From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual Property

48 Pages Posted: 1 Oct 2014 Last revised: 12 Feb 2016

See all articles by Rochelle Cooper Dreyfuss

Rochelle Cooper Dreyfuss

New York University - School of Law

Susy Frankel

Victoria University of Wellington

Date Written: September 29, 2014


Domestic patent, copyright and trademark regimes are traditionally justified on an incentive rationale. While international intellectual property agreements are nominally aimed at harnessing global markets to expand incentives, this article argues that as these agreements come into force, a subtle, but significant, reconceptualization is taking place. Free trade agreements treat intellectual property rights as commodities; bilateral investment treaties convert them into assets. Using examples involving the “working requirement” in patent law and pending disputes challenging Australia’s limits on the use of trademarks on tobacco products, we show that as these moves progressively detach intellectual property from its incentives basis, domestic authority to promote local concerns such as health, education, and development is increasingly impaired. The authors end with proposals for interpreting the impact of existing agreements and for revising international lawmaking so that intellectual property mechanisms can be exploited to motivate innovation without damaging state authority to safeguard public values. While we recognize that technologically sophisticated countries (such as the United States) will continue to demand stronger intellectual property protection worldwide to compensate for losses in their manufacturing sectors, a system that fails to recognize consumer interests also impedes follow-on innovation and entry by start-ups. Balance is, in short, important for every country, no matter where its sits in the technological hierarchy. Furthermore, those now pushing the commodification and assetization agenda must consider how reconceptualization will affect them in the future, when their position in the hierarchy may well be different.

Suggested Citation

Dreyfuss, Rochelle Cooper and Frankel, Susy R., From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual Property (September 29, 2014). Michigan Journal of International Law, Vol. 36, 2015, NYU School of Law, Public Law Research Paper No. 14-53, Available at SSRN:

Rochelle Cooper Dreyfuss (Contact Author)

New York University - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6258 (Phone)
212-995-4760 (Fax)

Susy R. Frankel

Victoria University of Wellington ( email )

PO Box 600
Wellington, 6140
New Zealand

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