Global Intellectual Property Research Articles

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.

To enforce or not to enforce? Judicialization, venue shopping, and global regulatory harmonization

AbstractThe regulation of intellectual property rights takes place in a range of international venues. This proliferation of international venues greatly enhances the potential for venue shopping. We argue that different levels of domestic regulation and differing degrees of judicialization account for actors' preferences over institutional venues. We take into consideration two scenarios. Conceiving of judicialization as the delegation of adjudication to an independent third party and the enforcement through multilaterally authorized sanctions, we show that: (i) upward regulatory harmonization leads actors preferring weak regulatory intellectual property rights standards to strive for venues with low degrees of judicialization, whereas those favoring stringent intellectual property rights protection prefer highly judicialized venues; and (ii) downward harmonization leads to the opposite constellation of institutional preferences. We show how these expectations hold by way of in‐depth case studies of two instances of global intellectual property rights regulation: the regulation of plant genetic resources and intellectual property rights for medicines.

Intellectual Property Rights and the Potential for Universal Access to Treatment: trips, acta and hiv/aids medicine

Where hiv/aids is concerned, the twin goals of ‘zero new infections’ and an ‘aids-free generation’ are now, due to advances in treatment (and treatment as prevention), a realistic possibility. However, these goals can only be achieved through the scaling-up of treatment to the point of universal access. It is inevitable that the success of any scaling-up will be predicated on cost, particularly of hiv/aids medicines. This article argues that recent changes in the global intellectual property landscape—effected by way of bilaterally- and plurilaterally-negotiated trade agreements initiated by developed countries—jeopardise the target of universal access. Enhanced protection of international intellectual property rights increasingly poses a threat to the development of, and international trade in, generic medicines. Unless developing countries move to reinvigorate moribund multilateral institutions, particularly the wto, they will lose control of the intellectual property agenda, and thus the ability to impose an alternative vision regarding universal access.

A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between IP, Trade, Investment and Health

The idea of employing conflict-of-laws principles to address competing rationalities in international law is unorthodox, but not new. Research focuses on inter-systemic conflicts between different areas of international law – but has stopped short of proposing conflict rules. This article goes a step further and reviews the wealth of private international law approaches and how they can contribute to applying rules of another, ‘foreign’ system. Against the background global intellectual property rules and their interfaces with trade, investment, health and human rights, the dispute over plain packaging of tobacco products serves as test case for conflict-of-laws principles. It shows how these principles allow a forum to apply external rules – beyond interpretative concepts such as systemic integration.

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.

The Big Question: Which Country Will Emerge as the Leading Power?

The Big Question: Which Country Will Emerge as the Leading Power?

“Beyond the Scope of Ordinary Training and Knowledge”: The Argument for Droit Moral, U.S. Research Science Intellectual Property Moral Rights

“Beyond the Scope of Ordinary Training and Knowledge”: The Argument for Droit Moral, U.S. Research Science Intellectual Property Moral Rights

The problems of owning culture: global intellectual property law and ‘traditional’ community arts in Indonesia

In our digital age when most movies viewed at home carry Interpol warnings that copyright piracy is a crime, yet patented medicines are unaffordable for millions, ethical debates about intellectual property rights and freedom of information are becoming widespread. But a less noticed topic in these debates is the recent international effort to expand and implement Euro-American models of intellectual property law among peoples whose daily activities previously have not been covered by formal intellectual property laws (primarily copyright, patent, and trademark regulations). This essay considers how this trend is unfolding in post-Suharto Indonesia, particularly the tension between national efforts to create legal property rights over cultural resources and the fact that most ordinary Indonesians do not view their cultural knowledge and aesthetic or ritual activities as property to be claimed in an exclusive way by their ethnic group or government. Plans to legalize the cultural ownership of regional arts are addressed with ethnographic examples from Indonesian fieldwork including 2005–07 visits conducted by an international team of lawyers, musicologists, anthropologists, and Indonesian community activists with ‘traditional’ arts producers from eleven cultural regions in eight provinces.

