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date: 25 May 2019

Intellectual Property Law: An Anatomical Overview

Abstract and Keywords

This chapter introduces the law of intellectual property (IP) and its treatment in the Handbook. It begins by considering the different ways and traditions of thinking about IP, the range of subject matter that IP rights protect, and the nature and scope of those rights themselves, including the variety of third-party exceptions to them. It then outlines the domestic, regional, and international laws that comprise the modern IP field, the diverse social and economic forces that motivate those laws, and the variety of actors and institutions involved in shaping them. Finally, it introduces the structure of the Handbook and summarizes each of its individual contributions. The result is an accessible overview of one of the most rich, complex, and important fields of law today, including its social and normative foundations, its emergence and development in different jurisdictions and regions, its substantive rules and principles, and its political economy.

Keywords: Intellectual property law, intellectual property rights, theory, history, political economy

1. The Theory of Intellectual Property

*Before exploring the technical aspects of intellectual property (IP) law, it is appropriate to consider briefly the reasons for its existence and the particular goals that it seeks to achieve. Doing so raises immediate difficulties for two reasons. The first is the lack of consensus over why (and if) we should have IP regimes, and the second is the variety of IP regimes that exist, and the need to distinguish them when considering their aims and theoretical bases.

There are two main ways and traditions of thinking about IP. According to the first, which has its roots in continental European jurisprudence, IP laws recognize the special claims of creators to exclude others from their creations, either as a means of protecting their personhood or their financial and spiritual autonomy, or in recognition of their self-ownership, and the entitlement this gives them to exclude others from the things they labor to create. According to this reasoning, recognizing and protecting IP is primarily a matter of morality.

On the other side of the theory fence sit the instrumentalist accounts of IP, which are more commonly associated with common law systems. According to these accounts, the existence of IP rights is less a matter of morality than of expediency, and of the utility or convenience of IP rights as means of securing certain socially and economically desirable ends. While the envisaged ends vary among regimes, they include the creation of efficient markets for works and other creative subject matter that would otherwise be difficult to commercialize due to their intangibility, and thus, their non-excludability; the provision of incentives to produce and disseminate those subject matter; and the promotion of competition among those engaged in such production and dissemination. If IP rights did not exist, the argument goes, there would be little to prevent third parties from copying and distributing the (p. 4) intellectual products of others as soon as they enter the public realm, and thus little to motivate (or enable) authors and other creators to devote their time and resources to producing them. So too, it is said, by restricting access to IP subject matter, IP rights promote competition among those engaged in their production, thus increasing the number and variety of intellectual products that enter the public realm. Different again is the end said to be secured by the trademarks regime. Rather than (or in addition to) encouraging the creation of new trademarks and the development of goodwill in respect of them, recognizing the rights of traders to prevent others from using their marks in respect of identical or similar goods or services facilitates transparency in the marketplace, and thereby ensures the ability of consumers to make informed purchasing decisions, and the ability of traders to depend on fair treatment by their competitors. While these theoretical strands are different and militate in favor of divergent forms of legal protection, they can both be said to have emerged from similar historical imperatives: from the interest of states in improving productivity and social welfare, as well as from the difficulties that many creators face on account of their limited ability to exploit their work financially, and the dissatisfaction that they experience with other methods for supporting themselves and their families, such as teaching, patronage, and unrelated forms of employment.

These theories are, of course, merely points on a landscape that includes many other theories of IP of more or less relevance for different regimes.

2. Intellectual Property Subject Matter

IP law as a field is generally regarded as having emerged in the nineteenth century: before then, reference was more often confined to one or more of the distinct legal regimes associated with the recognition and protection of rights in respect of expressive, informational, and technological subject matter. Central among these were the patent regime, protecting methods of manufacture and other technical subject matter; the copyright regime, protecting literary and artistic works; the trademark regime, protecting signs of use in trade to indicate the commercial origin of goods and services; and the design regime, protecting aspects of product design. In the nineteenth century, these were organized by the European creators of the first multilateral systems of IP—the 1883 Paris Convention for the Protection of Industrial Property1 and the 1886 Berne Convention for the Protection of Literary and Artistic Property2—into the two broad categories of authorial and industrial property respectively. The continued existence and importance of these two Conventions, to which most countries around the world are parties today, has ensured the persistence of this basic taxonomical division in the field of IP, as well as encouraging treatment of the various regimes under the single umbrella of “intellectual property.”

Whether the category distinction between industrial, and literary and artistic, property is useful or even appropriate is unclear. For example, copyright and patents seem more closely aligned than patents and trademarks, since unlike trademark systems, copyright and patent (p. 5) systems protect intellectual creations in the form of authorial works and inventions, respectively. By contrast, trademarks protect, conventionally at least, the mental association between a particular mark as sign and the class of goods or services with reference to which it is used, and the goodwill attached to it, each of which is difficult to conceive as an intellectual creation in the manner of a work or invention. Similarly, too, several of the other species of right defined and regulated by the international community as forms of IP sit uncomfortably alongside copyright and patent law due to the different nature of the subject matter they protect. For example, plant variety rights protect previously non-commercialized varieties of plants, defined precisely by their failure to constitute “intellectual creations” properly conceived, and thus by their failure to merit the protection conferred on inventors by patent law. So too the subject matter protected by copyright in common law countries—and alongside copyright, by related rights in the EU and civil law countries—extends to recordings, performances, and broadcast transmissions of authorial works, none of which is easily conceived as an intellectual creation. Finally, some subject matter arguably fit in more than one regime. Computer programs, for example, are both technical and creative in nature, and thus suitable for protection in principle at least as inventions and authorial works by patent and copyright law respectively.

One thing to emerge from this discussion is the extent to which the distinction between different species of IP right and their associated legal regimes depends on the nature of the subject matter which they protect: authorial works, in the case of copyright; inventions, in the case of patent law; plant varieties, in the case of plant variety rights; recordings and transmissions of authorial works, in the case of related rights; and signs of commercial origin, in the case of trademarks. Perhaps the most difficult categories of IP subject matter (and therefore the most difficult of IP rights) from a conceptual perspective are designs and confidential information, including trade secrets.

The reason in the case of designs is their dual authorial and industrial nature: while a dress, chair, or kettle might plausibly be treated as a work of creative expression, its functional nature and industrial method of production distinguish it from paradigmatic authorial works. It is considerations such as these that have historically led countries to deny functional items the protection of copyright, preferring instead to offer their design features a more limited protection in the form of a sui generis design right. Designs are, however, not the only subject matter that can fall in more than one camp: trademarks, for example, are also both functional and expressive. Jurisdictions have worked out various ways to deal with these conceptual overlaps.

