2023). To what extent is the parody exception truly harmonised? An empirical analysis of the Member States’ case law post-Deckmyn. Intellectual Property Quarterly, 2023(2), 59-85

Over the course of the last three decades, the European Union has adopted 11 legislative instruments in the field of copyright to harmonise many of its aspects and the Court of Justice of the European Union ( CJEU) has over the years been very active... Read More about To what extent is the parody exception truly harmonised? An empirical analysis of the Member States’ case law post-Deckmyn.

Sui generis database protection 2.0: judicial and legislative reforms (2022)
Journal Article
Derclaye, E., & Husovec, M. (2022). Sui generis database protection 2.0: judicial and legislative reforms. European Intellectual Property Review, 44(6), 323-331

The Database Directive confers investment protection (so-called sui generis database protection) on makers of some types of databases. It represents a unique top-down policy experiment of the EU legislature with little national precedent prior to its... Read More about Sui generis database protection 2.0: judicial and legislative reforms.

Design litigation in the EU Member States: Are overlaps with other intellectual property rights and unfair competition problematic and are SMEs benefitting from the EU design legal framework? (2021)
Journal Article
Church, O., Derclaye, E., & Stupfler, G. (2021). Design litigation in the EU Member States: Are overlaps with other intellectual property rights and unfair competition problematic and are SMEs benefitting from the EU design legal framework?. European Law Review, 2021(1),

Genuine overlaps (several intellectual property rights (IPR) applying to the same intellectual effort) create overprotection. There is hardly any empirical legal research done on how claimants have litigated at national level not only on their design... Read More about Design litigation in the EU Member States: Are overlaps with other intellectual property rights and unfair competition problematic and are SMEs benefitting from the EU design legal framework?.

Right and wrong analogies: the CJEU’s use of trade mark concepts in copyright and design law (2020)
Journal Article
Derclaye, E. (2020). Right and wrong analogies: the CJEU’s use of trade mark concepts in copyright and design law. European Intellectual Property Review, 42(2), 78-83

Considers, with reference to case law, whether the tendency of the ECJ to use trade mark concepts to resolve disputes involving other intellectual property issues such as design and copyright is misconceived. Examines the operation of such a policy... Read More about Right and wrong analogies: the CJEU’s use of trade mark concepts in copyright and design law.

An Empirical Analysis of the Design Case Law of the EU Member States (2019)
Journal Article
Church, O., Derclaye, E., & Stupfler, G. (2019). An Empirical Analysis of the Design Case Law of the EU Member States. International Review of Intellectual Property and Competition Law, 50(6), 685-719. https://doi.org/10.1007/s40319-019-00813-0

This article empirically examines the substantive decisions on all types of design rights from the courts of the 28 Member States since the entry into force of the Design Directive and the Design Regulation, up to and including August 2017. The artic... Read More about An Empirical Analysis of the Design Case Law of the EU Member States.

Study in support of the evaluation of the database directive (2018)
Report
Chicot, J., Domini, A., Bodea, G., Karanikolova, K., Radauer, A., Gkogka, A., …Derclaye, E. (2018). Study in support of the evaluation of the database directive. European Commission

The 1996 Directive on the legal protection of databases (Database Directive) aims at supporting the development of the European database industry. It created a sui generis right protecting investments of database makers, regardless of the originality... Read More about Study in support of the evaluation of the database directive.

Happy IP: replacing the law and economics justification for intellectual property rights with a well-being approach (2015)
Journal Article
Derclaye, E., & Taylor, T. (2015). Happy IP: replacing the law and economics justification for intellectual property rights with a well-being approach. European Intellectual Property Review, 37(4),

E.I.P.R. 197 The dominant justification for intellectual property rights at least in the West and international treaties is utilitarian, and more precisely based on the Chicago School of Law and Economics (first section). However, this school of thou... Read More about Happy IP: replacing the law and economics justification for intellectual property rights with a well-being approach.