Juxtaposed to ACTA or more of the Same? A Look at IP Enforcement under the EU’s Economic Partnership Agreements

Global intellectual property (IP) enforcement is a hot issue. The EU and the US, in particular, are committed to taking the level of protection beyond the minimum established by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994.This is evidenced, for example, by the EU's Global IP Enforcement Strategy of 2004, by the Anti-Counterfeiting Trade Agreement (ACTA) finalized in 2010 and by a number of bi- and plurilateral free trade agreements (FTAs) concluded in recent years. Some criticism has been voiced in civil society as well as in academic writing against this TRIPS-plus drive, particularly in relation to ACTA. In the context of EU-ACP trade relations, the EU has now drawn up a special kind of FTA, the so-called Economic Partnership Agreements (EPAs). Designed for developing countries, EPAs include a range of non-mercantilist goals. In accordance with this, EPAs were announced as the dawn of a new era in trade relations with developing countries. This article takes the controversial field of IP enforcement as an example for scrutinizing that new approach. As will be shown, a comparison of their rules on IP enforcement to standard IP enforcement provisions of a purely economic character, prominently the EU's domestic legislation, ACTA and general FTAs, sadly hints that any enthusiasm over EPAs in terms of development-friendliness may be premature. IP enforcement under EPAs lacks conceptual coherence and credibility in the implementation of development-related goals. This analysis is pinned against the background of a discussion of the overall role and effects of enforcement provisions in international trade agreements at the beginning and in the conclusion of this article.

From the production of rules to seed production: Global Intellectual Property and local knowledge

This paper analyzes the links and overlappings between traditional knowledge and biodiversity in the context of ecological family farming in southern Brazil. The data presented are part of an ethnographic study carried out among a network of ecological farmers, Ecovida, in the west of Santa Catarina state. The current global patent regime, most prominently the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization (WTO), has had direct effects on seed production and agricultural food crops. In a scenario of increasing creation of patents, patent regulations, provisions on cultivars (plant varieties and seed breeding) and a number of other global trade control mechanisms, family farmers and other related social actors have rejected the multilateral development agencies' notion of life as "resource". This study has a two-fold aim: first, it approaches the international context of the intellectual property regime on biodiversity and knowledge production; second, it examines the actions taken by farmers participating in the Ecovida network toward creating alternative ways of managing knowledge to produce "free" seeds. As an outcome, there is a parallel political action of criticism and resistance to the current narrowing of agriculture's genetic base, and organized efforts to multiply seeds, know-how and knowledge through networks, banks and centers of agro-biodiversity. Our central argument is that all these social actors - who make up the so-called ecological network and who seek, in their activities, to carry on the multiplication and variability of seeds and promote the diversity of knowledge to produce diverse seeds - are also creating collective strategies of social resistance vis-à-vis the prevailing global modes of controlling knowledge, seeds and food production.

HARVESTING IP-BASED VALUE POTENTIAL: THE INTELLECTUAL PROPERTY SCORECARD AS A MECHANISM TO CAPITALIZE ON TECHNOLOGICAL INNOVATION, KNOWLEDGE, AND IP

There is a staggering decline in the capitalization of intellectual property (IP) and low levels of investment in R&D, particularly with respect to emerging nations within the global IP environment, which limits accelerated industrial growth. In most emerging markets, this necessitates that management address multiple competencies better, that exploit organizational resources, knowledge, and management ability, to adapt faster than the competition. Our research offers a management model to address this management challenge strategically. This research also indicates that IP as a value creation mechanism is currently not a top management priority although investors increasingly look toward good IP management as an indicator of future organizational growth. The research presents the IP Scorecard, a further inductive development of Kaplan and Norton's traditional Balanced Scorecard. The IP Scorecard is a strategic management tool that enables management to drive a robust industrial growth strategy that is explicitly positioned within the knowledge economy, identifying target areas for organizational development around knowledge and IP management, in order to achieve the competitive higher-ground, by strategically creating and capitalizing on value arising from innovation and R&D activities. The IP Scorecard sensitizes management on where and how to carve out competitive turf, particularly from a knowledge and IP value creation perspective, seeking ultimately to enhance corporate/shareholder and product-life-cycle value. The paper encompasses limited field research findings on key IP-related strategic management considerations that promote leadership in innovation and R&D, across the product life cycle.

Integrating Biodiversity Management and Indigenous Biopiracy Protection to Promote Environmental Justice and Global Health

Many potentially useful medicines arise from developing countries' biodiverse environments and indigenous knowledge. However, global intellectual property rules have resulted in biopiracy, raising serious ethical concerns of environmental justice, exploitation, and health disparities in these populations. Furthermore, state-based approaches have not led to adequate biodiversity protection, management, or resource sharing, which affect access to lifesaving drugs. In response, country delegates adopted the Nagoya Protocol, which aims at promoting biodiversity management, combating biopiracy, and encouraging equitable benefits sharing with indigenous communities. However, the effectiveness of this framework in meeting these objectives remains in question. To address these challenges, we propose a policy building on the Nagoya Protocol that employs a World Health Organization-World Trade Organization Joint Committee on Bioprospecting and Biopiracy.

