Abstract
Intellectual property plays an increasingly important role in the international economic arrangements.1 Intellectual property rights are part of the fabric of commercial law. They create monopolies, which constitute exceptions to generally preferred norms of free access to ideas and freedom to engage in trade. Industrially developed nations and corporations engaged in international trade favor international rules concerning intellectual property. Indeed, these nations and entities have recently preferred rules that strongly protect intellectual property owner rights, without regard to whether these rules contribute directly to social progress, for example innovation.
The process of creating common or similar international intellectual property rules is generally referred to as “harmonization”. Efforts to harmonize intellectual property law are part of a larger context which includes national legal cultures2 and processes of global change. Through most of their relatively brief history, international intellectual property rights have been established primarily on the principle that the claims of foreign citizens should be judged on the same basis as those of a nation’s own citizens. The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) departs from this general pattern. Instead, TRIPs makes detailed and extensive intellectual property right laws a condition for membership in the World Trade Organization (WTO). These requirements include both substantive and procedural laws. These requirements unjustifiably interfere with national legal cultures and have other undesirable consequences.
The discussion concludes that tempered harmonization of intellectual property rules can benefit the world and its cultures. That benefit accrues when the international intellectual property norms are limited to those that clearly serve humanity at large and allow preservation of national cultures. Suggestions for future action are set forth which include proposals for further study, proposed intellectual property guidelines, and items concerning WTO/TRIPs.
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References
See H. C. Anawalt and E. F. Enayati, IP Strategy — Complete Intellectual Property Planning, Access, and Protection (West Group 2001) §1.01.
Magna Carta, P 41, version prepared by Paul Halsall Feb 1996, http://www.fordham.edu/halsall/source/mcarta.html.(1215); see also 70 University of Colorado Law Review, 1051, 1055.
Letters To The Editor: “Playing Cards In The Hashemite Kingdom Of Jordan”, Richard C. Wilder, 2 University of Baltimore Intellectual Property Journal 237.
Statute of Anne, 8 Annec. 19 1710. See Gorman and Ginsburg, Copyright for the Nineties, 4th ed. p. 1.
Treaties establish obligations between or among the states that enter into them. Usually the treaty itself does not provide the rule of decision in a given controversy between private parties. The law of the nation must be changed to incorporate the rules. Whether the treaty will create private rights depends on the intention expressed in the treaty and upon the expressed legislative will of the nation having jurisdiction over the particular piece of private litigation. See H. C. Anawalt and E. F. Enayati, IP Strategy — Complete Intellectual Property Planning, Access, and Protection (West Group 2001) §1.03 [17].
Paris Convention for the Protection of Industrial Property of March 20, 1883, as revised. Text available at http://www.wipo.org. “Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention”. Paris Convention Art. 2 (1). Such reciprocal treatment is referred to generally as “comity”.
“Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work”. Paris Convention Art. 2, A, (1). The legal professions are accustomed to breaking law into two halves — substance and procedure. This is comparable to the distinction between content and form. “Substantive” refers to the content of a right or duty. “Procedure” refers to how the substantive law is carried into effect.
Paris Convention Art. 2, A, (1).
Berne Convention, Article 16.
The WTO is the successor to General Agreement on Tariffs and Trade (GATT). “The World Trade Organization came into being in 1995. One of the youngest of the international organizations, the WTO is the successor to the General Agreement on Tariffs and Trade (GATT) established in the wake of the Second World War”. WTO Web site, . The WTO’s membership is 134 countries (as of February 1999).
TRIPs Article 1.
The enforcement or procedural requirements are set forth in Part III, Articles 41 through 61.
TRIPs Articles land 3(1).
Vienna Convention on Treaties, Articles 26 and 27.
TRIPs Art. 27 (1).
TRIPs Art 10 (1).
TRIPs Art. 11.
H. C. Anawalt and E. F. Enayati, IP Strategy — Complete Intellectual Property Planning, Access, and Protection (West Group 2001) sections 1.03 [1], [8], and [10]. There may now be hundreds of articles on the problems raised by technological copyright. See one of the most comprehensive critiques, Pamela Samuelson, Randall Davis, Mitchell D. Kapor, J. D. Reich-man, “A Manifesto Concerning the Legal Protection of Computer Programs”, 94 Columbia Law Review 2308 (1994).
Laurinda L. Hicks and James R. Holbein, “Convergence of National Intellectual Property Norms in International Trading Agreements”, 12 American University Journal of International Law and Policy 769, 788–9. TRIPs Art. 39.
TRIPs, Art. 15 through 33.
Other provisions include damages and attorneys’ fees (Art. 45), destruction of items (Art. 46), abuse of process (art. 48). See TRIPs, Part III.
