Suchergebnisse

The international intellectual property system provides an important illustration of how regime complexity shapes domestic and international strategies of states and non-state actors. This article describes and graphically illustrates the multifaceted nature of the international intellectual property system. It then analyzes the consequences of regime complexity for international and domestic politics, emphasizing the strategy of regime shifting and its consequences for chessboard politics and the domestic implementation of international rules.

The international intellectual property system provides an important illustration of how regime complexity shapes domestic and international strategies of states and non-state actors. This article describes and graphically illustrates the multifaceted nature of the international intellectual property system. It then analyzes the consequences of regime complexity for international and domestic politics, emphasizing the strategy of regime shifting and its consequences for chessboard politics and the domestic implementation of international rules.

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.