UC Irvine Law Review

A battle is under way to decide the intellectual property law for half the world’s population. A trade agreement that hopes to create a free trade area even larger than that forged by Genghis Khan will define intellectual property rules across much of Asia and the Pacific. The sixteen countries negotiating the Regional Comprehensive Economic Partnership (RCEP) include China, India, Japan, and South Korea, and stretch to Australia and New Zealand. A review of a leaked draft reveals a struggle largely between India on one side and South Korea and Japan on the other over the intellectual property rules that will govern much of the world. The result of this struggle will affect not only access to innovation in the Asia-Pacific, but also across Africa and other parts of the world that depend on generic medicines from India, which has been called the “pharmacy to the developing world.” Surprisingly, the agreement that includes China as a pillar may result in stricter intellectual property rights than those mandated by the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Perhaps even more surprisingly, such TRIPS-plus rights will be available in the RCEP states to the United States and European companies equally by somewhat recondite provisions in TRIPS. In sum, the RCEP draft erodes access to medicines and education across much of the world.

Critical scholarship on geographical indications (GIs) has increasingly focused upon their role in fostering development in the Global South. Recent work has drawn welcome attention to issues of governance and sparked new debates about the role of the state in GI regulation. We argue that this new emphasis needs to be coupled with a greater focus upon local social relations of power and interlinked issues of social justice. Rather than see GI regimes as apolitical technical administrative frameworks, we argue that they govern emerging public goods that should be forged to redress extant forms of social inequality and foster the inclusion of marginalized actors in commodity value chains. In many areas of the world, this will entail close attention to the historical specificities of colonial labor relations and their neocolonial legacies, which have entrenched conditions of racialized and gendered dispossession, particularly in plantation economies. Using examples from South Africa and South Asia, we illustrate how GIs conventionally reify territories in a fashion that obscures and/or naturalizes exploitative conditions of labor and unequal access to land based resources, which are legacies of historical disenfranchisement. Like other forms of neoliberal governmentality that support private governance for public ends, however, GIs might be shaped to support new forms of social justice. We show how issues of labor and place-based livelihoods increasingly influence new policy directions within Fair Trade agendas while concerns with “decolonizing” agricultural governance now animate certification initiatives emerging from new social movements. Both initiatives provide models for shaping the governance and regulation of GIs in projects of rural territorial development that encompass principles of rights-based development to further social movements for rural social justice.

Copyright was originally intended to serve creators as an engine of free expression, protecting them from the interference of others and from all risk of censorship. To this end, a balance was conceived between exclusive control and freedom in order to enable future creativity. Some uses were kept outside the control of the right owner through limitations to the exclusive right. However, none of the existing systems of limitations in the various jurisdictions was specifically designed to address the creative reuse of copyright protected material in the context of derivative works. On the contrary, when an author in his creative process needs to use the expression of a previous copyrighted work, he will have to get the authorization of the copyright owner of the original work. This situation can be quite cumbersome, as right owners are not always easy to trace. Most of all, it can lead to private censorship, as private entities or individuals have the potential to decide what can and cannot be created and block the dissemination of new works. It might thus be questionable how this situation can be reconciled with either the copyright’s rationale of incentivizing creativity or the obligations imposed on States by international and regionally protected human rights such as freedom of expression and freedom of artistic creation. This Article will assess the different options available for legislators and courts to secure creative uses in the context of derivative works to develop a satisfying legal mechanism de lege ferenda, discussing in particular the possible objections that could result from the international and regional framework for both intellectual property and human rights protection.

The triangular interface between trade, intellectual property (IP) and human rights has yet to be fully formed, both doctrinally and normatively. Adding investor-state dispute settlement (ISDS) to the mix increases the complexity of the equations to solve. Two resultant issues are explored in this Article. First, the Article considers ways in which broader public policy objectives—in particular, the protection of human rights—can and should be factored into determinations of whether a state’s action is compatible with its trade obligations and commitments in the state-to-state dispute settlement context. Second, the Article examines whether doctrinal tools used in state-to-state, trade-dispute settlement to make room for public interest considerations port to the investment/ISDS context. The Article uses the recent Lilly v. Canada case as backdrop to illustrate the points made. The Lilly case dealt with an ISDS complaint filed after the revocation of two Canadian patents on pharmaceutical products. The Article approaches the abovementioned triangular interface from a policy perspective that factors in innovation and investment protection, but also public health, a policy area supported by a human right (to health), and in which states need regulatory autonomy.

Global intellectual property rules have had adverse consequences for the promotion and protection of a range of human rights, including the rights to food, health, water, culture, equality and non-discrimination, and freedom of expression. Nonetheless, these issues have been framed in human rights terms primarily at the international and regional levels. Domestic human rights advocates have largely not taken up the issue of how intellectual property law affects the enjoyment of human rights.

This Article argues that this incomplete translation is due to widespread reliance on a fairly narrow understanding of human rights. Human rights, when understood only as a set of legal rules and institutions, inevitably devolves into a debate about reconciling conflicting rights. This is an important conversation, but it is also a limiting one. The emancipatory potential of human rights often lies not in its power as a set of legal rules but in the way in which those rules can be employed by affected individuals to make claims and demand political change. Using the case study of law and politics around intellectual property mobilization, the Article argues that framing intellectual property in more robust human rights terms is important for challenging the fundamental power structures that undergird the intellectual property regime.

The Article then argues that the Marrakesh Treaty—a new treaty that requires states to create mandatory exceptions to copyright to protect the rights of individuals with disabilities—charts a new path for human rights advocacy on intellectual property. This treaty has the potential to lay a foundation for better translation of intellectual property issues into human rights advocacy by identifying a clear violation and by activating domestic human rights advocates. Creating a foundation for affected individuals and human rights advocates to participate in intellectual property lawmaking is essential to realizing the potential of human rights for revising the essential bargains of the international intellectual property system.

This Article analyses the new provisions in EU law that trademark rules should be “applied in a way that ensures full respect for fundamental rights and freedoms, and in particular the freedom of expression.” It is pointed out how these provisions are part of a broader trend of “constitiutionalization” in EU law whereby courts increasingly rely on fundamental rights when they interpret the rules of Intellectual Property Rights (IPR). After a presentation of the historical and legislative background for the changes and the related development in copyright law, the likely impact of the new trademark rules is discussed. It is concluded that even though the constitutionalization is not going to revolutionize EU trademark law, it will require courts to consider in a more pronounced way the interests of users of trademarks (such as artists or commercial users) vis-à-vis trademark holders’ interests. This in turn may affect the way courts interpret trademark law, and, in particular, give more room to the limitations and exceptions. The effects of such a development may be to limit the ability of trademark holders to push exclusivity in ways that harm cultural development, public debate, and fair competition.