From the time of British colonial settlement, innumerable taonga have been appropriated from the indigenous Māori population of Aotearoa/New Zealand, from cloaks, weapons, carvings and musical instruments to the practices and products of tā moko. This article focuses on the topic of cultural appropriation, homing in on a recent legal case, Whitmill v. Warner Bros., in which an artist sued Warner Bros. in a US court for pirating a ‘ Māori-inspired’ tattoo created for Mike Tyson, so as to tease out (...) the conflicts between intellectual property laws and norms on one hand, and international frameworks for human and cultural rights on the other. It examines the implications of the case for tā moko as an indigenous artistic tradition, and the tension between human/artistic and cultural rights, before discussing potential remedial strategies, drawing on the findings of the Wai 262 report into claims concerning New Zealand law and policy affecting Māori culture and identity. Theoretically, it employs Manuel DeLanda’s assemblage theory as a framework for analysis, the benefit of DeLanda’s work being that it provides a novel approach circumventing the usual ontological terms of intellectual property laws and norms, which tend towards a kind of methodological individualism or micro-reductionism. (shrink)

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in which the grant (...) of a positive limited-term monopoly right entails a corresponding duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions. (shrink)

Although a great deal of attention has been paid to the history of intellectual property in Great Britain, very little has been said about the history of intellectual property law in the British colonies. This Article attempts an overview, focusing on the nineteenth century. The author argues that there was no apparent imperial strategy as to the development of colonial intellectual property laws, and that, as a consequence wide variations existed between the laws operative (...) in Britain and the colonies. One exception to this picture existed in relation to literary copyright, where, for reasons that were never clearly articulated, British law had been extended to its colonies from 1814. The overall picture was otherwise one of "legal fecundity," with capacity for variation and experiment by the colonial legislatures constrained more by internalized notions of what was appropriate than by formal, external, limitations imposed from Britain. However, towards the end of the nineteenth century, there appeared a growing desire both in Great Britain, and amongst many of the colonies and self-governing dominions, for a greater level of uniformity. (shrink)

This article focuses on the analysis of the main positions of the Constitutional Court of the Republic of Lithuania in the cases of intellectual property law. In the article three judgments and the positions of the Constitutional Court extracted therefrom are analysed. The Constitutional Court has formed several important positions with reference to intellectual property law regarding usage of property protection norms for the protection of intellectual property, requirements of application of compensation as (...) an alternative to damages compensation and the calculation of criterions thereof as well as functional legal protection of trademarks. It should be noted that Article 23(1) of the Constitution of the Republic of Lithuania has extended protection to property and, as the Constitutional Court of the Republic of Lithuania has noted, the constitutional protection of property covers not only the protection of tangible, but also of intellectual property. In the same judgment, the Constitutional Court stated another important intellectual property related rule, namely that constitutionally established property protection rights have to be implemented regardless of whether a corresponding international treaty has not been ratified, as protection of authors’ rights is granted under Articles 23 and 42(3) of the Constitution of the Republic of Lithuania. However, the second position stating that the rights of foreign subjects are to be implemented even though a corresponding international treaty has not been signed is to be criticised as by coming to such a conclusion the Constitutional Court has ignored the otherwise generally recognised principle of territoriality of intellectual property rights. In two other cases the Constitutional Court has made important statements relevant to intellectual property law. First of all, the Court stated that compensation instead of claiming actual damages is constitutional. By analysing the positions formulated by the Court, an indirect conclusion can be made to the effect that compensation instead of claiming actual damages is necessary in order to ensure effective protection of intellectual property rights. In other words, the purposes of compensation can be recognised: restoring (compensating) the infringed interests of the injured party; simplifying judicial proceedings, whereby faster proceedings (litigation) and easier substantiation is sought; and the preventive purpose (strong preventive effect). However, the Court’s argument regarding the criterion of compensation calculation, saying that the damages incurred by the intellectual property rights owner depend on the sale value of the product concerned is criticisable, as it is rarely the case that the licence fee or profit acquired in the result of unauthorised use of intellectual property objects is calculated with reference to the final sale price of the product. Notwithstanding the arguably weak argument of the Court, the Court’s position regarding the criterion of final sale price itself does not preclude the possibility of reaching a fair final decision. Finally, the Court acknowledged that trademark protection was limited to the economic functions of the trademark and the full protection thereof. (shrink)

Intellectual property law operates with the ontological assumption that immaterial goods such as works, inventions, and designs exist, and that these abstract types can be owned like a piece of land. Alexander Peukert provides a comprehensive critique of this paradigm, showing that the abstract IP object is a speech-based construct, which first crystalised in the eighteenth century. He highlights the theoretical flaws of metaphysical object ontology and introduces John Searle's social ontology as a more plausible approach to the (...) subject matter of IP. On this basis, he proposes an IP theory under which IP rights provide their holders with an exclusive privilege to use reproducible 'Master Artefacts.' Such a legal-realist IP theory, Peukert argues, is both descriptively and prescriptively superior to the prevailing paradigm of the abstract IP object. This work was originally published in German and was translated by Gill Mertens. (shrink)

Explains why a natural law theory of property rights need not be hospitable to intellectual property.

