ebook img

Intellectual Property & Free Trade Agreements (International Intellectual Property Law Series) PDF

306 Pages·2007·1.12 MB·English
Save to my drive
Quick download
Download
Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.

Preview Intellectual Property & Free Trade Agreements (International Intellectual Property Law Series)

(A) H&K Prelims 7/11/07 16:42 Page i INTELLECTUAL PROPERTY AND FREE TRADE AGREEMENTS Intellectual Property and Free Trade Agreements presents the papers of the sixth IP conference organised by the Macau Institute of European Studies (IEEM) on intellectual property law and the economic challenges for Asia. The objective of the conferences is to provide up-to-date information on developments in global intellectual property law and policy and their impact on regional economic and cultural development. The current volume deals with the implications of free trade agreements for the international framework of intellectual property law, a topic of enormous economic and legal importance given the increasing num- ber of free trade agreements in force or under negotiation. International Intellectual Property Law: Volume 4 (A) H&K Prelims 7/11/07 16:42 Page ii IEEM series on International Intellectual Property Law The involvement of the Institute of European Studies of Macau (IEEM) in mat- ters of intellectual property is based on annual conferences that take up topical issues of intellectual property from a comparative perspective with a particular focus on Asia and Europe. The first of these conferences was held back in 2000, and has meanwhile become an annual event complemented by an Intellectual Property School and IP Master Classes. All three venues serve as a platform for academic teaching and discussion on intellectual property awareness and the proper place and function of intellectual property law in the context of society and public interest. From the very start, the intellectual property conferences, the IP Law School and the Master Classes have enjoyed the support, assistance and commitment of Mr Gonçalo Cabral, who is an advisor to the Government of Macau, of Ms Maria do Céu Esteves, past president of the IEEM, and the IEEM’s current president Dr. José Luís de Sales Marques. The latter was also instrumental in setting up an IEEM chair for intellectual property law at the University of Maastricht, currently held by Anselm Kamperman Sanders, thereby further contributing to IEEM’s academic commitment to the field of intellectual property law. The conference papers, as revised and updated, are edited by Christopher Heath and Anselm Kamperman Sanders as an IEEM Intellectual Property Series the volumes of which are listed below: 1. Intellectual Property in the Digital Age—Challenges for Asia Christopher Heath and Anselm Kamperman Sanders (eds) Published by Kluwer Law International 2001 ISBN 90-411-9847-4 2. Intellectual Property in the Bio-Medical Age—Challenges for Asia Christopher Hea th and Anselm Kamperman Sanders (eds) Published by Kluwer Law International 2003 ISBN 90-411-9926-8 3. New Frontiers of Intellectual Property Law Christopher Heath and Anselm Kamperman Sanders (eds) Published by Hart Publishing 2005 ISBN 1-84113-538-0 4. Intellectual Property and Free Trade Agreements Christopher Heath and Anselm Kamperman Sanders (eds) Published by Hart Publishing 2007 ISBN 978-1-84113-801-5 (A) H&K Prelims 7/11/07 16:42 Page iii Intellectual Property and Free Trade Agreements Edited by Christopher Heath and Anselm Kamperman Sanders OXFORD and PORTLAND, OREGON 2007 (A) H&K Prelims 7/11/07 16:42 Page iv Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1-503-287-3093 or toll-free: (1)-800-944-6190 Fax: +1-503-280-8832 E-mail: [email protected] Website: www.isbs.com © The editors jointly and contributors severally 2007 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 978-1-84113-801-5 Typeset by Hope Services Ltd, Abingdon Printed and bound in Great Britain by Biddles Ltd, King’s Lynn, Norfolk (A) H&K Prelims 7/11/07 16:42 Page v Preface The editors hereby present papers of the sixth IP conference organised by the Macau Institute of European Studies (IEEM) on intellectual property law and the economic challenges for Asia. The objective of the conferences is to provide up-to-date information on developments in global intellectual property law and policy and their impact on regional economic and cultural development. The current volume deals with the implications of free trade agreements for the international framework of intel- lectual property law, a topic of enormous economic and legal importance given the increasing number of free trade agreements in force or under negotiation. The interest the US and the EU have taken in inserting IP protection standards in such agreements uncomfortably show that WTO/TRIPS marked not the end, but rather the beginning of a spiralling upward trend towards more and stronger IP protection, often with a corresponding loss of commons contrary to public interest. Thus, most of the contributions in this book are rather critical not only regarding the coercion particularly developing countries are subject to when negotiating bilateral free trade agreements, but also with the level of IP protection and enforcement these agreements demand. The success of the past IEEM intellectual property law seminars have turned the venue into an annual event that since the year 2005 has been coupled with the IP Law School and the IP Law Master Classes. The IP Law School is a unique initiative in Asia offering a taught programme in international intellectual prop- erty law and its relevance for Asian, European and global economic develop- ment and innovation