Law Commons^™

This Content Is Unavailable In Your Geographic Region: The United States' And The European Union's Implementation Of Anti-Circumvention Measures, Kyle Berry

Vanderbilt Journal of Transnational Law

Recently, people streaming movies and TV shows have begun to use virtual private networks (VPNs) to access content that streaming services restrict to certain geographic regions. Because of the ambiguity in international law and the implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty, domestic law fails to offer streaming services a recourse to sue foreign VPN users. The WIPO Copyright Treaty established an anti-circumvention provision that would seem to apply to using VPNs to stream from other countries. But because of the provision's ambiguity, many of the WIPO Copyright Treaty member countries have adopted different standards. This problem …

Intellectual Property As A Determinant Of Health, Ana S. Rutschman

Vanderbilt Journal of Transnational Law

Public health literature has long recognized the existence of determinants of health, a set of socioeconomic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …

Globalizing Property Law: An Institutional Analysis, Amnon Lehavi

Vanderbilt Journal of Transnational Law

This Article identifies the key role that institutions play in moving toward an effective cross-border regime in property law. Property is based on an in rem principle, which should provide a single system for ranking rights, powers, and priorities in assets that applies to all interested parties. In a global context, this feature of property law requires a cross-border legal ordering by an array of domestic and supranational institutions: legislative, administrative, and adjudicative.

The Article argues that the present fragmentation of property norms across national borders, and the incompleteness of supranational institutions that deal with property law, may place limits …

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 …

Harmonization Through Condemnation: Is New London The Key To World Patent Harmony?, Max S. Oppenheimer

Vanderbilt Journal of Transnational Law

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant. Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that "all the other countries are doing it" and the hope that some concessions in other aspects of intellectual property or trade might be obtained …

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 …

Moral Rights Protection In The United States And The Effect Of The Family Entertainment And Copyright Act Of 2005 On U.S. International Obligations, Brandi L. Holland

Vanderbilt Journal of Transnational Law

Alteration of a motion picture has become legal as a result of the Family Movie Act, an attachment to the Family Entertainment and Copyright Act approved by Congress and signed by the President in early-2005. The "family movie" provision, championed by U.S. Representative Lamar Smith, Chairman of the House Judiciary Committee's Internet and Intellectual Property Subcommittee, indemnifies any company that makes filtered versions of movies without authorization from the copyright owners. Proponents claim the bill is a way to put content-filtering back into the hands of individual families, while critics claim their copyrights are violated whenever a company redistributes their …

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 …

Japanese Intellectual Property Law In Translation: Representative Cases And Commentary, Kenneth L. Port

Vanderbilt Journal of Transnational Law

Like much of Japanese law, Japanese intellectual property law is often criticized as being inaccessible. This inaccessibility has contributed to the misperception that Japanese case law regarding intellectual property does not exist. Even if it exists, the perception goes, it takes forever to track down and it is nearly irrelevant.

This Commentary, in a very modest way, is aimed at debunking the myth that Japanese case law regarding intellectual property is either non-existent or less meaningful than its U.S. counterpart. This Commentary consists of five translations of recent, significant intellectual property cases, as well as commentary regarding the relevance and …

From Patchwork To Network: Strategies For International Intellectual Property In Flux, Paul E. Geller

Vanderbilt Journal of Transnational Law

Laws of intellectual property define what is bought and sold on media and technology markets, notably works, trademarks, and inventions. Laws and treaties have traditionally been made and enforced by nation-states operating in a patchwork of territories. Now, the media and technology marketplace is being globalized in digital networks. The law is only beginning to respond to this change.

To analyze this process in the field of intellectual property, this Article will consider the following questions: First, how is the patchwork of national laws lagging behind new networks in this field? Second, how does the international regime of intellectual property …

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 …

Commentary: The International Intellectual Property Order Enters The 21st Century, Frederick M. Abbott

Vanderbilt Journal of Transnational Law

This Commentary followed presentation of the first two articles in this volume at a meeting on the TRIPS Agreement. The commentator first reflects on the theme of Professor Oddi's article, and suggests that the TRIPS Agreement must be evaluated in the broad context of the Uruguay Round bargain. He observes that the potential economic impact of the TRIPS Agreement on global economic development is of central concern, and that much work remains to be done both in refining economic analysis of the Agreement, and in addressing developmental issues. The commentator then discusses renewed interest in the activities of WIPO, and …

Trips--Natural Rights And A "Polite Form Of Economic Imperialism", A. S. Oddi

Vanderbilt Journal of Transnational Law

This Article discusses the current predominance of natural rights theory in the area of intellectual property and of patents in particular. Due to the alleged problems of international theft and pirating of patents, the recent GATT negotiations saw intellectual property law come to center stage in the debate over trade. These negotiations concluded that trade-related aspects of intellectual property law can no longer be left to the public policy of individual countries, but require new international minimum standards.

The author discusses how the basic principles of natural rights theory have been used to convince the world community to move toward …

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 …

Prospects And Limits Of The Patent Provision In The Trips Agreement: The Case Of India, Martin J. Adelman, Sonia Baldia

Vanderbilt Journal of Transnational Law

This Article analyzes the impact of TRIPS on the pharmaceutical industry in India, an industry that has traditionally taken a "free-ride" on the technological developments of other nations. The authors discuss the patent system in India prior to TRIPS and India's long-term refusal to join the Paris Convention regarding intellectual property.

In the past, India had limited protection for technology. Some areas--food, pharmaceuticals, and products made by processes--received no patent protection at all. TRIPS changed this system and also changed the compulsory licensing and license of right provisions that limited patent protection in India. The authors argue that all people--scientists …

Worldwide Copyright Protection Under The Trips Agreement, Eric H. Smith

Vanderbilt Journal of Transnational Law

The author begins by analyzing the purposes of the TRIPS Agreement. He then discusses piracy losses on a regional and global basis, emphasizing industry-based variations and the economic impact of these losses. Mr. Smith then examines several of the key implementation problems surrounding TRIPS, including the use of transition phase-in periods for developing countries, and the availability of civil and criminal sanctions. Finally, he highlights other specific portions of the TRIPS Agreement that may engender future controversy.

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 …

Biodiversity: Opportunities And Obligations, Jeffrey P. Kushan

Vanderbilt Journal of Transnational Law

Mr. Kushan discusses the technology transfer provisions of the Convention on Biological Diversity, and outlines three themes found in the Convention related to technology transfer: benefit sharing, sovereign rights, and intellectual property rights protection. After briefly explaining the first two themes, the Article focuses on the third theme, the protection (or lack thereof) of intellectual property rights in the Convention. Mr. Kushan explains how the ideological split on intellectual property rights protection between the North and South found its way into the Convention and created ambiguous messages on intellectual property rights. Southern countries, who fear that strong intellectual property rights …

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 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.