This paper describes intellectual property legislation in the European Union, the US and the Draft Treaty on the legal protection of unoriginal databases, usually available in the Internet. I argue that this type of legislation, if enforced upon developing countries and countries in transition through international ‘agreements’, could in effect deprive them of their own information commons, their own public domain. With examples from China, India, Africa and Iceland, I argue that this deprivation in the case of developing (...) countries is, morally, equal to a virtual war against them by the West, wholly unjustified and dangerous-an example of virtual imperialism. (shrink)

Copyright gives creators a monopoly on most uses of their work throughout their lives and for seventy years post mortem. Copyfraud, in Mazzone's striking but far from unjustified usage, is a claim of ownership made by institutions and individuals that do not possess it. To discover how prevalent such frauds are (and the degree to which they constrain and contort writers, musicians, filmmakers, and others) is truly amazing. Mazzone deals only with the US, but though the precise contours of copyright (...) are slightly different in the UK and the EU, the same kinds of overreach arise more or less everywhere nowadays. Who are the perpetrators? Museums that claim copyright in images of works that they own or hold but that are in the public domain; picture libraries that charge license fees for out-of-copyright works; publishers who make false assertions of copyright in government publications, even in law school editions of the US Constitution; media corporations that claim to be able to license excerpts of works that they own despite the provisions of the (admittedly vague) “fair use” clause in long-established copyright laws; and the heirs and estates of writers who claim control of all uses made of the published and unpublished words of their fathers, aunts, and so forth. Publishers collude in this now rampant abuse of public access to cultural goods by insisting that authors of fiction and nonfiction works undertake to clear copyright to material borrowed from sources, a laborious process for which most writers are ill equipped. The result is that key evidence in scholarly work is often simply left out. In documentary film, the effects of copyfraud can be seen only in those films that are not made: the industry convention—“when in doubt, obtain a license”—makes many subjects financially and practically unviable.This book should have been a wake-up call, when it appeared a decade ago, for all involved in what is now called “cultural production” to reassert their rights, and the rights of the public, to free access to material that is not and never will be privately owned. Alas, Mazzone's detailed chapters on what ought to be done next have remained dead letters. It is time to reread them and to heave the ball back down the false mountain of improper claims of ownership made by corporations and individuals who know what they are doing and know they can get away with it. This laudably clear, direct, and readable book brings to mind an old English rhyme that remains as relevant today as it ever was: The law doth punish man or woman / That steals the goose from off the common / But lets the greater felon loose / Who steals the common from the goose. (shrink)

Catholics and libertarians make strange bedfellows. They sharply disagree on many issues. However, when it comes to intellectual property rights, they are surprisingly congruent, albeit for different reasons. The present paper traces out the agreement on patents between these two very different philosophies.

Waters aries that the demands of indigenous bio-prospecting programs need to be considered against the needs of indigenous communities. Issues of sovereignty and rights to self-determination need to be resolved in the context of negotiating bio-prospecting plans. By setting out clear guidelines and priorities, as determined through the eyes and values of indigenous peoples, indigenous communities may have an opportunity to participate in the global sharing of biomedical information and healing for all our relations. Before any projects get underway, however, (...) social, political, and legal issues ought to be settled so that informed decision can be made on the part of indigenous communities to partake of the invitation to bio-prospecting, or not. (shrink)

This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property, antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not (...) always acknowledged, ways. In particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily. (shrink)

Because law, policy, and ethics are multiply intertwined, developments in any one of these areas can affect what happens in each of the others. Thus those interested in African information ethics will find it valuable to examine trends in law and policy – and those concerned about legal trends should acknowledge effective leadership when it comes from the direction of ethical practices. Though African societies are almost always pictured as receivers of social, informational, and technological innovations that come from other (...) sources, today many Africans are providing global leadership by developing innovative techniques for approaching the problem of information access. This article describes the context within which this is taking place, including a brief introduction to innovations in a number of areas, before looking in particular at innovations involving intellectual property rights that blend law, policy, and ethics. (shrink)

