Common Features and Points of Convergence

Privacy and Personality Rights in Comparative Perspective: Common Features and Points of Convergence: 

Privacy and Personality Rights in Comparative Perspective: Common Features and Points of Convergence Huw Beverley-Smith Solicitor, Field Fisher Waterhouse huw.beverley-smith@ffw.com

Introduction: 

Introduction three basic models of protection common features and patterns of development an emerging European convergence? areas for further comparative analysis

Model 1: Defensive Protection: 

Model 1: Defensive Protection purely defensive protection of personality interests, primarily by tort law rules prohibiting certain unauthorised acts such as: the invasion of another person's private sphere the disclosure of confidential information the use of another person's name or picture problems in basing protection on invasion of privacy problems with licensing and transfer

Model 2: Right of Publicity: 

Model 2: Right of Publicity consistent with commercial practice transferable, licensable and descendible justifications are obscure problems in applying incentive-based theories which prevail in other areas of IP problems in applying ‘dignitary’ justifications

Model 3: The Hybrid Right : 

Model 3: The Hybrid Right personality right as a hybrid right protecting both dignitary and economic interests applied in Germany based on an analogy to copyright law author's droit moral and patrimonial rights protected under one single right complete transfer of a personality right is not possible licensing is possible, but licenses may be revocable under certain circumstances attempt to reconcile licensable and descendible personality rights with the need to protect a person's dignity legal uncertainty where it is unclear whether a licence is revocable

Common Features and Contrasts : 

Common Features and Contrasts the primacy of property rights pragmatism vs. principled development judicial activism vs. legislation impact of constitutional rights

Property, Intellectual Property and Personality: 

Property, Intellectual Property and Personality full circle from property to personality to property in the US significance of the ‘property’ label in France and Germany licensing and transferring personality rights breach of confidence, property and personality

A Gradual European Convergence?: 

A Gradual European Convergence? higher level of protection for privacy limited cross-fertilisation and no transplantation of legal concepts tentative signs of a gradual convergence in privacy protection nuanced and context-specific approach to public and private life spatial scope of privacy