Other types of information pose further conceptual challenges. Trade secrets are, in some ways, similar to patents in that they furnish innovators with a way to appropriate returns from their investments and thus create incentives to innovate. But few countries regard raw information as capable of supporting property rights as such. However, if the information is confidential or private in nature—as, for example, with information relating to a person or to the client lists or product recipes of a trader—its use by third parties might be restricted in order to protect such confidentially or privacy. In these cases, it is less the information itself than its quality of confidence or privacy that is the subject of the relevant IP right. So too in the case of the sui generis data exclusivity and database rights allied to patent and copyright law, the subject matter of the IP right is not the data specifically, but rather its exclusivity and—for the database right—the commercial investment expended in collecting, verifying, and presenting it in the form of a database. And finally, for geographical indications, the protected subject matter is a method of production specific to a particular region, and the beneficiaries of that protection are all of the producers within the region who follow (p. 6) the same production method. While geographical indications can therefore be conceptualized as collectively owned inventions, they tend to be protected as collectively owned trademarks or via a sui generis IP regime. The claims for protection for traditional technical knowledge, cultural expression, and genetic resources raise similar issues. Like geographical indications, the information generated by indigenous groups is said to be owned collectively. As with trade secrets, the claims often sound in confidentiality or privacy. And as with these other forms of knowledge, a regime of exclusivity can facilitate information exchange and promote socially beneficial use.

In sum, IP law may be defined as the area(s) of law concerned with the recognition and protection of exclusionary rights in respect of each of the categories of subject matter discussed. Thus defined, the term is misleading in its suggestion that IP law is concerned exclusively with “intellectual creations,” as most people would understand that term at least. While the original forms of IP right—copyright and patents—are concerned with intellectual creations, other forms are not, or are less obviously.

Given this, a better way to understand the categories of subject matter protected by IP might be with reference to their intangibility, and their informational, expressive, or technological nature specifically. It is this nature that differentiates the subject matter protected by IP from the subject matter protected by other exclusive rights, such as (real and personal) property rights, and that makes IP law so conceptually and philosophically challenging. A useful way of expressing this difference and its importance for IP is with reference to the philosophical concepts of “token” and “type.” Consider the case of a book or an ibuprofen capsule. An IP lawyer handed a copy of War and Peace is likely to perceive it as an abstract concept or type in the form of the novel by Leo Tolstoy, just as she would be likely to perceive an ibuprofen capsule as an abstract concept or type in the form of the pharmaceutical compound ibuprofen. By contrast, a personal property lawyer handed the same objects would be more likely to perceive them as concrete instantiations or tokens of these types in the form of a copy of War and Peace or a capsule of ibuprofen. As an ontological matter, each person perceives a different object. And consistent with this, recognizing and protecting the right of an individual to exclude others from using each object will produce vastly different consequences and implications. In general, excluding third parties from access to a copy of War and Peace or a capsule of ibuprofen can be expected to have a marginal effect on their freedoms or other interests, since they will ordinarily be able to acquire another identical copy or capsule from a local bookseller or pharmacy. By contrast, excluding third parties from access to War and Peace or ibuprofen as an abstract concept will affect very substantially their freedoms and interests; firstly, because there will almost certainly be no perfect substitute for the object, and secondly, because to deprive a person access to a novel or drug is to infringe universally recognized rights of freedom of expression and public health. It is largely for this reason that recognizing and protecting IP raises issues of such complexity and controversy throughout the world.

3. Intellectual Property Rights

When thinking about IP, it is important to distinguish the rights that IP confers from the legislation and other laws by which those rights are defined. At their simplest, IP rights are (p. 7) private (horizontally enforceable) rights to exclude third parties from certain unauthorized uses of a protected subject matter, which rights may often, but not always, be assigned or otherwise transferred and exploited in the manner of real and personal property rights. Unlike more conventional property rights, however, IP rights are limited in scope. Thus, rather than excluding third parties from making any use of a literary work, literary copyright excludes third parties from copying and distributing copies/communicating to the public a literary work. To be sure, the range of uses not prohibited by copyright has diminished since the earliest statutory copyright regimes, and continues to change to reflect developments in the technological, social, and commercial contexts in which authorial works are enjoyed and exploited. Nonetheless, the principle remains that neither copyright nor any other species of IP right confers a general right to exclude others from access to or use of the protected work or other subject matter.

In addition to conferring limited exclusionary rights, IP confers rights that are limited in time. In the case of unregistered rights, such as copyright, IP rights come into existence automatically, upon creation of the work or other subject matter, without the need for formal application or registration. In the case of registered rights such as patents, by contrast, their existence depends on an administrative act of formal grant by the state, accompanying entry of the right in a public register, and backdating protection in some jurisdictions to the filing of the application for it. Different also is the term for which different species of IP right endure: in the case of copyright, this is now 50 or 70 years past the death of the author in most countries; in the case of patents, it is 20 years past the date of filing or grant; trademarks and geographical indications, by contrast, last as long as they are registered and/or in use; and rights in confidential information end when the information loses its quality of confidence.

The nature of the rights conferred by IP is no more similar, though more directly suggested by the protected subject matter. The central right conferred by copyright is the right to prevent others from reproducing the protected work. Since the emergence of digital technology, traditional reproduction and public performance rights have been supplemented by public communication and “making available” rights, in recognition of the increased scope for effecting and the economic value of controlling the communication of works via the Internet particularly. Different are the rights conferred by a patent, which (for product inventions at least) are focused on manufacture, import and supply or offering to supply the public with the product. Here the negative nature of IP rights becomes important, explaining why the grant of a patent for a pharmaceutical or other product does not entitle the patentee to use or otherwise exploit the product: to be authorized to do this, the patentee must first obtain regulatory approval from the state. So too in the field of confidentiality, IP has often been conceived less as a “right” to commercialize information, for example, than as a “duty” not to behave unconscionably, again reinforcing the negative nature of the rights that IP in general entails.

Through the conferral of exclusionary rights in respect of intellectual creations and related subject matter, the law in effect gives individuals the ability to exclude others from instantiating those creations in concrete form, that is, from dealing with tokens of the relevant protected type. In the case of trademarks, by contrast, the law gives the owner of the right the ability to prevent third parties from potentially confusing consumers through use of the protected sign in respect of the same or similar types of goods or services with reference to which it is registered, thereby preserving to the owner the exclusive benefit from the association between the sign and the goods or services in question. In some jurisdictions, (p. 8) the value of a sign is also safeguarded by a right to protect it against uses that are likely to dilute (tarnish or blur) its cognitive impact and cachet within the market.

