Elgar Intellectual Property and Global Development Series

Rapid global economic integration and the increasing importance of technology and information goods have created the need for a broader, deeper and more critical understanding of intellectual property laws and policies.  This uniquely-designed book series provides an interdisciplinary forum for advancing the debate on the global intellectual property system and related issues that intersect with transnational politics, international governance, and global economic, social, cultural and technological development.  The series features the works of established experts and emerging voices in the academy as well as those practising on the frontlines.  The series' high-quality, informed and accessible volumes include a wide range of materials such as historical narratives, theoretical explanations, substantive discussions, critical evaluations, empirical analyses, comparative studies, and formulations of practical solutions and best practices.  The series will appeal to academics, policy makers, judges, practitioners, transnational lawyers and civil society groups as well as students of law, politics, culture, political economy, international relations and development studies.

Intellectual Property and Sustainable Development: Development Agendas in a Changing World

Edited by

Ricardo Meléndez-Ortiz, International Centre for Trade and Sustainable Development

Pedro Roffe, International Centre for Trade and Sustainable Development

Intellectual property has gained an unprecedented importance in the new world of globalization and the knowledge economy. However, experience, as well as cyclical attitudes toward IP, show that there is no universal model of IP protection.

This comprehensive book considers new and emerging IP issues from a development perspective, examining recent trends and developments in this area. Presenting an overview of the IP landscape in general, the contributing authors subsequently narrow their focus, providing wide-ranging case studies from countries across Africa, Asia and Latin America on topical issues in the current IP discourse. These include the impact of IP on the pharmaceutical sector, the protection of life forms and traditional knowledge, geographical indications, access to knowledge and public research institutes, and the role of competition policy. The challenges developing countries face in the TRIPS-Plus world are also explored in detail..

More information is available at ICTSD's website.

Internet Domain Names, Trademarks and Free Speech

Jacqueline Lipton, Case Western Reserve University School of Law

As the first form of truly rivalrous digital property, Internet domain names raise many challenges for law and policy makers. Analyzing the ways in which past disputes have been decided by courts and arbitrators, Jacqueline Lipton offers a comprehensive, global examination of the legal, regulatory and policy issues that will shape the future of Internet domain name governance.

This comprehensive examination of domain name disputes involving personal names and political and cultural issues sheds light on the need to balance trademark policy, free speech and other pressing interests such as privacy and personality rights. The author stresses that because domain names can only be registered to one person at a time, they create problems of scarcity not raised by other forms of digital assets. Also discussed are the kinds of conflicts over domain names that are not effectively addressed by existing regulations, as well as possible regulatory reforms.

Shaping China's Innovation Future: University Technology Transfer in Transition

John L. Orcutt, Franklin Pierce Center for Intellectual Property, University of New Hampshire School of Law

Shen Hong, Longan Law Firm, Beijing, China

Since the 1980s, China has worked to develop the technology commercialization capacity of its universities. Progress has occurred, but university technology commercialization remains on the periphery of Chinese economic development. Because university technology commercialization is predominantly a 'law-based' strategy, the authors examine whether China's legal system adequately supports such efforts. Since the law does not operate in isolation, the authors conduct their analysis through the lens of China's overall innovation system. This holistic approach enables the authors first to provide a more accurate analysis of the Chinese legal system's ability to support university technology commercialization and also to generate useful insights on the strengths, weaknesses and future of the country's commercialization efforts.

One of the problems with analyzing inherently complex systems – like that of China's innovation system – is the need for expertise from a very broad range of disciplines. In that vein, Shaping China's Innovation Future employs a thorough analysis of a combination of factors including: the role of law and China's legal system; economic theory and the development of China's economy; China's educational, intellectual property, and financial systems; China's innovation capacity; and Chinese culture. Though the recommendations on how to improve China's technology commercialization system are unique for China, the scope of the research makes the conclusions found here applicable to other countries facing similar challenges.

