The Global Nature of Intellectual Property: Discussion

Global Policy, 2016

This article discusses Intellectual Property Rights and in particular global IPR expansion. That globally protected intellectual property (IP) is more valuable than ever must be set against the fact that today's global network capitalism, in which IP is so valuable, also enables information to circulate beyond IP control. Similarly, global IP expansion and its resistance go hand in hand, as global IP expansionist policy contains but also encourages infringement. We document this conflict, the paradoxical space affording it, the boundary disputes that manifest it, and the global IP expansionist policy 'ratchet' designed, but which fails, to contain it. We then evaluate global IPRs and the case for extensions, as manifested in treaties

This article discusses Intellectual Property Rights (IPR) and in particular global IPR expansion. That globally protected intellectual property (IP) is more valuable than ever must be set against the fact that today's global network capitalism, in which IP is so valuable, also enables information to circulate beyond IP control. Similarly, global IP expansion and its resistance go hand in hand, as global IP expansionist policy contains but also encourages infringement. We document this conflict, the paradoxical space affording it, the boundary disputes that manifest it, and the global IP expansionist policy 'ratchet' designed, but which fails, to contain it. We then evaluate global IPRs and the case for extensions, as manifested in treaties such as ACTA, TPP and TTIP. This evaluation is undertaken though specific examinations of copyright, patent and trademark laws. Claims for the overall social benefit of global IP harmonisation and expansion policies are rejected. Policy Implications • Our first policy recommendation is to reverse the trend towards criminalising acts labelled as 'piracy'. • Our second policy recommendation is that the length of time in which IP rights are protected be reduced not expanded. • Thirdly, forcing all developing countries to enact strong IP rights before they are ready to do so should be halted. • Our fourth policy recommendation is that we do not offer further depth of coverage to abstractions. Global IP harmonisation and protection: a paradoxical ratchet A triple paradox created by global network capitalism drives global IP expansionist policy in the post-Cold War age. Glob-alisation, digital networks and capitalist markets all extend the potential profitability of IP-rich, 'immaterial' content yet global and digital production and distribution networks also bypass IP regulation. Securing intangibles as 'property' enables monopoly prices, and hence encourages infringement. The very global networks and markets that global IP extensions can make more profitable for IP holders also facilitate the wider production and circulation of infringing copies. Such expansion of infringement is then said to warrant further extensions of IP regulation. Defenders of stronger global IPRs argue that while extending the monopoly rents offered to innovators, through longer, wider and deeper IPR protection will increase incentives to infringe; such rewards must be maintained to encourage innovation (May, 2007a). If extending IPRs raise prices and thereby increases incentives to infringe, the solution is stronger enforcement and tougher punishments (Patry, 2009). The argument for extension is then pre-mised upon the assumption that IPRs are the most effective means of incentivising innovation and its distribution; and concludes that infringement should be treated as theft. Our approach is to evaluate the truth of this premise and conclusion. We begin by first, outlining the three central paradoxes of global network capitalism, and then the boundary disputes that map IP expansion and its resistance. We then document today's global IPR expansion ratchet. The second half of this article addresses the primary types of intellectual property – copyrights, patents and trademarks and shows how global IPR harmonisation and expansion has not increased incentives nor global social welfare. In conclusion, we argue that the global IP harmonisation and extension ratchet is self-perpetuating, but self-limiting, in securing a narrow interest; and because it does not secure greater incentive, innovation, nor access to new/better products, extension is not justified.

Global Policy, 2010

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only domestic (or national) works or inventions would be counterproductive: it increases unfair competition from unprotected foreign works and inventions. This explains why intellectual property has been on the path of progressive internationalization since the early days of international trade, a phenomenon which has accelerated very significantly since the 1980s. The paper examines the four phases of this internationalization process. In the current phase, there are two important challenges that must be successfully tackled: the protection of traditional knowledge and the application of copyright to the Internet. During the Uruguay Round, several developing countries and transition economies (countries from Eastern and Central Europe in transition to a market economy) were learning the ropes of intellectual property law by and large a set of Western concepts. These countries are now coming to the table demanding appropriate protection of traditional knowledge. In parallel, the Internet's rapid growth and increasing use as a tool to disseminate copyrighted material may engender a fundamental shift in copyright usage. The paper examines these challenges and focuses on the possible approaches with a view to strengthening the intellectual property system.

Global Intellectual Property Protection and New Constitutionalism, 2021

This chapter traces the transformation of global intellectual property protection. The classical Convention regime, epitomised by the Paris Convention protecting industrial property and the Berne Convention protecting copyright, dominated the international IP scene for about a century. Other norm sets have become relevant for IP more recently. These often strengthen IP rights or grant them complementary protection and include international investment agreements (IIAs), predominantly in the form of bilateral investment treaties (BITs) and investment chapters in trade treaties; the protection of property ownership as a fundamental right; private regulation of IP; and IP-specific counter-norms. Ultimately, this transformation of global IP law necessitates a broadening of the constitutional discourses relevant for IP. Constitutional pluralism, new constitutionalism, and societal constitutionalism represent the main currents of such global constitutional discourses.

The main question asked is whether IP and IP-laws can still, or no longer, be justified from a historic and global perspective. While answering this question we don’t just look at the contemporary ethical issues, but take historic developments as our basis and startingpoint. This because historic analysis can unearth not just the history of IP-law itself, but also — and especially relevant for our question — how it functions in the world as the times change, changing the ways and degrees to which these laws apply and function, similar to how not just modifications to a text, but also the further evolution of the language it is written in, can change its readings.

2008

The TRIPS Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address whether-and how-the TRIPS Agreement can, on the other hand, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the dynamic nature of information production. To focus that inquiry, we concentrate on efforts to ensure a broader public domain for 'upstream' inventions by modifying various elements of US patent law. The paper considers three stylized examples and asks whether each approach could be adopted by the United States without falling afoul of the TRIPS Agreement as it is currently understood. Our purpose is to identify interpretive approaches that allow member states to keep their laws attuned to the developments and needs of science. But in so doing, we also raise broader questions regarding the level of formalism generated by the WTO dispute settlement system, and the extent to which the TRIPS Agreement allocates power between supranational and national institutions, and between international and national laws. introduction The size and content of a rich public domain are affected by a constellation of national intellectual property rules. Since 1995, these domestic rules have, in WTO-member states, been subject to the requirements of the Agreement on

Graeme B. Dinwoodie, 2006

Social Science Research Network, 2009

Intellectual Property Rights (IPRs) have become ubiquitous in the current debate and have emerged as the key issue of global innovation policy. The 'Trade Related Aspects of Intellectual Property Rights' (TRIPS) Agreement, signed in 1994 as a founding element of the World Trade Organisation, represents the most important attempt to establish a global harmonisation of Intellectual Property protection. The aim of this article is to reexamine critically what has become the common wisdom around IPRs, TRIPS and their effects. We argue that supporters of IPRs in western corporations and governments as well as detractors in global movements and developing countries have overestimated their importance in the process of generation and diffusion of knowledge and innovation. On the basis of some key learned lessons on the nature of innovation and technological change, we assess four theses about TRIPS and its impact on the global generation and distribution of knowledge. Finally, the policy implications concerning international organisations and technological transfer are discussed.