Suchergebnisse

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article analyzes this trend and uses it to develop three distinct paradigms to identify the proper place of intellectual property issues in the European human rights system. It concludes that the ECHR should find a violation of the right of property in intellectual property disputes only in cases of arbitrary government conduct.

The European Court of Human Rights (ECHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of ' embeddedness ' in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR's deference to national decision-makers is appropriate.

This article documents the rise of nonconsensual international lawmaking and analyzes its consequences for the treaty design, treaty participation, and treaty adherence decisions of nation states. Grounding treaties upon the formal consent of states has numerous advantages for a decentralized and largely anarchic international legal system that suffers from a pervasive "compliance deficit." But consent also has real costs, including the inability to ensure that all nations affected by transborder problems join treaties that seek to resolve those problems. This "participation deficit" helps explain why some international rules bind countries without their acceptance or approval. Such rules have wide applicability. But they can also increase sovereignty costs, exacerbating the compliance deficit. Nonconsensual international lawmaking thus appears to create an insoluble tradeoff between increasing participation and decreasing compliance. This article explains that such a tradeoff is not inevitable. Drawing on recent examples from multilateral efforts to prevent transnational terrorism, preserve the global environment, and protect human rights, the article demonstrates that the game-theoretic structure of certain cooperation problems, together with their institutional and political context, create self-enforcing equilibria in which compliance is a dominant strategy. In these situations, nonconsensual lawmaking reduces both the participation and the compliance deficits. In other issue areas, by contrast, problem structure and context do not affect the tradeoff between the two deficits, and the incentive to defect remains unaltered. Analyzing the differences among these issue areas helps to identify the conditions under which nonconsensual lawmaking increases the welfare of all states.

In 'Technological Change and the Design of Plant Variety Protection Regimes', Mark Janis and Stephen Smith make two novel and provocative claims. They first argue that the legal regime for protecting new plant varieties has become hopelessly outdated in light of recent changes in technology. They next assert that the fate of the plant variety protection (PVP) system illustrates a broader and more disturbing phenomenon in intellectual property law: the potential for sui generis, industry-specific intellectual property regimes to become increasingly ineffective over time. In this brief essay, I offer three points to amplify the authors' contributions and highlight the legal and political consequences of the arguments they advance. I first discuss plant breeders' rights as a distinct form of intellectual property protection. Next, I review the challenges to implementing the authors' proposal to replace existing PVP rules with unfair competition principles. Third and finally, I consider the extent to which the obsolescence of plant breeders' rights represents a phenomenon that exists in intellectual property systems more generally.

This Article uses an interdisciplinary approach to explain why the International Labor Organization (ILO) has been given surprisingly short shrift in recent debates over the role of IOs in addressing the many transborder collective action problems that globalization has fostered. I review the ILO's past and its present with two broad objectives in mind. First, I seek to correct a misperception among international lawyers and legal scholars that the ILO is a weak and ineffective institution. The organization's effectiveness in creating and monitoring international labor standards has fluctuated widely during its nearly ninety-year existence. Over the last decade, however, the ILO - led by the Director General and the ILO Office - has ushered in a period of innovation and reform, narrowing the organization's mandate to emphasize universal compliance with a core group of fundamental labor rights. These developments - many of which are unknown outside the organization - reveal that the ILO has learned from successful strategies of other IOs and from its own past mistakes. They also cast doubt on the widely held view that international bureaucracies seek to expand their mandates to increase their authority over member states. A second objective of the Article is to analyze the under-studied issue of how IOs change and to assess three social science theories - (1) rational design; (2) neofunctionalism; and (3) historical institutionalism - that seek to explain how change occurs. A historical study of the ILO provides two opportunities to evaluate these competing frameworks and to consider the under-examined role of IO officials in promoting change. First, the four major phases of the ILO's existence - its founding in 1919, the interwar years, the decades following World War II, and post-Cold War globalization - offer discrete domains within which to assess the theories' comparative explanatory power. The second opportunity for theoretical assessment relates to the influence of the ILO's past on recently adopted reforms. None of the theories would have expected ILO officials to revitalize the organization, more than seventy-five years after its birth, by narrowing and refocusing its authority rather than expanding it.

