- Published: Saturday, 03 January 2009 16:45
Before we can understand how intellectual property policies impact sustainable development, we need to define what those terms mean, and then appreciate the global governance structures through which relevant laws and policies are formulated.
So, after appropriate personal introductions and an overview of the course substance and logistics, we're going to delve into some basic discussion of development, principles of international law, intellectual property systems and key organizations in this field.
You may or may not know much about intellectual property issues before taking this course. Those who don't know anything about IP (and even those who do) will benefit from a primer on the topic. Spend some time surfing through this webpage from the World Intellectual Property Organization (WIPO). This website from the WTO also contains some useful introductory materials for non-specialists.
For many of you, this will also be your first foray into international law, or global governance (not the same thing). There are two sorts of international law: public and private. Public international law governs relationships among states. Private international law, however, deals with persons, including legal entities like corporations. The international intellectual property system is a hybrid of these: states agree to ensure their domestic laws provide private rights in accordance with the international standards. Start by surfing through the information available here, here, here and here. The last link is the most important. (BTW, I know, those are unorthodox reading assignments for law school, but this is an unorthodox class.) This will give you a sense of the nature of obligations imposed on states when it comes to implementing intellectual property agreements. We'll also work to understand the nature and function of various international agencies and organizations working in this area.
One of the key messages I want to convey throughout our seminar is that studying the global intellectual property system is as much about politics, economics, sociology and other fields as it is about law. To understand and influence policy formulation in this area, we simply must take an interdisciplinary approach.
I have for you a few resources to convey that point. A recent article by Peter Drahos, provocatively titled "Six Minutes to Midnight - Can Intellectual Property Save the World" begins to merge standard micro-economic theory with actual business practices and geopolitical policy development.
I also think an example of the relationship between law, politics and sociology will help. Amy Kapczynski published an article in the Yale Law Journal in 2008 describing how and why the "access to knowledge" (a.k.a. "A2K") movement has been able to re-frame international intellectual property debates. Because there's so much ground to cover in this lesson, I'm going to get you to read the "pocket part" instead of the whole article:
Amy Kapczynski, "The Access to Knowledge Mobilization and the New Politics of Intellectual Property," (2008) 117 Yale Law Journal Pocket Part 262.
Intellectual property policy has not historically been "framed" as an issue connected to "sustainable development." Some people have tried to promote its connections to economic growth, but even if those links were clear (which they are not), growth is not nearly the same thing as sustainable development. Read a little bit about what sustainable development might mean by surfing through this website from the International Institute for Sustainable Development. The key document defining the term is "the Bruntland Report," titled "Our Common Future," released by the World Commission on Environment and Development working under the auspices of the United Nations.
From there, I'll lead us into a more specific discussion of a few key intellectual property related agreements. By far the most significant of these is the WTO TRIPs Agreement. To understand anything in this course, you'll need to know about:
Agreement on Trade Related Aspects of Intellectual Property (15 April 1994) in Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 United Nations Treaty Series 299 (entry into force 1 January 1995).
Don't dwell on interpreting every provision; try to get a sense of the big picture. Study the subheadings and look for provisions that jump out at you. We're going to come back to TRIPs again to analyze specific provisions.
The signing of TRIPs marked a monumental turning point in global IP policy, and much of what we study in this course is a result of or response to it. I'd like us to spend a bit of time talking about how exactly an agreement of this magnitude was reached. That requires us to delve a little into the political economy and international relations. Please read what I think is one of the best summaries of the lead-up to TRIPs, also by Drahos:
Peter Drahos, "Global Property Rights in Information: The Story of TRIPS at the GATT," (1995) 13 Prometheus 6-17.
As important as TRIPs is, it is really the start not the end of the development of the contemporary global IP framework. In the 15 years since TRIPs, a complex web of interwoven agreements and organizations has emerged. That is what we'll begin to introduce throughout the remainder of this short course.