Global Intellectual Property Regime Research Articles

Human Rights and International Trade: How does the Trade System Violate Human Rights under the COVID-19 Pandemic?

Under COVID-19, the free trade system, especially the global intellectual property regime, is violating human rights in new ways. In the current fragmented state of international health law and human rights law, intellectual property law under the global trading system is commoditizing COVID-19 vaccines and other essential medicines, prioritizing commercial interests and patent protection over human rights. Although the international human rights system has issued a number of resolutions and reports on this issue, and many international and national organizations have also introduced mechanisms similar to the COVAX plan, the situation of "vaccine apartheid" and the marginalization of the interests of people in poor areas still exists. Therefore, this paper proposes some initial recommendations for better safeguarding of human rights during the COVID-19 outbreak, such as strengthening international cooperation or highlighting the human rights responsibilities of non-state actors, including multinational corporations and NGOs.

The Reform of Nigerian Intellectual Property Law in Perspective

As Africa’s most populous nation and its largest economy, Nigeria occupies a strategic position in the Continental architecture of human capital. As the powerhouse of Africa’s creative and entertainment industries and better than half of the Economic Community of West African States (ECOWAS) subregional economic bloc, Nigeria is arguably the hub of the Continent’s pool of creativity and innovation in search of a dynamic intellectual property (IP) system to deliver on national developmental aspirations. Given that the IP system rests eminently at the commanding heights of the new global order, intellectual property right (IPR) protection has assumed greater prominence at the international and national levels. The fundamental role of IP in harnessing creative and innovative enterprises has never been more significant than today. In the words of Michael A. Gollin (Driving Innovation: Intellectual Property Strategies for a Dymanic Word, Cambridge University Press 2008, p. 1) IP is the invisible infrastructure of innovation and a source of hidden wealth worth trillions of dollars. With the crises of access around the increasing intersectionality of IP and access to knowledge, and the spirited pursuit of global development policies, IP has become intensely existential to humanity and the flourishing of society. In the areas of health, education, agriculture, traditional knowledge, climate-crisis innovation including frontier technologies and more recently, the COVID-19 pandemic, these normative debates present an enduring test of the strength of IP institutions in meeting the challenges of public welfare, especially for indigenous societies who have been caught up in the systemic imbalance in the global IP regime complex.

Platformizing family production: The contradictions of rural digital labor in China

AbstractHow is the rise of platform capitalism reinventing the traditional regime of familial production, while at the same time being energized by it? How do the historically informed, lived experiences of rural e-commerce entrepreneurs or workers in China help reconceptualize digital labor and platform studies? Deploying the analytic of platformized family production, this article addresses these questions through a deep description of the experiences of variously positioned platform-based and mediated laborers in an e-commerce village in East China. I argue that the ongoing process of platformizing family production is profoundly contradictory. As an alternative to a model of development based on unevenness and the rural-urban divide, village e-commerce has created opportunities for peasants and marginalized urban youth to achieve social mobility. However, it also shapes a new regime of value that privileges the individualized e-commerce entrepreneur as an ideal subject, and fetishizes and instrumentalizes innovation and creativity in conformity with the global intellectual property regime. These tendencies not only contradict the reality of collective labor organization both on e-commerce platforms and in villages, but also conflict with the indispensable role of manual labor in the production process—reinforcing rather than overcoming existing inequalities and stratification in rural China.

Platformizing Family Production: The Contradictions of Rural Digital Labor in China

How is the rise of platform capitalism reinventing the traditional regime of familial production, while at the same time being energized by it? How do the historically informed, lived experiences of rural e-commerce entrepreneurs/workers in China help reconceptualize digital labor and platform studies? Deploying the analytic of platformized family production, this article addresses these questions through a deep description of the experiences of variously positioned platform-based and mediated laborers in an e-commerce village in East China. I argue that the ongoing process of platformizing family production is profoundly contradictory. As an alternative to a model of development based on unevenness and the rural-urban divide, village e-commerce has created opportunities for peasants and marginalized urban youth to achieve social mobility. However, it also shapes a new regime of value that privileges the individualized e-commerce entrepreneur as an ideal subject, and fetishizes and instrumentalizes innovation and creativity in conformity with the global intellectual property regime. These tendencies not only contradict the reality of collective labor organization both on e-commerce platforms and in villages, but also conflict with the indispensable role of manual labor in the production process–– reinforcing rather than overcoming existing inequalities and stratification in rural China.

