Law Commons^™

Digital Copyright Enforcement Measures And Their Human Rights Threats, Peter K. Yu

Peter K. Yu

No abstract provided.

U.S. Should Not Worry About Chinese Leaders Meeting With Tech Titans, Peter K. Yu

Peter K. Yu

No abstract provided.

Cultural Relics, Intellectual Property, And Intangible Heritage, Peter K. Yu

Peter K. Yu

In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken …

From Pirates To Partners (Episode Ii): Protecting Intellectual Property In Post-Wto China, Peter K. Yu

Peter K. Yu

In From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, I criticized the ineffectiveness and short-sightedness of the U.S.-China intellectual property policy. As I argued, the approach taken by the administration in the 1980s and early 1990s had created a cycle of futility in which China and the United States repeatedly threatened each other with trade wars only to back down in the eleventh hour with a compromise that did not provide sustainable improvements in intellectual property protection. Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul …

Access To Medicines, Brics Alliances, And Collective Action, Peter K. Yu

Peter K. Yu

Most discussions on the public health implications of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights focus on the right of less developed countries to issue compulsory licenses and the need for these countries to exploit flexibilities within the TRIPs Agreement. However, there are other means by which countries can enhance access to essential medicines. To provide an illustration of these other means, this article explores the possibility for greater collaboration among the BRICS countries (Brazil, Russia, India, China, and South Africa) and between these countries and other less developed countries.

This article begins by offering a brief …

Region Codes And The Territorial Mess, Peter K. Yu

Peter K. Yu

Tourists, frequent travelers, and foreign film aficionados hate DVD region codes with a passion. Written for the 30th Anniversary Symposium of the Cardozo Arts & Entertainment Law Journal, this article critically examines the expediency of using region-based restrictions to protect copyrighted media content.

The article begins by closely examining four justifications for the deployment of DVD region codes: sequential release; price discrimination; distribution and licensing agreements; and censorship ratings and regulatory standards. It also identifies four areas in which DVD region codes have created unintended consequences: consumption, competition, cultural rights, and censorship.

The article then advances three proposals to address …

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Peter K. Yu

No abstract provided.

Teaching International Intellectual Property Law, Peter K. Yu

Peter K. Yu

Intellectual property law was in the backwater only a few decades ago. The Section on Intellectual Property Law of the Association of American Law Schools was not even founded until the early 1980s, and the creation of intellectual property specialty programs has been only a recent phenomenon. As senior legal scholars reminisce, early in their career, they would have been lucky to find a school that would allow them to teach a class on intellectual property law. Although intellectual property law teaching has come of age in the past decade, international intellectual property law courses remain nonexistent in more than …

The Middle Kingdom And The Intellectual Property World, Peter K. Yu

Peter K. Yu

Delivered as the keynote opening address at the Symposium on "China's Role in Regulating the Global Information Economy," this Article scrutinizes China's participation in the international intellectual property regime and its role in both the WTO and WIPO. It begins by discussing China's engagement with international intellectual property norms before its accession to the WTO in December 2001. It points out that China is not a "norm breaker" one typically infers from its disappointing record of intellectual property protection. Instead, the country should be viewed as a "norm taker," having accepted most of the WIPO-administered intellectual property treaties available for …

Moral Rights 2.0, Peter K. Yu

Peter K. Yu

When the protection of moral rights is brought up in the United States, commentators have always emphasized the differences between continental Europe and the United States.2 Cases that have been widely used as textbook illustrations include Soc. Le Chant de Monde v. Soc. Fox Europe3 and Turner Entertainment Co. v. Huston.4 While the Anglo-American copyright regime and the French author’s right (droit d’auteur) regime were quite similar in the eighteenth century, 5 the protection of moral rights did not attain formal international recognition until 1928.6 The gap between the U.S. and French systems has also grown considerably since the enactment …

The Rise And Decline Of The Intellectual Property Powers, Peter K. Yu

Peter K. Yu

In the past decade, China has experienced many impressive economic and technological developments. Intriguingly, the narrative about piracy and counterfeiting there is rarely linked to the narrative about the China's technological rise. To provide a more comprehensive picture, this article brings together these two different narratives to explore what their combination would mean for the United States and its intellectual property industries.

