Eun-Joo Min and Johannes Christian Wichard
This chapter identifies national and regional approaches adopted to ensure that intellectual property (IP) rights are enforceable in a global environment constituted by territorial rights that rely on local courts. It discusses reconsideration and recalibration of the private international law (PIL) rules that govern IP relationships in relation to jurisdiction, applicable law and recognition and enforcement. The chapter also explores the emergence of new fora for cross-border IP enforcement, through either trade or investment arrangements or privately designed alternative dispute resolution (ADR) mechanisms. It concludes by underscoring the continued relevance of the territoriality of IP rights, and the importance of coherence and mutual consistency between the different legal systems and regimes of cross-border IP enforcement.
This chapter provides both an overview of the history of intellectual property (IP) laws in Australia and New Zealand, and pathways into existing and emerging scholarship in this area. It discusses convergence and divergence in copyright, patent and trademark legislation and case law between Britain and these two former colonies, from early colonial experimentation to the long period of closely mirroring UK reforms. In the late twentieth century, both countries developed more distinctive IP laws, and diverged on a range of fundamental questions. In the twenty-first century, trade policy—trans-Tasman and global—has created pressures for convergence, but as the countries have grown apart, more perhaps than many realize, so there is considerable resistance to unifying projects. The chapter closes with a discussion of the different trajectories in how IP and indigenous cultural and knowledge systems interface in Australia and New Zealand.
While this chapter considers the significant differences between the Central and Eastern European countries, their common pasts of centrally planned economies and difficulty of transitioning to a market economy justifies reviewing their intellectual property (IP) laws together. The overwhelming majority of these countries are party to the treaties—as well as EU directives—which determine the basic elements of their national IP laws. Nevertheless, certain features of their former “socialist” IP systems may also play a part in, for example, their regulation of original ownership and transferability of rights; their contractual and tariff systems; and their organizational structures, particularly in the field of collective management of copyright. Other specific features have also emerged as a result of the difficult transition processes, such as higher levels of counterfeiting and piracy.
Michael Birnhack and Amir Khoury
The Eurocentric term “Middle East” captures the historical sources and emergence of intellectual property (IP) in this region. Early colonial influences had a long-lasting effect. In the mid-1990s the global replaced the colonial, imposing new demands. Both the colonial and globalized IP frameworks have allowed only a narrow leeway for the expression of local interests. This chapter explores the emergence and development of IP law in the Middle East as a case of a western legal transplant, and focuses on Egypt, Israel, the Palestinian Authority, Jordan, Saudi Arabia, and the United Arab Emirates. Instead of a technocratic doctrinal approach that compares local law to international standards and asks about “compliance,” it advocates a richer evaluation. In assessing IP laws against global standards, it suggests contextualizing the local law within the country’s larger legal framework to take into consideration its political economy, local and global politics, and unique cultural needs.
This chapter surveys the emergence and development of Intellectual Property (IP) law in Continental Europe and Britain. The story begins largely in the middle ages with the grant of territorially-confined inventors’ and printers’ privileges, and traces the development of these privileges into the four main species of IP rights recognized throughout the world today. A key theme is the varied national histories that underpin the development of each IP right even within the geographical confines and relative social and political homogeneity of Western Europe, and the extent of modern IP law’s embeddedness in the industrial and cultural development of individual states. The chapter ends with an account of the emergence of a European perspective on IP, as expressed in the nineteenth-century Paris and Berne Conventions, and its development by general and IP-specific European communities, including the EU, which has established unitary patent, trademark, and design rights for its Member States.
This Chapter identifies and describes the principal features of the international arrangements for protecting intellectual property rights (IPRs) in countries other than those of their originator or creator. In the case of national or regional IP laws, these connections are readily identifiable. At the international level, however, they are less obvious, and many gaps and inconsistencies arise. Nonetheless, the Chapter argues that a ‘system’ for the international recognition and protection of IPRs is still clearly discernible and can be described. It begins with a brief account of the objectives of that system and its principal organizing principles, and then moves to consider its principal actors and the means by which its protection is achieved, namely through a series of international conventions or treaties of varying content and particularity. The Chapter concludes by noting a number of pressures, both internal and external, to which the system thus comprised is subject.
This chapter covers parts of Asia where there have been very significant recent developments in intellectual property (IP) law. IP reform in the region was initially driven by the concerns of industrialized countries about the lack of IP protection in Asian “miracle” economies. More recently, it has become an important topic in free trade and economic partnership agreement negotiations. The developments in the individual countries are discussed in the context of an “Asian development model,” which has often combined short and generalized laws with numerous implementing decrees and administrative discretion. This has allowed for the selective adaptation of IP models from elsewhere, with some countries now strongly promoting higher IP standards to their regional neighbors. However, different historical pathways to development and local circumstances suggest that it is difficult to develop regional role models for others or to explain differences about IP exclusively with the divide between “developed” and “developing” countries.
Dan L. Burk
Patents, along with the related systems of utility models and plant breeders’ rights, are the forms of intellectual property most closely associated with technological innovation. Some form of patent system is found in essentially all modern states, and patents have become a ubiquitous feature of the global legal and technical environment. Patents and related rights are therefore highly dynamic areas of law, displaying constant evolution of doctrine simultaneously in multiple jurisdictions. The shifting diversity of national approaches offers an opportunity to consider how characteristic themes and problems of patent law have been approached from different perspectives, and lend a sense of better, worse, and alternative solutions to the problem of prompting technical innovation. Consequently, this chapter surveys particular doctrinal problems in patent law and allied laws, uses them to illustrate both broad theoretical issues endemic to such laws, and ties those issues to ongoing controversies that have attracted widespread interest.