Ketentuan-ketentuan TRIPS-Plus dalam Kerangka Perjanjian Perdagangan Bebas

Tujuan dari penelitian ini adalah untuk menganalisis dan menemukan filosofi Ketentuan TRIPS-Plus di bawah kerangka Perjanjian Perdagangan Bebas Bilateral (Bilateral Free Trade Agreements=BFTA). Penelitian ini adalah penelitian hukum dengan menggunakan pendekatan Perundang-undangan, konseptual, dan komparatif. Penelitian ini menemukan, bahwa filosofi dari ketentuan TRIPS-Plus di bawah BFTA adalah untuk menghilangkan standar minimum dan fleksibilitas yang terkandung dalam ketentuan Perjanjian TRIPS WTO yang berdampak pada: (1) pembatasan alasan untuk pengecualian dari invensi yang bisa di patenkan; (2) membatasi penerbitan lisensi wajib; (3) pembatasan ruang lingkup exhaustion of rights dan impor paralel; (4) perpanjangan jangka waktu pemberian paten; (5) kewajiban perlindungan paten untuk perlindungan varietas tanaman; (6) eksklusivitas atas uji data berkenaan dengan produk farmasi dan kimia; (7) perlindungan untuk jenis-jenis merek dagang baru (8) perlindungan yang kuat untuk teknologi digital. Bila negara-negara menyepakati BFTA dengan mitra/partner dagang tentang ketentuan-ketentuan HKI yang mengandung TRIPS-Plus tersebut di atas maka akan menyebabkan negara tersebut tidak dapat menggunakan fleksibilitas yang diberikan oleh perjanjian HKI pada level multilateral (TRIPS Agreement) dan hal tersebut berdampak pada tidak terpenuhinya hak-hak dasar yaitu: hak atas pendidikan, hak atas kesehatan dan akses obat-obatan secara terjangkau dan murah, serta hak atas pangan

Patents as capitalist aesthetic forms

Funding: This research was funded by a grant from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement No. 741095-PASSIM-ERC-2016-AdG).ERC PASSIM 'Patents as Scientific Information' Project, Grant Agreement No. 741095-PASSIM-ERC-2016-Ad

The role of regional organisations in international copyright law

This research will examine the role which regional organizations play for the implementation of the international copyright protection framework in their member states. This is done in order to gain an increased understanding of the impact that international and regional agreements have on national copyright legislation and its enforcement through national and regional courts. The issue of how copyright balance is reflected and implemented in these legal structures is of central importance to this research, since regional or national preferences can influence in which manner the creator’s or the user’s interests are represented in law. The theoretic concepts of constitutionalization (particularly in terms of institutionalization), embedded liberalism (as providing a theoretical link between social concerns and trade liberalization) as well as proportionality (in representation of the rights balancing done by courts) will be utilised in this research. The interconnected legal relationship of copyright will be examined utilizing the case studies of the European Union and the UK as well as the example of the Andean Community and Ecuador. In order to have an increased understanding of the difference in terms of implementation between being part of a regional union and not being a member state of such, the situation in Chile will also be part of this research and the comparative analysis. Chile is a case study which, through comparison with the legal and institutional framework of regional organizations, illustrates the situation of a country which is not part of a regional organization and entered into independent bilateral treaty obligations instead. These countries provide also a basis for considering the differences in preferences between developed and developing countries in the context of international and regional copyright protection. This can bridge the current gap in understanding of the particular effect that international and regional copyright legislation has on such countries. The conclusions and research findings of this research provide an insight into the importance that regional organizations have in shaping the legal framework of their members in accordance with a set of preferences in regards to copyright interests

The Global Regime of Intellectual Property Rights. An interpretation grounded in their social function. The case of pharmaceutical patents

992 p.In an attempt to find conceptual frames to recover the original balance teween propietary aspects of Intellectual Property Rights (IPRs) and their public, social regarding dimensions, i.e., the attainment of certain conception of social justice, in is found that the "social function of property" inherent to traditional property rights is a helpful tool for that purpose. The analysis of property and the social function of property permit ot better understand the condition of IPRs and patents as a specially pronounced contingent, historiacal and social product aimed at the achievement of certainsocial goals. This is even more true for the case of pharmaceutical patents. In is not intended to question patents as a valid system to provide incentives for innovation, nether is it explored the possiblitiy of resorting to other systems for innovation based on public prizes or in general public intervention (in any case, any incentive seem to be necessary to attract and provoke the large investments required in the pharmaceutical business). It is highlighted its instrumental nature, the iuris tantum (versus iuris et de iure) legal presumption in which those patent rights are grounded and justified in order to verify taht IPRs fulfill their inherent social functions. This will enable us to claim for an alternative interpretation and implementation of law adjusted to the social needs and goals wich justify and explain their proper existence and enforceability