The past three decades have seen a decline in traditional industries in the United Kingdom and there has been a relative decline in the value of physical assets to the UK economy. At the same time, the value of intangible assets seen in intellectual property rights have increased considerably. As such, IP rights represent important assets for companies and often comprise the foundation for market dominance and continued profitability. There is a structural uncertainty in the law relating to (...) the use of IP as collateral for the purpose of raising debt finance and this may impact upon the survival of firms with high ratios of intangible to tangible assets. This article considers the proper goals for an effective credit and security regime in IP. It examines the significance of the availability of collateral to the lending decision and also considers whether the reluctance to maximise the use of IP as security reflects inherent difficulties which arise out of the nature of IP as economic assets. This has implications for the reform of English personal property security law and the development of bright line priority rules associated with Article 9 of the US Uniform Commercial Code which is often cited as a model for reform of English law. (shrink)

No natural rights theory justifies strong intellectual property rights. More specifically, no theory within the entire domain of natural rights thinking – encompassing classical liberalism, libertarianism and left-libertarianism, in all their innumerable variants – coherently supports strengthening current intellectual property rights. Despite their many important differences, all these natural rights theories endorse some set of members of a common family of basic ethical precepts. These commitments include non-interference, fairness, non-worsening, consistency, universalisability, prior consent, self-ownership, self-governance, and (...) the establishment of zones of autonomy. Such commitments have clear applications pertaining to the use and ownership of created ideas. I argue that each of these commitments require intellectual property rights to be substantially limited in scope, strength and duration. In this way the core mechanisms of natural rights thinking ensure a robust public domain and categorically rule out strong intellectual property rights. (shrink)

The scale is the most famous emblem of the law, including intellectual property (IP). Because IP rights impose social costs on the public by limiting access to protected work, the law can be justified only to the extent that, on balance, it encourages enough creation and dissemination of new works to offset those costs. The scale is thus a potent rhetorical trope of fairness and objectivity, but also an instrument the law thinks with – one that is constantly (...) invoked to justify or to question the extent of available IP protection. The balancing act that underlies the legitimacy of IP is, however, literally impossible to perform. Because we are unable to measure the benefits that IP has for inventors or the costs it has for the public, the scale has nothing to weigh. It conveys a clear sense that IP law can be balanced, but in fact propagates only a visible simulacrum of balance – one that is as empty as it is powerful. (shrink)

This paper examines the question whether, and to what extent, John Locke’s classic theory of property can be applied to the current debate involving intellectual property rights (IPRs) and the information commons. Organized into four main sections, Section 1 includes a brief exposition of Locke’s arguments for the just appropriation of physical objects and tangible property. In Section 2, I consider some challenges involved in extending Locke’s labor theory of property to the debate about IPRs (...) and digital information. In Section 3, it is argued that even if the labor analogy breaks down, we should not necessarily infer that Locke’s theory has no relevance for the contemporary debate involving IPRs and the information commons. Alternatively, I argue that much of what Locke has to say about the kinds of considerations that ought to be accorded to the physical commons when appropriating objects from it – especially his proviso requiring that “enough and as good” be left for others – can also be applied to appropriations involving the information commons. Based on my reading of Locke’s proviso, I further argue that Locke would presume in favor of the information commons when competing interests (involving the rights of individual appropriators and the preservation of the commons) are at stake. In this sense, I believe that Locke offers us an adjudicative principle for evaluating the claims advanced by rival interests in the contemporary debate about IPRs and the information commons. In Section 4, I apply Locke’s proviso in my analysis of two recent copyright laws: the Copyright Term Extension Act (CTEA), and the Digital Millennium Copyright Act (DMCA). I then argue that both laws violate the spirit of Locke’s proviso because they unfairly restrict the access that ordinary individuals have previously had to resources that comprise the information commons. Noting that Locke would not altogether reject copyright protection for IPRs, I conclude that Locke’s classic property theory provides a useful mechanism for adjudicating between claims about how best to ensure that individuals will be able to continue to access information in digitized form, while at the same time also allowing for that information to enjoy some form of legal protection. (shrink)

Any system for the protection of intellectual property rights (IPRs) has three main kinds of distributive effects. It will determine or influence: (a) the types of objects that will be developed and for which IPRs will be sought; (b) the differential access various people will have to these objects; and (c) the distribution of the IPRs themselves among various actors. What this means to the area of pharmaceutical research is that many urgently needed medicines will not be developed (...) at all, that the existing medicines will not be suitable for countries with a precarious health infrastructure or not target the disease variety that is prevalent in poorer regions. Such effects are commonly captured under the rubric of the “10/90 gap” in biomedical research. High prices will also restrict access to medicines as well endanger compliance to treatment schemes. IPRs are mainly held by multinational corporations situated in the developed world, which not only raises egalitarian concerns, but also severely limits the possibilities of companies in poorer countries to realize improvements on existing inventions, as they cannot financially afford to secure freedom to operate, which systematically shrinks the number of potential innovators. Those inequities lead to an enormous burden for the global poor and since no institution is willing to assume the responsibility to fulfil the right to health and the corresponding right of access to essential medicines, we have to analyse alternatives or additions to the actual intellectual property regimes in order to create new incentives to fill this gap. (shrink)