Delivered as the keynote luncheon address at the Symposium on "Applications of Intellectual Property Law in China," this article begins with the good news that China is at the cusp of crossing over from a pirating nation to …

Toward A Nonzero-Sum Approach To Resolving Global Intellectual Property Disputes: What Can We Learn From Mediators, Business Strategists, And International Relations Theorists, Peter K. Yu

Peter K. Yu

Countries differ in terms of their levels of wealth, economic structures, technological capabilities, political systems, and cultural tradition. No two countries have the same needs or goals. As a result, policymakers face different political pressures and make different value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. These uncoordinated judgments eventually result in a conflicting set of intellectual property laws around the world. As countries become increasingly interdependent in this globalized economy, these conflicting laws create tension and sometimes result in disputes. To minimize differences and prevent conflicts, countries use …

Intellectual Property Training And Education For Development, Peter K. Yu

Peter K. Yu

Written for a symposium addressing the need to construct a positive policy and research agenda for international intellectual property law, this article explores ways to improve the design and delivery of intellectual property training and educational programs. The article draws on the author's experience as the rapporteur for the International Roundtable on WIPO Development Agenda for Academics. The article begins by reflecting on WIPO’s changing orientation, outlining the principles and goals recognized in its Development Agenda. It emphasizes the need for an expansion of coverage in intellectual property training and educational programs. It also offers guidelines on ways to redesign …

Of Monks, Medieval Scribes, And Middlemen, Peter K. Yu

Peter K. Yu

Today's copyright debate has generally focused on the digital dilemma created by Internet and new media technologies. Threats created by emerging communications technologies, however, are not new. Throughout history, there have been remarkable similarities between the threats created by new technologies and those posed by older ones.

During the oral argument in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., Justice Stephen Breyer questioned whether the petitioners' counsel would apply the test proposed for the new technology to some once-new technologies, such as the photocopying machine, the videocassette recorder, the iPod, and the printing press. When the counsel quickly responded in the …

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Peter K. Yu

Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in the country alone. Published as part of the U.S.-China Trade: Opportunities and Challenges Symposium, this Essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the Dispute Settlement Body of the World Trade Organization over inadequate enforcement of intellectual property rights.

The Essay begins by articulating four reasons why the administration should not do so. It then compares the approach recently proposed …

Fictional Persona Test: Copyright Preemption In Human Audiovisual Characters, Peter K. Yu

Peter K. Yu

Whether a producer's copyright in human audiovisual characters preempts the actors' rights of publicity claims is the focus of this Note. Part I outlines the framework of state right of publicity law and traces the development of case law involving such a right. Because "[a]dvertisers who want to run a particular advertisement nationally must comply with the law of all fifty states," this Note focuses on the right of publicity of the state with the broadest interpretation-the state of California. This Part shows that, under existing California right of publicity law, virtually anything evoking one's personal identity, including copyrighted materials, …

The Alphabet Soup Of Transborder Intellectual Property Enforcement, Peter K. Yu

Peter K. Yu

n the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the "alphabet soup" of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN.

Published in the inaugural issue of Drake Law Review Discourse, this short essay identifies six different concerns and challenges the Anti-Counterfeiting Trade Agreement (ACTA) poses to U.S. consumers, technology developers, and small and midsize firms. It then explores the ongoing negotiation …

Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, Peter K. Yu

Peter K. Yu

The debate on China's piracy and counterfeiting problems has been ongoing for more than two decades. However, in the past few years, this debate has taken on a new sense of urgency and significance. In August 2008, the City of Beijing will host the Summer Olympic Games. Two years later, the 2010 World Expo will be held in Shanghai. In addition, two World Trade Organization dispute settlement panels were recently established to resolve disputes between China and the United States over inadequate enforcement of intellectual property rights and inadequate market access to U.S. media products. All of these developments, of …

Reconceptualizing Intellectual Property Interests In A Human Rights Framework, Peter K. Yu

Peter K. Yu

Since the establishment of the World Trade Organization and the entering into effect of the TRIPs Agreement, government officials, international bureaucrats, intergovernmental and nongovernmental organizations, courts, and scholars have focused more attention on the interplay of human rights and intellectual property rights. For example, the U.N. Sub-Commission on the Promotion and Protection of Human Rights recently noted the considerable tension and conflict between these two sets of rights. To avoid these conflicts, the Sub-Commission recommended the primacy of human rights obligations over economic policies and agreements.

While this hierarchy of rights appears straightforward, the situation is actually more complicated because …

P2p And The Future Of Private Copying, Peter K. Yu

Peter K. Yu

Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate. Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek …

World Trade, Intellectual Property, And The Global Elites: An Introduction, Peter K. Yu

Peter K. Yu

Extract: Traditionally, intellectual property lawmaking is a matter of domestic affairs. Without external interference, governments make value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. Combined together, these disparate judgments form an intellectual property system that is tailored to the country's level of wealth, economic structure, technological capability, political system, and cultural tradition. To protect authors and inventors, governments sometimes need to make adjustments to their intellectual property systems in exchange for better protection abroad. In those scenarios, policymakers often evaluate the adjustments carefully to make sure that they correspond …

Tpp And Trans-Pacific Perplexities, Peter K. Yu

Peter K. Yu

No abstract provided.

