Law Commons^™

Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, 7 J. Marshall Rev. Intell. Prop. L. 412 (2008), Peter K. Yu

Peter K. Yu

Commentators have attributed China’s piracy and counterfeiting problems to the lack of political will on the part of Chinese authorities. They have also cited the many political, social, economic, cultural, judicial, and technological problems that have arisen as a result of the country’s rapid economic transformation and accession to the WTO. This provocative essay advances a third explanation. It argues that the failure to resolve piracy and counterfeiting problems in China can be partly attributed to the lack of political will on the part of U.S. policymakers and the American public to put intellectual property protection at the very top …

The International Enclosure Movement, Peter K. Yu

Peter K. Yu

Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and …

The Trips Enforcement Dispute, Peter K. Yu

Peter K. Yu

2010 marks the fifteenth anniversary of the entering into force of the WTO TRIPS Agreement. When the Agreement was adopted, commentators quickly extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property regime. Although intellectual property rights holders continue to rely on protection offered by the TRIPS Agreement, many of them have now become frustrated with the inadequacy of such protection. The agreement’s enforcement provisions, in particular, have been criticized as weak, primitive, and obsolete.

After more than a decade of implementation, these provisions finally became the subject of a dispute before …

The Global Intellectual Property Order And Its Undetermined Future, Peter K. Yu

Peter K. Yu

As an introduction to the inaugural issue of the new WIPO Journal, this essay highlights some of the key recent developments in the intellectual property field. The essay begins by discussing the increasingly complex, and at times incoherent, international legal order governing the protection and enforcement of intellectual property rights. It shows how much the system has been transformed since the launch of the Paris and Berne Conventions in the 1880s.

The essay then examines the increasingly polarized debate on intellectual property law and policy. Although the debate’s growing divisiveness is understandable, given the rapid expansion of intellectual property rights …

Trips Enforcement And Developing Countries, Peter K. Yu

Peter K. Yu

No abstract provided.

Taking Atrip Down Memory Lane, Peter K. Yu

Peter K. Yu

The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) was founded in Geneva in July 1981, with the support and assistance of the World Intellectual Property Organization. This professional academic association now includes hundreds of intellectual property professors and researchers from around the world. As the final contribution to the "ATRIP Passes 30" Symposium, which collects the reminiscences of the past and current ATRIP presidents, this short essay provides, in chronological order, some key information about all the pre-ATRIP Round Tables and ATRIP Congresses. This short history not only documents the historical origins, rapid growth …

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

Peter K. Yu

No abstract provided.

Tpp And Trans-Pacific Perplexities, Peter K. Yu

Peter K. Yu

In the past few years, the United States has been busy negotiating the Trans-Pacific Partnership (TPP) Agreement with countries in the Asia-Pacific region. These countries include Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Although it remains unclear which chapters or provisions will be included in the final text of the TPP Agreement, the negotiations have been quite controversial. In addition to the usual concerns about having high standards that are heavily lobbied by industries and arguably inappropriate for many participating countries, the TPP negotiations have been heavily criticized for their secrecy and lack …

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 American foreign intellectual property policy toward China. As I argued, the coercive approach taken by the U.S. administrations 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 sustained improvements in intellectual property protection.

Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its …

Enforcement, Economics And Estimates, Peter K. Yu

Peter K. Yu

This article focuses on intellectual property enforcement, a topic that is of great importance to both developed and less developed countries. It begins by refuting the simple, and often politically motivated, claim that many countries fail to provide effective intellectual property enforcement by virtue of their lack of political will. Drawing on the latest economic literature, this article shows that high enforcement standards come with a hefty price tag and difficult trade-offs.

The article then outlines the challenges in measuring the cross-border economic impact of piracy and counterfeiting. As an illustration, the article discusses the ongoing effort by the US …

Acta And Its Complex Politics, Peter K. Yu

Peter K. Yu

Written for a special issue on the politics of intellectual property, this article examines the "country club" approach the negotiating parties of the Anti-Counterfeiting Trade Agreement (ACTA) embraced to establish new and higher international intellectual property enforcement standards. It points out that the agreement is flawed not only because it is a country club agreement but also because it is a bad country club agreement.

