Law Commons^™

The Rcep And Trans-Pacific Intellectual Property Norms, Peter K. Yu, Peter K. Yu

Vanderbilt Journal of Transnational Law

This Article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms that it seeks to develop. The first half of the Article focuses on the RCEP Agreement as a mega-regional agreement. It begins by briefly discussing the historical origins of the RCEP. It then explores three possible scenarios in which the RCEP Agreement will help shape trade and intellectual property norms in the Asia-Pacific region. Specifically, the Article evaluates the scenarios in which the agreement will function as a rival pact, a building block, and an alternative path. The second half of this Article …

The Trans-Pacific Partnership:The Death-Knell Of Generic Pharmaceuticals?, Alexander Stimac

Vanderbilt Journal of Transnational Law

As global commerce continues to expand, many states find international trade agreements to be a useful tool to facilitate this continued expansion. Trade agreements permit developing or poorer nations to establish robust, mutually beneficial trade relationships with powerful economies such as the United States. In the face of regional competition from China, several nations bordering the Pacific Ocean, including the United States, have reached a far-reaching trade agreement called the Trans-Pacific Partnership (TPP). This Note will focus on one particular piece of the TPP: the pharmaceutical trade and the international availability of generic medicines. The TPP has the potential to …

The International Reach Of Criminal Copyright Infringement Laws, Sara K. Morgan

Vanderbilt Journal of Transnational Law

Piracy and illegal downloading in the Internet age have been on the forefront of the intellectual property community's mind since the early 2000s. Websites such as The Pirate Bay are often labeled as being leaders in copyright infringement, giving users the ability to illegally download thousands of files. However, there are both jurisdictional and extradition issues with prosecuting the founders of these websites, because The Pirate Bay and many others like it are often based in other countries. Recently, the Stop Online Piracy Act and PROTECT IP Act have stirred up controversy, with many alleging that their international reach went …

Navigating The Minefield Of Trade Secrets Protection In China, Daniel C.K. Chow

Vanderbilt Journal of Transnational Law

Many Multinational Companies (MNCs) now consider trade secrets to be the most important intellectual property right in China, ahead of patents, trademarks, and copyrights. While trade secrets have become more valuable than ever as a business asset in China, many MNCs also find that the protection of trade secrets in China is full of pitfalls and traps. Unlike in the case of patents, trademarks, and copyrights, China has no unified law governing trade secrets, but has disjointed provisions scattered throughout various laws. The pitfalls are also created by a high evidentiary burden in proving a theft of a trade secret …

Replacing Slingshots With Swords: Implications Of The Antigua-Gambling 22.6 Panel Report For Developing Countries And The World Trading System, Georgia Hamann

Vanderbilt Journal of Transnational Law

In December 2007, the WTO awarded Antigua the right to suspend TRIPS obligations at a value of $21 million. This decision represents the WTO's continuing evolution into a body capable of addressing the concerns of developed countries while balancing the legitimate interests of developed nations. For the second time, the WTO has authorized suspension of intellectual property protection under the TRIPS agreement. Such a remedy, if widely adopted, has the capacity to address concerns surrounding effective retaliation by small economies versus large economies, which traditionally have discouraged developing countries from participating in WTO dispute resolution. Additionally, the remedy seems likely …

Motion Picture Piracy: Controlling The Seemingly Endless Supply Of Counterfeit Optical Discs In Taiwan, Stephen K. Shiu

Vanderbilt Journal of Transnational Law

Annually, Hollywood loses roughly $3.5 billion dollars in revenue to optical disc piracy in Taiwan. Optical disc piracy involves the camcording or copying of motion pictures onto laserdiscs, digital versatile discs, or video compact discs. Through the U.S. Trade Representative's satellite enforcement offices in Taiwan and coordination with the Taiwanese legislature and enforcement agencies, the U.S. motion picture companies have been able to influence some change in the frequency and severity of optical disc piracy in Taiwan. This can be mainly attributed to the Motion Picture Association of America's alliance with the U.S. Trade Representative in placing Taiwan on numerous …

Promoting Intellectual Property For Economic Growth, Rita Hayes, Ambassador

Vanderbilt Journal of Transnational Law

The World Intellectual Property Organization, based in Geneva, is a specialized agency of the United Nations that deals with international intellectual property matters. The Organization is perhaps best known for international agreements such as the Patent Cooperation Treaty (the PCT), The Madrid Agreement, and the Hague Agreement, which provide international registration and protection for patents, trademarks, and industrial designs, respectively.

The Organization's work in standard setting--through the development of international intellectual property law--covers the range of intellectual property from industrial property to copyright. Many of you are familiar with the WIPO Internet Treaties, two international treaties that came into force …

Anti-Circumvention: Has Technology's Child Turned Against Its Mother?, Terri B. Cohen

Vanderbilt Journal of Transnational Law

Because its function is to protect and support innovation, copyright has been deemed a child of technology. Yet, as copyright laws increase the scope of protection for copyrighted material, one may wonder when such protection will begin to stymie, rather than encourage, emerging technology. The global trend toward internationalizing copyright protection has resulted in the World Intellectual Property Organization (WIPO) Copyright Treaty, which was intended, in part, to bring international copyright protection into the digital age. The treaty, however, extends traditional copyright protections by including a requirement that member nations implement anti-circumvention provisions into their laws.