The distinction between IP rights and legislation is further underlined by the range of exceptions that exist and are statutorily recognized for each species of IP right. These exceptions have one of two immediate purposes: either they exclude certain subject matter from protection, or they deem certain acts to be non-infringing of that protection, on public interest or morality grounds. The nature and aim of the exceptions range among regimes and jurisdictions. For the most part, however, they reflect a concern on the part of the legislature to ensure that each species of IP right is confined to subject matter of a type for which it was intended, and otherwise defined having regard to the aims of the IP regime in question. Thus, several of the exclusions from patent protection cover subject matter that lack the technical and artifactual qualities of inventions, such as mathematical methods and products of nature. For example, in the United States (US) and Australia, in contrast to the position in Europe, isolated natural gene sequences are not considered patentable, even though they are the result of a technical process (of isolation) and depend for their existence on human agency; and nor in the US are insufficiently transformative methods of applying a breakthrough discovery to diagnose an illness or achieve some other socially beneficial end.

The remaining exclusions cover advances that share the essential characteristics of subject matter protected by the species of IP right, but the protection of which is nonetheless prohibited on public policy or morality (ie, public interest) grounds. For example, in Europe and many other jurisdictions around the world, any sign or invention the commercial use of which would endanger the public or upset a substantial number of people with a normal level of sensitivity and tolerance must be denied trademark or patent protection on morality or public policy grounds. Examples include inventions the reproduction of which requires the destruction of a human embryo, which are regarded as offending human dignity, and signs containing racial slurs, which are regarded as undermining the fight against discrimination. Similarly, in some countries, patent rights over biological products are denied if there is a failure to disclose the geographic source of the inventions, and copyright is denied to works that offend accepted moral codes or otherwise endanger the public interest.

Similar considerations of protecting third party rights and the public interest, and of restricting protection to reflect the subject matter and aims of the IP regime in question, inform the acts deemed non-infringing of IP rights. One example is Australia’s tobacco packaging legislation, which is designed to promote public health. Another is furnished by copyright protection in the US. Because copyright is conceived there primarily as an economic right aimed at encouraging creation and facilitating the efficient exploitation of its results by enabling authors to prevent free-riders from undermining their markets, a general fair use exception deems transformative and (certain other) non-commercial uses of a work that do not undermine a copyright owner’s market through substitution of her work to be non-infringing. Similarly, in the EU, where copyright is conceived more as a means of balancing competing fundamental rights and interests, a more limited exception deems certain uses of a work that are necessary to protect third party freedom of expression and educational rights and interests—such as uses to report news or engage in private study or parody—to be non-infringing. Such explicit concern to reconcile IP rights with third party (fundamental or constitutional) rights and to reason IP disputes accordingly, including, in the EU, through the use of proportionality, has answered the longstanding argument by some theorists that the “public good” nature of IP subject matter and the impact of excluding (p. 9) third parties from those subject matter require that IP rights be defined and their exploitation regulated within a clear human rights paradigm.

The growing impact of human rights jurisprudence on IP is a central modern theme of the field, and challenges the view of IP as a specialist, technical area requiring specialist, technical adjudication by IP courts and experts. This, however, is an area particularly fraught with difficult line drawing. Creators are said to enjoy a human right to benefit from their work. At the same time, everyone has a fundamental right to free expression, to science, and to culture. Difficult questions thus arise: should, for example, derogatory trademarks be rejected in the name of protecting the derogated or must they issue to further the expressive interests of would-be trademark holders and others? When is and what makes a trademark “derogatory”? Resolving these questions and reconciling the interests they engage has attracted the attention of theorists, practitioners, nongovernmental organizations (NGOs), and agencies of the United Nations (UN).

In sum, IP rights are rights to exclude third parties from the benefits of certain subject matter: the informational, expressive, or technical subject matter that, without legal intervention, could be readily shared and exploited. IP legislation is, however, important not only because it creates rights to exclude, but also because of the limitations it imposes and protections it secures for third parties. These include limitations on the scope and duration of different IP rights, exclusions of certain subject matter from the reach of IP rights, and the protection of certain acts from liability for infringing IP rights. When thinking about the nature and aims of IP specifically, it is important to bear this duality of IP legislation in mind.

4. Intellectual Property Laws

The first general IP laws were created by the City States of Italy in the Middle Ages. From the fifteenth until the nineteenth centuries, technological developments such as the invention of print ushered in a new industrial and social climate that increased the value for states of rights in respect of printed materials and manufacturing methods. During this period, IP law was a distinctly local affair: local cultural and economic interests supported rights for individual creators and importers of works and inventions, and/or for the various intermediaries (such as printers) on whom creators depended to exploit their subject matter. Grants were often conditional upon the protected subject matter being made available to the public and fulfilment of other formal criteria, such as application for and registration of the IP. The rights conferred by such grants enabled their beneficiaries to restrict third party uses of the protected subject matter for a limited period within the territory of the rights-conferring state. Consistent with this, the sources of most IP law were domestic. Even in common law jurisdictions such as Britain and the US, copyright and patent laws were also, from the outset, predominantly legislative. This distinguished them from other private rights, such as contract or personal property, and from trademark law, which were defined and regulated by the courts as an aspect of common law rather than by the legislature. That most IP rights were not similarly left to the courts may be seen as recognition of their complexity and of the careful balancing of interests which their recognition and protection has always entailed.

(p. 10) To a large extent, IP laws continue to take the same basic form today as they have taken historically. Thus, they confer limited and territorially defined rights in respect of specific subject matter on the creators or producers of those subject matter or on associated third parties, and are defined in the domestic legislation of individual states and the associated jurisprudence of each state’s courts and other public (including rights-granting) authorities. However, in contrast to the position in and before the nineteenth century, there now exists a tightly woven international network of IP laws that comprises a large number of multilateral conventions and treaties covering the full spectrum of IP rights, and that is supplemented by many bilateral and regional (mainly trade) agreements between pairs and groups of countries. Principal among the conventions and treaties are the Paris and Berne Conventions referred to already, which are two of a growing number of instruments administered by the World Intellectual Property Organization (WIPO), now a specialized agency of the UN. The Paris and Berne Conventions each rest on two foundational organizational principles: the recognition by Member States of certain minimum standards of IP protection, and national treatment–the commitment to applying those standards in a non-discriminatory fashion for the benefit of citizens of all other Member States.

Also important, but established much later under the aegis of the very differently oriented World Trade Organization (WTO), is the 1994 Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).3 Compliance with TRIPS is a condition of entry to the WTO, and national compliance can be enforced via the WTO’s general dispute resolution machinery. In terms of its provisions, TRIPS entrenches the core obligations of the Paris and Berne Conventions while also providing an overlay to those other WIPO conventions and treaties. Its effect on developing countries—including many with limited experience of recognizing and protecting IP—has been profound. By requiring their adherence to a set of IP laws developed to suit the particular needs and interests of developed countries, TRIPS has created significant economic and political challenges for nations with limited industrial infrastructure and social or political commitment to IP.