The Global Regime of Intellectual Property Rights. An interpretation grounded in their social function. The case of pharmaceutical patents

992 p.In an attempt to find conceptual frames to recover the original balance teween propietary aspects of Intellectual Property Rights (IPRs) and their public, social regarding dimensions, i.e., the attainment of certain conception of social justice, in is found that the "social function of property" inherent to traditional property rights is a helpful tool for that purpose. The analysis of property and the social function of property permit ot better understand the condition of IPRs and patents as a specially pronounced contingent, historiacal and social product aimed at the achievement of certainsocial goals. This is even more true for the case of pharmaceutical patents. In is not intended to question patents as a valid system to provide incentives for innovation, nether is it explored the possiblitiy of resorting to other systems for innovation based on public prizes or in general public intervention (in any case, any incentive seem to be necessary to attract and provoke the large investments required in the pharmaceutical business). It is highlighted its instrumental nature, the iuris tantum (versus iuris et de iure) legal presumption in which those patent rights are grounded and justified in order to verify taht IPRs fulfill their inherent social functions. This will enable us to claim for an alternative interpretation and implementation of law adjusted to the social needs and goals wich justify and explain their proper existence and enforceability

External pressures or domestic politics: explaining change in developing countries’ intellectual property legislation

This thesis aims to explain the change in developing countries’ intellectual property legislation as a response to their Trade-related Intellectual Property Rights (TRIPs) obligations. When the TRIPs Agreement was negotiated during the Uruguay Round of multilateral trade talks, developing countries resisted its adoption because of their different domestic norms and traditions relating to intellectual property rights and concerns about the administrative costs of implementing the agreement. Nevertheless, when the TRIPs Agreement came into force, almost all developing countries altered their domestic intellectual property laws, and many did so prior to the deadline for implementation and/or adopted more rigorous intellectual property rules than required by TRIPs. That many developing countries have adjusted their domestic intellectual property law poses the puzzle that this thesis seeks to explain. It does so by testing two competing explanations: the role of external pressures (both in terms of great power coercion and legalisation of international institutions) and domestic politics. This thesis combines a survey of the timing and quality of 102 WTO developing country members’ legislation across patents, copyrights, and trademarks, with detailed case studies of changes to intellectual property legislation in India and Indonesia, which are both unlikely cases for compliance, but reflect different domestic political circumstances. The empirical findings demonstrate that external pressures cannot provide a satisfactory explanation, as policy change occurred both with the presence and in the absence of these pressures. In order to fully understand the change in developing countries’ intellectual property legislation, it is also necessary to analyse the preferences of domestic actors (societal and governmental) and how they interact. By arguing this, this thesis thus suggests the importance of taking domestic politics into account to explain change in developing countries’ domestic legislation as a response to inconvenient international obligations

Creative Transformation and the Knowledge-Based Economy: Intellectual Property and Access to Knowledge under Informational Capitalism

This dissertation contributes to critiques of informational capitalism by analyzing the role intellectual property (IP) law plays in the appropriation and commodification of knowledge. Using an interdisciplinary framework rooted in the critical political economy of communication and critical legal studies, this dissertation focuses on how IP law is used to appropriate knowledge as a commodity and support accumulation in a so-called knowledge-based economy, better understood as informational capitalism. Informational capitalism is legitimated by neoliberal, libertarian, and technologically-determinist beliefs, which I demonstrate to be fallacies that support political economic concentrations and inequitable processes of commodification, spatialization, and structuration. International organizations and governance regimes, such as the international trade-based IP system, diffuse these beliefs and thereby legitimize practices that remove knowledge and information from their social contexts. This dissertation propounds the use of a knowledge/information dialectic to highlight the mutually constitutive relationship between knowledge-based resources and informational assets. As I demonstrate, digital and peer-based production alternatives challenge IP law by highlighting the socio-cultural aspects of knowledge/information necessary for commodification to occur. Such alternatives represent an emerging informational politics responding to the inequities of informational capitalism. Using Karl Polanyis double movement thesis, I focus on alternative practices of knowledge production and management as counter-movements to IP seeking to support a greater variety of socio-cultural concerns and more equitable political economic structurations. In particular, through a critical analysis of the Access to Knowledge (A2K) Movement (an umbrella term covering various civil society and non-Western approaches to IP), I demonstrate how informational politics simultaneously resist and extend the economically reductionist and technologically determinist fallacies they purport to oppose. By tracing the emergence of the concept of A2K and performing a critical discourse analysis of key primary and secondary Movement texts, I show it to be a counter-movement that concurrently opposes and reinforces key neoliberal, libertarian, and technologically-determinist assumptions. I conclude that human rights-based discourses and human capability approaches to development provide alternative normative frameworks that oppositional movements might use to address the political economic inequities posed by IP-based informational capitalism