Great debate has emerged …

Trade, Competition, And Intellectual Property--Trips And Its Antitrust Counterparts, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

This Article examines the interface between TRIPS' protection of intellectual property rights and antitrust law, and the extent to which TRIPS invites a counterpart agreement that would internationalize intellectual property antitrust rules.

Professor Fox argues that TRIPS does not call for internationalizing antitrust law, and that even developing countries, which might find a greater need for antitrust protection against abuse of dominance after TRIPS, might be better served by developing and enforcing a national antitrust law of their own.

She argues that TRIPS does, however, contemplate some limits to antitrust, lest antitrust enforcement impair protections guaranteed by TRIPS. Professor Fox …

Trips Boomerang--Obligations For Domestic Reform, Harold C. Wegner

Vanderbilt Journal of Transnational Law

Today, one of the biggest obstacles facing inventors is the problem of patent harmonization. Inventors, who spend their time, money, and resources to develop new technology, are faced with the problem of ensuring that their new development receives patent protection not only in their home countries, but also worldwide. This problem is complicated by the fact that the United States maintains a different patent filing process than most other developed nations. Efforts of the international community to harmonize these different approaches, however, have been only partially successful.

In this Article, Professor Wegner examines the latest attempt by the international community …

Compliance With Trips: The Emerging World View, Adrian Otten, Hannu Wager

Vanderbilt Journal of Transnational Law

This Article provides an overview of the substantive provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The authors begin by explaining how the TRIPS Agreement signals a new emphasis on protecting intellectual property in the international trading system and the World Trade Organization. They then discuss the Agreement's obligations on substantive protection, as well as its enforcement and dispute resolution mechanisms. Finally, the authors address the international plans for the Agreement's implementation and administration. Otten and Wager conclude that, while it does not solve all the problems related to international intellectual property matters, the TRIPS Agreement …

Biodiversity Prospecting: Fulfilling The Mandate Of The Biodiversity Convention, Edgar J. Asebey, Jill D. Kempenaa

Vanderbilt Journal of Transnational Law

After a brief overview of biodiversity prospecting, the authors review the historical context of biodiversity prospecting, including the common heritage doctrine, international patent law, and the Biodiversity Convention. The authors analyze the four major United States prospecting initiatives to date and identify their strengths and shortcomings. The authors then investigate two possible alternatives: (1) biological resource cartelization and (2) the development of a new type of biodiversity enterprise. The authors advocate the latter as a means of complying with the Biodiversity Convention.

Trade, Intellectual Property, And The Development Of Central And Eastern Europe: Filling The Gatt Gap, Anne D. Waters

Vanderbilt Journal of Transnational Law

A major obstacle encountered by the formerly Communist states of Central and Eastern Europe as they convert to market economies is the lack of necessary capital. To raise that capital, these states are largely dependent on foreign investors. Inadequate protection of intellectual property in the formerly Communist states, however, may deter foreign investment. This Note examines Central and Eastern Europe's need for capital and the effect that the quality of intellectual property protection may have on its ability to obtain capital. The Author concludes that, in order for the new economies to survive, not only must the states of Central …

Case Comment, John C. Herman

Vanderbilt Journal of Transnational Law

Section 337 of the recently amended Tariff Act of 1930 permits United States patent owners to bar from importation goods that infringe upon their patents. In Amgen, Inc. v. United States International Trade Commission, the Federal Circuit refused to grant relief to the patent owner because it had no claim on either the final product imported or the process to create the product. The alleged infringer, however, had to use the patented product to create the final product, which, if done in the United States, would infringe the patent.

This Comment argues for an extension of section 337 to cover …

Combatting Piracy Of Intellectual Property In International Markets: A Proposed Modification Of The Special 301 Action, Theodore H. Davis Jr.

Vanderbilt Journal of Transnational Law

Increasing losses attributable to the piracy of United States intellectual property rights in international trade have forced domestic policymakers to reexamine how best to protect these rights. This Article examines the United States most recent bilateral strategy to protect intellectual property, the Special 301 action, which creates a virtually mandatory United States Trade Representative (USTR) investigation into states that have inadequate intellectual property laws or that deny fair market access to United States citizens who rely on intellectual property protection. Part One of this Article discusses the historic interaction between United States intellectual property protection and trade measures. Part Two …

Intellectual Property In International Trade: Opportunities And Risks Of A Gatt Connection, J. H. Reichman

Vanderbilt Journal of Transnational Law

Professor Reichman uncovers a paradox at the heart of the debate about bringing international intellectual property relations within a GATT Code of Conduct. On the one hand, the industrialized countries that subscribe to free-market principles at home want to impose a highly regulated market for intellectual goods on the rest of the world, one in which authors and inventors may "reap where they have sown." On the other hand, the developing countries that restrict free competition at home envision a totally unregulated world market for intellectual goods, one in which "competition is the lifeblood of commerce." To unravel this paradox, …

