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At a high level of generality, intellectual property (IP) regimes are much alike. They grant exclusivity to promote socially desirable activity, be it creating goodwill and maintaining quality, producing expressive works, or inventing technological products and processes. Of course details differ, for each system must take account of the demands of the sector it governs. Thus the gravamen of a copyright claim – copying – would never be suitable for trademark law because trademark’s focus on diminishing search costs is inconsistent with allowing similar trademarks (even if independently produced) to confuse consumers. Similarly, trademark’s term of protection – which continues as long as the mark is in use – would not be suitable for patent law, where one generation’s output is the next generation’s input and the goal is to promote rapid progress.
Intellectual Property at the Edge addresses both newly formed intellectual property rights and those which have lurked on the fringes, unadmitted to the established IP canon. It provides a basis for studying and discussing the history of these emerging rights as well as their relationship to new technological opportunities and to the changing importance of innovation and creative production in the global economy. In addition to addressing the scope of new rights, it also focuses on new limitations to patent, copyright and trademark rights that spring from similar changes. All of these developments are examined comparatively: for each new development, scholars in two jurisdictions analyse the evolving legal norm. In several instances, the first of the paired authors writes from the perspective of the legal system in which the doctrine emerged, and the second addresses its reception in her jurisdiction.
The establishment of the World Trade Organization (‘WTO’) marked an important new chapter in the administration of patent law, especially regarding inventions in the medical arena. Although intellectual property protection has long been governed by international norms, the principal international instrument on patents – the Paris Convention for the Protection of Industrial Property – largely focused on procedural issues. It required each state to accord national treatment to the citizens of other signatories, but it left most details on the scope and the substance of patent rights to the domestic law of each of its members. While many countries provided plenary protection to pharmaceutical products in order to stimulate their discovery, others took the position that medicines were too important to their citizens' welfare to privatize.
In 1994, that regime was significantly modified. Intellectual property, now conceptualized as a trade issue, became the subject of a new international instrument, the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’ or ‘TRIPS’). Under the WTO framework, adherence to TRIPS is not only required of every WTO member, it is also enforceable through the WTO's elaborate Understanding on Dispute Settlement (‘DSU’), an essentially adjudicative mechanism, administered by the Dispute Settlement Board (‘DSB’), complete with an Appellate Body to entertain appeals from Panel decisions and sanctions for non-compliance. Because TRIPS imposes substantive patent law standards, including a requirement that protection be accorded ‘in all fields of technology’, it is no longer possible for a WTO member to exclude medicines from the purview of protection.
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