Between the domestic IP systems of individual countries, and the international system of IP instruments under which they exist (and with which they must comply), there exist a range of further regional IP laws and systems of varied degrees of importance in different parts of the world. In Europe, these include the harmonized and unified IP systems of the EU and its 28 (for the moment) Member States, as well as the harmonized European patent system created by the non-EU European Patent Convention (EPC)4 for its (currently) 38 contracting parties. The unified EU IP systems deserve special mention because they create titles of trademark,5 design,6 and (if the unitary patent system takes effect) patent7 rights that have uniform and unitary effect throughout the territories of some or all EU Member States. (p. 11) They coexist alongside domestic trademark, design, and patent rights, and are supported by a network of specialist and generalist EU courts and other public (administrative and legislative) authorities, supported by their domestic counterparts. So too in other parts of the world, such as South America and Africa, there exist many regional instruments through which countries have sought over a century or more to pool their resources and strengthen their economic and political ties.

In recent years, investment agreements have also begun to play a role in shaping national IP laws. These agreements, either bilateral investment treaties (BITs) or separate chapters of trade agreements, as in the North American Free Trade Agreement (NAFTA),8 protect investors from direct and indirect appropriation of their investments and from the deprivation of fair and equitable treatment. The agreements typically consider IP rights to be one of the forms that investments may take. While modern agreements consider compliance with TRIPS to be a defence to expropriation, dispute resolution is through a different arbitral system from the one used by the WTO. Thus, TRIPS obligations can be interpreted differently in the two regimes. Furthermore, the complainants are investors, rather than Member States, as in the WTO. While states may be reticent about challenging flexibilities that they may wish to utilize themselves, investors have no such compunctions. Finally, whereas a loss in the WTO requires a state to change its law, a loss in investor–state dispute settlement requires the state to compensate the investor—often to the tune of very considerable sums of money. Because states may thus be warier of violating investment agreements, if investment disputes become popular in the IP context, they could easily become an important source of IP law making.

5. Intellectual Property Actors and Institutions

As the foregoing suggests, IP law is shaped by a variety of actors and institutions. Historically, the law was framed to protect the creative industries—that is, those responsible for creating IP subject matter, including their employers and other financial supporters. Accordingly, legislation and international agreements are generally composed of positivist measures elaborating on the rights to exclude. And because the relevant industrial players are easily identified, well-heeled, and generally aligned in interest, proposals for new legislation and (p. 12) new international obligations also tend to concern increases in the level of protection, often to respond to new technological opportunities. An example is the “making available to the public right” demanded by holders of copyright interested in control over Internet distributions.

In contrast, user interests are generally protected, in both domestic legislation and international law, by exceptions and limitations. These are often interpreted narrowly, as, perhaps, befits derogations to the prerogatives of “right” holders. From a political economy perspective, this is to be expected: user groups are widely dispersed and unfunded. Thus, they are rarely as well positioned as right holders to articulate and safeguard their interests. This explains not only the narrow approach to statutory and treaty interpretation, but also the general experience that IP rights are continually expanding and enforcement is becoming ever more stringent. Thus, the aforementioned bilateral and regional trade agreements generally include so-called “TRIPS-plus” commitments. The Australia–United States Free Trade Agreement (AUSFTA),9 for example, requires trademark protection for sounds and scents, even though TRIPS obligates countries to protect only visually perceptible marks. AUSFTA also limits the compulsory licensing of patents in ways that TRIPS does not, and narrows the ability of both countries to parallel import patented products. The United States–Korea Free Trade Agreement (KORUS)10 has a lower trigger for criminal penalties in counterfeiting and piracy cases than does TRIPS, and requires both signatories to give competent authorities the power to stop counterfeit and pirated goods that are in transit.

But the political economy is changing. In addition to creating new methods of distribution, the Internet has also given rise to new stakeholders, such as Google and Wikipedia, with strong business interests in the free flow of information and public access to creative works. The industrial associations that have long performed crucial roles in negotiating new laws and treaties have also watched as various NGOs such as Médecins Sans Frontières, Oxfam, and Knowledge Ecology International (KEI) have joined in both national and international debates over such matters as Internet use and access to medicine. These firms and organizations were important in preventing the adoption of the Anti-Counterfeiting Trade Agreement (ACTA),11 which would have heightened enforcement of copyright and trademark rights from going into effect. In the US, some were key to defeating domestic legislation that would similarly have increased the measures available to ensure enforcement of IP on the Internet. These new actors were also instrumental in the adoption of the first ever user-oriented international agreement, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh VIP Treaty).12 Like Berne and Paris, the Marrakesh VIP Treaty was negotiated under the auspices of WIPO.

(p. 13) Along similar lines, WIPO and the WTO are no longer the only international organizations involved in international IP law making. As IP rights have expanded, other international organizations have begun to appreciate the role that IP can play in the economy, development, and culture, and they, too, have sought to influence the shape and implementation of international obligations. The World Health Organization (WHO) has devoted considerable effort to identifying flexibilities in TRIPS that facilitate access to medicine and to developing norms of sharing. Similarly, the UN Conference on Trade and Development (UNCTAD) has issued guidelines to help less-developed countries meet their TRIPS obligations in a manner that is also responsive to their national interest in preserving access to creative works. The UN Educational, Scientific and Culture Organization (UNESCO) has likewise taken an interest in access to cultural works.

Additionally, many international organizations and NGOs have begun to recognize the relationship between IP and human rights, particularly rights to health, education, and free expression. For example, the UN Human Rights Council and its Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health have issued Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines.13 By the same token, the UN Special Rapporteur in the field of cultural rights has issued two reports, one on copyright14 and the other on patents,15 that attempt to reconcile the recognition that the Universal Declaration of Human Rights (UDHR) accords to the rights of authors and inventors with the right that the UDHR recognizes of everyone to freely participate in the cultural life and the community and to enjoy the arts and share in scientific advancement and its benefits.16

Paradoxically, in some cases the involvement of new actors and institutions has taken matters in the opposite direction, to the recognition of new rights. The Convention on Biological Diversity (CBD),17 for example, no longer considers genetic resources, such as plants with medicinal properties, to be the common heritage of mankind. It now regards these resources and local information about them as the property of the sovereigns of the lands where these resources are found. Under the CBD and its Nagoya protocol,18 such countries enjoy the right to make these resources accessible under principles of prior informed consent and benefit sharing.19 Several countries have implemented these principles by making source disclosure a requirement for patent protection. By the same token, WIPO (p. 14) has been holding a series of negotiations over agreements to protect traditional knowledge and cultural expression, as well as genetic resources.