In the growing cacophony of voices heralding or contesting the many facets of globalization, international organizations ("Os") are playing an increasingly prominent role. Government officials, advocacy groups, and scholars are heatedly contesting the merits and demerits of using IOs to promote interstate cooperation and to resolve the many transborder collective action problems that globalization has fostered. These controversies raise important questions about how IOs are designed and how they respond to the uncertainties and changing circumstances that are endemic to international affairs. In the debates over globalization and institutional change, one IO-the International Labor Organization ("ILO")-has been given surprisingly short shrift. Founded in 1919 and headquartered in Geneva, Switzerland, the ILO is one of the world's oldest 1Os. It has survived a world war and a cold war, a major global depression and a slew of recessions, a quadrupling in the number of its member states, and the rise of global capitalism. The ILO has a unique tripartite governance structure. Representatives of governments, organized labor, and employers from each of the organization's 178 member states participate in the work of the ILO in a ratio of 2-1-1, respectively. Worker and employer delegates attend the annual ILO Conference, the organization's principal lawmaking body, and meetings of its executive arm, the Governing Body, in their independent capacities. They form separate caucuses and often vote with their respective groups rather than with their governments. With only minor modifications, this "corporatist" tripartite structure has survived intact as the ILO's membership has grown from a small club of Western European states to include members with radically different approaches to managing labor relations, including the United States, socialist nations, and a large contingent of countries from the developing world.

This Article draws upon the international relations theory of regimes to analyze the growing chorus of challenges to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), and to the expansion of intellectual property rights more generally. The few years since TRIPs entered into force have seen nothing less than an explosion of interest in intellectual property issues in international fora not previously concerned with the products of human creativity or innovation. Intellectual property is now at or near the top of the agenda in intergovernmental organizations such as the World Health Organization and the Food and Agriculture Organization, in international negotiating fora such as the Convention on Biological Diversity's Conference of the Parties and the Commission on Genetic Resources for Food and Agriculture, and in expert and political bodies such as the United Nations Commission on Human Rights and its Sub-Commission on the Protection and Promotion of Human Rights. In some of these venues, intellectual property lawmaking has led to the negotiation of new treaties; in others, challenges to TRIPs are framed through reinterpretation of existing agreements and the creation of nonbinding declarations, recommendations, and other forms of soft law. The theoretical and practical consequences of these new developments have yet to be fully explored. I argue in this Article that the expansion of intellectual property lawmaking into these diverse international fora is the result of a strategy of "regime shifting" by developing countries and NGOs that are dissatisfied with many of the provisions in TRIPs and are actively seeking ways to recalibrate, revise, or supplement them. State and non-state actors shift lawmaking initiatives from one international regime to another for many reasons. In the case of intellectual property rights, developing countries and their allies have shifted negotiations and hard and soft lawmaking initiatives to four international regimes - those governing biodiversity, plant genetic resources, public health and human rights - whose institutions, actors, and subject matter mandates are more closely aligned with these countries' interests. Within these four regimes, developing countries are questioning established legal prescriptions and generating new principles, norms, and rules of intellectual property protection for states and private parties to follow. Intellectual property regime shifting thus heralds the rise of a more complex international environment in which seemingly settled treaty bargains are contested and new dynamics of lawmaking and dispute settlement must be considered.

The last few years have been a particularly heady period for governments, private parties, and NGOs seeking to develop new rules to regulate intellectual property ("IP") protection standards. During that time, a slew of lawmaking initiatives, studies, and reports have been launched in a strikingly large number of international venues. Work on intellectual property rights is now underway in intergovernmental organizations such as the World Trade Organization ("WTO"), World Intellectual Property Organization ("WIPO"), and Food and Agriculture Organization ("FAO"); in negotiating fora such as the Convention on Biological Diversity ("CBD") and its Conference of the Parties and the Commission on Genetic Resources for Food and Agriculture; and in United Nations expert and political bodies such as the Commission on Human Rights and the High Commissioner for Human Rights. In some of these venues, IP lawmaking has involved the negotiation of new international agreements. In others, IP norms are being generated through the reinterpretation of existing treaties or the creation of nonbinding guidelines, resolutions, and other forms of soft law. This essay views these myriad developments through the lens of the international relations theory of regimes. It uses the insights of regime theory to make three basic points. First, it explains why IP lawmaking has broken out of the confined institutional spaces of established international IP fora, such as WIPO and the WTO, and has moved into a broad and growing array of other international venues in environmental law, human rights, and public health. Second, it shows how this recent expansion helps to enrich regime theory itself by illustrating how regimes evolve over time and how they interact with institutions and actors in other issue areas. And third, it describes a working typology of the different modes of interaction that are developing among the many international venues in which IP lawmaking is now occurring.