Happy IP: aligning intellectual property rights with well-being (2015)
Journal Article
Derclaye, E., & Taylor, T. (2015). Happy IP: aligning intellectual property rights with well-being. Intellectual Property Quarterly, 1,

The Chicago School of the law and economics movement, on which the predominant justification for independent property rights is based in most countries, is flawed mainly because it takes economic wealth as the sole proxy for well-being. We suggest re... Read More about Happy IP: aligning intellectual property rights with well-being.

The Court of Justice Copyright Case Law: Quo Vadis? (2014)
Journal Article
Derclaye, E. (2014). The Court of Justice Copyright Case Law: Quo Vadis?. European Intellectual Property Review, 36(11), 716-723

Almost a quarter of a century after the adoption of the first EU directive in the field of copyright , the case law of the Court of Justice of the European Union (“the CJEU” or “the Court”) on copyright is now pervasive; there is no aspect of copyri... Read More about The Court of Justice Copyright Case Law: Quo Vadis?.

Assessing the impact and reception of the Court of Justice of the European Union case law on UK copyright law: what does the future hold? (2014)
Journal Article
Derclaye, E. (2014). Assessing the impact and reception of the Court of Justice of the European Union case law on UK copyright law: what does the future hold?. Revue internationale du droit d'auteur, 2014(240),

Very soon it will be a quarter of a century since the first EU directive in the field of copyright was adopted. The case law of the Court of Justice of the European Union (“the CJEU” or “the Court”) on copyright is now pervasive; there is no aspect... Read More about Assessing the impact and reception of the Court of Justice of the European Union case law on UK copyright law: what does the future hold?.

Recent French decisions on database protection: Towards a more consistent and compliant approach with the Court of Justice's case law? (2012)
Journal Article
Derclaye, E. (2012). Recent French decisions on database protection: Towards a more consistent and compliant approach with the Court of Justice's case law?. 00 Journal not listed, 3(2), 1-13

Since the official date of implementation of the Database Directive , namely the 1 January 1998, 14 years have now already passed. During this decade and a half, French courts have handed down around 30 decisions on database protection. Between 1998... Read More about Recent French decisions on database protection: Towards a more consistent and compliant approach with the Court of Justice's case law?.

Eudemonic intellectual property: patents and related rights as engines of happiness, peace, and sustainability (2012)
Journal Article
Derclaye, E. (2012). Eudemonic intellectual property: patents and related rights as engines of happiness, peace, and sustainability

The predominant justification for most intellectual property rights is the incentive theory or utilitarian rationale. Behind this justification lies the Western idea of progress and its derivatives: liberalism, capitalism, and consumerism. After havi... Read More about Eudemonic intellectual property: patents and related rights as engines of happiness, peace, and sustainability.

Le droit d'auteur et le droit sui generis sur les bases de données: quinze ans plus tard: un succès ou un échec? (2012)
Journal Article
Derclaye, E. (2012). Le droit d'auteur et le droit sui generis sur les bases de données: quinze ans plus tard: un succès ou un échec?

La directive harmonisant le droit d’auteur sur les bases de données et créant un nouveau droit (le droit sui generis) fut adoptée en 1996 et transposée dans les Etats Membres de l’Union Européenne en 1998. Cet article évalue quinze plus tard si elle... Read More about Le droit d'auteur et le droit sui generis sur les bases de données: quinze ans plus tard: un succès ou un échec?.

The European Union and copyright (2012)
Book Chapter
Derclaye, E., Smulders, B., & Cohen Jehoram, H. (2012). The European Union and copyright. In P. Geller (Ed.), International copyright law and practice. LexisNexis

Patent law's role in the protection of the environment: re-assessing patent law and its justifications in the 21st century (2009)
Journal Article
Derclaye, E. (2009). Patent law's role in the protection of the environment: re-assessing patent law and its justifications in the 21st century. International Review of Intellectual Property and Competition Law, 40(3),

The question this article addresses is whether patent law is the appropriate forum to ban polluting inventions, especially those that emit greenhouse gases. To answer this question, the paper scrutinises the functions and justifications for patent la... Read More about Patent law's role in the protection of the environment: re-assessing patent law and its justifications in the 21st century.