These developments are also a sign that developing countries, which once had a fairly limited role in international negotiations, have begun more proactively to protect their interests. These countries are, however, hampered by the need to ensure market access for the commodities and goods they produce. As a result, they are frequently co-opted into regional trade agreements, where their interests in IP are sacrificed to their interests in agriculture and manufacturing. The pan-Asian Regional Comprehensive Economic Partnership (RCEP),20 for example, is being negotiated by a range of countries with different levels of development and IP policies, including developed countries with protectionist IP policies (such as Australia, New Zealand, Japan, South Korea, and Singapore), less developed countries with less protectionist views (such as Indonesia, Brunei, Vietnam, and the Philippines), and countries in transition (such as China and India). Despite their varied economic profiles and interests, all of these countries are apparently committed to negotiating a trade agreement with significant TRIPS-plus obligations.

Within national borders, there are also new institutional players, as well as old players with increasing international influence. Every country has offices to administer IP rights. In the patent realm, in particular, these offices have exerted considerable sway over the law. Since patents must be examined and individually awarded, the agencies are the core expositors of patent jurisprudence. While they do not make the law, they have the final authority over patentability decisions in prosecutions that are not challenged. Additionally, national agencies have relationships with one another that can spread their views outside their own borders. Under the Patent Cooperation Treaty,21 preliminary examination takes place in only one country. Furthermore, the Patent Prosecution Highway speeds prosecution though a system of deference to the earlier decisions of other participating agencies. Some jurisdictions have banded together to offer a single examination that results in a bundle of national patent rights. The European Patent Convention exemplifies this approach. The Trilateral, an association of the Japan Patent Office (JPO), the US Patent Office (USPTO), and the European Patent Office (EPO), seeks to harmonize examination, including through the practice of bringing to the attention of each government places where their laws differ. The JPO, EPO, and USPTO offer training to personnel in developing countries, thereby extending the influence of their national laws and practices. In some countries, the personnel of these IP offices are also involved in negotiating new international agreements. The US additionally has established the Office of the United States Trade Representative (USTR) to represent its international interests, including through annual Special 301 Reports that identify countries that, in the US view, are not offering sufficient protection to IP. Because the remedy for failure to adhere to Special 301 admonitions can be the loss of trade preferences, the US has been successful in persuading other countries to increase the level of IP protection, even when not clearly required by international law.

Finally, as the previous section noted, at the behest of right holders, many countries are establishing specialized courts to adjudicate all IP matters, or only patent disputes, at the trial level, on appeal, or both. While it may be hoped that these specialized courts will be adept (p. 15) at weighing proprietary and access interests, the experience in the US and with the EPO has been that specialized tribunals are in danger of capture by repeat players and of giving too much weight to the interests underlying the statutes for which they are primarily responsible, often at the expense of other national interests. In short, patent offices and specialized courts can mirror the distorted political economy that was responsible for their creation.

6. This Book

The diverse actors and institutions, rights and interests, laws and lores discussed in this Introduction play out in many ways throughout the book. Part II, on Social and Normative Foundations, takes a theoretical approach to IP and thus views these rights though a variety of lenses: IP as property (Richard Epstein), and IP rights as rights of property in the classic, Hohfeldian sense (Rob Merges); IP as a public interest mechanism (Rebecca Tushnet); IP in its relationship to codified international norms of human rights (Laurence Helfer); and IP as an economic tool (Stephen Maurer).

In his chapter on IP and property, Richard Epstein studies the two main commitments that inform IP jurisprudence: the first to ensuring strong property rights for IP subject matter, and the second to limiting the impact of IP rights on the public domain to prevent the development of patent and other IP thickets that might block technological innovation, competition, and creativity. He argues for an approach to IP that begins with a comparison of the ownership of IP rights with the ownership of natural resources, including particularly land, air, water, chattels, and animals, before asking how each IP regime ought to be modified to take into account its distinctive nature.

Rob Merges also views IP through the lens of property. Beginning with a conception of IP rights as really rights and as really rights of property, he goes on to consider what kind of rights they are specifically. Drawing on Hohfeld’s taxonomy of legal rights as claim rights, liberty rights, powers, and immunities, Merges offers a “common sense” understanding of the nature and structure of IP that challenges the tendency to equate proprietary conceptions of IP with absolutist entitlement. He then considers three common objections to conceiving IP as property—the need to follow government-mandated procedures to acquire it, the absence of any automatic entitlement to injunctive relief for its infringement, and its role in regulating entry to economic markets—and demonstrates why each ought to be rejected. The result is a defense of conceptions of IP rights as rights of property, with an emphasis also on their limited nature.

In the following chapter, Rebecca Tushnet takes a very different approach by focusing on IP not as a private right, but rather as a means primarily for promoting the public interest. Noting the absence of reliable empirical evidence about the impact of different levels of IP protection, she advocates reliance by law makers and decision makers instead on broad principles aimed at ensuring distributive justice and maximizing output. The premise of her approach is a realist sensitivity to the ways in which people are affected by IP rights, and to the function of IP rights in a broader social and political context.

Laurence Helfer continues this discussion of IP as a means of promoting public interest values in his chapter on IP and human rights. He focuses on international commitments to human rights, and describes how the coevolution of fundamental rights instruments and (p. 16) IP agreements has created a framework for defining public interest values, and a doctrinal mechanism for national and international courts to make these values more precise and enforceable. That some of those rights are now being incorporated into IP instruments themselves reflects the success of early scholarly attempts to have the IP system internalize public interest values.

IP can also be conceptualized as an economic tool. In his chapter, Stephen Maurer takes that perspective to review the conflict between public and private interests and among successive generations of innovators. Based in part on the pioneering work of his partner Suzanne Scotchmer, he describes the models that modern economists use to think about IP rights and about the impact those rights have on technological progress and cultural evolution.

The theoretical discussion of Part II suggests further possible conceptions of IP that are also apparent in other parts of the volume. One is a conception of IP as an instrument of trade, supported by the early recognition of EU competence in IP, the WTO’s establishment of TRIPS, and the prominence of IP clauses in international investment instruments. This conception of IP is reflected in several of the chapters that follow, including Sam Ricketson’s chapter on the international IP system, Rebecca Eisenberg’s chapter on IP and public health, and Carolyn Deere Birkbeck’s chapter on IP, development, and access to knowledge. Its premise is a view of IP rights as promoting the smooth functioning of international (and domestic) markets, including by facilitating access to markets by developing countries and small and medium-sized enterprises.