This Article explores issues at the frontier of international law and constitutional law. It considers five key structural and systemic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, I survey the international legal landscape and consider the salience of potential analogies to domestic constitutions, drawing upon and extending the writings of international legal scholars and international relations theorists. I also offer some preliminary thoughts about why some treaties and institutions, but not others, more readily lend themselves to analysis in constitutional terms. And I distinguish those legal and political issues that may generate useful insights for scholars studying the growing intersections of international and constitutional law from other areas that may be more resistant to constitutional analogies.

Human rights and intellectual property, two bodies of law that were once strangers, are becoming increasingly intimate bedfellows. Over the past three years, human rights bodies within the United Nations have devoted unprecedented attention to intellectual property issues, including patented medicines, digital copyrights, technology transfers, economic, social and cultural rights, plant variety protection, and economic development. Unlike the approaches adopted in established intellectual property lawmaking organizations such as the WTO and WIPO, the new human rights approach to intellectual property is often critical of existing standards of protection and it seeks to address legal and policy issues that intellectual property treaty makers and legislators often ignore. In this essay, I analyze two competing frameworks that governments, NGOs, and intergovernmental organizations are using to conceptualize the intersection of human rights and intellectual property. The first approach views the two areas of law as in fundamental conflict, with strong intellectual property protection standards - in particular those of the TRIPs Agreement - undermining a broad spectrum of human rights. The second approach sees both areas of law as concerned with the same basic question: defining the appropriate scope of private monopoly power to give authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public adequate access to the fruits of their efforts. The essay traces the evolution of these two competing approaches and explores their consequences for future international lawmaking.

This article raises the intriguing claim that international law can be overlegalized. Overlegalization occurs where a treaty's substantive rules or its review procedures are too constraining of sovereignty, causing governments to engage in acts of non-compliance or even to denounce the treaty. The concept of legalization and its potential excesses, although unfamiliar to many legal scholars, has begun to be explored by international relations theorists analyzing the effects of legal rules in changing state behavior. This article bridges the gap between international legal scholarship and international relations theory by exploring a recent case study of overlegalization. It seeks to understand why, in the late 1990s, three Commonwealth Caribbean governments denounced human rights treaties and withdrew from the jurisdiction of international tribunals. I refer to these events as the Caribbean backlash against human rights regimes. My study of this backlash has two objectives. The first is to show how overlegalizing human rights can lead even liberal democracies to reconsider their commitment to international institutions that protect those rights. The second objective is to assess three competing international relations theories that seek to explain the conditions under which states comply with their treaty commitments. To provide a more persuasive analysis of these issues, the article includes empirical data analyzing changes in the filing and review of international human rights petitions against Caribbean governments during the 1990s.

This article analyzes the dispute settlement proceedings pending before the World Trade Organization (WTO) concerning the Fairness in Music License Act of 1998, a new provision of the US Copyright Act that exempts many bars, restaurants, and retail stores from paying license fees for performing broadcast music in their establishments. In May 1999, the European Community challenged the Act, and its predecessor "homestyle exemption," as a violation of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and the Berne Convention for the Protection of Literary and Artistic Works (Berne). The FMLA dispute is the first time in history that US copyright laws will be judged by an international tribunal. The case is an embarrassing one for the United States, which has recently pursued a policy of aggressively encouraging other nations to provide strong legal protections for copyrighted works. Although officials within the Clinton Administration warned legislators that the Fairness in Music Licensing Act might be incompatible with the Berne and TRIPs treaties, Congress enacted the statute over their objections. Thus, in the first year of the new century, Congress may be faced with an unprecedented choice: modify the Copyright Act to satisfy the demands of international trade jurists or face retaliatory trade sanctions by the EC. In addition to analyzing the legal arguments available to the US and the EC under the Berne and TRIPs treaties, this article also seeks to explain why Congress deliberately chose to ignore past US intellectual property policy. Using insights from law and economics and from a study of the history of laws and licensing practices governing secondary uses of broadcast music, the article demonstrates how an increasingly broad free use exemption developed for businesses playing radio and television music. It then draws on these economic and historical insights to develop legislative reform proposals that are both compatible with United States' treaty obligations and that encourage performance rights organizations and associations of copyright users to reach an efficient private agreement to resolve the WTO dispute.

