Intellectual Property and the Development Divide

This article attempts to map the challenges raised by recent encounters between intellectual property and development. It proposes a normative principle of global intellectual property - one that is responsive to development paradigms that have moved far beyond simple utilitarian measures of social welfare. Recent insights from the field of development economics suggest strongly that intellectual property should include a substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects. A new principle of substantive equality is a necessary corollary to the formal equality principles of national treatment and minimum standards that are now imposed on virtually all countries regardless of their level of development. Indeed this principle is arguably the very core of a human development-driven concept of development, a term that is highly indeterminate but lately used by many developing countries to express an equality concern within various global intellectual property regimes such as the WTO and WIPO. This proposed principle of substantive intellectual property equality would be analogous to strict scrutiny review in the judicial context of U.S. constitutional law. It would be foundational to any form of intellectual property decision making. Simply put, a decision maker would accord much less deference and exercise much more skepticism towards the proposed government action (in this case, the regulatory intervention by the state in the form of the grant of intellectual property protection, or the withholding of an exception or limitation to an intellectual property grant) when a knowledge good that affects basic human development capabilities, such as basic education or health care, is implicated. Certain foundational capacities, whether viewed as the sum of individual capabilities in knowledge or as national capacities in production of knowledge goods, should guide application and creation of intellectual property norms. This proposed substantive equality principle would match intellectual property\u27s innovation mandate to the actual local conditions and concerns of developing countries seeking to join the global knowledge economy. It has taken on new urgency and significance given the recent agreement by WIPO member states to forward recommendations of The New WIPO Development Agenda to the General Assembly in the fall 2007

Introduction: Multidimensional Lawyering and Professional Responsibility

Professor Margaret Chon introduces three following articles in which the authors posit the identity of the lawyer not just as client representative, but in the multiple roles of respondent to other people, entities and underlying societal values. Each article contributes to the formation of the self qua lawyer by showing how attorneys can and do respond to foils other than clients

New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, and Entrepreneurship

Some intellectual property colleagues recently urged Professor Chon to post this article on SSRN. She wrote it circa mid-90’s when information still wanted to be free and the predominant technology was still file transfer protocol. It seems this piece has stood the test of time because it was one of the first legal academic pieces to address the copyright implications of Internet works. Today in 2010, we are still grappling with the collaborative, dynamic and entrepreneurial characteristics of digital networked content. However, now it is created and distributed through different intermediaries such as Facebook, Twitter, YouTube, etc

The Marketplace of Ideas in Cyberspace

In the Panel Discussion on The Marketplace Of Ideas In Cyberspace at the 1999-2000 Oliver Wendell Holmes Symposium And Lectureship At Mercer University, Professor Margaret Chon discusses censorship and hate speech on the internet. Professor Chon questions the exporting of our First Amendment jurisprudence in this particular area, since we are the only democratic country to speak of, that protects what we\u27ve been referring to as hate speech

Introduction: Critical Race Praxis and Legal Scholarship

In this introduction, Professors Margaret Chon and Keith Aoki situate both Professor Yamamoto\u27s work and the articles that respond to it. They also follow Yamamoto\u27s advice and perform critical race praxis as it might relate to legal education and legal scholarship. Thus, the latter part of this introduction takes the form of an epistolary exchange, culled loosely from various e-mail messages between Professors Aoki and Chon. It is intended (in both form and content) to illustrate how conceptual tools that Yamamoto provides can be used to address the intergroup racial justice issues that permeate law schools

Intellectual Property and the Development Divide

This article attempts to map the challenges raised by recent encounters between intellectual property and development. It proposes a normative principle of global intellectual property - one that is responsive to development paradigms that have moved far beyond simple utilitarian measures of social welfare. Recent insights from the field of development economics suggest strongly that intellectual property should include a substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects. A new principle of substantive equality is a necessary corollary to the formal equality principles of national treatment and minimum standards that are now imposed on virtually all countries regardless of their level of development. Indeed this principle is arguably the very core of a human development-driven concept of development, a term that is highly indeterminate but lately used by many developing countries to express an equality concern within various global intellectual property regimes such as the WTO and WIPO. This proposed principle of substantive intellectual property equality would be analogous to strict scrutiny review in the judicial context of U.S. constitutional law. It would be foundational to any form of intellectual property decision making. Simply put, a decision maker would accord much less deference and exercise much more skepticism towards the proposed government action (in this case, the regulatory intervention by the state in the form of the grant of intellectual property protection, or the withholding of an exception or limitation to an intellectual property grant) when a knowledge good that affects basic human development capabilities, such as basic education or health care, is implicated. Certain foundational capacities, whether viewed as the sum of individual capabilities in knowledge or as national capacities in production of knowledge goods, should guide application and creation of intellectual property norms. This proposed substantive equality principle would match intellectual property\u27s innovation mandate to the actual local conditions and concerns of developing countries seeking to join the global knowledge economy. It has taken on new urgency and significance given the recent agreement by WIPO member states to forward recommendations of The New WIPO Development Agenda to the General Assembly in the fall 2007

Radical Plural Democracy and the Internet

By examining the consequences that particular social practices on the Internet have in physical space, this essay attempts to re-pivot the democratic discourse of the Internet so as to include Chantal Mouffe\u27s vision of a radical and plural democracy: one that accounts for missing material markers, one that encourages the proliferation of different democratic struggles, one that acknowledges that [a]ll inequities existing in our society are now at issue

Copyright’s Other Functions

This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as a means of exploring possible doctrinal and policy directions. Ultimately it endorses a less formalistic and more flexible use of copyright to address harms currently under-recognized by our existing legal frameworks

Sticky Knowledge in Copyright

Knowledge is sticky because it adheres to people along social routes, lodged within relational and collective modalities, as well as through copyright\u27s proverbial fixed works that can be transacted more freely. Sticky knowledge may in fact constitute a much larger body of knowledge than we usually acknowledge in intellectual property and may intersect with copyright in unexpected ways. This Article delves into sticky knowledge, which has been referenced often outside of intellectual property and sometimes within the laws of patents and trade secrets but almost not at all within copyright law. Under what circumstances will sticky knowledge encourage robust knowledge transmission-or copyright\u27s goal of encouragement of learning ? Understanding the scope and reach of this kind of knowledge may point to optimal means to encourage knowledge spillovers and reliability