Peter K. Yu

The Objectives and Principles of the TRIPs Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights, which established the minimum standards for the protection and enforcement of intellectual property rights for WTO members, remains one of the more controversial international intellectual property agreements that have entered into force. Although that Agreement embraces a highly problematic super-size-fits-all approach, it includes a number of safeguards and flexibilities to facilitate economic development and to protect the public interest. Articles 7 and 8, in particular, lay out explicit and important objectives and principles that can play important roles in the interpretation and implementation of the Agreement. Presented at the 2009 Santa Fe Conference, this article begins by tracing the origins and development of Articles 7 and 8 of the TRIPs Agreement. It then examines the normative content of these provisions while highlighting the interpretations made by WTO panels and the Appellate Body as well as the implications of the two Doha declarations. The article concludes by exploring five different ways in which Articles 7 and 8 can be used to facilitate a more flexible interpretation and implementation of the TRIPs Agreement: (1) as a guiding light for interpretation and implementation; (2) as a shield against aggressive demands for increased intellectual property protection; (3) as a sword to challenge provisions that overprotect intellectual property rights or tolerate their abuse; (4) as a bridge to connect the TRIPS regime with other intellectual property or related international regimes; and (5) as a seed for the development of future international intellectual property norms.

Access to Medicines, BRICS Alliances, and Collective Action

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 discussion of each BRICS country in the area of international intellectual property protection. It advances the hypothesis that, if the BRICS countries are willing to join together to form a coalition, it is very likely that the resulting coalition will precipitate a negotiation deadlock similar to the historic stalemate between developed and less developed countries before the negotiation of the TRIPs Agreement. The article, nevertheless, questions whether the BRICS countries can build a sustained coalition in light of their very different historical backgrounds; the divergent levels of political, social, economic, and cultural developments; and the well-documented historical failures for less developed countries to build or maintain effective coalitions. Taking these challenges and potential hurdles into account, this article contends that it may be more realistic for less developed countries to enter into alliances with one or more of the BRICS countries. The article then highlights the role that the BRICS coalition or partial BRICS alliances can play in the international intellectual property regime. It discusses four coordination strategies through which less developed countries can strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decisionmaking in the international intellectual property regime. It concludes with a discussion of the various challenges confronting the creation and maintenance of partial BRICS alliances.

Bridging the Digital Divide: Equality in the Information Age

The digital revolution has transformed the lives of many, but also has left untouched the lives of many others. As a result, a large segment of the world population misses out on the tremendous political, social, economic, educational, and career opportunities created by the digital revolution. This gap between the information haves and have-nots is commonly referred to as the digital divide. Although evidence suggested that the digital divide in the United States is closing, the same is not true for the less developed countries. In light of the alarming disparities between the information haves and have-nots, the Howard M. Squadron Program in Law, Media and Society at the Benjamin N. Cardozo School of Law, Yeshiva University selected the digital divide as the topic for its Second Squadron Symposium on Internet, Law & Society. Included in the symposium issue published by the Cardozo Arts & Entertainment Law Journal are articles by Andrew Celli, Mark Cooper, Kenneth Dreifach, B. Keith Fulton, Allen Hammond, and Jack Qiu. As an introduction to this symposium issue, this Article highlights the global significance of the digital divide. It discusses five key prerequisites for bridging this inequitable gap: awareness, access, affordability, availability, and adaptability. It also explores the inequalities in Internet access between the developed and less developed countries and explains why including the less developed countries in the digital revolution would benefit the developed countries as well as the less developed countries. The Article concludes by highlighting the various areas that may present challenges to policies seeking to bridge the digital divide.

