Within intellectual property, Darcy v. Allen and the Statute of Monopolies are frequently, almost reflexively, invoked as establishing a baseline norm of economic freedom from which governments depart when they grant exclusive rights to deal in any trade or article of commerce. Against this free-market backdrop, all such grants are suspect, and only those that are justified by reference to their originality or utility are valid. Rejecting the dominant view of Darcy and the Statute of Monopolies, the paper provides a more detailed political and legislative history of both the compromise leading to Darcy and the adoption of the Statute of Monopolies than any to date, and consequently demonstrates that their true importance lies in their political, not economic, content. This reinterpretation suggests that both events are best viewed through the lens of political accountability, not economic doctrine. The paper concludes by considering the ramifications that this new understanding has for modern debates about intellectual property. This paper is forthcoming in the Virginia Law Review.
This article attempts to map the challenges raised by recent encounters between intellectual property and development. It proposes a normative principle of global intellectual property - one that is responsive to development paradigms that have moved far beyond simple utilitarian measures of social welfare. Recent insights from the field of development economics suggest strongly that intellectual property should include a substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects. A new principle of substantive equality is a necessary corollary to the formal equality principles of national treatment and minimum standards that are now imposed on virtually all countries regardless of their level of development. Indeed this principle is arguably the very core of a human development-driven concept of development, a term that is highly indeterminate but lately used by many developing countries to express an equality concern within various global intellectual property regimes such as the WTO and WIPO. This proposed principle of substantive intellectual property equality would be analogous to strict scrutiny review in the judicial context of U.S. constitutional law. It would be foundational to any form of intellectual property decision making. Simply put, a decision maker would accord much less deference and exercise much more skepticism towards the proposed government action (in this case, the regulatory intervention by the state in the form of the grant of intellectual property protection, or the withholding of an exception or limitation to an intellectual property grant) when a knowledge good that affects basic human development capabilities, such as basic education or health care, is implicated. Certain foundational capacities, whether viewed as the sum of individual capabilities in knowledge or as national capacities in production of knowledge goods, should guide application and creation of intellectual property norms. This proposed ...
This paper explores current changes in German copyright legislation in two fields in which the digitalisation of creative works has changed the relationship between commercial and non-profit activities: the music industry and scientific publishing. For years the music industry has been facing a decreasing demand due to Internet distribution and filesharing networks and a lock-in of traditional business models. Scientific work is confronted with a supply crisis of information. The resources of libraries, which traditionally used to mediate commercial and non-profit activities, are dwindling while the role of commercial databases and meta -information systems for academic reputation is gaining importance. These processes are well known, but both the current public debate and theoretical analyses suffer from a certain essentialism: The problem of intellectual property is mostly seen as inherent to the characteristics of knowledge goods and knowledge production. Thus, the arena appears like a zero-sum game to both commercial actors and promoters of the public domain, in which commodified goods are subtracted from the public domain and vice versa. This paper applies a processoriented and interactionist sociological perspective to the shifting relationship of markets and public spheres. Knowledge goods and intellectual property institutions thus are mutually constitutive. In establishing them, situated flows of knowledge and meaning are bracketed institutionally and technologically for a time. However, current changes in copyright legislation tend to privilege commercial exploitation and thus may end up establishing the very zero-sum configuration that so far has been challenged theoretically.
This essay proposes a new way to assess the desirability of intellectual property rights. Traditionally, intellectual property assignment is assessed based on a incentive/monopoly pricing tradeoff. I suggest they should be further assessed by their effects on the decision architectures surrounding the property right – their effects on how firms make product innovation decisions. The reason is that different decisional structures for product development can be are fundamental to the performance of firms, industries, and even the economy as a whole. The organizational economics literature can help with this assessment. It makes an important and useful distinction between hierarchical (centralized) and polyarchical (decentralized) decision architectures. The key point of this paper is that government's decisions with respect to property assignments can steer decision architectures toward a polyarchical or hierarchical architecture, respectively.
