- Although part of the political impetus for international intellectual property law making has long come from the economic gains that particular countries could secure in the global market, the recent situation of intellectual property within the institutional apparatus of the trade regime has been an important factor in the transformation of the classical system of international intellectual property law. This chapter analyses various aspects of this transformation. It suggests that viewing intellectual property through the prism of trade alone offers an incomplete explanation of the changes that have occurred in international intellectual property law making. For example, a full account of the contemporary system must reflect the role of both litigation in national courts and private ordering by commercial actors in establishing international intellectual property norms. This chapter stresses that these new contributors to the international system must be subject to no lesser scrutiny than traditional public international instruments such as treaties. The chapter also discusses the increasingly quick resort to international institutions in the field of intellectual property law. To ameliorate the costs associated with the speedy development of international rules, and perhaps to ensure that some international solution is adopted, policy makers have begun more overtly to support the adoption of soft law norms rather than hard law treaty obligations. In response, those skeptical of these trends in international intellectual property law making have sought to slow down the process or bring it to a complete halt. In order to achieve a political climate where public international law imposes fewer constraints on national law makers (particularly law makers in developing countries), skeptics have adopted a number of strategies, including the multiplication of international institutions in which intellectual property is considered, and the concomitant development of a range of rival norms that have massively complicated the political economy of public international intellectual property law. Using examples drawn primarily from copyright and trademark law, I illustrate the pressure to accelerate internationalization, the varying strength of adopted norms, and the changes to the political climate in which public international law making is occurring. To some extent, these changes reflect increased political and popular attention to trade and development. However, regardless of the catalyst, these systemic changes remain crucially important to trade and development because of the entanglement of intellectual property with trade and development policy.This contribution to a symposium on the tenth anniversary of the WIPO Copyright Treaty (now published with a 2010 postscript) suggests that the WIPO Copyright Treaty represented a watershed moment in international copyright law for two reasons. First, it was in the 1996 Diplomatic Conference that one begins to see the most widespread explicit discussion of the concept of balance being integral to international instruments. Second, the WCT was a watershed moment for international copyright law in that the process that led up to the conclusion of the two internet treaties (both the WCT and the WIPO Performances and Phonograms Treaty) and the conduct of the diplomatic conference at which they were considered were quite different in several respects from that which had been seen heretofore. In particular, on some of the issues addressed in the treaty, the contracting states relied much less extensively on prior national experimentation than had been the norm in prior copyright agreements. Moreover, the 1996 Diplomatic Conference was populated by a wide range of non-governmental organizations (NGOs) in numbers never before seen at international copyright events. And (perhaps because of these first two changes in process), the debates that took place nationally and internationally were substantially assimilated. These features of the process that led to the WCT remain with us today. This brief essay addresses both the concept of balance and these changes to the lawmaking process. On the question of balance, I suggest that balance is a much more complicated concept than we assume. Even in the domestic environment, the phrase is used somewhat too glibly. But in the international context, it becomes even more complex. In particular, we need to take into account the multidimensional nature of balance (or what I call the various vectors of balance) before we try to insert internal substantive balance directly into treaty instruments. This is true whether we are talking about new authors rights or the development of users rights. I am also concerned by some aspects of the changes that occurred to the lawmaking process in 1996. In particular, there is often a failure to appreciate fully the difference between national lawmaking and international lawmaking. To be sure, in a dynamic, integrated lawmaking process, one is a constituent part of the other; that is, national lawmaking contributes to international lawmaking and vice versa. But these processes involve distinct institutions with different functions, and with different democratic and political structures; those urging further reform of international copyright law need to be aware of these differences.ISBN: 978-0-19-922621-4This paper tackles an intellectual property theory that many scholars regard as fundamental to future