The Non-multilateral Approach to International Intellectual Property Normsetting

Since the early 2000s, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. In recent years, developed countries have gone even further to establish plurilateral trade, investment and intellectual property agreements that bring together developed and like-minded countries. Using an ill-advised ‘country club’ approach to international intellectual property normsetting, these countries have negotiated agreements ranging from the Anti-Counterfeiting Trade (ACTA) Agreement to the Trans-Pacific Partnership (TPP) Agreement to the Transatlantic Trade and Investment (TTIP) Agreement. While ACTA focuses primarily on intellectual property issues, TPP and TTIP cover trade and trade-related issues, including both the trade- and investment-related aspects of intellectual property rights. To help us take stock of the many recent developments concerning these non-multilateral agreements, this chapter examines the international intellectual property normsetting process following the expiration of the TRIPS transitional period for developing countries. The chapter focuses specifically on three distinct types of non-multilateral agreements: (1) bilateral and regional trade agreements; (2) plurilateral intellectual property agreements (as illustrated by ACTA); and (3) plurilateral trade and investment agreements (as illustrated by the TPP). Using these three types of agreements as case studies, this chapter explores the strengths and weaknesses of the non-multilateral approach to international intellectual property normsetting. The chapter also explores the ramifications of an increase in non-multilateral norm-setting activities in the intellectual property field.

The ACTA/TPP Country Clubs

After three years and 11 rounds of formal negotiations among developed and like-minded countries, the Anti-Counterfeiting Trade Agreement (ACTA) was finally adopted on 15 April 2011. Negotiated by Australia, Canada, the European Union, Japan, Morocco, Mexico, New Zealand, Singapore, South Korea, Switzerland and the United States, this highly controversial plurilateral agreement aims to set a new and higher benchmark for international intellectual property enforcement. Out of the 11 negotiating parties, all of them except the European Union and Switzerland have since signed the Agreement. 1 As of this writing, ACTA is still awaiting ratification and has not yet entered into force. Japan, which serves as the Agreement’s depositary, remains the only country that has ever ratified ACTA.

INTELLECTUAL PROPERTY, FOREIGN DIRECT INVESTMENT AND THE CHINA EXCEPTION

Policymakers in both the developed and less developed worlds have increasingly considered intellectual property protection as a major means to attract foreign direct investment (Yu, 2007, pp. 892–901). However, stronger intellectual property protection is not always needed to attract such investment. In the case of China, foreign investors were not attracted by the strong intellectual property protection the country offers. Rather, they entered the Chinese market because of the drastically lower production costs, the country’s enormous market, its inefficient economic system and the preferential treatment of foreign investors. Thus, some commentators consider China a paradigmatic case for showing how rapid economic development can take place despite limited intellectual property protection (Abbott, 2005, p. 81; Chow, 2007, p. 199).

The Transplant and Transformation of Intellectual Property Laws in China

The history of intellectual property laws in China is a history of legal transplants. From the introduction of intellectual property laws during the late Qing dynasty and the Republican era to the recent laws and amendments adopted by the People’s Republic, legal transplant was the primary means by which the modern Chinese intellectual property regime was established. This chapter begins with a brief history of the transplant of intellectual property laws in China. It then examines the drawbacks and benefits of legal transplants. The chapter further discusses four key questions that policymakers should consider when transplanting laws from abroad. The answers to these questions, in turn, may result in not only transplant but also transformation. Although this chapter focuses on China, the discussion here is likely to be relevant to other jurisdictions.

The Comparative Economics of International Intellectual Property Agreements

Using the WTO TRIPS Agreement as a case study, this book chapter provides a comparative economic analysis of international intellectual property agreements as they relate to both developed and developing countries. Specifically, this chapter discusses three different aspects of the TRIPS Agreement: (1) protection standards; (2) enforcement standards; and (3) the dispute settlement procedure. As this chapter will show, the economic picture concerning the implementation and operation of the TRIPS Agreement in developed countries is drastically different from the corresponding picture of developing countries. As a result, countries need to think more deeply about the Agreements differing economic impacts.

Towards the Seamless Global Distribution of Cloud Content

Adopting a multi-disciplinary and comparative approach, this book focuses on emerging and innovative attempts to tackle privacy and legal issues in cloud computing, such as personal data privacy, security and intellectual property protection. Leading international academics and practitioners in the fields of law and computer science examine the specific legal implications of cloud computing pertaining to jurisdiction, biomedical practice and information ownership. This collection offers original and critical responses to the rising challenges posed by cloud computing.

The Global Governance of HIV/AIDS

The Global Governance of HIV/AIDS explores the implications of high international intellectual property standards for access to essential medicines in developing countries. With a focus on HIV/AIDS governance, the volume provides a timely analysis of the international legal and political landscape, the relationship between human rights and intellectual property, and emerging issues in global health policy. It concludes with concrete strategies on how to improve access to HIV/AIDS medicines.