The article then situates ACTA in the context of a recent trend of using bilateral, plurilateral and regional trade and investment agreements to circumvent the multilateral norm-setting process. It contends that this disturbing trend could …

Currents And Crosscurrents In The International Intellectual Property Regime, Peter K. Yu

Peter K. Yu

Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and …

Thinking About The Trans-Pacific Partnership (And A Mega-Regional Agreement On Life Support), Peter K. Yu

Peter K. Yu

Commissioned for a conference on the Trans-Pacific Partnership (TPP) at VNU University of Economics & Law in Vietnam, this article provides a retrospective analysis of the partnership. It begins with a historical overview of the TPP. The article then examines the partnership’s status in light of the United States' withdrawal and contends that the TPP will exert considerable influence regardless of whether it is dead or alive.

The second half of this article identifies three interrelated but distinct aspects of the TPP: (1) as a TRIPS-plus intellectual property agreement; (2) as a regional investment agreement; and (3) as a plurilateral …

When The Chinese Intellectual Property System Hits 35, Peter K. Yu

Peter K. Yu

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

Crossfertilizing Isds With Trips, Peter K. Yu

Peter K. Yu

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Free Trade In Electric Power, Joel B. Eisen, Felix Mormann

Felix Mormann

This Article develops the core legal framework of a new electricity-trading ecosystem in which anyone, anytime, anywhere, can trade electricity in any amount with anyone else. The proliferation of solar and other distributed energy resources, business model innovation in the sharing economy, and climate change present enormous challenges — and opportunities — for America’s energy economy. But the electricity industry is ill equipped to adapt to and benefit from these transformative forces, with much of its physical infrastructure, regulatory institutions, and business models a relic of the early days of electrification. We suggest a systematic rethinking to usher in a …

The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez

Guillermo J. Garcia Sanchez

The paper is a response piece to Deborah Hensler and Damira Khatam’s new article, Re-inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication. Their main argument regarding the public-private distinction is that the arbitral procedure has changed as a consequence of the substantive issues resolved in this particular ADR system. According to them the arbitral system, which was originally conceived for commercial purposes, has become another way of litigating public law, but without the accountability mechanisms attached to public courts. In this paper, I agree in large part …

Assessment And Comparison Of Aviation Manufacturing Industries Throughout Mexico And Brazil, Omar E. Morsi, Kelly A. Whealan-George, Aaron D. Clevenger

Aaron D. Clevenger

This literature review serves to provide insight and understanding in regards to the evolving aviation manufacturing industry throughout the globe and more specifically, Mexico and Brazil. Increased demand for aircraft units both in the commercial and private sectors have led to unprecedented expansions in aircraft manufacturing across the industry. In order to illuminate certain potentials and current growth levels of such industries, this review will delve into an array of information and specifications in regards to economic, political, and cultural influences throughout both Mexican and Brazilian markets respectively. In conclusion, the review will identify the transformation of an aviation manufacturing …

Ip Enforcement Under The Tpp: Civil And Administrative Procedures And Remedies, Provisional Measures In Tpp (Articles 18.71–18.76), J. Janewa Osei-Tutu

J. Janewa Osei-Tutu

No abstract provided.

Trade Secret Hacking, Online Data Breaches, And China's Cyberthreats, Peter K. Yu

Peter K. Yu

Online hacking from China, Iran, North Korea, Russia, and other parts of the world has caught the attention of U.S. policymakers, commentators, and the American public. For example, the discussion of the systematic attacks launched by potentially government-sponsored Chinese hackers reinforces the view that China is using all means necessary to compete against the United States. Most recently, the unprecedented cyberattack on Sony's movie studio also delayed and scaled back the nationwide theatrical release of the film The Interview. This attack led President Obama to call for greater cooperation between the government and the private sector to protect cybersecurity and …

Building Intellectual Property Coalitions For Development, Peter K. Yu

Peter K. Yu

The adoption of the WIPO Development Agenda in October 2007 has provided less developed countries with a rare and unprecedented opportunity to reshape the international intellectual property system in a way that would better advance their interests. However, if these countries are to succeed, they need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices.