policy. The Master classes are much more topical and are taught jointly by the regular IP Law School team and expert speakers at the IP Seminar. The IP Law School and Master Classes form a seamless companion programme to the Annual Intellectual Property Seminar. The seventh confer- ence in 2006, whose proceedings are forthcoming, analysed the issues of spares, repairs and intellectual property rights, while the eighth conference in 2007 will look at intellectual property and the pharmaceutical industry. The editors would specifically like to thank Mr. Gonçalo Cabral, who has been instrumental in organising both the IEEM annual seminars and the intel- lectual property summer school, and José Luís de Sales Marques, President of the IEEM, for his continuing support for both venues. The Netherlands Organisation for Scientific Research (NWO-ISW # 460-05-008) provided addi- tional means to get the manuscripts in shape for publication. Moreover, the seminars would not have happened without the tireless commitment of Bentham Fong and the other staff members of IEEM in Macao. Last but not least, the editors would like to thank Richard Hart for having agreed to publish (A) H&K Prelims 7/11/07 16:42 Page vi vi Preface the proceedings of this and future conferences as a series on international intel- lectual property law. Christopher Heath and Anselm Kamperman Sanders (A) H&K Prelims 7/11/07 16:42 Page vii Contents Preface v Detailed Table of Contents ix On the Authors and Editors xvii Part I General Issues Chapter 1 The Development Agenda for Intellectual Property 3 ANSELM KAMPERMAN SANDERS Chapter 2 TRIPS-Plus Rules under Free Trade Agreements 27 JAKKRIT KUANPOTH Part II Law and Policy of Multilateral v Bilateral Agreements Chapter 3 The Changing Landscape of International Intellectual Property 49 DANIEL J GERVAIS Chapter 4 TRIPS and FTAs: A World of Preferential or Detrimental Relations? 87 ROGER KAMPF Chapter 5 The Most-Favoured Nation Treatment and Intellectual Property Rights 127 CHRISTOPHER HEATH Part III FTAs and Patents Chapter 6 Parallel Imports of Pharmaceuticals—Doha versus Free Trade Agreements 157 NG-LOY WEE LOON Chapter 7 Free Trade Agreements, UPOV and Plant Varieties 171 MARISTELA BASSO & EDSON BEAS RODRIGUES JR Part IV FTAs and Copyrights Chapter 8 Exporting the DMCA through Free Trade Agreements 211 ANDREW CHRISTIE, SOPHIE WALLER & KIMBERLEE WEATHERALL Chapter 9 Copyright and Free Trade—A Korean Perspective 245 BYUNG-IL KIM (A) H&K Prelims 7/11/07 16:42 Page viii Part V FTAs and Antitrust Chapter 10 International Antitrust and Intellectual Property 261 ANDREAS HEINEMANN Index 283 (A) H&K Prelims 7/11/07 16:42 Page ix Detailed Table of Contents Preface v On the Authors and Editors xvii Part I General Issues Chapter 1—The Development Agenda for Intellectual Property Rational Humane Policy or ‘Modern-day Communism’? 3 ANSELM KAMPERMAN SANDERS I. Introduction 3 II. Plan 4 III. The Development Agenda 5 IV. Access to essential medicine 9 V. Compulsory Licensing and the Flexibility of the 10 TRIPS Agreement VI. Data Exclusivity 14 VII. Incentives for innovation 16 VIII. The Development Agenda and IPR policy 19 IX. In conclusion 21 X. Post Script 24 Chapter 2—TRIPS-Plus Rules under Free Trade Agreements: 27 An Asian Perspective JAKKRIT KUANPOTH I. Introduction 27 II. General background of FTAs 27 III. TRIPS-plus rules and their impact on access to medicines 30 1. TRIPS-plus rules on pharmaceutical patents 32 a) Patentable subject-matter 32 b) Compulsory licensing 33 c) Revocation of patents 35 d) Parallel imports 36 e) Prohibiting pre-grant opposition 37 f) Term of protection 37 g) Linkage of drug registration and the patent status of a drug 38 2. Data protection 38 IV. TRIPS-plus rules and their impact on agriculture 39 V. TRIPS-plus rules and their impact on access to knowledge 42 (A) H&K Prelims 7/11/07 16:42 Page x x Detailed Table of Contents 1. Extension of the term of copyright protection 42 2. Digital Agenda under the US FTAs 42 a) Anti-circumvention provisions 43 b) Temporary copying 43 c) Internet service provider liability 44 VI. Conclusion 44 Part II Law and Policy of Multilateral v Bilateral Agreements Chapter 3—The Changing Landscape of International Intellectual Property 49 DANIEL J GERVAIS I. Introduction 49 II. TRIPS Lessons 51 1. The Emergence of the TRIPS Agreement 51 2. Post-TRIPS Developments in the WTO 55 3. TRIPS and Public Health 55 4. TRIPS and Traditional Knowledge 58 5. Factors Influencing Current Changes 58 III. Economic Analysis 62 1. Recent Economic Surveys 62 a) Impact of intellectual property protection on economic growth 62 b) FDI vs trade 64 c) FDI vs ‘comfort levels’ 69 2. ‘Balance’ 72 3. WIPO’s Development Agenda 74 4. Bilateral Trade Agreements and Intellectual Property 76 IV. Towards a Comprehensive Knowledge Strategy 76 1. TRIPS Viewed as Part of the ‘Right Balance” 78 2. Intellectual Property as Part of an Economic Development Strategy 80 3. Towards a National Strategy 83 a) Priority setting 83 b) Education and Institutional Capacity Building 84 c) Subsidies 85 d) FDI ‘marketing’ 85 e) Non IP- Regulatory Adaptation 85 f) Patent mining 85 V. Conclusion 86 Chapter 4—TRIPS and FTAs: A World of Preferential or Detrimental Relations? 87 ROGER KAMPF I. Introduction 87

Description:
Presents the papers of the sixth IP conference organised by the Macau Institute of European Studies (IEEM) on intellectual property law and the economic challenges for Asia. This book deals with the implications of free trade agreements for the international framework of intellectual property law. H
See more

The list of books you might like

Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.