Copyright and the Public Interest in China

Tang Guan Hong, Shanghai University of Finance and Economics, China

This book expertly highlights how the multidimensional concept of public interest has influenced the development and limitations of Chinese copyright.

Since 1990 China has awarded copyright – individual rights – but also provides for public, non-criminal enforcement. The author reveals that pressures of development, globalisation and participation in a world economy have hastened the loss of public interest from copyright. However, for a socialist country, placing the common ahead of the individual interest, the public interest also constitutes a phenomenological tool with which to limit copyright. The author also discusses how the rise of the Internet, which has had a major social and economic impact on China, raises problems for Chinese copyright law. Comparing Chinese copyright law with the USA and the UK, topical issues are presented in this unique book including those arising within education, library and archives sectors.

Genetic Resources and Traditional Knowledge: Case Studies and Conflicting Interests
Edited by

Tania Bubela, University of Alberta, Canada

E. Richard Gold, McGill University, Canada

This fascinating study describes efforts to define and protect traditional knowledge and the associated issues of access to genetic resources, from the negotiation of the Convention on Biological Diversity to The Declaration on the Rights of Indigenous Peoples and the Nagoya Protocol. Drawing on the expertise of local specialists from around the globe, the chapters judiciously mix theory and empirical evidence to provide a deep and convincing understanding of traditional knowledge, innovation, access to genetic resources, and benefit sharing.

Because traditional knowledge was understood in early negotiations to be subject to a property rights framework, these often became bogged down due to differing views on the rights involved. New models, developed around the notion of distributive justice and self-determination, are now gaining favor. This book suggests – through a discussion of theory and contemporary case studies from Brazil, India, Kenya and Canada – that a focus on distributive justice best advances the interests of indigenous peoples while also fostering scientific innovation in both developed and developing countries.

The Global Governance of HIV/AIDS: Intellectual Property and Access to Essential Medicines

Edited by

Obijiofor Aginam, International Institute for Global Health, United Nations University

John Harrington, University of Liverpool, United Kingdom

Peter K. Yu, Drake University Law School

This important book brings together leading scholars from multiple disciplines, including intellectual property, human rights, public health, and development studies, as well as activists to critically reflect on the global health governance regime.

The Global Governance of HIV/AIDS explores the implications of high international intellectual property standards for access to essential medicines in developing countries. With a focus on HIV/AIDS governance, the volume provides a timely analysis of the international legal and political landscape, the relationship between human rights and intellectual property, and emerging issues in global health policy. It concludes with concrete strategies on how to improve access to HIV/AIDS medicines.

Access to Information and Knowledge: 21st Century Challenges in Intellectual Property and Knowledge Governance
Edited by Dana Beldiman, Bucerius Law School, Germany and University of California, Hastings College of Law

Massive quantities of information are required to fuel the innovation process in a knowledge-based economy; a requirement that is in tension with intellectual property laws. Against this backdrop, leading thinkers in the IP arena explore the 'access challenge' of the 21st century, framed as the tension between the interest in the free flow of information and the fragmentation of knowledge resulting from strong IP laws.

In some areas this tension seems to resolve in a shift of IP laws in the direction of greater openness, whether due to new business models, improved legal tools or access-friendly interpretations of existing laws. The book's chapters explore the challenges encountered by this 'opening' process from various perspectives, including open access to public sector and scientific research data; enhanced use of licensing; reshaping the contours of individual IP laws; inclusion of new stakeholders in the IP debate; and challenges to the information flow in the international arena.

Trademark Protection and Territoriality Challenges in a Global Economy

Edited by

Irene Calboli, Marquette University Law School

Edward Lee, Chicago-Kent College of Law, Illinois Institute of Technology

As the modern business world becomes increasingly decentralized and globally focused, traditional interpretations and applications of trademark protection law are facing greater and greater challenges. This is particularly true regarding the principle of trademark territoriality, which holds that trademark rights are bound by the laws of individual nations. This timely volume offers expert analyses of the challenges facing crucial aspects of trademark law from some of the most prominent scholars in the field.