An ethic of self-ownership combined with Lockean homesteading of external resources provides a plausible grounding both for anarchist opposition to the state and for an attractive anarchist legal order. Such an ethic can be understood as specifying that each person prima facie has the right to control his or her own body; and that Lockean homesteading, under which the owner of any scarce resource is its first user , should provide the basis for property rights in such previously unowned (...) goods. Given these rules, monopoly privileges like patent and copyright cannot be justified, as they infringe on self-ownership-based body-rights and/or property rights in external resources. In this article, I explain why IP rights are inconsistent with the moral grounds for a stateless society’s legal order, and speculate about the practices or laws that might prevail in the absence of IP in such a system. (shrink)

This book explains China's intellectual property perspective in the context of European theories, through a critical examination of intellectual property theory and practice focused on China's compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The author's critical review of contemporary intellectual property philosophy suggests that justifying intellectual property protection through Locke or Hegel's property theories internalizes a theoretical paradox. "Professor Wenwei Guan's treatment of intellectual (...) property law and practice in the PRC offers new perspectives that enrich an already active field of study. This book will be a useful contribution to academic and policy discourses examining conceptual and operational dimensions of China's intellectual property protection system and the broader process of China's international engagement." - Dr. Pitman B. Potter, Professor of Law, University of British Columbia, Canada "Dr. Guan reminds us of the daunting challenge of the public-private divide in forming and reforming TRIPS regime; how this regime has failed to address development needs and public concerns in developing countries like China; and how TRIPS's 'birth defect' can be overcome and its evolution can be put back on the right track." - Dr. Yahong Li, Associate Professor at Faculty of Law, Hong Kong University. (shrink)

This article draws on theoretical resources from economic sociology and sociology of law to intervene in economic debates about the relationship between intellectual property and industrialization. Utilizing historical evidence from the earliest period of American intellectual property law and from a formative company in the New England textile industry, I propose a social process of influence that connects intellectual property law to industrialization. I argue that, consistent with the findings of New Economic Sociology, social (...) relationship structures and social capital are the proximate influential force in industrialization. However, I also argue that transformative changes in those social relationship structures are rooted in the emergence of a particular type of political culture: what I call here, borrowing from Hannah Arendt and Frank Dobbin, a “Natal-Industrial Culture.” A Natal-Industrial Culture, as I propose it here, is a political culture in which collective hopes for the future are placed in new technologies and new cultural products, as means for achieving economic growth. Intellectual property law contributed to the emergence of this new type of political culture by holding out the promise of property, as a reward for the provision of new technologies or new cultural products. Because of the way that hope works on motivation—through cognitive pre-rehearsals of future attainment, which involve semantically-meaningful propositions and contribute to positive emotional experience—the promise of property provided a powerful stimulant to social capital formation. Working through the semantic resonances of property, intellectual property law contributed to a political culture in which invention and creativity were expected to secure a future of growth within the political community, both for particular members and for the political community, as a whole. By fostering a Natal-Industrial Culture, intellectual property law contributed to systematic invention and social capital-formation, leading, in turn, to the transformative changes in working and material provisioning that constitute industrialization. (shrink)

The advent of Generative AI, particularly through Large Language Models (LLMs) like ChatGPT and its successors, marks a paradigm shift in the AI landscape. Advanced LLMs exhibit multimodality, handling diverse data formats, thereby broadening their application scope. However, the complexity and emergent autonomy of these models introduce challenges in predictability and legal compliance. This paper analyses the legal and regulatory implications of Generative AI and LLMs in the European Union context, focusing on liability, privacy, intellectual property, and cybersecurity. (...) It examines the adequacy of the existing and proposed EU legislation, including the Artificial Intelligence Act (AIA), in addressing the challenges posed by Generative AI in general and LLMs in particular. The paper identifies potential gaps and shortcomings in the EU legislative framework and proposes recommendations to ensure the safe and compliant deployment of generative models. (shrink)