policy debates over the scope of trademark protection: the trademark use theory. We argue that trademark use theory is flawed and should be rejected. The adoption of trademark use theory has immediate practical implications for disputes about the use of trademarks in online advertising, merchandising, and product design, and has long-term consequences for other trademark generally. We critique the theory both descriptively and prescriptively. We argue that trademark use theory over-extends the search costs rationale for the trademark system, and that it unhelpfully elevates formalism over contextual analysis in trademark law rulemaking. The theory seeks determinate trademark rules in order to encourage a climate of certainty for innovators, but the concepts on which it is founded are likely to degenerate. We show that trademark use theorists ignores the multivalence of trademark law, and that adopting trademark use doctrines would result in less transparent trademark decisionmaking. Instead, we propose that trademark law retain its traditional preference for contextual analysis. We show in particular how a contextual analysis would offer an approach to trademark disputes involving online advertising that better captures the potential of trademark law to police new information markets. Our analysis contemplates individualized assessments according to common law standards, but opens up policy space for the development of limited statutory safe harbors for intermediaries such as search engines.This contribution to a symposium on Copyright and The Constitution considers whether the Treaty Clause provides an alternative source of copyright lawmaking authority with respect to enactments impermissible under the Copyright Clause. Existing literature suggests three paradigmatic positions on the question. First, some scholars view the Treaty Clause as conferring a power whose content is wholly subservient to the limits of the Copyright Clause. A second group of scholars sees the Treaty Clause as offering an alternative lawmaking authority, but one that is substantially limited by the internal limits of the Treaty Clause. Finally, some commentators and litigants have read the Treaty Clause as an expansive autonomous lawmaking power that is largely unconstrained by internal limits and wholly unconstrained by the external limits found in the Copyright Clause. This paper adopts none of the three paradigmatic positions. I argue that those seeking to make the Treaty Clause subservient to the Copyright Clause both overstate the constitutional weight of the Copyright Clause and underestimate the autonomous role of the Treaty Clause in the American governmental structure. By the same token, however, the argument that the Treaty Clause should operate wholly unaffected by the limits in the Copyright Clause rests on a vision of the Treaty Clause that fails to acknowledge the multitude of ways through which international law and policy influences and informs domestic American copyright law. Support for autonomous lawmaking authority under the Treaty Clause must be tempered by the contemporary political reality that international processes may simply be an inappropriate end-run around the limits of Copyright Clause authority rather than occasional operation of an independent and different political process. And because of the entanglement between domestic and international lawmaking that now characterizes the copyright lawmaking process, reliance upon the traditional internal limits of the Treaty Clause will prove largely unavailing. The only way to make the restrictions on the Treaty Clause real is to develop a jurisprudence of judicial policing that reflects both the policy values that support the autonomy of the Treaty Clause and the realities of the contemporary copyright lawmaking process. Thus, I suggest that courts faced with reviewing copyright laws reliant upon the Treaty Clause for their constitutional legitimacy examine a matrix of at least three variables: (1) the strength of the international obligation with which domestic actors seek to comply; (2) the political process by which international norms are adopted and expressed in U.S. law; and (3) the limits in the Copyright Clause that the challenged law allegedly violates.Although the technological community was once fairly united in its needs from the patent system, the recent debate over patent reform has made it clear that this is no longer the case. Rather, it has become increasingly difficult to believe that a one?size?fits?all approach to patent law can survive. In this brief contribution to a symposium tackling Diversity in Innovation Policy, we consider the ways in which intellectual property obligations, most notably the TRIPS Agreement, circumscribe the ability of national lawmakers to tailor patent protection to reflect the concerns of different industries. In particular, we propose that TRIPS art. 27, which is cast in terms of nondiscrimination, should be interpreted to permit ?differential treatment.? First, we argue that in other areas, treating different cases differently is not always invidious discrimination. Second, we note that many of the proposals for tailoring are not aimed at the nominal legal rights created by patent law, but rather at the economic effects of these patents, a distinction of significance in the WTO?s Canada-Pharmaceutical Patents case. Finally, we suggest that member states claiming de facto discrimination should be required to