Another way of conceiving some IP rights at least derives from their historical evolution from claims sounding in the fundamental rights of human creators. Much of this history can be gleaned from the separate chapters in Part III on the emergence of IP rights around the globe, and in Part IV on specific IP rights. While capable of taking several forms, views of IP rights as fundamental rights of a creator typically proceed from a Hegelian conception of IP subject matter as external manifestations of the personality of their creators, a Lockean conception of self-ownership as entailing rights of property in respect of one’s creations, or a libertarian or Kantian conception of IP as necessary to secure external freedoms. Such conceptions are closely related to property perspectives of IP, as made clear in the chapters by Merges and Epstein.

Moving on from theoretical accounts of IP, the chapters in Section III consider the emergence and development of IP regimes in different jurisdictions and regions throughout the world. These chapters can be broadly divided into three groups. The first contains the chapters by Catherine Seville and Sam Ricketson on the earliest domestic IP laws of Western Europe and the international IP system respectively, which in combination provide the foundations of all IP systems today. The second contains the chapters by Oren Bracha, Daniel Gervais, and Kimberlee Weatherall on four former British colonies—the US, Canada, Australia, and New Zealand—and the challenges they have faced in adapting their colonial IP regimes to reflect their local identities and needs. And the third contains the chapters by Mihály Ficsor, Christoph Antons, Michael Birnhack and Amir Khoury, Caroline Ncube, and Mônica Steffen Guise Rosina and Fabrício Polido on the emergence and development of IP law in different regions—Central and Eastern Europe, Asia, the Middle East, Africa, and South America, respectively—in which we see repeated on a larger scale the complexity of social, political, economic, ideological, and legal factors that have shaped and continue to shape IP laws and systems around the world, and the ways in which those laws and systems (p. 17) in turn shape the social, political, economic, ideological, and legal identity of different countries and regions.

In her foundational chapter on Western Europe, Catherine Seville traces the long histories and diverse sources of what we now know as “intellectual property.” She shows the myriad ways in which different IP laws and systems have been introduced and developed in response to particular social problems and in reflection of the political and economic thinking of different times and countries, and reveals the balance between private and public interests to have been as important historically in IP as it is today.

The growing concern by the nineteenth century of Western European states to protect domestic IP rights abroad led to the emergence and development of an international IP system. In his chapter, Sam Ricketson considers the organizing principles of this system, as well as its principal actors and components. He emphasizes the difference between national and international IP systems, including the comparative complexity of the latter due to the many gaps and inconsistencies in its coverage and content, and the variety of internal and external pressures to which it is subject.

The development of the international IP system reflects the emergence of the US as a key player in the intellectual property IP field. In his chapter on US IP law, Oren Bracha emphasizes the multi-constitutive role of technological, economic, political, and ideological factors in shaping the modern US IP system, and vice versa, from its modest British and colonial origins to its much expanded form today. Among the themes emphasized by his discussion is the self-perpetuating nature of IP rights and systems, and their non-deterministic growth and development.

The Canadian IP system is discussed by Daniel Gervais, who considers the unique factors that have influenced it. These include Canada’s mixed common and civil law system, and the rich comparative legal methodology it has engendered, as well as the country’s geographical proximity to the US. The challenge of using IP laws to promote Canadian innovation and creativity while supporting trade in IP subject matter from across the border is discussed, as is the influence on Canadian domestic law of international treaties and harmonization initiatives.

From Canada we move to two further Commonwealth countries: Australia and New Zealand. Described by Kimberlee Weatherall in her chapter as “siblings rather than twins,” these two neighboring states and former British colonies have also faced the challenge of developing and maintaining IP systems that reflect their local circumstances, including their different relationships with their local indigenous communities, while meeting the requirements of international treaties and trade relations.

That brings us to the third group of chapters in this section. Mihály Ficsor begins with his study of the emergence and development of IP law in the 28 former socialist countries of the Central and Eastern European bloc during their period of transition to capitalist political economies. He also emphasizes the range of factors that have helped to shape each country’s IP laws, from its social and legal traditions and level of development, to its governing ideology and membership of international communities and IP treaties, and demonstrates that, while not all of the Central and Eastern European countries have completed their transition to free market economies, their IP laws nonetheless reflect broad consistency with international standards. At the same time, he shows that work is still needed in some to meet the challenges of IP rights management and enforcement.

(p. 18) In his following chapter, Christoph Antons uses a range of topical case studies to sketch the complex and diverse stories of IP law’s emergence and development in Asia. The focus of these studies are: Japan, described by Antons as a trailblazer in adapting to Western post-industrialization IP laws due to its unique technological opportunities in the nineteenth century; South Korea and Singapore, which he casts as representing Asia’s first generation of newly industrialized economies, and providing strong IP protection motivated by different industrial aims; China and India, which, as large and developmentally diverse countries, are shown to have experimented with their IP systems to cater to different interests, using their influence to challenge the standard international IP models and norms that exist; and the former British and European colonies that with Singapore make up the ASEAN region, which have only recently begun to accede to international IP treaties and modernize their colonial IP systems accordingly, often in response to pressure from the US.

Even more diverse are the countries considered by Michael Birnhack and Amir Khoury in their chapter on the Middle East. Emphasizing the need to take a broad perspective of IP law that considers fully the legal, political, cultural, and economic context in which it operates, these authors trace the emergence and development of IP in the Middle East from the Ottoman Empire, based on Islamic, Sultanic, and customary law, to the increasingly secularized age of the nineteenth and twentieth centuries. The first country discussed is Israel: a democratic Jewish state with a secular IP system derived from the British, increasingly influenced by the US, compliant with international treaties, and routinely enforced, sometimes at the expense of local Israeli cultural needs. More complex is the situation in the four Arab countries that the authors study—Egypt, Jordan, Saudi Arabia, and the United Arab Emirates—due to a range of cultural, political, and economic factors, including the limited civil and political freedoms that people in these countries tend to enjoy, and the challenges they have faced in enforcing those aspects of their IP laws imposed from abroad.

In her following chapter, Caroline Ncube considers the vast and diverse African continent from its pre-colonial origins in the fifteenth century, with a particular focus on more recent regional IP arrangements. Her discussion reveals how a rush to implement international IP treaties has led to the adoption of IP standards that are not necessarily appropriate for African states at different levels of development, and to a complex and fragmented institutional landscape. She concludes by questioning the degree to which IP can be said to have served African interests.

Mônica Steffen Guise Rosina and Fabrício Polido conclude this section with their study of IP law in South America since the nineteenth century. They show the different IP models that took root before the late twentieth century, the regional attempts at legal harmonization and institutional coordination that have taken place since then, and the recent norm setting that has occurred in South America through trade agreements with the US and EU particularly. The final picture they present is of a fragmented region that combines high aspirations in the IP field with only limited success in the creation of regional IP systems to date.

