Law Commons^™

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

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This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif

ExpressO

The Intellectual Property Rights (IPR) regime adopted by any country is essentially a tool that strives to ensure both the growth of the domestic pharmaceutical industry and people’s access to medicines. But, contrary to the very easily advanced theory, there is no paradox between the two. From this perspective, the Indian experience has shown that it is precisely the relaxation of its national IPR regime that promoted the growth of its domestic industry, thereby ensuring a better patient access to medicines. However, the globalisation process does not overlook any sector, which means that medicines too are submitted to the new …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Through The Looking Glass: Runaway Productions And "Hollywood Economics", Adrian H. Mcdonald

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This paper uses the issue of runaway production as a looking glass into the complex world of Hollywood economics and politics. As such, a broad overview of Hollywood's business practices, history, and technology are discussed so the reader can understand how runaway production (a major issue itself) is one piece of the Hollywood puzzle. Specifically, this paper attempts to study runaway productions from the Law and Economics approach described in Judge Richard Posner's text on the subject. Events in 2006 illustrate the continuing importance of runaway productions and CEIDR's August 2006 report is discussed in this paper.

Recently expanded, this …

Article 17 And The Scope Of Trademark Protection Afforded Under The Trips Agreement, Katja G. Weckstroem

ExpressO

The protection of trademarks, when it raises a conflict with the protection of geographical indications is one of the most contested issues on the international trade and intellectual property arena. In European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs a WTO panel was faced with this issue. The panel report gives some insight into what international trademark law mandates as well as some pointers on how conflicts between different IP rights should be solved. This article attempts a deeper analysis of the coexistence of rights in the framework of the TRIPS Agreement that will …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

ExpressO

As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The (Intellectual Property Law &) Economics Of Innocent Fraud: The Ip & Development Debate, Peter Matthew Beattie

ExpressO

This note/essay examines the evidence on the effect of stronger IP laws introduced during the process of international IP law harmonization initiated by the TRIPS agreement, on the economic development of developing countries. It has been argued by proponents of harmonization that stronger IP laws will provide a needed boost to the economic development of developing (and even least-developed) countries. Critics of harmonization have argued that stronger IP laws will have the opposite effect. What has been largely overlooked in this debate is the strength of the evidentiary foundation upon which the arguments of both sides depend. Many of the …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

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This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Global Copyright, Local Speech, Michael Dan Birnhack

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Copyright is no longer a matter of "promoting the progress of science" in the words of the U.S. Constitution. It is now more than ever before a matter of trade. Furthermore, under the WTO's TRIPS Agreement, we now have a global copyright (G©) regime.

The globalization of copyright law destabilized previous balances. The shift to a trade environment requires us to reevaluate the previous balance. The concern explored in this article is that the old foundations will collapse under the heavy weight of global forces. The concern is that local culture, access to information, research and free speech in general, …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Taking 'Trade And Culture' Seriously: Geographical Indications And Cultural Protection In Wto Law , Tomer Broude

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The regulation of the relationship between international trade law and cultural protection is one of the challenges that the World Trade Organization (WTO) will be facing with greater intensity in the second decade of its existence. This paper approaches the problem as it is reflected in the current debate on Geographical Indications (GIs) for food and wine products in the WTO. It seeks to take 'trade and culture' seriously, looking not only at law's effects on trade but also on culture, and to examine the extent to which legal restrictions on international trade can in fact prevent the degradation of …

Sharing Potential And The Potential For Sharing: Open Source Licensing As A Legal And Economic Modality For The Dissemination Of Renewable Energy Technology, Jason Wiener

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No abstract provided.

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

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The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia’S Bilateral Fta Negotiations With The U.S., Ralph G. Fischer

ExpressO

This paper attempts to address the ongoing debate regarding the expansion of intellectual property rights (IPRs) through international negotiations. Commentators have described three theories that purport to explain the growing scope of IPRs in international law, as reflected in international agreements: that these agreements reflect coercion by economically powerful nations; that they are the products of lobbying by multinational corporations; and that they represent autonomous, welfare-enhancing instruments that benefit all parties. The article tests these theories by using a case study comparing free trade agreement negotiations that the United States recently concluded with a less developed country, Chile, and with …

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

Not Enough? An Examination Of China’S Compliance With The Intentions Of The Trips Accord, Jonathan Mark W.W. Chu

ExpressO

As China is in its third year as a member of the World Trade organization, there is much anticipation as to whether its protection of intellectual property rights is up to international standards. Being one of the largest trading nations in the world, much attention has been given to China’s development since its accession to the WTO. The US Chamber of Commerce has recently made a visit to China in order to examine its progress on implementing WTO rules and the WTO’s Sixth Session of the Ministerial Conference will be hosted by Hong Kong, China. As an increasing amount of …

Trips' Rebound: How The Agreement On Trade-Related Aspects Of Intellectual Property Rights ("Trips") Can Ricochet Back Against The United States: An Historical Analysis, Donald Harris

ExpressO

No abstract provided.

Patent Wars In The Valley Of The Shadow Of Death: The Pharmaceutical Industry, Ethics And Global Trade, Uche Ewelukwa

ExpressO

No abstract provided.

How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford

ExpressO

This paper explores the workings of the patent system in the context of the generation of new pharmaceutical products. First it identifies the relevant characteristics of the patent system and its relation to the market. The paper concedes that, in general, the patent system is probably the best way of generating new technology, in substantial part because that system uses the market to provide both incentives and rewards. The paper also identifies downsides of this patent/market system: deadweight loss and the unresponsiveness of that patent/market system to the needs of the poor. The paper then explores the social costs and …

Arthritic Flexibilities: Analysis Of Wto Action Regarding Paragraph 6 Of The Doha Declaration On The Trips Agreement And Public Health, Brook K. Baker

ExpressO

This paper explores the tortured history of developing countries’ pursuit of access to affordable generic medicines that they are unable to produce efficiently on their own. Having lost rights to treat medicines as essential commodities and as generalized exceptions to patent protections in the WTO TRIPS Agreement, developing countries and public health activists temporarily reasserted the primacy of health over profits in the Doha Declaration on the TRIPS Agreement and Public Health in November of 2001. However, since most developing countries lack meaningful pharmaceutical capacity to manufacture medicines efficiently on their own, they needed flexibility to import medicines from countries …