Trips And Its Achilles' Heel, Peter K. Yu

Peter K. Yu

Written for the "15 Years of TRIPS Implementation" Symposium, this article examines why the TRIPS Agreement fails to provide effective global enforcement of intellectual property rights. It attributes such failure to five sets of challenges: historical, economic, tactical, disciplinary, and technological.

The article then outlines the various actions taken by both developed and less developed countries to steer the TRIPS Agreement and the larger international intellectual property system toward their preferred positions. While developed countries push for the development of stronger enforcement norms, less developed countries resist those demands and complain about the use of bilateral, plurilateral, and regional trade …

Traditional Knowledge, Intellectual Property, And Indigenous Culture: An Introduction, Peter K. Yu

Peter K. Yu

Human communities have always generated, refined and passed on knowledge from generation to generation. Such "traditional" knowledge" [sic] is often an important part of their cultural identities. Traditional knowledge has played, and still plays, a vital role in the daily lives of the vast majority of people. Traditional knowledge is essential to the food security and health of millions of people in the developing world. In many countries, traditional medicines provide the only affordable treatment available to poor people. In developing countries, up to 80% of the population depend on traditional medicines to help meet their healthcare needs. In addition, …

Trips And Its Discontents, Peter K. Yu

Peter K. Yu

The TRIPs Agreement was established at the ministerial meeting in Marrakesh in April 1994. Since its establishment, many less developed countries have become dissatisfied with the international intellectual property system. From their perspective, the system fails to take into consideration their needs, interests, and local conditions. The strong protection mandated by the Agreement also threatens their much-needed access to information, knowledge, and essential medicines.

This year marks the tenth anniversary of the TRIPs Agreement. It provides an excellent opportunity to assess the Agreement's achievements and shortfalls, in particular its impact on the international community as well as on other areas …

Are Developing Countries Playing A Better Trips Game, Peter K. Yu

Peter K. Yu

The Agreement on Trade-Related Aspects of Intellectual Property Rights entered into force more than 15 years ago. Although commentators have widely criticized the Agreement for its failure to address the needs, interests, conditions, and priorities of less developed countries, few have examined whether these countries have now attained greater success in shaping the development of the Agreement than they did before. This Article seeks to fill the void by examining the performance of these countries at various stages of development of the TRIPS Agreement.

Utilizing game theory and game metaphors, this Article disaggregates the "TRIPS game" into five different mini-games: …

Ten Common Questions About Intellectual Property And Human Rights, Peter K. Yu

Peter K. Yu

With the continuous expansion of intellectual property rights, there is a growing need for the development of a human rights framework for intellectual property rights. Such a framework is not only socially beneficial, but will enable the development of a balanced intellectual property system that takes human rights obligations into consideration. Developing such a framework, however, is not easy and has raised many difficult questions. Some of these questions are foundational, some of them conceptual, and the remainder merely implementational.

This article tackles in turn ten questions the author has frequently encountered when he discusses the development of a human …

Six Secret (And Now Open) Fears Of Acta, Peter K. Yu

Peter K. Yu

In April 2009, Japan, the United States, the European Community, and other negotiating parties of the Anti-Counterfeiting Trade Agreement released a joint consolidated draft of the once-secret agreement. Although the release of this document has alleviated some of the concerns about the lack of transparency and public participation, there remain many unanswered questions.

Written for a symposium on intellectual property law, this article argues that ACTA remains highly problematic and dangerous. It identifies six different fears of the Agreement: (1) concerns over the procedural defects of the ACTA negotiation process; (2) the potential for ACTA to ratchet up the already …

The Copyright Divide, Peter K. Yu

Peter K. Yu

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to …

Sinic Trade Agreements, Peter K. Yu

Peter K. Yu

In the past decade, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. What are the strengths and weaknesses of these agreements? Are China's bilateral and regional trade agreements different from these agreements? What are China's goals and negotiation strategies? What will happen if China's bilateral approach clashes with that of the European Union or the United States?

This Article begins by examining China's growing engagement with the less developed world, in particular Africa, Latin America and Southeast Asia. It analyzes the goals, strengths and weaknesses of EU economic partnership …