Political Economies of Harmonization: Database Protection and Information Patents

Abstract

Laws concerning intellectual property have been part and parcel of the international harmonization of commercial law for over a century. With the 1994 TRIPS Agreement, international standards for protecting intellectual property were firmly woven into the larger structure of global economic integration. Since then, there has been continued, rapid development of international legal norms for protecting intellectual property. This paper, however, concerns two areas of intellectual property law that have shown themselves resistant to harmonization: extra-copyright protection of databases and the broader field of information patents. With database protection, the EU moved decisively to create this kind of intellectual property in 1996; half a decade later the US has no such law and protection of databases is uncertain. With information patents,the US provides robust patent protection across the whole range of information patents, while Europe has expressly declined to embrace business method patents and patenting of software inventions remains uncertain. For each of these two areas, this paper offers descriptive lessons about the political realities of intellectual property policy; a normative account of when intellectual property policy should be changed; and, finally, an analysis of how future policy developments in these two areas of intellectual property can and should be held to that higher normative standard.