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Abstract:
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's 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.

Development, Development Agenda, Globalization, Intellectual Property

Abstract:
An understanding of intellectual property's classic innovation mandate as only one of many cross-cutting development goals should be well-accepted by now within international intellectual property law and policy, given the pervasiveness of development rhetoric at the WTO, WIPO and other regional and bilateral fora. Yet development "walk" lags behind development "talk" on both international and domestic levels. This article focuses on how intellectual property can promote development, not only through innovation, but also by the promotion of broad-based human development implicitly underpinning global knowledge economies. First, we consider the rapidly evolving relationship of development and trade to intellectual property, and conclude that current approaches to all three of these areas emphasize balanced rules, which means assessments of costs and benefits, preservation of flexibility, and transparency of development impact. To increase this pro-development balance within the current international intellectual property regime, each of us offers a specific proposal. Barbosa proposes three principles of treaty interpretation to maximize the potential of TRIPS articles 7 and 8 as balancing mechanisms within WTO jurisprudence. These include the principles of integration, evolutive interpretation and vectorial interpretation all of which are consistent with a teleological approach to TRIPS as an instrument of development. Chon posits "development" as a key legal term of art throughout the international intellectual property regime via a substantive equality principle; this principle is applied here to the current Development Agenda within WIPO, to link intellectual property and innovation to human development priorities such as education. Finally, Moncayo von Hase advocates for the recognition of emerging rules of customary international law, such as the emerging human right to health, in the context of interpreting related intellectual property obligations; in addition, he argues in favor of maximizing international law principles of non-derogation and freedom of implementation, to maintain national policy space and flexibility for social welfare objectives in the context of post-TRIPS bilateral and regional treaties. By its very structure, this article attempts to demonstrate the thesis that a pro-development balancing "walk" must occur simultaneously within and among all aspects of the international intellectual property regime, the complexity of which is manifest in multiple fora and jurisdictions, globally and domestically.

Development, Development Agenda, FTAs, Globalization, Human Rights, Intellectual Property, TRIPS, WIPO, WTO

Abstract:
An approach to intellectual property from within a human development framework can contribute meaningfully to the the WIPO Development Agenda, which was approved by the WIPO General Assembly in September 2007. Setting the proper regulatory balance between exclusive rights and access through exceptions and limitations to those rights is key to building national innovation capacity. A human development framework allows intellectual property norm-setters to prioritize the development of healthy and literate populations who are foundational to the functioning knowledge economies that intellectual property already assumes. Building upon an earlier piece in which I posited that a substantive equality principle was necessary in global intellectual property regimes in order to counteract the development asymmetries exacerbated by national treatment and minimum standards required by TRIPS, I apply that principle here to copyright and access to textbooks. Specifically, the Berne Convention, WIPO Copyright Treaty and TRIPS all contain provisions related to educational exceptions to copyright. Yet the full ambit of educatonal exceptions has not been explored by reference to the goal of access by impoverished consumers to educational materials such as textbooks for purposes of increasing literacy. A substantive equality principle suggests that much more robust norm-setting and interpretation of these exceptions should be considered on the national level, and a liberal application of the so-called three step tests to these exceptions on the supranational level. Proposed as part of a symposium on intellectual property and social justice, this theoretical framework of intellectual property from below accounts for distributional disparities between global producers and users of knowledge goods situated in radically unequal circumstances, and encourages the production of key global public goods such as education and public health, in synergy with the knowledge goods privileged by intellectual property.

Copyright, Development, Development Agenda, Globalization, Intellectual Property, Social Justice, WIPO

Abstract:
Trademarks and certification marks increasingly denote sustainability or social responsibility standards. These marks of rectitude are particularly noticeable in the context of global trade, where market integration is accompanied by relatively uneven integration of environmental, labor and other standards, and where consumers in the so-called global North choose how to empower producers and/or encourage development of markets in the global South. But consumer participation in these transactions is under-explored by reference to criteria such as the quality not to mention accountability and transparency of the standards embedded within the goods or services. Newer stakeholders and meaning-makers such as the largely invisible third party certifier determine whether a product conforms to a standard, which in turn is embodied in a mark. Marks of rectitude can be viewed as a type of decentralized regulation in response to a felt need for heightened social norms. Trademark law potentially can function to mediate between extremely different local conditions within a global market system, to signal not source of manufacturing origin (as in classic trademark law), or geographic origin (as signified by certification marks to provide geographic indication protection in the U.S.), but rather socially responsible practices within a global administrative framework. The "branding" aspect of this decentralized, privatized regulation raises the likelihood of slippage between the mark's function as a reliable indication of source and its newer regulatory functions. Can marks of rectitude bear the weight of the various goals that have proliferated in the global regulatory marketplace? Published as part of an intellectual property symposium exploring the collision of different paradigms, this essay examines how the public law framework provided by the Lanham Act can foster the conditions for consumer participation essential to these various private regimes.

certification, certification marks, development, fair trade, ISO, Lanham Act, trademark, standards, standards-setting

Abstract:
In the post-9/11 era, what exactly is meant by race? This essay claims that both domestic civil rights law and international human rights law simultaneously create and obscure racial identity increasingly constructed through Muslim religious identity. The argument unfolds in several parts. First, by analogy to the racial formation process that occurred with the Japanese American community after World War II, we argue that a group's religious identity can contribute to the perception of a group as a racially different and inferior "other." Second, among other elements, religious identity is under-analyzed as a key element of racial formation. Third, post-9/11 racial profiling--which is expanded in this essay to a more accurate term "terror-profiling"--includes many different racial groups sharing a common religious identity of being Muslim or appearing to be Muslim. Fourth, remedies for wrongful profiling based on religious affiliation (as opposed to freedom to worship) under domestic civil rights law or international human rights law are undeveloped or underdeveloped. In the U.S. context, the equal protection clause of the fourteenth amendment has not been read vigorously to include protection against state action of groups based on religious identity. Similarly, international human rights instruments curiously omit protections based on group religious affiliation. These combined omissions serve powerfully if silently to reinforce racial inferiority of Muslims both within and outside the United States. The essay concludes with various suggestions for law reform to address these gaps.

race, religion, discrimination, civil rights, human rights, international human rights

Abstract:
Almost everyone can agree that the original connection of intellectual property to trade was for purely economically instrumental purposes but few would have predicted its other consequences, particularly the reshaped relationship of intellectual property’s innovation mandate to the production of other public goods. A pluralism lens may sharpen our focus of how and when private means facilitated by intellectual property meet appropriate publicly-defined global governance ends such as development. It can expose the multiplicity of forces - the newer actors, directions and domains - within global intellectual property that still lodge ultimate accountability in the public policy decisions of individual states and intergovernmental organizations. Just as significantly, global intellectual property pluralism can contribute to a more accurate normative understanding of what is occurring on the international plane where regulation of knowledge goods increasingly takes place, particularly its effects on the least advantaged among us. This chapter - in an edited volume to be published by Oxford University Press in 2010 - provides a rough guide to this sociolegal approach to intellectual property.

Development, Intellectual Property, Knowledge Goods, Legal Pluralism, Public Goods, Trade