TPP and Trans-Pacific Perplexities

In the past few years, the United States has been busy negotiating the Trans-Pacific Partnership (TPP) Agreement with countries in the Asia-Pacific region. These countries include Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Although it remains unclear which chapters or provisions will be included in the final text of the TPP Agreement, the negotiations have been quite controversial. In addition to the usual concerns about having high standards that are heavily lobbied by industries and arguably inappropriate for many participating countries, the TPP negotiations have been heavily criticized for their secrecy and lack of transparency, accountability and democratic participation. Written for the inaugural annual Asia-Pacific issue of the Fordham International Law Journal, this article does not seek to continue this line of criticism, although transparency, accountability and democratic participation remain highly important. Nor does the article aim to explore the agreement\u27s implications for each specific trade sector. Instead, this Article focuses on the ramifications of the exclusion of four different parties or groups of parties from the TPP negotiations: (1) China; (2) BRICS and other emerging economies; (3) Europe; and (4) civil society organizations. Targeting these TPP outsiders and using illustrations from the intellectual property sector and the larger trade context, this article seeks to highlight the perplexities created by the TPP negotiations. It cautions policymakers, commentators and the public at large against the negotiations\u27 considerable and largely overlooked costs

The Harmonization Game: What Basketball Can Teach About Intellectual Property and International Trade

In the recent World Men\u27s Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While the United States\u27 losses might have a significant impact on how the country will prepare for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball. The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players interact with rules, officials, and other players, one therefore could gain insight into globalization and the international harmonization process. Team USA\u27s recent loss might be a painful lesson to Americans, but it provides a beneficial lesson to all of us who are involved in intellectual property and international trade

The Harmonization Game: What Basketball Can Teach About Intellectual Property and International Trade

In the recent World Men\u27s Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While the United States\u27 losses might have a significant impact on how the country will prepare for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball. The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players interact with rules, officials, and other players, one therefore could gain insight into globalization and the international harmonization process. Team USA\u27s recent loss might be a painful lesson to Americans, but it provides a beneficial lesson to all of us who are involved in intellectual property and international trade

The Algorithmic Divide and Equality in the Age of Artificial Intelligence

In the age of artificial intelligence, highly sophisticated algorithms have been deployed to provide analysis, detect patterns, optimize solutions, accelerate operations, facilitate self-learning, minimize human errors and biases and foster improvements in technological products and services. Notwithstanding these tremendous benefits, algorithms and intelligent machines do not provide equal benefits to all. Just as the digital divide has separated those with access to the Internet, information technology and digital content from those without, an emerging and ever-widening algorithmic divide now threatens to take away the many political, social, economic, cultural, educational and career opportunities provided by machine learning and artificial intelligence.Although policy makers, commentators and the mass media have paid growing attention to algorithmic bias and the shortcomings of machine learning and artificial intelligence, the algorithmic divide has yet to attract much policy and scholarly attention. To fill this lacuna, this article draws on the digital divide literature to systematically analyze this new inequitable gap between the technology haves and have-nots. Utilizing an analytical framework that the Author developed in the early 2000s, the article begins by discussing the five attributes of the algorithmic divide: awareness, access, affordability, availability and adaptability.This article then turns to three major problems precipitated by an emerging and fast-expanding algorithmic divide: (1) algorithmic deprivation; (2) algorithmic discrimination; and (3) algorithmic distortion. While the first two problems affect primarily those on the unfortunate side of the divide, the last problem impacts individuals on both sides. This article concludes by proposing seven non-exhaustive clusters of remedial actions to help bridge this emerging and ever-widening algorithmic divide. Combining law, communications policy, ethical principles, institutional mechanisms and business practices, the article fashions a holistic response to help foster equality in the age of artificial intelligence

Intellectual Property at a Crossroads: Why History Matters

Intellectual property is at a crossroads today. As the Commission on Intellectual Property Rights noted in its final report, “[o]ver the last twenty years or so there has been an unprecedented increase in the level, scope, territorial extent and role of IP right protection.” From the rapid privatization and commodification of information to the creation of property rights in bioengineered microorganisms and lifeforms, recent developments in the intellectual property field have sparked major controversies, calling into questions our values, worldviews, and the way society protects and incentivizes human creations and innovations. To grapple with these difficult questions, courts and commentators have turned to history for guidance and support