The focus in Part IV shifts more squarely to the individual IP rights themselves. First are chapters on the core rights (Dan Burk on patent law, Jane Ginsburg on copyright, Dev Gangjee on trademarks and geographical indications, Barton Beebe on design rights, Huw Beverley-Smith on rights in data and information, and Estelle Derclaye on overlaps among these rights). Then come three chapters on issues regarding exploitation (Michael Kasdan on licensing, Terence Ross on remedies, and Eun-Joo Min and Christian Wichard on cross-border enforcement). Dan Burk begins with a chapter on the patent regime that emphasizes (p. 19) its close association with technological innovation and consequential dynamism. He offers a series of vignettes in multiple jurisdictions that reveal the constant evolution of patent doctrine, institutions, and means of exploitation. His study underlines the range of theoretical and practical issues endemic to the patent system, and ties those issues to ongoing controversies that have attracted widespread public attention. Jane Ginsburg follows with her chapter on the copyright regime, moving us from the technological to the creative realm. Taking each of the major doctrinal challenges in copyright law in turn, she shows how copyright and droit d’auteur approaches have each sought to advance the public interest by promoting an ecosystem of authorship that encourages people to create works and draw on the ideas, and sometimes even the expression, of others. Lastly is Dev Gangjee’s chapter on the trademark and allied rights regimes. By considering a selection of issues related to the purpose, subject matter, and scope of trademark protection, he shows how the law’s traditional focus on protecting the communicative content of commercial signs has shifted alongside developments in product marketing and changing social conceptions of brands. He also discusses the related forms of protection afforded by the unfair competition, passing off, publicity rights, geographical indications, and domain names regimes to offer a full picture of those areas of IP concerned less with technology or creativity than with marketing.

After this discussion of the main IP rights, Barton Beebe follows with a chapter on the design regime, which protects the appearance of products. He describes a complex regime based both historically and conceptually on a mix of copyright, patent, and trademark laws and ideas, and the difficulty of ensuring adequate incentives to designers while also confining design law to its proper realm. Huw Beverley-Smith considers the problem of protecting raw information and data by exclusionary rights and duties. He looks at the various approaches that have been taken by the EU, as a leader in this field, to protecting databases, trade secrets, private information, and raw data. As in the other areas of IP, he finds economic and fundamental rights values to be important drivers of protection, and frequently in conflict.

A challenge noted in many of the chapters is that of keeping each regime to its proper realm. The potential for protection of a single subject matter by different IP rights gives rise to the issue of IP overlaps referred to previously, which is the focus of Estelle Derclaye’s chapter. She studies the scope under existing law for IP rights to cumulate, and the problems these overlaps can create for creators as well as for the public interest.

Michael Kasdan leads off the final three chapters of Part IV on exploitation. In his chapter on IP licensing, Kasdan proceeds from the recognition that not all creators are positioned to exploit their work (or all of the possibilities for their work) themselves. He thus discusses the important role that licensing plays in extracting value from the subject matter to which IP rights attach. Taking patent rights as his focus, Kasdan considers the many complex decisions that IP owners and licensees must make in developing and maintaining their relationships.

When such relationships break down, disputes will arise. In his chapter, Terence Ross considers the range of monetary and non-monetary remedies that are available for IP infringements, and the circumstances in which they are available. How those disputes are resolved, including the outcome of any litigation that they involve, has an important impact on the perception of IP rights and their value to creators and society. His discussion is followed by the final chapter of this part by Eun-Joo Min and Christian Wichard on the enforcement of IP rights across borders. This chapter acknowledges the global scope of IP development and exploitation, and the particular challenges that the multinational (p. 20) environment poses for the enforcement of IP rights. These include the questions of national adjudicatory authority over foreign parties, which laws to apply in cross-border cases, and if and when courts should enforce the judgments of tribunals from other jurisdictions.

Part V on the political economy tackles the ways in which the emerging importance of IP rights has impinged on a series of particular communities and distinctive interests. The “communities” chapters considers open innovators (Katherine Strandburg), traditional societies (Susy Frankel), developing countries (Carolyn Deere Birkbeck), academia (Michael Spence), and the growing social order organized around the Internet (Pamela Samuelson). The “interests” chapters cover the impact of IP on competition (Scott Hemphill), autonomy (Reto Hilty), health (Rebecca Eisenberg), and the environment (Abbe Brown).

Katherine Sandburg opens the discussion of communities with a description of a community whose creative efforts challenge the assumption that IP rights are essential to technological progress. She describes user innovators, a group that invents primarily to benefit directly from the advances they create and “freely reveals” (discloses) those advances for reasons such as altruism, to garner reputational advances, or to spur others to build upon their work and improve it. IP rights affect user innovators in several contrasting ways. They may be helpful at the point where the work is commercialized, but their availability could undermine free exchange by luring some to protect information they might otherwise have freely shared. Further, the availability of IP rights could expose user innovators to infringement liability. Strandburg ends with suggestions for altering patent law in light of the recognition of this important form of innovation.

Susy Frankel suggests a need for other modifications in IP law. Her chapter covers different sorts of user innovators: traditional (indigenous) groups that communally and incrementally produce creative expression and knowledge (songs, music, and technical information, including knowledge about genetic resources) for their own enjoyment and use. Because, as previously described by Seville, western conceptions of IP focus on “the” author or “the” inventor, and can require high degrees of inventiveness, current IP regimes provide poor protection for the valuable contributions made by these groups. That, Frankel argues, creates an injustice, for the fruits of their knowledge can often be owned and exploited by others. Frankel describes the approaches under consideration for providing traditional communities with recognition of, control over, and credit and remuneration for, their intellectual work and products.

The claims of traditional communities are particularly poignant because even though they are not receiving payment for their works, they must still pay the high costs associated with protected works, including modern medicines and cultural products. Developing countries are in a somewhat similar plight. They were required to adopt IP protection as the price of entering the WTO. Although they benefit from the ability to trade with other WTO members, and may in the future benefit from the incentive effects of IP protection, at present they are net importers of knowledge products. As a result, IP profits largely extract a tax from local populations and transfer it to foreigners. Further, the protection utilizes significant local resources for examination, registration, and the like. Carolyn Deere Birkbeck traces the efforts of developing countries, NGOs, and certain international organizations to include flexibilities within international agreements and to make IP work for development.

The scholarly community represents another group that has come somewhat involuntarily to IP protection. Michael Spence recounts the clash between commitments to academic freedom and Mertonian norms, on the one hand, and the desire of universities to (p. 21) use IP rights to extract value from their faculties’ creative output, on the other. His chapter questions the wisdom of the US Bayh–Dole Act,22 which is based on a determination that knowledge products are more efficiently transferred to the public by administrators than by those who create the advances. He suggests that distinctive rules are required to balance the special claims that academics have to steward the use of their work against the economic needs of the university communities to which academics belong.