Decolonizing knowledge within and beyond the classroom

This introduction to the second installment of a two-part special issue focuses on actors and spaces that facilitate different forms of progress or push-back in decolonizing African Studies. We map how student activists have served as agents of decolonial change on campuses over time, and argue that intersectional and feminist leadership characterize the current generation of activism. We then explore how classrooms and curricula serve as sites of synthesis between student and faculty activists, and conservative professional and disciplinary norms. Drawing on activist campaigns and articles in the special issue, we present five questions that serve as a starting point for decolonizing courses. Finally, we acknowledge the ways that academic disciplines enforce parochial professional norms and epistemic standards in academia, while also linking academic knowledge production to global marketplaces and intellectual property regimes. We contend that the interplay of these three categories of agents shapes cycles of transformation and patterns of re-consolidation.

Remarks by Ana Santos Rutschman

Good afternoon—and in some cases, good evening. I am very grateful to the American Society of International Law, the Vagts family, our convener, Professor Rochelle Dreyfuss, and the panelists on this roundtable for the opportunity to reflect on the interplay between our international and global intellectual property (IP) regime and the determinants of health, which I discuss in a piece scheduled to be published by the Vanderbilt Journal of Transnational Law in early 2021.

Japan's emerging role in the global pharmaceutical intellectual property regime: A tale of two trade agreements

This paper explores Japan's role in reshaping the global pharmaceutical intellectual property regime by examining its position on the expansion of intellectual property rights (IPR) in negotiations for two regional trade agreements: the Trans Pacific Partnership Agreement (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Through systematic analysis of leaked negotiating texts documenting its positions on key issues, we demonstrate Japan is now playing a pivotal role in promoting the adoption of expanded IPRs. We show that its position as IPR champion in the Asia Pacific region reflects a domestic strategy initiated in 2013 to bolster pharmaceutical export growth. Drawing on past experience and focusing on the RCEP negotiations, we explore ways in which low and middle income countries might respond to this shift in order to protect and promote access to medicines.

Neoliberal capitalism and China's strategic patent framework for the global intellectual property regime

China is widely regarded as a norm taker of the global intellectual property regime dominated by industrialized nations. It is however likely that China will become a norm holder due to China's increasing strengths in high technology and innovation as well as its expanding outbound investment into foreign high-tech sectors. Globalization and the global intellectual property regime that serves it are defined by neoliberal capitalism. Chinese enterprises equipped with improved market experience will soon find these neoliberal, corporate interest-maximizing game rules very attractive. As a consequence, they may become a new norm holder of the current intellectual property regime, and perhaps a more predatory one.

Neoliberal capitalism and China's strategic patent framework for the global intellectual property regime

Neoliberal capitalism and China's strategic patent framework for the global intellectual property regime

Prima facie reasons to question enclosed intellectual property regimes and favor open-source regimes for germplasm

In principle, intellectual property protections (IPPs) promote and protect important but costly investment in research and development. However, the empirical reality of IPPs has often gone without critical evaluation, and the potential of alternative approaches to lend equal or greater support for useful innovation is rarely considered. In this paper, we review the mounting evidence that the global intellectual property regime (IPR) for germplasm has been neither necessary nor sufficient to generate socially beneficial improvements in crop plants and maintain agrobiodiversity. Instead, based on our analysis, the dominant global IPR appears to have contributed to consolidation in the seed industry while failing to genuinely engage with the potential of alternatives to support social goods such as food security, adaptability, and resilience. The dominant IPR also constrains collaborative and cumulative plant breeding processes that are built upon the work of countless farmers past and present. Given the likely limits of current IPR, we propose that social goods in agriculture may be better supported by alternative approaches, warranting a rapid move away from the dominant single-dimensional focus on encouraging innovation through ensuring monopoly profits to IPP holders.

Prima facie reasons to question enclosed intellectual property regimes and favor open-source regimes for germplasm.