Intellectual Property and Human Rights in the Nonmultilateral Era

In the past decade, countries have actively established bilateral, plurilateral and regional trade and investment agreements, such as the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. Although commentators have examined the conflict and tension between intellectual property and human rights in the past, the arrival of these agreements has ushered in a new era of nonmultilateralism that warrants a reexamination of the complex interrelationship between intellectual property and human rights. This article closely examines the human rights impact of the intellectual property provisions in TRIPS-plus nonmultilateral agreements. It begins by outlining the challenges inherent in any analysis of the interface between intellectual property and human rights. It then examines the relationship between these agreements and the human rights system. The article concludes with a discussion of the normative and systemic adjustments needed to alleviate the tension or conflict between these agreements and the international human rights system

Cultural Relics, Intellectual Property, and Intangible Heritage

In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken together, all of these conventions, declarations, laws, and policy discussions have helped establish a new international framework for the protection of intangible cultural heritage. As part of the Law Without Borders: Current Legal Challenges Around the Globe Symposium, this article disaggregates intangible cultural heritage into its two components: intangible heritage and cultural heritage. The article explores the similarities and differences between the protection of cultural relics and that of intellectual property. It then examines eight different objectives for establishing the new framework. It also discusses four different challenges confronting the implementation of this framework: (1) the mode of protection; (2) the power to define protectible subject matters; (3) the means to identify those materials; and (4) the justifiability of international intervention. The article concludes by revisiting a crucial similarity between the protection of cultural relics and that of intellectual property - the need for enforcement and the related challenges. It suggests that countries with significant problems in both areas are likely to provide rich and fertile grounds for future research

Artificial Intelligence, the Law-Machine Interface, and Fair Use Automation

From IBM Watson\u27s success in Jeopardy! to Google DeepMind\u27s victories in Go, the past decade has seen artificial intelligence advancing in leaps and bounds. Such advances have captured the attention of not only computer experts and academic commentators but also policymakers, the mass media and the public at large. In recent years, legal scholars have also actively explored how artificial intelligence will impact the law. Such exploration has resulted in a fast-growing body of scholarship.One area that has not received sufficient policy and scholarly attention concerns the law-machine interface in a hybrid environment in which both humans and intelligent machines will make legal decisions at the same time. To fill this void, the present article utilizes the case study of fair use automation to explore how legal standards can be automated and what this specific case study can teach us about the law-machine interface. Although this article utilizes an example generated from a specialized area of the law—namely, copyright or intellectual property law—its insights will apply to other situations involving the interplay of artificial intelligence and the law.The article begins by outlining the case study of fair use automation and examining three dominant arguments against such automation. Taking seriously the benefits provided by artificial intelligence, machine learning and big data analytics, this article then identifies three distinct pathways for legal automation: translation, approximation and self-determination. The second half of the article turns to key questions concerning the law-machine interface, the understanding of which will be important when automated systems are being designed to implement legal standards. Specifically, these questions focus on the allocation of decision-making power, the hierarchy of decisions and the legal effects of machine-made decisions. The article concludes by highlighting the wide-ranging ramifications of artificial intelligence for the law, the legislature, the bench, the bar and academe

The U.S.-China Forced Technology Transfer Dispute

The past few years have seen not only a trade war between China and the United States involving tariffs on close to $750 billion worth of goods, but also multiple complaints filed by both countries before the WTO Dispute Settlement Body. A key driver behind these ongoing tensions and conflicts concerns the challenges confronting U.S. technology companies—both online and offline. Although the inadequate protection and enforcement of intellectual property rights in China has been the subject of a perennial debate since the mid-1980s, the recent concerns have raised new issues that have been lumped together under the umbrella of forced technology transfer. Written for the Seton Hall Law Review Symposium on Intellectual Property and Technology in the New Global Age, this article closely examines the U.S.-China forced technology transfer dispute. It begins by offering a critical assessment of the complaint filed by the United States in March 2018, which alleged violations of the WTO TRIPS Agreement. To provide context for this dispute, the article further explores the longstanding North-South technology transfer debate and the more recent debate on the involuntary disclosure of trade secrets, know-how, and other proprietary information to combat COVID-19. The discussion provides contextual reflections and highlights the challenges and complexities in the U.S.-China forced technology transfer dispute. This article concludes by offering suggestions on how China and the United States can move forward constructively from this ongoing dispute