The contributors explore how the rise of international trade and globalization has changed the way trademark law functions in a number of important areas, including protection of well-known marks, parallel imports, enforcement of trademark rights against counterfeiting, remedies, protection of certification marks, and domain names. A detailed discussion of the history of trademarks and territoriality along with a comprehensive breakdown of current issues make this a complete and well-rounded resource for the study of trademark law in a contemporary context.

Governance of Intellectual Property Rights in China and Europe

Edited by

Nari Lee, Hanken School of Economics, Helsinki, Finland

Niklas Bruun, Hanken School of Economics, Helsinki, Finland

Li Mingde, Chinese Academy of Social Sciences, China

Intellectual property law performs a number of complex functions in society. To foster innovation and creativity in a society, governments are actively using intellectual property law as a means of governance. Both in China and in Europe, intellectual property law is used to further innovation and cultural policies to increase national competitiveness in a global economy.

Due to its impact on global trade, intellectual property laws are increasingly made and influenced by international norms. Against the backdrop of this dynamic global intellectual property norm competition and interaction, this book explores governance of intellectual property rights in China and Europe. This book examines and compares the series of intellectual property law and system reforms in China and Europe. Through the analysis, this book argues that a successful governance of intellectual property rights require not only the adoption of a set of norms but also transformation of the perspectives and the implementing institutions

Protecting Traditional Knowledge: Lessons from Global Case Studies

Evana Wright, University of Technology Sydney, Australia

Protecting Traditional Knowledge examines the emerging international frameworks for the protection of Indigenous traditional knowledge, and presents an analysis situated at the intersection between intellectual property, access and benefit sharing, and Indigenous peoples’ rights to self-determination.

Drawing on the experience of India and Peru, the author identifies lessons that may be used by Indigenous and local communities in making decisions regarding the protection of traditional knowledge. Using these two key case studies, the book argues that a sui generis regime based on principles of self-determination, prior informed consent and mutually agreed terms may empower Indigenous and local communities and act as a form of corrective justice.

The Interface Between Intellectual Property and Investment Law: An Intertextual Analysis

Emmanuel Kolawole Oke, University of Edinburgh, United Kingdom

This original book presents a critical analysis of the interface between international intellectual property law and international investment law through the lens of intertextuality. It argues that a structuralist approach to intertextuality can be useful in the context of legal interpretation, especially in relation to the interpretation of treaties.

Emmanuel Kolawole Oke critically evaluates the assumption that investment tribunals cannot take the rules of international intellectual property law into account when resolving investment disputes concerning intellectual property rights. He demonstrates instead the ways in which investment tribunals can and should adopt an intertextual approach when resolving such disputes, which, in turn, will help to preserve the intellectual property policy space of host states.

Intellectual Property and Sustainable Markets

Edited by

Ole-Andreas Rognstad, University of Oslo, Norway

Inger B. Ørstavik, University of Oslo, Norway

Discussing how intellectual property rights play a role in tackling the challenge of securing sustainable development, renowned scholars consider how the core objective of IP rights to promote innovation and development of new knowledge aligns with the UN Sustainable Development Goals (SDGs). This authoritative book provides an in-depth analysis of the multi-faceted interface between this core objective and the SDGs.

Chapters analyse selected interrelations between IP law and other areas of law, including energy and financial law. Contributors explore the dimension of social development through timely examples such as the global solar photovoltaic market, the trend towards reusing and recycling, and the digital distribution of news services. This thought-provoking book argues for sustainable markets as an overreaching and contextual approach to the role of IP rights in tackling the challenges of the UN SDGs.

