A Spatial Critique of Intellectual Property Law and Policy
Washington and Lee Law Review, Vol. 74, pp. 2045-132, 2017
Texas A&M University School of Law Legal Studies Research Paper No. 17-54
89 Pages Posted: 4 Aug 2017 Last revised: 30 Jan 2018
Date Written: August 3, 2017
Although geography has had an important and lasting impact on the development of intellectual property law and policy, at both the domestic and international levels, geographical perspectives and spatial analysis have thus far not attracted much attention from policymakers and commentators. Only recently have we seen greater linkage between these two undeniably connected fields. Even with such linkage, the discussion tends to focus narrowly on specific issues, such as the parallel importation of pharmaceuticals, the protection of geographical indications and the treatment of traditional knowledge and traditional cultural expressions.
This article aims to provide a systematic analysis of the linkage between intellectual property and geography. It begins by recounting how the post-war decline of academic geography in the United States helps explain the limited role of geographical insights and spatial analysis in law and policy debates. It further explores the revival of geographical studies just as intellectual property began to garner greater public attention in the 1980s and the 1990s. The article then notes that geography has had a longstanding and profound impact on the development of intellectual property law and policy. For illustrative purposes, it discusses the principle of territoriality, the doctrine of exhaustion of rights, the protection of geographical indications and the establishment of regional intellectual property norms.
The second half of this article turns to the inadequate use of geographical insights and spatial analysis in the development of intellectual property law and policy. It calls for a more geographically informed analytical approach, which is especially well-suited to addressing the increasing complexities in intellectual property law and policy. The article concludes by outlining two approaches that can help improve the use of geography in developing law and policy in this area. Focusing on the dual notion of "spatializing law" and "legalizing space," it underscores the interconnectedness between law and geography.
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