Commissioned by the EDGE (Emerging Dynamic Global Economies) Network of the University of Ottawa, this paper begins by explaining how building intellectual property coalitions for development (IPC4D) …

The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going, Robert B. Ahdieh, Zhu Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis

Robert B. Ahdieh

The focus of this panel is incrementally shifting from the previous panel. Whereas the previous was looking at public/private issues and issues relating to incentivizing innovation in the subject countries, we're going to take a focus more on, I think it's safe to say, from an external perspective looking at these countries and issues that are confronted by businesses who our either planning to deal with the four subject countries or are concerned about their technologies being used in their four subject countries.

We have four panelists, and each of them is going to speak to one of the four …

Coordination And Conflict: The Persistent Relevance Of Networks In International Financial Regulation, Robert B. Ahdieh

Robert B. Ahdieh

Over the last two decades, scholarly enthusiasm about transnational regulatory networks has seen something of a boom-and-bust cycle. Such networks – informal groupings of mid-level national officials, convened to develop nonbinding “soft law” norms of behavior in specialized fields of regulation – were identified as an important new phenomenon, were studied widely, and came to be seen as central pillars of the international legal order, especially in financial regulation. Yet today, regulatory networks go largely unmentioned in polite academic conversation: a kind of “he-who-must-not-be-named” of international law.

Among the many critiques of transnational networks that have contributed to this decline …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Robert B. Ahdieh

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

After The Fall: Financial Crisis And The International Order, Robert B. Ahdieh

Robert B. Ahdieh

Recent years have challenged the international order to a degree not seen since World War II — and perhaps the Great Depression. As the U.S. housing crisis metastasized into a financial and economic crisis of grave proportions, and spread to nearly every corner of the globe, the strength of our international institutions — the International Monetary Fund, the World Trade Organization, the Group of Twenty, the Basel Committee on Banking Supervision, and others — was tested as never before. Likewise tested, were the limits of our national commitment to those institutions, to our international obligations, and to global engagement more …

Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon

Randy D. Gordon

Arbitration is the preferred method of resolving disputes arising out of international commercial transactions. It stands outside national legal systems because contracting parties agree in advance that they want neutral arbitrators — not local judges and juries — deciding who is at fault when a commercial relationship breaks down. But arbitration nevertheless butts up against litigation from time to time, often because one party attempts to arbitrate a matter that has been litigated to conclusion or vice versa. This article examines — through a contextual approach — questions of preclusion that thereby arise and ultimately suggests that res judicata and …

Time To Say Local Cheese And Smile At Geographical Indications Of Origin? International Trade And Local Development In The United States, Irene Calboli

Irene Calboli

In this Article, I offer some considerations on a possible compromising solution for the controversy between the European Union (EU) and the United States (U.S.) on the regulation of geographical indications of origin (GIs) as part of the negotiations in the Transatlantic Trade and Investment Partnership (TTIP). Notably, I advocate that the EU and the U.S. consider adopting a solution similar to that adopted in the Canada and European Union Comprehensive Economic and Trade Agreement (CETA). In particular, I note that, even though CETA accepted several of the EU's requests to claw-back names that were not previously protected in Canada, …

Geographical Indications Between Trade, Development, Culture, And Marketing: Framing A Fair(Er) System Of Protection In The Global Economy?, Irene Calboli

Irene Calboli

This chapter analyzes some of the topics on the current debate involving geographical indications (GIs) of origin that will be further elaborated by the contributors to this volume from a variety of perspectives and angles. As the title indicates, this volume focuses on GI protection “at the crossroads of trade, development, and culture,” with a specific focus on the countries in the Asia-Pacific region. This choice is due primarily to the fact that the analysis of issues related to GI protection in this region is, to date, not as extensive as the analysis in other regions, particularly in the Western …

Some Reflections On Turtles, Tuna, Dolphin, And Shrimp, David A. Wirth

David A. Wirth

No abstract provided.

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practice Act, Peter Reilly

Peter R. Reilly

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, …