demonstrate some element over and above those required to establish de iure discrimination, and that member states defending an exclusion should be permitted to rebut a showing of disparate treatment by demonstrating a legitimate purpose. While decision makers will need to evaluate the relation between the stated purpose and the means chosen, this analysis would permit members to adopt most of the tailoring initiatives discussed during the Symposium. We give weight to the normative claims of the TRIPS Agreement to facilitate and enhance free trade. But we think that industry?specific patent laws are fully consistent with the language and purpose of the TRIPS Agreement as well as the comparative advantage philosophy that undergirds the modern trade regime.In their response to our article Confusion Over Use: Contextualism in Trademark Law, Professors Dogan and Lemley discard more all-encompassing versions of the trademark use requirement. Instead, they seek to delineate and defend a ?more surgical form? of trademark use doctrine. In this reply, we demonstrate that the language of the Lanham Act does not impose a trademark use requirement even when that requirement is defined ?surgically? and sections 32 and 43(a) are read ?fluidly,? as Dogan and Lemley suggest. Moreover, their interpretation still renders section 33(b)(4) redundant and unduly limits appropriate common law development of trademark law. We also address Dogan and Lemley?s additional normative arguments for deploying trademark use to shield defendants from even potential liability for various commercial uses of marks, especially in connection with online contextual advertising. We disagree that contributory infringement doctrine necessarily provides sufficient oversight of the presentation of search results or advertising sales practices; that marginalizing trademark law will best encourage intermediaries to structure their business arrangements in ways that promote reliable information flow; and that offline analogies should necessarily direct the outcomes of trademark disputes over online practices. Our disagreements with Dogan and Lemley on these points also highlight broader differences about methodological approaches to trademark law. In particular, our distaste for limiting the potential scope of the Lanham Act reveals our greater willingness to see trademark and unfair competition law as a market regulator. Relatedly, we are more firmly committed to judicial development of both potential liability and potential defenses; Dogan and Lemley want courts to focus only on the latter.Competition law is a subject of central importance. An accessible introduction to this legal field is thus indispensable for students and practitioners alike. This book is intended to serve as a first acquaintance with competition law and is written in particular for students who intend to study a foundation course in competition law. The current competition law in the UK consists of two main levels: EC competition law and UK competition law. In this introduction both levels are covered, along with an abbreviated introduction to the EC rules on state aids. An important function of this book is to provide an insight into the combined system of UK and EC competition law. Therefore, for the three main subjects (the prohibition of cartels, the prohibition of the abuse of a position of dominance and the supervision of concentrations (mergers and acquisitions) extensive examples, drawn from European and UK practice, have been provided. These examples are then used in the explanation of the general principles, taking into account the changes as a result of the recent introduction of Regulation 1/2003. With this approach, the book aims to reach a broad range of readers: students, teachers in further and higher education, officials and practising lawyers who are not usually faced with competition law issues in their everyday working lives. Extra information has also been included in the footnotes, indicating references to the more specialised literature.ISBN: 9781841134451ISBN: 978-0-19-929604-0In this book chapter, we look at the effect of commodification on scientific and technological, as opposed to cultural, activity. After discussing the nature of the commodification debate and the constraints unique to scientific and technological production, we explore ways in which the domain of accessible knowledge could be reconstituted. In our discussion of these strategies, we draw on previous work in which we analyzed (1) various substantive methods for curbing perceived encroachments on the public domain to see how each would fare if challenged under the TRIPS Agreement, and (2) the relationship between the dynamics of domestic legislative procedures and TRIPS dispute resolution outcomes. In this piece, we continue our examination of the domestic efficacy and TRIPS compatibility of substantive alterations to the patent system: strengthening the nonobviousness (inventive step) requirement; narrowing the scope of patent claims; and recognizing new occasions in which the government may use patented inventions without authorization (but with payment).
As in our other pieces, our purpose is not to predict the outcome of future disputes - there are far too few WTO precedents for that. Rather, our goal is to explore how the interpretive approaches pursued at the international level affect the ability of TRIPS members to keep their laws attuned to the developments and needs of science.