Intellectual Property And International Trade: Merger Or Marriage Of Convenience?, R. Michael Gadbaw

Vanderbilt Journal of Transnational Law

This Article examines the interaction between trade and intellectual property rights policies through certain key developments in United States law, the General Agreement on Tariffs and Trade (GATT) and the World Intellectual Property Organization (WIPO). While this brief review is not intended to provide a definitive analysis, it will offer worthwhile insights into the prospects for, and implications of, such a merger. For this purpose, this Article considers the efforts in GATT to negotiate a code on intellectual property rights and the parallel efforts in WIPO to negotiate a treaty for the protection of semiconductor designs. While the GATT talks …

International Trade And Intellectual Property: Promise, Risks, And Reality, Congressman Robert W. Kastenmeier, David Beier

Vanderbilt Journal of Transnational Law

The trading nations of the world are set to make decisions that will determine the future pattern of international trade. Negotiations are currently underway to bring trade in certain agricultural products, services, and goods and services protected as intellectual property" within the General Agreement on Tariffs and Trade (GATT). This Article will outline how the consideration of intellectual property came to be included in this round of talks. It will assess the potential benefits and risks of including intellectual property, forecast the probable outcome, and, finally, suggest ways to improve the chances for inclusion of intellectual property into the GATT. …

The Economics Of Intellectual Property Rights And The Gatt: A View From The South, Carlos A.P. Braga

Vanderbilt Journal of Transnational Law

This Article explores the attitude of less developed countries (LDCs) with respect to the debate on TRIPs at the Uruguay Round. Part II addresses the evolution of the debate at the GATT level. Part III presents the economics of intellectual property rights protection from the point of view of LDCs. Finally, Part IV summarizes the main conclusions and recommendations of the Article.

Uruguay Round Trips: A Bibliographic Essay, William M. Walker

Vanderbilt Journal of Transnational Law

The Uruguay Round of multilateral trade negotiations began with a special ministerial meeting of the Contracting Parties to the General Agreement on Tariffs and Trade (GATT) held in Punta del Este, Uruguay, on September 20, 1986. "Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods" (TRIPs) is a designated subject for negotiation in the Uruguay Round. The inclusion of intellectual property rights in the Uruguay Round is the culmination of a process that began during the Tokyo Round. While the Tokyo Round was in progress, the United States and the European Community reached a tentative accord on various …

Protecting First World Assets In The Third World: Intellectual Property Negotiations In The Gatt Multilateral Framework, Frederick M. Abbott

Vanderbilt Journal of Transnational Law

This Article addresses industrialized countries' growing concerns over technology transfer and their efforts to obtain protection of intellectual property rights under the General Agreement on Tariffs and Trade (GATT). Mr. Abbott analyzes the intellectual property problem in the context of the GATT framework and the weakness of current intellectual property protection. Developing countries do not accept the United States contention either that intellectual property is covered implicitly by the GATT or that the current lack of protection reflects a fundamental flaw in the General Agreement. Mr. Abbott focuses on this disagreement in laying out the framework for possible solutions, which …

Intellectual Property Rights And The Gatt: United States Goals In The Uruguay Round, Mark L. Damschroder

Vanderbilt Journal of Transnational Law

The pursuit of protection of IP rights is a valuable goal both for the United States and the rest of the world community. Such rights promote creativity and the advancement of knowledge, as well as fuel the domestic economy and improve the position of the United States vis-a-vis the other trading nations of the world. With the growing interdependence of the global economy, there is no time like the present to lay the foundation for a system of dispute settlement of such trade matters. Economic interdependence will continue to increase, and the problems of international trade in, and piracy of, …

The Validity Of The Manufacturing Clause Of The United States Copyright Code As Challenged By Trade Partners And Copyright Owners, Annette V. Tucker

Vanderbilt Journal of Transnational Law

Trade treaty partners recently have determined that the manufacturing clause violates United States obligations under the General Agreement on Tariffs and Trade (GATT). If the clause does violate GATT, sanctions may be imposed unless the clause is eliminated. Even so, two bills have been introduced in the United States Congress to make the clause a permanent feature of the copyright law, and to apply the manufacturing requirement to all printed materials. Meanwhile, a group of United States publishers and authors is challenging the clause in court, claiming it violates both the first and fifth amendments to the United States Constitution. …

Technology Transfer As An Issue In North/South Negotiations, Homer O. Blair

Vanderbilt Journal of Transnational Law

For a number of years, negotiations have been taking place on an international scale, usually under the auspices of the United Nations or one of its specialized agencies, on a wide variety of subjects involving technology transfer between the developed countries (the North) and the less developed or developing countries (the South). Three primary groups are involved in the United Nations negotiations. The first is known as the Group of 77, which now includes more than 120 developing countries, including countries in South and Central America, Africa, and Asia. Within this group the degree of development varies from countries such …