H. C. Anawalt and E. F. Enayati, IP Strategy — Complete Intellectual Property Planning, Access, and Protection (West Group 2001) §1.01.
F. Philbrick, “Changing Conceptions of Property in Law”, 86 U. Pa. L. Rev. 691 (1937). In the same immediate context, Philbrick observes that intellectual property should be recognized as property “on Locke-ian principles, since it is a product of labor (and of genius)...” Id. p. 692. The 1930s inspired some careful legal scholarship in the United States on the nature of property as a legal institution. At that time the nation was experiencing the enormous problems of a great depression. The administration of President Franklin D. Roosevelt was pressing ahead with programs intended to remedy the economic ills that led to this collapse. The administration considered remedies that would cut into expectations that had firm legal groundings in two of the most deeply ingrained areas of American law — contracts and property.
Id. p. 696.
The patent and copyright clause, Article I, section 8, clause 8, contains only a grant of power to the national legislature. Congress is not obliged to create any patent or copyright laws. The clause speaks of creating “exclusive rights” for inventors and writers, but since Congress need not create any rights, there appears to be no reason that it may not condition the rights heavily. For example, copyright ownership under the modern U.S. copyright law specifically allows others to also use the copyrighted material when the use is “fair use”. 17 U.S.C. 107. American constitutional scholars dispute about every assertion made about the United States Constitution. At the risk of sparking such a dispute among American colleagues, I note that this is the only occasion in the Constitution which deals with the creation of a property right. Creation of property rights was apparently viewed as entirely beyond the scope of the central, i.e. federal, government. The institutions of property are left to the fifty states that comprise the nation. An example of divergence among the states is community property discussed in the text. Several western states provide for spousal community property, a continental European system. Under community property, all earnings and resulting property acquired during the marriage belongs to the community of spouses.
United States Constitution, 5th and 14th Amendments guaranteeing due process; the 5th specifically assures that property may be taken by the federal government only for public purposes upon just compensation.
The title vests in the community. However, the effect is much like creating a kind of joint title on behalf of both spouses.
States having community property include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. The west coast states form a nearly solid block, but one can note that Oregon, a Pacific coast state, has opted not to have community property.
Northwestern University Law Review 1495, 1502, “Rational Ignorance at the Patent Office”, Mark A. Lemley.
See Motorola Inc. v. Hitachi Ltd., 14 United States Patent Law Quarterly 2d 1769 (Tex. 1990) for an example of how such a case would develop.
United States law provides for such assurances in, for example, the doctrine of “fair use” in copyright (17 U.S.C. 107) and the requirement that patents must not preempt customary knowledge and practice (“non-obviousness”, 35 U.S.C. 103).
“...Thus, the frequent refrain in news media that actions taken in foreign countries ‘violate intellectual property rights’ must be taken with a grain of salt. If the law of the nation in question does not prohibit the copying, it is not wise to make such an accusation. Such propaganda misleads and tends to poison the atmosphere of discussion. It is far better to create an atmosphere of intelligent interchange and avoid power politics when intellectual property issues are raised internationally. The questions of what should be protected even within the United States are and remain difficult ones to answer. They are vastly more complicated in our world made up of many cultures, with its attendant difficulties of creating equitable distribution of the world resources, including intellectual property. Furthermore, the basic rule is that even treaties do not alter local intellectual property rules, unless enforcement legislation is adopted by the country in question”. H. C. Anawalt and E. Enayati Powers, IP Strategy — Complete Intellectual Property Planning, Access, and Protection, (West Group 2001) §1.03 [17], footnote 567.
See Pamela Samuelson, “The Digital Agenda of the World Intellectual Property Organization”, 37 Virginia Journal of International Law 369, 373–4, Winter 1997.
H. C. Anawalt and E. Enayati Powers, IP Strategy — Complete Intellectual Property Planning, Access, and Protection, (West Group 2001) §1.03 [17].
R. Carl Moy, “The History of the Patent Harmonization Treaty: Economic Self-interest as an Influence”, 26 John Marshall Law Review 457 (1993).
Id.
These proposed guidelines find support in the development of intellectual property laws. See Howard C. Anawalt, “Control of Inventions in a Networked World”, 15 Computer & High Tech. Law Journal 123 (1999), and 8 Information and Communication Technology Law 121 (1999). They should be subjected to study and critique along with the proposed questions for further study.
TRIPS, Article 8, 1. Article 8 also provides that members adopt measures needed to “prevent the abuse of intellectual property rights by right holders...”.
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Anawalt, H.C. (2003). Intellectual property scope. In: Granstrand, O. (eds) Economics, Law and Intellectual Property. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-3750-9_4
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