Pamela Samuelson ends the examination of communities with her study of the community that created and maintains the Internet. Like user innovators, their creative efforts did not require IP-based incentives and, like the scholarly community, they see the imposition of governance through an IP mechanism as potentially destructive of a free-wheeling ethos of sharing. But unlike the other groups on whose interests IP impinges, Samuelson describes a society of sophisticated tech-savvy users who have (so far) managed to join together to defeat overregulation that could undermine the social value of the Internet.

Throughout the book, it is evident that IP rights, and the moral and economic interests they protect, are in significant tension with culture, science, and free expression. Balancing these interests specifically is discussed by Laurence Helfer and Rebecca Tushnet at the outset; in its final section, the book addresses the four other important societal issues identified previously: competition, autonomy, health, and the environment.

Scott Hemphill begins this section by investigating the relationship between the interests of IP holders and the public from the perspective of antitrust (competition) law and economic policy. He notes that, in a sense, the two bodies of law are the opposite sides of the same coin: IP law views exclusivity as the promoter of innovation while antitrust law sees competition, as Joseph Schumpeter put it, as the engine of “creative destruction.”23 Hemphill considers how the state’s interest in creating exclusive rights influences antitrust doctrine and then turns the analysis around to look at how an interest in competition affects the structure of IP regimes. He observes that at the intersection of these interests, states have produced a distinctive body of law.

Reto Hilty’s chapter closely follows this discussion. He considers the clash between a commitment to party autonomy and the balance struck within IP law between the interests of producers and the public, noting that the contractual relationships that largely form the focus of antitrust law are not the only self-help method creators can use to create de facto exclusivity; that technological protection measures (for example, the encryption of e-books) can supplement and complement contracts. As he shows, the effects of these practices are ambiguous in terms of public welfare, for they can enable right holders to develop new business models and better control unauthorized uses, but can also be used to protect works that should be in the public domain because, for instance, they are not protectable or the IP rights protecting them have expired. He suggests directions for new legislation and, given the dynamic nature of the problem, the desirability of industry self-regulation.

In her chapter, Rebecca Eisenberg considers the relationship between IP and public health. The obvious problem, as mentioned in several other chapters, is that IP rights increase the cost of accessing medicine and medical technologies. Here, Eisenberg points out that there is also a subtler concern. Looking at vaccines, anti-infectives, neglected diseases, (p. 22) and non-excludable innovations, she shows that IP law does not always create adequate incentives to innovate. She argues that the social cost of delaying access to treatments until rights expire, along with the possibility that some important problems will never be addressed, provide reason to give governments considerable flexibility in the implementation of exclusionary rights.

Abbe Brown concludes the Handbook with an examination of the pressing issue of climate change. She traces the evolution of international climate change instruments, culminating in the Paris Convention, and notes that even in this stylized environment, the usual clash between incentivizing innovation and providing access to the resulting technologies is evident. She discusses the ways in which policymakers, including the drafters of successive generations of climate-change agreements, have approached this tension and considered the human rights aspect of protecting the environment. Harking back to Strandburg’s chapter, Brown also assesses the possibilities for developing climate-change technologies through systems of open innovation.

Together the chapters in this book offer a snapshot of the IP landscape at a particular point in time. As technology evolves, new forms of creativity emerge, business models change, and nations develop, the need for intellectual protection is sure to alter, as will the structures of the individual regimes that safeguard the interests of innovators, users, and the wider public in pushing forward the frontiers of knowledge.


(*) Rochelle C. Dreyfuss and Justine Pila have asserted their moral rights to be identified as the authors of this contribution. All websites were last accessed in February 2018, unless otherwise specified.

(1) Paris Convention for the Protection of Industrial Property (opened for signature 20 March 1883, entered into force 7 July 1884) 828 UNTS 305.

(2) Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, entered into force 5 December 1887) 828 UNTS 221.

(3) Agreement on Trade-Related Aspects of Intellectual Property Rights (opened for signature 15 December 1993, entered into force 1 January 1995) 1869 UNTS 299.

(4) Convention on the Grant of European Patents (opened for signature 5 October 1973, entered into force 1 January 1977) 1065 UNTS 199, as amended.

(5) Council Regulation (EC) No 207/2009 of 26 February 2009 on the EU trademark, <>, as amended.

(6) Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs [2002] OJ L 3/1, as amended.

(7) Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection [2012] OJ L 361/1. The fate of the unitary patent system is in doubt following the UK’s decision to leave the EU. The reason is the restriction of the system to EU Member States on the one hand, and the necessity for its ratification by the UK to take effect on the other, as well as the envisaged location of a section of the central division of the system’s unified patent court in London under the Agreement on a Unified Patent Court [2013] OJ C 175/1. Despite this, the UK Government has recently confirmed its intention to proceed with ratification on the basis that as long as the UK remains within the EU, it “will continue to play a full and active role”: <>.

(8) North American Free Trade Agreement Between the Government of the United States of America, the Government of Canada, and the Government of the United Mexican States (signed 17 December 1992, entered into force 1 January 1994) 32 ILM 289.

(9) Australia–United States Free Trade Agreement (signed 18 May 2004, entered into force 1 January 2005) 43 ILM 1248.

(10) United States–Korea Free Trade Agreement (signed 30 June 2007, entered into force 15 March 2012) <>.

(11) Anti-Counterfeiting Trade Agreement (opened for signature 1 October 2011, not in force) <>.

(12) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (opened for signature 28 June 2013, entered into force 30 September 2016) TRT/MARRAKESH/001 <>.

(13) UN General Assembly, Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras, A/HRC/29/33 (2 April 2015).

(14) UN General Assembly, Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed: Copyright policy and the right to science and culture, A/HRC/28/57 (24 December 2014).

(15) UN General Assembly, Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed: Patent Policy and the right to science and culture, A/70/279 (4 August 2015).

(16) Universal Declaration of Human Rights (10 December 1948) UN Doc A/810, art 27.

(17) Convention on Biological Diversity (opened for signature 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79.

(18) The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising From Their Utilitzation to the Convention on Biological Diversity (opened for signature 29 October 2010, entered into force 12 October 2014) <>.

(19) CBD (n 17) art 15.

(21) Patent Cooperation Treaty (opened for signature, entered into force 24 January 1978) 1160 UNTS 231.

(22) Pub L No 96-517, 94 Stat 3015 (1980) (codified as amended at 35 USC §§ 200–211 (2014)).

(23) See JA Schumpeter, Capitalism, Socialism and Democracy (3rd edn, Harper and Brothers 1950) 83.