Climate Change, Sustainable Development and Cleantech: A Pathway for Developing Countries

Joy Y. Xiang, Peking University School of Transnational Law, China

Climate Change, Sustainable Development and Cleantech envisions both global cleantech development and international cleantech transfer as crucial means to address climate change and secure sustainable development for planet earth. The book examines what it takes to attract foreign cleantech and encourage domestic cleantech innovation. The author proposes a pathway for developing countries that includes international aid, mutually beneficial international cleantech cooperation and domestic cleantech innovation.

Prior to becoming an academician, the author garnered over eighteen years practical experience as a software engineer and attorney at law. The author has drawn on this experience to examine empirical analysis of factual data such as global R&D data, global patenting data, international surveys concerning cleantech transfer and domestic cleantech innovation and proposes effective solutions to address climate change and achieve sustainable development.

Intellectual Property Objectives in International Investment Agreements

Pratyush Nath Upreti, School of Law, Queen's University Belfast, United Kingdom

This timely book reconciles the competing objectives of intellectual property and international investment agreements. Throughout, Pratyush Nath Upreti examines the issues arising from recent intellectual property disputes in investment arbitration from the perspectives of national and international legal orders, providing a normative analysis to resolve the tension brought by intellectual property and investor-state dispute settlement interactions.

The analysis that the book offers is not confined to the intellectual property regime; it takes a pragmatic approach in terms of substantial analysis by also exploring the international trade regime, investment law and arbitration to address the key challenges to intellectual property and investor-state dispute settlement interaction. The author also considers the emerging and potential transformation of international intellectual property law, putting more emphasis on the need to shelter its intrinsic value.

Intellectual Property Law in South East Asia

Edited by

Christoph Antons, Macquarie Law School, Macquarie University, Australia

Michael Blakeney, University of Western Australia Law School, Australia

This timely book provides a comprehensive survey of recent developments in intellectual property (IP) law within the Association of Southeast Asian Nations (ASEAN) countries, written by experienced scholars and practitioners in the field.

Divided into three insightful parts, the book looks into recent IP developments in individual countries, examining the relationship of ASEAN as a group with the wider region in IP matters, as well as providing comparative studies of copyright infringements, IP in agriculture, IP enforcement and pharmaceutical patenting in the ASEAN countries. Chapters investigate further pressing topics such as IP related to the innovation economy, covering all countries of ASEAN, recently concluded bi- and multilateral agreements and ASEAN IP negotiations with China and other trading partners.

Founding a Global Human Rights Culture for Trade Marks

Genevieve Wilkinson, Faculty of Law, University of Technology Sydney, Australia

This ground-breaking book demonstrates that states are not attentive enough to the serious human rights implications of trade mark protection. Important rights to freedom of expression, health, life, benefits from science and culture, privacy, a fair trial and protection from discrimination and hate speech are often insufficiently addressed.

The book develops an original approach that enables policy-makers to realise these rights, advocating for the development of a global human rights culture for trade marks. Using diverse examples from Australia, Uruguay, Europe, the United States and Kenya, Genevieve Wilkinson explores how trade mark protection can both promote and restrict human rights. Focusing on three detailed case studies – tobacco plain packaging, anti-counterfeiting measures and contrary marks – the book translates emerging human rights frameworks for health into a human rights framework for trade marks. It calls for greater attention to how trade marks can impact economic, social and cultural rights and proposes new ways to detect counterfeit trade marked goods.

Intellectual Property Rights in the Post Pandemic World: An Integrated Framework of Sustainability, Innovation and Global Justice

Edited by

Taina Pihlajarinne, University of Helsinki, Finland

Jukka Mähönen, University of Helsinki, Finland and University of Oslo, Norway

Pratyush Nath Upreti, School of Law, Queen's University Belfast, United Kingdom

The drastic impact of the COVID-19 pandemic highlighted many of society’s systemic inequalities. This timely and prescient book explores the role that Intellectual Property Rights (IPRs) played in the pandemic and argues for developing a framework of sustainability, innovation, and global justice in IPR systems, to build a more globally sustainable regime.