The Rise of Nollywood: Creators, Entrepreneurs, and Pirates

The rise of Nollywood illustrates the revolutionary potential of digital technologies in Africa. Nollywood, or the Nigerian video film industry, reflects technology leapfrogging that is increasingly prominent in Africa today. Such leapfrogging, however, may raise significant issues with respect to legal and other institutions. Film production had largely ceased in Nigeria by the end of the 1980s. Despite this absence, in the early 1990s, Nigeria started on a path that has led it to become the top producer of digital video films in the world. Nigeria is, however, an unlikely locale for the development of a major film industry. In addition to lacking fundamental infrastructures for the development of a film industry, Nigeria has not historically had robust intellectual property enforcement. As a result, Nollywood may be seen as a natural experiment for creativity in the relative absence of intellectual property. This Nollywood natural experiment reflects the actions of varied and at times overlapping roles, including creators, entrepreneurs, and pirates, all of whom have contributed to the growth of Nollywood and Nollywood distribution networks. The viral spread of Nollywood films has thus far been a key element of Nollywood successes. Nollywood films are watched, for example, throughout Africa and in African immigrant communities in Europe and the United States. The Nollywood example suggests the need for more nuanced understanding of the interaction between intellectual property and cultural production and greater recognition of potentially varied ways that intellectual property may influence the shape of cultural production. The unauthorized distribution of Nollywood films is part of wider patterns of increasing unauthorized dissemination of content in the digital era. Such unauthorized distribution has led to pervasive labeling of certain types of copying as piracy. Analyzing the rise of Nollywood can contribute to existing global intellectual property debates and highlight relevant business issues in contemporary contexts of cultural production. Further, consideration of Nollywood’s current growing pains suggests that, as Nollywood continues to grow, industry participants must separate the distinct yet interrelated problems arising from piracy from those emanating from Nollywood’s informality in doing business. This article suggests that in addition to intellectual property enforcement strategies to contain piracy, Nollywood participants must adopt business strategies that monetize piracy by extracting value from wide-reaching Nollywood distribution networks.

The Roles of Non-State Actors in Lawmaking within the Global Intellectual Property Regimes of WIPO and TRIPs

Abstract Non-State actors (NSAs), including business and industry non-governmental organizations (NGOs), lawyers’ NGOs and executives of multinational corporations, have played important roles in shaping international law regulating legal monopolies of intangible interests as intellectual property (IP) rights (IPR). The two global IPR regimes (GIPRRs), the World Intellectual Property Organisation (WIPO) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), have emphasized protection of such interests. Civil society NGOs (CS-NGOs) have increasingly engaged with these institutions, adding new dimensions to IP discourse. This paper investigates NSA involvement in developing the concept of IP and the GIPRRs themselves and contemporary NSA participatory rights and practices in both regimes. It offers a normative analysis of the future outlook of NSA influence, including potential impacts of increasing CS-NGO participation, assimilation of UN values, and influence of the history of IPR on the development and applicability of the concept of ‘public participation’ to the GIPRRs.

Role of Judiciary with Special Reference to Global Intellectual Property Regime

The instant essay explores the path already traversed by the Indian judiciary with respect to formulation and implementation of the several norms of the Intellectual Property regime. The international conscience of intellectual property developed with the TRIPs Agreement. However, exploration of certain specific areas of IPR led the authors to believe that Indian judiciary had already chalked down the plan of extending protection to several varities of intellectual property before 1994. The development, especially with respect to geographical indications and trade secrets, had been cataclysmic. Not only did the judiciary implement the laid down law, but had also fostered newer norms and attempted to bring clarity in the areas reeking with ambiguity. Broadening of ‘cause of action’, liberalizing the factor of ‘locus standi’, cultivating progressive outlook in awarding of ‘compensation’, laying down standards of software protection, defining ‘copyright’ in precise terms, and carving innovative laws for protection of geographical indications, have been some of the watersheds attained by the Indian judiciary. Newer legislations, guaranteeing protection of plant breeders, farmers and holders of traditional knowledge albeit indicate the dynamism of development, yet fail to capture the thought that, the Indian legal system, definitely being reactive machinery, rather than a pro-active one impairs the level playing field and incapacitates a certain population to share the benefit of the regime. Though the norms developed by the Indian courts, have contributed to the global IP regime and had set standards for the other developing countries, yet the authors opine that Art 51 of the Constitution should not be shrugged off as a mere Derective Principle of State Policy, but must be championed, by complying to the internationally valid norms, to realize the progressivity in all spheres.

The curious absence of human rights: Can the WIPO Development Agenda transform intellectual property negotiation?

