Intellectual Property Law Commons^™

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

Faculty Scholarship

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, …

Can't We All Get Along? The Case For A Workable Patent Model, Srividhya Ragavan

Faculty Scholarship

The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing …

The Harmonization Game: What Basketball Can Teach About Intellectual Property And International Trade, Peter K. Yu

Faculty Scholarship

In the recent World Men's Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While their losses might have a significant impact on how the United States prepares for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball.

The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players …

Congress's Power To Promote The Progress Of Science: Eldred V. Ashcroft, Lawrence B. Solum

Faculty Scholarship

The Intellectual Property Clause of the United States Constitution grants Congress power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This essay investigates the issues raised by Eldred v. Ashcroft, in which the Supreme Court may decide whether the Copyright Term Extension Act (CTEA) exceeds Congress's authority under that clause. The essay frames the issues in Eldred v. Ashcroft by discussing the history of copyright legislation in general and the CTEA in particular and then summarizing the procedural history of Eldred …

Recent Developments In The Law Of Comparative Advertising In Italy – Towards An Effective Enforcement Of The Principles Of Directive 97/55/Ec Under The New Regime?, Irene Calboli

Faculty Scholarship

On February 25, 2000, the Italian Government adopted Legislative Decree No. 67, which enacted Directive 97/55/EC amending Directive 84/450/EEC concerning misleading advertising, so as to include comparative advertising. Contrary to what one could have expected in a country that has traditionally banned comparison in advertisements, Italy was one of the first among the Member States to implement Directive 97/55/EC. In order to allow consistent enforcement practices, however, the adoption of the new law must be followed by a profound change in the ways Italian courts and legal operators have approaches this issue so far. This Article explores this issue and …

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

Faculty Scholarship

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 …

The Second Coming Of Intellectual Property Rights In China, Peter K. Yu

Faculty Scholarship

This Article traces the development of intellectual property rights in China since the country’s reopening in the late 1970s. Part I provides a brief history of the Chinese intellectual property system and examines the various intellectual property disputes between China and the United States in the late 1980s and the early 1990s. This Part argues that the contemporary Chinese intellectual property system was not developed until intellectual property rights reemerged in China in the late 1970s. Part II discusses the causes of the piracy and counterfeiting problem in China. By focusing on the significant political, social, economic, cultural, and ideological …

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

Faculty Scholarship

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 …

Protection Of Traditional Knowledge, Srividhya Ragavan

Faculty Scholarship

Knowledge has been the most coveted possession of mankind since the industrial revolution. The industrial boom after the World Wars has highlighted the importance of the so-called intellectual knowledge. Recently, the importance of knowledge that has been in the public domain (and, therefore, accessible) has come into question. The pattern of evolution of society, has been marked by a process by which the societies in developed countries have moved towards a more technological orientation. Consequentially, some traditional knowledge, including traditional practices, has been left behind and newer practices that are better, or at least considered better, are being used. Knowledge …

Piracy, Prejudice, And Perspectives: An Attempt To Use Shakespeare To Reconfigure The U.S.-China Intellectual Property Debate, Peter K. Yu

Faculty Scholarship

Since the mid-1980s, the U.S.-China intellectual property conflict has entered into the public debate. It was frequently debated in Congress and was widely covered by the mass media. Despite the importance of this issue, the debate thus far has been one-sided, focusing primarily on the unfair competition aspect. While there are undeniably some greedy Chinese who are eager to free ride on the creative efforts of Western authors and inventors, greed alone cannot explain the century-old U.S.-China intellectual property conflict. To understand the roots of this conflict, one must focus on the significant political, social, economic and cultural differences between …

From Pirates To Partners: Protecting Intellectual Property In China In The Twenty-First Century, Peter K. Yu

Faculty Scholarship

During the late 1980s and early 1990s, the United States repeatedly threatened China with a series of economic sanctions, trade wars, non-renewal of most-favored-nation status, and opposition to entry into the World Trade Organization. Such threats eventually led to compromises by the Chinese government and the signing of intellectual property agreements in 1992, 1995, and 1996. Despite these agreements, intellectual property piracy remains rampant in China.

Although China initially had serious concerns about the United States's threats of trade sanctions, the constant use of such threats by the U.S. government has led China to change its reaction and approach. By …

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

Faculty Scholarship

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, …