A Sui Generis Regime For Traditional Knowledge: The Cultural Divide in Intellectual Property Law

To some extent, traditional knowledge can be protected under various intellectual property laws, but there is no effective international legal protection for this subject matter. This has led to proposals for a sui generis regime to protect traditional knowledge. The precise contours of the right are yet to be determined but a sui generis right could include perpetual protection. It could also result in protection for historical communal works and for knowledge that may be useful but that is not inventive according to the standards of intellectual property law. Developing countries have been more supportive of an international traditional knowledge right than developed countries; they have also been critical of the impact of intellectual property rights on social issues such as access to medicines and access to educational materials. This article uses a development-focused, instrumentalist approach to assess the implications of a sui generis traditional knowledge right

Human Development as a Core Objective of Global Intellectual Property

Global intellectual property obligations shape domestic laws and policies. More than twenty years since the first multilateral trade-based intellectual property agreement, critics contend that global intellectual property law prioritizes intellectual property rights over other interests, and profits over people. Faced with international intellectual-property obligations, nations have been forced to justify laws and policies designed to promote human development in areas such as health and education as exceptions to intellectual property protection. This is the result of legal interpretations that treat the objectives of intellectual property protection and human development as inconsistent with one another. Drawing on the objectives of trade law and intellectual property law, this Article argues that human development is a central objective of trade-based intellectual property law and should be duly recognized as such. It is therefore unnecessary to protect human development as an “exception” to a norm of protection

Prioritising Human Development in African Intellectual Property Law

The global intellectual property structure has been criticised for requiring developing nations to adopt intellectual property standards that are appropriate for industrialised countries. Some commentators have observed that industrialised nations, such as the United States, developed their economies by borrowing from others, but that through the use of globalised intellectual property standards, they have effectively limited other nations from doing the same. This article does not aim to revisit the question of the suitability of the existing intellectual property standards for developing countries. Nor does it seek to analyse whether, as a general proposition, intellectual property rights should be expanded or reduced in developing nations. Rather, the objective is to consider how, taking into consideration their existing international obligations, African countries can implement intellectual property laws that work for their citizens and that align with their development priorities

Traditional Knowlege: Is Perpetual Protection a Good Idea?

Most of the international dialogue about traditional knowledge has taken place within the context of an intellectual property framework with the World Intellectual Property Organization (WIPO) as the primary facilitator of the discussion. Following more than a decade of dialogue, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) has been given until the Fall of 2011 to come up with something concrete. Due to the intersection between traditional knowledge and intellectual property, the resulting text is likely to be a significant development for international intellectual property law. Developing countries have long advocated for international protection for traditional knowledge while developed countries have resisted movement on the issue. The duration of protection is one of the more contentious issues in the traditional knowledge debate. While developing countries and indigenous groups have expressed a preference for an indefinite term of protection, the developed countries have resisted engagement on such topics as premature. If the demands of the developing countries are met, there is a strong possibility that an international instrument to protect traditional knowledge will provide for perpetual protection

Value Divergence in Global Intellectual Property Law

It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a robust but flexible global intellectual property system. The Article argues that the trade-based approach to global intellectual property law undermines the apparent gains made in international intellectual property protection because it promotes a utilitarian economic view of intellectual property law while minimizing other values. Trade-based intellectual property also reduces the need for intellectual property interests to align, and therefore fails to achieve mutually beneficial agreement on substantive intellectual property law and policy

Corporate Human Rights to Intellectual Property Protection?

The global intellectual property system protects the interests of intellectual property owners, sometimes to the detriment of competing interests like public health or access to knowledge. Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major driving force behind increased global intellectual property standards, a human rights framework for intellectual property must contemplate the likelihood that corporations will attempt to co-opt a human rights model in order to bolster their intellectual property claims. Moreover, framing intellectual property interests from a human rights perspective can affect our conceptions of intellectual property and our analysis of the relationship between intellectual property rights and other interests. This Article contends that there is value in using human rights law to limit excessive intellectual property protection. However, promoting a human right to intellectual property protection could have the unfortunate effect of further entrenching rights that have already increased significantly in recent years

African Union Continental Free Trade Area: Opportunities for New Regional Discourse?

This chapter begins with a brief introduction to existing international Intellectual Property (IP) obligations. It then discusses the African Unions (AU\u27s) IP policies as derived from AU policy statements and language from the statute of the Pan-African Intellectual Property Organization (PAIPO). One of the initiatives of the AU was to adopt an instrument establishing the PAIPO to address IP throughout the African continent. Among other things, the PAIPO shall “harmonize intellectual property standards that reflect the needs of the AU,” its member states, and regional organizations. The preamble to the PAIPO statute makes it clear that “development” is one of the priorities of the organization, stating that AU member states are “determined to promote a development-oriented intellectual property system in order to achieve the objectives of the African Union. The PAIPO preamble also speaks to the need to strengthen national capacity and affirms the recommendations of the WIPO development Agenda.https://ecollections.law.fiu.edu/faculty_books/1291/thumbnail.jp