The Second Transformation of the International Intellectual Property Regime

CONSTITUTIONAL HEDGES OF INTELLECTUAL PROPERTY, Jonathan Griffiths and Tuomas Mylly, eds., Oxford University Press, 2020, Forthcoming

Texas A&M University School of Law Legal Studies Research Paper No. 19-60

18 Pages Posted: 7 Nov 2019

See all articles by Peter K. Yu

Peter K. Yu

Texas A&M University School of Law

Date Written: November 6, 2019

Abstract

A quarter-century ago, the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the WTO transformed the international intellectual property regime. This Agreement ushered in not only new international minimum standards for protecting and enforcing intellectual property rights but also major changes to domestic intellectual property systems from across the world.

Today, the international intellectual property regime is being transformed once again. Thanks to the proliferation of bilateral, regional and plurilateral trade and investment agreements, new international minimum standards are now being developed to protect the investment-related aspects of intellectual property rights. Unlike the WTO, which provides for only state-to-state dispute settlement, the investor-state dispute settlement mechanism built into these newly adopted international agreements enables private investors, such as intellectual property rights holders, to sue foreign governments without the support of their home governments. In view of the potential ramifications of this new mechanism, and the related commitments under the new international investment agreements, one cannot help but wonder whether the international intellectual property regime is now experiencing yet another "sea change" or "tectonic shift."

Focusing on the potential second transformation of the international intellectual property regime brought about by the growing intrusion of international investment norms, this chapter addresses the structural changes these new norms have posed to the regime. This chapter begins by documenting changes brought about by the first and potential second transformations of this regime. The chapter then discusses three common sets of problems that have emerged when international investment norms intrude into the intellectual property domain. The chapter concludes by advancing three recommendations to curtail inappropriate and unnecessary intrusions. Matching the central theme of this edited volume, all of these recommendations involve constitutional hedges that could be built around the intellectual property domain.

Suggested Citation

Yu, Peter K., The Second Transformation of the International Intellectual Property Regime (November 6, 2019). CONSTITUTIONAL HEDGES OF INTELLECTUAL PROPERTY, Jonathan Griffiths and Tuomas Mylly, eds., Oxford University Press, 2020, Forthcoming; Texas A&M University School of Law Legal Studies Research Paper No. 19-60. Available at SSRN: https://ssrn.com/abstract=3481553

Peter K. Yu (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

HOME PAGE: http://www.peteryu.com/

Register to save articles to
your library

Register

Paper statistics

Downloads
13
Abstract Views
41
PlumX Metrics