In principle, intellectual property protections (IPPs) promote and protect important but costly investment in research and development. However, the empirical reality of IPPs has often gone without critical evaluation, and the potential of alternative approaches to lend equal or greater support for useful innovation is rarely considered. In this paper, we review the mounting evidence that the global intellectual property regime (IPR) for germplasm has been neither necessary nor sufficient to generate socially beneficial improvements in crop plants and maintain agrobiodiversity. Instead, based on our analysis, the dominant global IPR appears to have contributed to consolidation in the seed industry while failing to genuinely engage with the potential of alternatives to support social goods such as food security, adaptability, and resilience. The dominant IPR also constrains collaborative and cumulative plant breeding processes that are built upon the work of countless farmers past and present. Given the likely limits of current IPR, we propose that social goods in agriculture may be better supported by alternative approaches, warranting a rapid move away from the dominant single-dimensional focus on encouraging innovation through ensuring monopoly profits to IPP holders.

The innovative state and the intellectual property management of publicly developed environmentally sound technology in the EU

In this paper, we argue that the intellectual property (IP) management of publicly developed technology serves insufficiently the imperatives of climate change mitigation, which are understood to demand most efficient dissemination of environmentally sound technology (EST), and its development. Firstly, we outline some of the criticism of IPR for climate change mitigation. Then we explain the crucial role of public funding for EST by discussing economic theory of innovation based on the writings of Joseph Schumpeter and Mariana Mazzucato, and focus on the way in which the intellectual property rights (IPRs) of publicly funded EST have been managed in the most important areas of state innovation: public procurement for innovation (PPFI), the EU Pilot Horizon 2020 and university research. We outline the perceived problems with IP management of EST and where possible try to outline changes which could, in our view, provide a viable alternative to often proposed changes to the global IP regime in regard to climate change.

Making the case for a pluralistic approach to intellectual property regulation in developing countries

Many of the poorest and least developed countries in the world are currently experiencing pressure to adopt global intellectual property regimes in order to promote their socio-economic development. These regimes are claimed to be necessary to stimulate innovation, creativity and the transfusion of new knowledge. However, international organizations and developing agencies making such claims often overlook the existing local intellectual property systems that exist in many developing countries. These occupy much of the same regulatory space as global intellectual property rights, but are often based on very different value systems and cultural and philosophical underpinnings. The introduction of a global system based on private property rights and the market economy is therefore likely to have significant effects both upon these local regulatory systems and upon the social and economic relations of the society of which they are a part. This paper, which takes as an example the Pacific Islands region, argues that consideration be given to a pluralistic approach to intellectual property regulation, one that involves the creative weaving together of both global and local systems for the production and use of knowledge and innovation.

Intellectual assets management and transfer in food science sector in Indian research and development organizations.

In recent years, the food science sector has gained importance since the society is focusing on high-quality and safety foods. With a specific end goal to meet this societal need, the research and development organizations in India have adopted innovative technical and research processes, which gave more accentuation on intellectual assessment in food processing industry. The global Intellectual Property regime in food science sector had witnessed an increment in the number of patents filed and granted during 2006-2010. Ever since there has been a gradual increase in the number of patents applied mainly in food processing industries by research organizations related to food sciences, for example, those working under the aegis of ICAR and CSIR in India. In this study, a review has been done on the intellectual assets generated by ICAR and other national research organizations in India, in the food science sector. Emphasis has been given on the global relevance of these assets, modes of IP protection and technology transfer mechanisms followed by different public and private organizations.

Situating Intellectual Property Policy Into a Human Development Paradigm

Human development emphasizes creating an enabling environment for people to cultivate initiatives and promote their freedoms, choices and capabilities to lead economic, social and cultural progress. Knowledge is a key component in that enabling environment. It is also the subject of intellectual property (IP) protection. In its current shape, the global IP regime increasingly contributes into locking up knowledge under private control. This approach does not necessarily promote human development objectives, particularly in developing countries with weak knowledge base. Developing countries need to ensure that their IP laws are situated within a human development paradigm. To achieve this, policymakers need to create the infrastructure to empower people to capitalize on knowledge by making knowledge inputs widely available. IP may assist in enhancing human development so long as it does not unduly undermine people's opportunities to access, reuse and recreate knowledge. I introduce two proposals to assist in situating IP into the human development paradigm. Firstly, developing countries should keep knowledge resources in open zones unless the privatization of knowledge is justified. Secondly, they should introduce policy and legislative measures to expand the open zone for people to access, use and re‐create knowledge and culture.