The Future of Asian Trade Deals and IP

The first part of this open access book sets out to re-examine some basic principles of trade negotiation, such as choosing the right representatives to negotiate and enhancing transparency as a cure to the public’s distrust against trade talks. Moreover, it analyses how the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (CPTPP) might impact on the Regional Comprehensive Economic Partnership's (RCEP) IP chapter and examines the possible norm setters of Asian IP. It then focuses on the People's Republic of China's (PRC) trade and IP strategy against the backdrop of the power games between the PRC, India and the US. The second part of the book reflects on issues related to investor–state dispute settlement and its relationship with IP, such as how to re-calibrate the balance in international investment arbitration, and whether compulsory license of IP constitutes expropriation in India, the PRC and select ASEAN countries. The third part of the book questions and strives to improve some of the proposed IP provisions of CPTPP and RCEP and to redefine some aspects of international IP norms, such as: pre-grant patent opposition and experimental use exception; patent term extension; patent linkage and data exclusivity for the pharmaceutical sector; plant variety protection; pre-established damages for copyright infringement; and the restructuring of copyright limitations in the public interest. The open access edition of this book is available under a CC BY-NC-ND 3.0 licence on bloomsburycollections.com. Open access was funded by the Applied Research Centre for Intellectual Assets and the Law in Asia, School of Law, Singapore Management University

The Future of Asian Trade Deals and IP

The first part of this open access book sets out to re-examine some basic principles of trade negotiation, such as choosing the right representatives to negotiate and enhancing transparency as a cure to the public’s distrust against trade talks. Moreover, it analyses how the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (CPTPP) might impact on the Regional Comprehensive Economic Partnership's (RCEP) IP chapter and examines the possible norm setters of Asian IP. It then focuses on the People's Republic of China's (PRC) trade and IP strategy against the backdrop of the power games between the PRC, India and the US. The second part of the book reflects on issues related to investor–state dispute settlement and its relationship with IP, such as how to re-calibrate the balance in international investment arbitration, and whether compulsory license of IP constitutes expropriation in India, the PRC and select ASEAN countries. The third part of the book questions and strives to improve some of the proposed IP provisions of CPTPP and RCEP and to redefine some aspects of international IP norms, such as: pre-grant patent opposition and experimental use exception; patent term extension; patent linkage and data exclusivity for the pharmaceutical sector; plant variety protection; pre-established damages for copyright infringement; and the restructuring of copyright limitations in the public interest. The open access edition of this book is available under a CC BY-NC-ND 3.0 licence on bloomsburycollections.com. Open access was funded by the Applied Research Centre for Intellectual Assets and the Law in Asia, School of Law, Singapore Management University

Biopiracy in Peru: Tracing Biopiracies, Theft, Loss and Traditional Knowledge.

This thesis concerns the different ideas, and relationships -to people, plants and knowledge -that -'biopiracy' brings together in Peru. Through assessing different concerns over the use of 'traditional knowledge', the thesis examines the multiple meanings of biopiracy which emerge through particular bundles of relationships. Contribution is made to existing literature concerning indigenous peoples and biodiversity by illustrating the complexity and multiplicity of understandings of 'biopiracy'. The thesis identifies contested meanings of 'biopiracy' and produces a typology of 'biopiracies' through an application of Tsing's (2005) concept of 'friction', and also an analysis of 'biopiracy' as an empirical subject of enquiry in the patent system. In Part One I consider 'biopiracy' and 'traditional knowledge' in international debates, and so establish the main ideological concepts that frame 'global' biopiracy. The thesis explores the plurality of biopiracy by providing nuanced accounts of 'biopirates' and 'traditional knowledge'. Part Two, is an analysis of the work of the Peruvian National Commission Against Biopiracy. This section examines the role of patent searches and of knowledge registers in producing accounts of biopiracy that: reify traditional knowledge, fracture connections with indigenous communities, and that represent the economic interests of the state. The thesis presents a quantitative account of original patent research into 'biopiracy', with an accompanying qualitative analysis that highlights the connections produced - and denied - through 'biopiracy work'. The final section presents ethnographic data from two Amazonian communities - San Francisco de Yarinacocha, and Calleria. This data indicates that particular forms of relationships to people, plants, and knowledge are privileged, as well as cast aside in the mobilisation of 'biopiracy'. Chapter Six presents an analysis of two distinct 'biopiracies': 'Biopiracies of theft' and 'biopiracies of economic opportunity'. These in turn characterise the different, contingent features of 'biopiracy' in Peru