A BACL seminar on intellectual property law, exploring harmonisation, divergence and comparative developments across the EU, UK & US.

Intellectual Property Law Across Borders: Comparative Perspectives

The British Association of Comparative Law (BACL) warmly invites you to its Annual Seminar on 2 September 2026 from 9:30 to 11:30am on the occasion of the Society of Legal Scholars’ 117th Conference. The seminar will explore how comparative analysis can shed light on the harmonisation, divergence and cross-border development of intellectual property law.

Speakers and presentations:

Professor Estelle Derclaye (University of Nottingham) ‘Dialogue of the deaf? What can we learn from Member States’ courts case law in the path to EU copyright harmonisation?’

Dr S. Che Ekaratne (University of Reading) ‘Rights After Death: A Comparison of Post-Mortem Protections of Personal Indicia’

Professor Ilanah Fhima (University College London) ’Post-EU Generation? Oatly and its Lessons for the UK and EU’

Presentation abstracts

Professor Estelle Derclaye (University of Nottingham) ‘Dialogue of the deaf? What can we learn from Member States’ courts case law in the path to EU copyright harmonisation?’

An analysis of over 1,000 copyright decisions from the 27 Member States and the UK reveals that there is disharmony in the way national courts apply harmonised copyright law. The extent of the disharmony varies per country and per topic. Different reasons explain this state of affairs. This talk will discuss these reasons and highlight especially the differences between countries and groups of countries showing the comparative perspective of the situation. It will conclude with reflections on whether the dialogue between the CJEU and national courts is indeed a dialogue of the deaf.

Dr S. Che Ekaratne (University of Reading) ‘Rights After Death: A Comparison of Post-Mortem Protections of Personal Indicia’

Using recent AI technology, deceased people can be portrayed doing acts they never did while alive. Such portrayals often utilise the deceased’s personal indicia, such as image and voice, and increasingly occur without the consent of their heirs. Legal protections applicable to post-mortem personal indicia differ by jurisdiction. This seminar comparatively analyses two relevant strands of law from different jurisdictions. The first is the law of passing off in England and Wales. While passing off has not yet been applied to post-mortem image and voice, this could be done consistently with current precedent. The second strand, from the United States, derives from rights of publicity and specifically targets unauthorised realistic digital replicas. While both strands have significant limitations, their comparative intersections with other intellectual property laws bring up useful considerations for how best to protect personal indicia after death.

Professor Ilanah Fhima (University College London) ’Post-EU Generation? Oatly and its Lessons for the UK and EU’

In February 2026 the UK Supreme Court handed down its decision in Oatly. At issue was whether an application for the trade mark POST-MILK GENERATION for oat drink should be refused as a trade mark because use of the term was prohibited by agricultural regulations. This demonstrates a mismatch between what is required under to protect consumers and producers under the EU’s agricultural regime and what is counted as deceptive under trade mark law and has the potential to limit the ability for producers of plant-based alternatives to communicate the nature of their products to consumers. It also presents a puzzle – post-Brexit the UK appears to have locked into stricter compliance with EU agricultural regulations than EU trade mark law requires.

Description supplied by the event organiser.