Should patent law help cool the planet? An inquiry from the point of view of environmental law: Parts 1 and 2 (2009)
Journal Article
Derclaye, E. (2009). Should patent law help cool the planet? An inquiry from the point of view of environmental law: Parts 1 and 2. International Energy Law Review, 2009(5-6),

It has now almost become trite to say that global warming is one of the most pressing problems we are facing. Very few would also now deny that the cause of this greenhouse effect and the correlated climate change is man. What has not been much note... Read More about Should patent law help cool the planet? An inquiry from the point of view of environmental law: Parts 1 and 2.

Intellectual property rights on information and market power: comparing the European and American protection of databases (2007)
Journal Article
Derclaye, E. (2007). Intellectual property rights on information and market power: comparing the European and American protection of databases. International Review of Intellectual Property and Competition Law, 38(3),

When the database sui generis right (“database right”) was enacted in 1996, many voices rose to criticise it vehemently. According to some, it would create an unprecedented intellectual property right on information, the latter being traditionally o... Read More about Intellectual property rights on information and market power: comparing the European and American protection of databases.

Une analyse économique de la protection contractuelle des bases de données (2007)
Journal Article
Derclaye, E. (2007). Une analyse économique de la protection contractuelle des bases de données. Reflets et Perspectives de la Vie Economique, 4(65),

Dans de nombreux secteurs de l’économie et dans notre vie de tous les jours, les bases de données ont une importance capitale. Tant les entreprises privées dans les domaines scientifiques, financiers, juridiques, du voyage et du divertissement pour n... Read More about Une analyse économique de la protection contractuelle des bases de données.

The Belgian Copyright Act finally revamped with the implementation of the Copyright Directive (2001/29): the good, the bad and the ugly (2005)
Journal Article
Derclaye, E. (2005). The Belgian Copyright Act finally revamped with the implementation of the Copyright Directive (2001/29): the good, the bad and the ugly

On 22 May 2005, exactly two and a half years too late according to the maximum implementation deadline, Belgium finally implemented Directive 2001/29 on copyright and related rights in the information society (“the Directive”). The act was published... Read More about The Belgian Copyright Act finally revamped with the implementation of the Copyright Directive (2001/29): the good, the bad and the ugly.

Databases sui generis right: what is a substantial investment? A tentative definition (2005)
Journal Article
Derclaye, E. (2005). Databases sui generis right: what is a substantial investment? A tentative definition. International Review of Intellectual Property and Competition Law, 36(1),

This article reviews the national case law and summarises the views of commentators relating to the concept of substantial investment. This the requirement for a database to be protected by the European sui generis right. The discussion shows that th... Read More about Databases sui generis right: what is a substantial investment? A tentative definition.

Databases "sui generis" right: should we adopt the spin-off theory? (2004)
Journal Article
Derclaye, E. (2004). Databases "sui generis" right: should we adopt the spin-off theory?. European Intellectual Property Review, 26(9),

Eight years have passed since the Database Directive was enacted. A relatively abundant body of case law has now emerged but courts remain divided or uncertain over a number of issues. One of them is the most important question of the protection re... Read More about Databases "sui generis" right: should we adopt the spin-off theory?.

The right of communication to the public in the cloud: an EU perspective
Presentation / Conference Contribution
Derclaye, E. The right of communication to the public in the cloud: an EU perspective.

This paper examines the law relating to the right of communication to the public with reference to cloud storage and retrieval. It does so under the WIPO Internet treaties and EU statutory and case law, with some references to Member State statutory... Read More about The right of communication to the public in the cloud: an EU perspective.

The database directive
Book Chapter
Derclaye, E. The database directive. In I. A. Stamatoudi, & P. Torremans (Eds.), EU copyright law: a commentary. Edward Elgar Publishing