This article examines international negotiation of global intellectual property protection standards. Developing countries favour more flexible international rules, while developed countries push for higher mandatory protection levels. Developing countries base their positions on primary principles of intellectual property law: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; developed states counter-argue that stronger protection achieves the same ends. The article examines the resulting circular discussions at the 2001-2003 WTO Doha negotiations on TRIPS and Public Health, and the WIPO Development Agenda talks since 2004. The contention is that the negotiation impasse stems from an inability to move beyond the cost-benefit tension inherent in the patent system. Intellectual property theory cannot provide a bottom line at which short-term costs of patent monopolies must be deemed unacceptable, regardless of anticipated longer-term benefits. Recently, developing countries have celebrated the WIPO Development Agenda as a “paradigm shift” in the approach to international IP protection. The author argues that the Development Agenda will not necessarily change anything, and that developing countries should introduce human rights standards into discussions if they want to move the debate forward. Human rights standards can be used as benchmarks to assess whether IP rules promote public benefit and achieve an acceptable balance between rights of patent-holders and the broader public interest. The article shows how the ICESCR can be used to support a human rights-based argument.

Global governance: Promoting biodiversity and protecting indigenous communities against biopiracy

Many potentially useful medicines arise from developing countries’ biodiverse environments as well as from indigenous community knowledge. This bioprospecting has become an important strategy in drug discovery and development. However, global intellectual property rules have resulted in biopiracy, where public and private entities have exploited natural and ethnic resources without benefit sharing with indigenous peoples. Sovereign-based approaches have not led to adequate biodiversity management. There is tremendous opportunity for public-private partnerships to fill this void. Coupling pharmaceutical companies with indigenous peoples, civil society organizations, and country academics, long term, trust-based relationships can provide equitable benefits sharing and effective biodiversity management.

The Human Right to Health and HIV/AIDS: South Africa and South-South Cooperation to Reframe Global Intellectual Property Principles and Promote Access to Essential Medicines

The HIV/AIDS pandemic has had a devastating and disproportionate impact in countries of the Global South. The experience of an individual infected with HIV in Africa is very different than that of an individual infected with HIV in America. Life expectancy varies sharply. The ability or inability to access medicines essential for treatment accounts for much of the variance. This article examines how the rhetoric of human rights used in the context of South Africa's AIDS crisis resonated across the Global South, resulted in a powerful social movement for access to medicines, and contributed to important changes in international intellectual property law principles. This article first introduces the competing commitments governments of the Global South face with a discussion of the current status of the global AIDS epidemic and an explanation of the structure and content of the international intellectual property and human rights legal systems. This article then provides a discussion of how domestic civil society activists organized to oppose international intellectual property interests through law and politics using the language of international human rights. Next, it presents an interpretation of how events in South Africa led to the Doha Declaration and strengthened the emerging alliance between countries of the Global South. Finally, it identifies lessons to be learned from the experience of these actors.

The Dog that Barked but Didn’t Bite: 15 Years of Intellectual Property Disputes at the WTO

Hope as well as fear was running wild when in 1995 the multilateral trading system incorporated the protection of intellectual property (IP) rights. As one author put it, “the [IP] component of the WTO [World Trade Organization] Agreement represented a revolution in international intellectual property law.” This article provides a reality check 15 years after the fact with a particular focus on how the WTO performed in terms of settling IP disputes under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It compares conventional expectations associated with the creation of TRIPS and WTO dispute settlement to (i) the number and types of TRIPS disputes actually filed and decided, (ii) institutional and substantive decisions and interpretations reached by WTO panels and the Appellate Body in their application of the TRIPS agreement and, finally, (iii) the status of implementation of adverse WTO rulings under TRIPS. The article offers a number of hypotheses that may explain these descriptive results centered on (i) the rather unique features of WTO dispute settlement, (ii) the TRIPS Agreement itself as compared to other trade agreements and (iii) an escalating cycle of IP-skepticism, due in no small part to the hard-line position taken by many IP industries themselves, and culminating in the 2001 Doha Declaration on TRIPS and Public Health which confirmed and slightly expanded TRIPS flexibilities in the context of the access to essential medicines debate. The core message of this article is that based on 15 years of operation both the hopes and fears traditionally linked to TRIPS and WTO dispute settlement, not just in 1995 but to this day, were and continue to be largely exaggerated. TRIPS as conventionally portrayed by many is in this sense “the dog that barked but did not bite”. A caveat to this core message is, however, that it says something about the role and impact of formal dispute settlement under TRIPS, less about the broader changes brought about by the TRIPS agreement, in particular, sweeping (and often costly) legislative amendments in many developing countries, monitoring through the TRIPS Council and bargaining “in the shadow” of TRIPS both to weaken and to strengthen global IP protection (be it in the Doha Declaration on TRIPS and Public Health, certain preferential trade agreements, WIPO or the WHO).