A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the interests of other states to influence their judgments. In this response, we identify the many shortcomings in the theory, methodology, and empirics in Judicial Independence in International Tribunals. We do so to challenge the authors' core conjecture: that formally dependent international tribunals are correlated with effective judicial outcomes. We then offer our own counter-theory; a theory of constrained independence in which states establish independent international tribunals to enhance the credibility of their commitments and then use more fine grained structural, political, and discursive mechanisms to limit the potential for judicial excesses.

The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by some as the model for a new non-national approach to lawmaking and dispute settlement applicable to a broader set of legal issues that transcend national borders. In this article, we describe the conditions that led to the UDRP's formation and consider whether the UDRP can and should be replicated elsewhere. The process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international lawmaking and dispute settlement. The UDRP is the product not of national legislation nor an international treaty, but rather of a web of contractual obligations imposed by a private, non-profit corporation with a monopoly over a valuable resource. Through its agreements with the U.S. Department of Commerce, ICANN serves as the gatekeeper for anyone seeking to acquire the most commercially valuable internet addresses. Exclusive control of access to the root server enables ICANN to dictate the terms and conditions for domain name ownership. This technological control also facilitates enforcement of UDRP panel decisions compelling domain name registrars to cancel ownership of contested domain names or transfer them from registrants to trademark owners. The UDRP deviates from preexisting lawmaking and dispute settlement paradigms in other ways that make its advantages considerable (and which may make it attractive for replication). For example, the UDRP is a hybrid dispute settlement system. It contains an amalgam of elements from three distinct decision making paradigms - judicial, arbitral and ministerial - and it draws inspiration from international, supranational, and national legal systems. The UDRP thus reveals how dispute settlement structures can be tailored to the needs of new technologies and new types of legal conflicts. The UDRP is also non-national. Neither its substantive content nor its prescriptive force necessarily depends upon the laws, institutions, and enforcement mechanisms of any single nation-state or treaty regime. It thus suggests ways to bypass the often slow and cumbersome mechanisms of national and international lawmaking and to fulfil the demand for effective dispute settlement mechanisms that, like so much current social activity, transcend national borders. Even assuming the UDRP can be applied to other situations where the conditions of monopolistic technological control do not subsist, however, we do not believe that it should be uncritically extended to other contexts without first questioning how non-national systems ought to be structured. In particular, while we applaud the effort to construct a non-national model that draws upon but is not constrained by existing paradigms, the current iteration of that model fails to incorporate appropriate checking mechanisms to control the scope and pace of lawmaking and the limited powers granted to dispute settlement decisionmakers. Moreover, the tensions between national and non-national values may be more difficult to reconcile in other settings; cybersquatting, in contrast, was universally condemned, and thus competing national values were less frequently implicated. We seek to identify these and other variables that should guide the authors of new checking mechanisms for new non-national structures.

Supranational adjudication in Europe is a remarkable and surprising success. Europe's two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power to hear claims brought by private parties directly against national governments or against other private parties. Such "supranational" jurisdiction has allowed the European courts to penetrate the surface of the state, to forge direct relationships not only with individual citizens but also with distinct government institutions such as national courts. Over time, this penetration and the deepening relationships between supranational jurists and domestic legal actors have led to the evolution of a "community of law," a web of nominally apolitical relations among subnational and supranational legal actors. The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a "checklist" of factors that enhance the effectiveness of supranational adjudication. They distinguish among those factors that are within the control of member states; those that are within the control of the judges themselves; and those that may be beyond the control of either states or judges. Isolating the factors in this way provides both a rough metric for evaluating the effectiveness of other supranational tribunals and a potential set of prescriptions for judges on those tribunals seeking to enhance their institutions' effectiveness. After developing the checklist, Professors Helfer and Slaughter use it to analyze the United Nations Human Rights Committee (UNHRC). Although the UNHRC was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly "court-like." Moreover, within the constraints imposed by severely limited resources, UNHRC members are independently following many of the checklist prescriptions for increased effectiveness. The next step is for the organization to enter into a sustained dialogue with its European counterparts, harmonizing its decisions with theirs in some areas while consciously preserving its own distinctive jurisprudence in others. Structured and regular interaction between these tribunals would add additional voices to an emerging transjudicial conversation, potentially laying the foundation for a global community of law.