When government recognizes intellectual property (IP) rights, it is often viewed as sanctioning the existence of private "monopolies," in contrast to the general antimonopoly policy manifested in the antitrust laws. And yet, on occasion IP law itself condemns conduct on the part of IP owners--or excuses otherwise infringing activity on the part of IP defendants--expressly for the purpose of promoting competition, even though antitrust law (if one were to apply it at all under analogous circumstances) would not find anticompetitive harm absent a more thorough analysis of whether the antitrust defendant possesses power over a well-defined market. Salient examples include the misuse doctrines in patent and copyright law; some applications of merger and fair use in copyright; and trademark law's functionality doctrine. In this paper, I develop a theoretical explanation for this divergence between antitrust and IP. Specifically, I argue that in some limited contexts the expected social costs (including error costs) of ruling for IP defendants may be low in comparison with the expected anticompetitive harm from ruling for IP plaintiffs. As a result, it sometimes may be welfare-enhancing for IP courts to be less concerned than antitrust courts about the expected costs of "false positives," that is, cases wrongly decided against the party defending the allegedly anticompetitive conduct. I further contend, however, that such cases probably are more common in the copyright than in the patent law context, and that even in copyright contexts courts should be cautious about casually inferring anticompetitive harm; but that the analysis provides a rationale for a relatively expansive definition of trademark functionality.
Testimony issued by the Government Accountability Office with an abstract that begins "Intellectual property plays a significant role in the U.S. economy, and the United States is an acknowledged leader in its creation. Industries that relied on IP protection were estimated to account for over half of all U.S. exports and employed about 18 million Americans in 2006. However, legal protection of IP varies greatly around the world, and several countries are havens for the production of counterfeit and pirated goods. Counterfeit products raise serious public health and safety concerns, and the annual losses that companies face from IP violations are substantial. Eight federal agencies undertake a wide range of activities in support of protecting IP rights, and two mechanisms coordinate protection efforts: the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) and the Strategy for Targeting Organized Piracy (STOP). GAO was asked to address: (1) the nature of the risks that U.S. corporations face in protecting IP, particularly in countries such as China, and (2) U.S. methods for implementing and coordinating domestic IP enforcement activities. This testimony is based on issued GAO reports that focused on IP protection and related trade matters."
Intellectual property rights and competition policy are intimately related. In this paper I survey the economic literature analyzing the interaction between intellectual property law and competition law and how the boundary between these two policies is drawn in practice. Recognizing that intellectual property rights and competition law can interact in many different ways, the presentation focuses on several key issues. The economic literature on the interaction between competition law and intellectual property rights shows that these regulatory systems are consistent in terms of basic principles. Significant tensions exist, however, and it is difficult to balance IPR and competition law in practice. The significant differences in approach between the United States and the European Union simply reflect the underlying reality that efforts to achieve a sensible balance do not result in policy harmonization.
It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas utilitarianism and natural rights theories are familiar, there is at least another basis for intellectual property protection. This Article contends that all the U.S. copyright, patent and trademark regimes are structured around and legitimated by central origin myths – stories that glorify and valorize enchanted moments of creation, discovery or identity. As a cultural analysis of law, rather than the more familiar economic theory of law, this Article seeks to explain how these intellectual property regimes work the way they do. And as a narrative explanation for the structure of intellectual property protection, this Article enhances the more customary economic or philosophical accounts of intellectual property because narrative, especially one devoted to myth-making in our society, provides "models for human behavior and, by that very fact, gives meaning and value to life." Origin stories serve both ontological and epistemological functions. They infuse everyday life and relations with significance by explaining why things are as they are and by providing guidance for how things should evolve based on what we already understand about our world. Origin stories also literally give a culture life by designating a beginning and a history. Finally, most origin stories are political, legitimating or justifying certain relations of power in society. This Article is a comparative analysis of the "origin stories" that structure several branches of United States intellectual property protection: copyright, trademark and patent law. When contrasting the three statutory intellectual property regimes for their structured valuation and reification of their own origin myth, the Article shows how the origin myths structuring intellectual property protection articulate a well-worn story about the origins and continuing vitality of the American republic (rugged individualism and the American dream). Each part also draws on popular cultural stories about intellectual property and a recent intellectual property dispute to illuminate how origin myths structure the respective discourses of these intellectual property systems and explain adjudicative results. Jessica M. Silbey, The Mythical Beginnings of Intellectual Property, 15 Geo. Mason L. Rev. ___ (forthcoming 2008).