IPRs impact products and processes which address fundamental societal needs, yet innovation is largely incentivised by the granting of exclusive rights which can limit accessibility to new products and technologies. In light of the COVID-19 pandemic, Intellectual Property Rights in the Post Pandemic World adopts a cross-disciplinary approach to analyse the relationship between IPRs, sustainability, innovation and the circular economy. Chapters examine pressing issues concerning responding to crises, inventions, the circular economy, follow-on innovation and multi-stakeholder collaboration, among others, as possible ways to finance sustainability. Throughout, this book focuses on how the IP system was challenged by the events of the pandemic, with a view to understanding how IPRs can be used to promote progressive social and sustainable innovation in the future.

African Free Trade Agreements and Intellectual Property

Michael Blakeney, University of Western Australia Law School, Australia

Getachew Mengistie Alemu, Intellectual Property Consultant, Maryland

This informative book examines the intellectual property (IP) provisions of the sub-regional, continental and international Free Trade Agreements (FTAs) that have been implemented by African countries to facilitate trade and promote economic integration. Michael Blakeney and Getachew Mengistie Alemu explain how FTAs can be used when setting IP standards in order to influence the ongoing effort to develop effective international agreements with Africa.

African Free Trade Agreements and Intellectual Property details the national, sub-regional and continental structure of African IP laws and their relationship to the FTAs entered into by African states and sub-regional groupings. The book explores a broad range of topics including the socio-economic challenges of African countries, the African continental IP arrangements, Agenda 2063, cultural and biodiversity legislation. Looking ahead, the book recommends using IP to better support African countries in relation to biopiracy, access to genetic resources, the equitable sharing of benefits from the exploitation of those resources and the protection of traditional knowledge, cultural expressions and folklore.

Legal Responses to Unjustified Threats of Patent Infringement: Intellectual Property Approach or Unfair Competition Approach?

Zheng Minyu, Kempinski AG and Max Planck Institute for Innovation and Competition, Munich, Germany

In this incisive book, Zheng Minyu examines the various legal responses to unjustified threats of patent infringement. Employing a comparative, jurisdiction-based analysis, she investigates whether the unjustified nature of such threats originates from the inaccuracy of the infringing accusation or the inappropriateness of issuing threats. In particular, she reveals how to resolve threats which are issued in an undue way but contain a correct allegation of patent infringement.

The book provides a clear picture of how the legal systems in China, Germany, the United Kingdom and the United States resolve the common problem of patent infringement threats from various perspectives, including statutes and judicial practice. Comparing these jurisdictions at a micro-level, Zheng assesses the principle of proportionality that assists in the critical evaluation of the approaches used in the investigated legal solutions, namely the intellectual property approach and the unfair competition approach. Ultimately, she suggests a general rule for dealing with unjustified threats of patent infringement, fitting into the legal framework of the Paris Convention.

International Intellectual Property Law in the Age of AI: Data, Copyright and Trade Secrets

María Vásquez Callo-Müller, University of Lucerne, Switzerland

This open-access book explores the evolving landscape of international intellectual property (IP) protection in the contemporary age of artificial intelligence (AI). The author revisits the legal standards for IP protection outlined in multilateral treaties and preferential trade agreements, analyzing how these address key regulatory challenges posed by AI, including data access for AI training, the need for transparency in AI systems, and adjacent rules on the non-disclosure of source code in digital trade rulemaking.

Focusing on copyright and trade secrets, the author presents a detailed mapping and interpretation of key international IP commitments. She furthermore evaluates trends in preferential trade agreements, highlighting their potential effects on domestic IP policies, addressing a gap in current IP research. Chapters also confront issues beyond the IP realm, namely the regulation of the non-disclosure of source code in digital trade. The book provides a roadmap for understanding how the current international IP framework interacts with the needs of future AI governance, identifying the steps necessary to foster forward-thinking regulatory policies.