Leveraging Traditional Knowledge on the Medicinal Uses of Plants within the Patent System: The Digitisation and Disclosure of Knowledge in South Africa

Traditional knowledge (TK) plays an important role in the global economy and is valuable not only to those who traditionally depend on it in their daily lives, but also to modern industry, especially the global biotechnology, pharmaceutical and agribusiness corporations. Yet the exploitation of TK by these industries does not usually lead to corresponding benefits to indigenous communities either in the form of attribution or compensation. Such misappropriations of TK are aided by the fact that the global intellectual property (IP) regime as presently structured is based entirely on the traditionally western or conventional description of knowledge, as are its conceptions of individual intellectual property ownership. In response to the fact that their calls for the reform of the global patent system have not be heeded, most developing countries, including South Africa, have resorted to the adoption of a radically different strategy in their approach to intellectual property, particularly as it concerns the protection of their TK from misappropriation. This is evident in the adoption of strategic measures in South Africa for the protection of various aspects of its TK forms from misappropriation, such as the National Recordal System (NRS) and Disclosure of Origins (DRs). This paper seeks to explore the implications of these measures in leveraging TK within the structure, content and conceptual framework of the patent system in South Africa. The focus is on TK associated with the medicinal uses of plants (TKMUP).
 

The False Friends Problem for Foreign Norm Transplantation in Developing Countries

This article investigates the difficulties in transplanting global legal norms into developing countries, specifically the problem of ’false friends.’ This is a linguistics concept describing the situation where there is a striking resemblance between two words in two different languages, leading speakers of each language to assume, incorrectly, that they understand the word’s meaning in the other language. Even more problematically, the misunderstanding is hidden by the assumption of understanding. We argue that similar problems can occur when there is a superficial similarity (but a fundamental mismatch) between particular global and local norms. We illustrate this through the example of global intellectual property regimes and their reception in Vanuatu and Mexico, showing how reforms are sometimes welcomed into developing countries on the basis of false assumptions that their aims are congruent with existing understandings. Finally, the paper develops some policy implications for avoiding the ‘false friends’ problem in a transnational legal context.

Paradigm shift in the global IP regime: The agency of academics

ABSTRACTThe global intellectual property (IP) regime is in the midst of a paradigm shift in favour of greater access to protected work. Current explanations of this paradigm shift emphasize the agency of transnational advocacy networks, but ignore the role of academics. Scholars interested in global IP politics have failed to engage in reflexive thinking. Building on the results from a survey of 1679 IP experts, this article argues that a community of academics successfully broke the policy monopoly of practitioners over IP expertise. They instilled some scepticism concerning the social and economic impacts of IP among their students as well as in the broader community of IP experts. They also provided expert knowledge that was widely amplified by non-governmental organizations (NGOs) and some intergovernmental organizations, acting as echo chambers to reach national decision makers. By making these claims, this article illustrates how epistemic communities actively collaborate with other transnational networks, rather than competing with them, and how they can promote a paradigm change by generating, rather than reducing, uncertainty.

Paradigm Shift in the Global IP Regime: The Agency of Academics

The global intellectual property (IP) regime is in the midst of a paradigm shift in favor of greater access to protected work. Current explanations of this paradigm shift emphasize the agency of transnational advocacy networks, but ignore the role of academics. Scholars interested by global IP politics have failed to engage in reflexive thinking. Building on the results from a survey of 1,679 IP experts, this article argues that a community of academics successfully broke the policy monopoly of practitioners over IP expertise. They instilled some skepticism concerning the social and economic impacts of IP among their students, as well as in the broader community of IP experts. They also provided expert knowledge that was widely amplified by NGOs and some intergovernmental organizations, acting as echo chambers to reach national decision makers. By making these claims, this article illustrates how epistemic communities actively collaborate with other transnational networks, rather than competing with them, and how they can promote a paradigm change by generating rather than reducing uncertainty.

Generic medicines policies in the Asia Pacific region: ways forward.

Generic medicines are a key strategy used by governments and third-party payers to contain medicines costs and improve the access to essential medicines. This strategy represents an important opportunity provided by the global intellectual property regimes to discover and develop copies of original products marketed by innovator companies once the patent protection term is over. While there is an extensive experience regarding generic medicines policies in developed countries, this evidence may not translate to developing countries. The generic medicines policies workshop at the Asia Pacific Conference on National Medicines Policies 2012 provided an important opportunity to discuss and document country-specific initiatives for improving access to and the rational of use of generic medicines in the Asia Pacific region. Based on the identified barriers and enablers to implementation of generic medicines policies in the region, a set of future action plans and recommendations has been made.