Lebanon, in keeping with the World Trade Organisation (WTO) accession requirements, has committed itself to enforcing intellectual property laws (IPL) domestically in relation to patent, trademark and copyright. At the level of formal law, there have recently been a spate of legislation in Lebanon but, in practice, IPR (intellectual property rights) remain difficult to enforce. This thesis explores the dual obstacles to effective IPR protection in Lebanon, which are rooted in its legal cultures (LC) and economic nationalism (EN). This dissertation argues that the basic universalist assumptions and rationalizations governing enforcement of IPL in Lebanon have to be revisited and interrogated. In order to better enforce IPR, their legitimacy through Lebanese traditional values, their pragmatism through political validation of establishing economic national self interest or economic nationalism (EN) and their transformability into enforceable strategies through Lebanese legal cultures (LC) will have to be negotiated. To test and sustain the hypothesis, this dissertation will employ legal, historical and socioeconomic forms of analyses. It will explore why the challenges facing Lebanon in the enforcement of intellectual property rights (IPR) domestically cannot be adequately explained as merely a lack of political will, resources, capacity or the ignorance or contempt of law by the Lebanese people. Though the reasons behind Lebanese reluctance to enforce IPR have not been fully aired publicly, it is manifest that the enforcement of IPR raise several questions that go to the root of Lebanese identities and attitudes. This thesis moots a larger conundrum - Can Lebanon fully realise IPR even if it fully committed to it, given the multiple fault lines of culture, identity and law underlining the debate. In offering a critique of the modern formal IPL in Lebanon, the drivers of LC and EN, which correspond to the following questions arising out of the hypothesis. First, are the IPL in Lebanon considered legitimate and culturally valid? Second, in the context of LC, what are the impediments for enforcement of IPL including the ethical arguments and the practical incentives impacting on the receptivity of Lebanese people in accepting IPL? Third, in considering EN, to what extent is IPL seen as supporting Lebanese interests and thereby creating ownership for Lebanese people? It also queries how cultural divergence with the West and assertive economic nationalism impact on the political will to implement IPR. The dissertation finds that international Intellectual Property Laws (IPL) require to be reviewed in the context of Lebanese culture, alongside social and economic needs. Further, EPL ought to be brought in line with realism recognizing Lebanon's stages of development and the perceived interests of the Lebanese people. Otherwise, the laws will inevitably continue to be ignored by the Lebanese people. Rather than assume that the case for IPR has already been made and won, the international framework for IPR needs to be articulated and realised through reference to the social and economic realities and cultural values of the Lebanese society.
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.
Not Available ; Intellectual property rights (IPRs) can be broadly defined as legal rights established over creative or inventive ideas. Such legal rights generally allow right holders to exclude the unauthorized commercial use of their creations/inventions by third persons. The rationale for the establishment of a legal framework on IPRs is that it is a signal to society that creative and inventive ideas will be rewarded. This does not mean that there is no other way of rewarding such ideas or that this system is absolutely necessary, even less sufficient, to reward inventiveness or creativity. Nevertheless, it would be difficult to deny that IPRs do have a role to play in setting up of any such reward system. There are two broad categories of IPRs: one, industrial property2 covering IPRs such as patents, trademarks, geographical indications and industrial designs; two, copyright and related rights covering artistic and literary works, performances, broadcasts and the like. IPRs that do not fit into this classical division are termed sui generis, meaning one-of-its-kind. Such sui generis rights include those covering lay-out designs of semi conductor chips and plant breeders' rights. This paper will in the next section distinguish the IPRs relevant to agriculture and explain these rights. In Section III the international intellectual property law for these rights will be described. Section IV sets out India's international obligations vis-a-vis her own IPR laws and Section V goes on to an analysis of the public debate in India on the controversial IPRs and the status of the legislation on these. This paper concludes in Section VI with prescriptions for public policy on IPRs and agriculture in India. ; Not Available
Biologics, which are sometimes termed biopharmaceuticals or biotechnology drugs, have begun to play an increasingly important role in U.S. health care. Not only are sales of biologics growing rapidly, some experts estimate that in coming years half of all newly approved drugs will result from biotechnology. This report contains information on marketing approval issues, intellectual property issues, and innovation issues as related to biologics.
Biologics, which are sometimes termed biopharmaceuticals or biotechnology drugs, have begun to play an increasingly important role in U.S. health care. Not only are sales of biologics growing rapidly, some experts estimate that in coming years half of all newly approved drugs will result from biotechnology. This report contains information on marketing approval issues, intellectual property issues, and innovation issues as related to biologics.
This article shows how European courts have managed tensions between antitrust and intellectual protection in three areas: (1) Parallel imports and market segmentation; (2) Refusals to supply essential inputs protected by patents and copyrights; (3) Forms of conduct by copyright collectives.
This article shows how European courts have managed tensions between antitrust and intellectual protection in three areas: (1) Parallel imports and market segmentation; (2) Refusals to supply essential inputs protected by patents and copyrights; (3) Forms of conduct by copyright collectives.