We argue that under certain interpretations of TRIPS, a variety of prophylactic substantive steps to protect the domain of accessible scientific knowledge could be taken, that each has a different pay-off as a matter of domestic policy, but that the there is little relationship between the strength of the obstacle posed by TRIPS and the impact of the approach on innovation. Furthermore, we see reason to worry that the analytical tools utilized to date carry a strong potential for altering the political economies of member states in ways that create a one-way ratchet in favor of increased commodification.
We conclude that a map of the public domain of the type charted by Pam Samuelson must do more than consider the effects of various domestic laws and policies because the international system (as currently administered) shapes the legal landscape on which individual nations are operating. To alter that landscape, patent strategists should consider a variety of approaches. But we suggest that it may be particularly fruitful to adapt the rhetoric of scholars seeking to promote the public domain in domestic copyright law. The differences we see in the commodification debate may not, after all, reflect genuine differences between cultural and technological production. Rather, it may be that copyright scholars better appreciate the value in framing the public's interest as a right to access.Recently the contract section of the German Civil Code was amended after one hundred years of un-altered existence. The German Law of Contract, radically recast, enlarged, and re-written since its first edition, now details and explains for the first time these changes for the benefit of Anglophone lawyers. One hundred and twenty translated contract decisions also make this work a unique source-book for students, academics, and practitioners. Along with its companion volume, The German Law of Torts, the two volumes provide one of the fullest accounts of the German Law of Obligations available in the English language. Through its method of presentation of German law, the book represents an original contribution to the art of comparison. An additional feature of the Contract volume is the way in which it reveals the growing impact which European Directives are having upon the traditional, liberal, contract model, thereby bringing German and English law closer to each other, especially in the area of consumer protection.At a seminar organized by UNCTAD and the Government of India in 2002, participants considered how evolving national systems for the protection of traditional knowledge could be supported or augmented by international measures adopted at the regional or global level. The need for solutions on the international level has been discussed in a number of fora. Yet, the effective protection of the holders of traditional knowledge requires that these discussions move in some way toward implementation of working systems of protection.
This short paper, commissioned by UNCTAD for a conference in February 2004, and to be republished in a book on traditional knowledge, focuses on framework, or structural, issues, rather than on the substantive elements of sui generis systems for the protection of traditional knowledge. It considers the extent to which proponents must articulate the need for a completely new paradigm, or whether instead they can point to historical antecedents in the intellectual property system.
The principal impetus for the paper is the proposal of the Indian government that international law require the disclosure of the country of origin of genetic resources and related traditional knowledge in patent applications (and require compliance with the laws of the country of origin). This proposal is essentially an attempt to derogate from the principle of territoriality that pervades and is at the root of, international intellectual property law. That principle is most resolutely advocated and enforced in the patent context. In contrast, international trademark (and geographical indications) law - while firmly based upon the same general principle - has in several respects developed exceptions to that principle. These exceptions might provide the source for a range of options that countries might consider as the model for a system of traditional knowledge protection that likewise moves away from the principle of territoriality. An historical analysis of where resistance to such developments has been most acute in the field of trademark and geographical indications might also provide guidance to those seeking to construct an approach to traditional knowledge that encounters less resistance.
The paper conceptualizes the different departures from territoriality in trademark law and thus suggests analogous devices for the protection of traditional knowledge that could be developed along the lines suggested by the Indian government. This helps to identify the structural variables that countries should consider in fashioning a traditional knowledge regime that eschews a rigid commitment to territoriality.International intellectual property norms are now being developed by a wide range of institutions - some national, some international, and some that do not fit neatly into either category; by bodies designed to address intellectual property; by trade and other bodies; and by actors public, private, and indeterminate. This new wave of international norm creation not only augments a growing body of substantive norms but also raises difficult structural questions about the future development of the international intellectual property system. This essay, a lecture delivered to the Annual Meeting of the American Society of International Law in 2004, is being reprinted as part of a symposium on ?TRIPS after ten years.?