The article attempts to present a thorough analysis of intelectual property, as main property of a modern company, from the perspective of private law. The article anlyzes the essence of the intangible resources that form the intellectual capital and discusses whether the modern institutes of law allow the universal protection of companies‘ intellectual capital. The first part of the article analizes the conception of intangible resources and provides their qlassification. The second part of the article discusses (...) the understanding of intellectual capital and importance thereof to modern companies. In the third part of the article, the possibility to financially account all intellectual property of a company is analyzed. The forth and fifth parts of the article reveal the possibilities of legal protection of intellectual capital. The law on intelectual property is not sufficient to protect all intelectual capital because it protects only that part of intangibles, which become the onjects of the intelectual property. (shrink)

Top down as well as bottom-up models of regulation are shifting to a governance paradigm characterized by the greater interaction among public, private and civil society sectors, as well as potential increased flexibility of law. As applied to intellectual property, particularly in the international context, governance literature is emerging but still episodic. In this Article, I examine the World Intellectual Property Organization’s Development Agenda, currently being implemented through its Committee on Development and Intellectual Property. (...) WIPO’s efforts to address global development goals with intellectual property can be theorized through the more participatory and dynamic legal mechanisms promised by global governance. Among the challenges are fragmentation, policy incoherence and a relative lack of due process of softer law, as enacted and as enforced. The pragmatic impact of this major WIPO initiative — evaluated both in terms of the projected benefits and risks of global governance — remains to be seen. (shrink)

ABSTRACTIn scholarship on intellectual property, nonconsequentialist justifications for IP rights seem to suffer from one of two flaws. To some, such justifications seem indeterminate; they seem not to offer concrete guidance about how rights should be structured in practice. To others, such justifications seem dogmatic; they seem to mandate certain conclusions without letting decision makers consider the relevant context or consequences of different proposals to regulate IP. Both impressions neglect an important dimension of reasoning about rights—practical reason. In (...) perfectionist theories of law, ‘practical reason’ describes the principles by which general justifications for rights are implemented in specific decisions in politics and ethics. This article introduces practical reason to IP scholarship, and it shows how practical reason facilitates reasoning about the design of different legal IP rights. The article illustrates with patent’s novelty requirement, copyright’s originality requirement... (shrink)

This essay reviews six different approaches to intellectual property. It and argues that none of these accounts provide an adequate justification of intellectual property laws and policies because (1) there are many different types of intellectual property, and (2) a variety of incommensurable values play a role in the justification of intellectual property. The best approach to intellectual property is to assess and balance competing moral values in light of the (...) particular facts and circumstances. (shrink)

Setting aside various foundational moral entanglements, I will offer an argument for the protection of intellectual property based on individual self-interest and prudence. In large part, this argument will parallel considerations that arise in a prisoner’s dilemma game. After sketching the salient features of a prisoner’s dilemma, I will briefly examine the nature of intellectual property and how one can view content creation, exclusion, and access as a prisoner’s dilemma. In brief, allowing content to be unprotected (...) in terms of free access leads to a sub-optimal outcome where creation and innovation are suppressed. Finally, I will argue that adopting the institutions of copyright, patent, and trade secret is one way we can avoid these sub-optimal results. (shrink)

Vietnam is home to a prospering technology community and numerous enterprises that range from small start-ups to development giants. Virtually all public services are offered online. In fact, the country even has a system for e-residency and “data embassies.” This achievement derives in part from the nation’s transparent and enduring political preferences, but more importantly from Vietnamese law and its regulatory system regarding information, the digital general public, and intellectual property rights (IPR) protection. In this examination of the (...) most pertinent aspects of Vietnam’s digital economy legislation, this study explores the nation’s regulatory structure regarding copyright and patents within the context of digital transformation. The study discusses the relationship between foreign and national regulations in terms of IPR protection and the advancement of digitalization. Research on Vietnamese regulations and the practical application of major patent and copyright regulations has revealed that in many respects, the nation is highly reliant on the effective operation of a broader foreign institutional and legal framework. Thus, in the near future, technological advancement will necessitate the establishment of additional transnational regulatory systems. (shrink)

This is a book about food, philosophy, and intellectual property rights. Taken separately, these are three well-known subjects; but it is uncommon to consider them together. Delivering a rich field of disputes, the book is comprised of 50 case studies, organized around eight themes: images; genericity and descriptiveness; language traps; procedures; menus, recipes, and creativity; boundaries; biotech; and empowerment. The introductory chapter frames the selection of cases and encourages readers to look beyond them, envisaging new lenses to look (...) at food vis-à-vis intellectual property. The terrain encompassed is wide-ranging and reaches out to fine-grained aspects of food products, recipes, and cooking. Conceived for a wide scope of readers, the volume ultimately interrogates the links between food and cultural identity, bringing to the fore the ethical, political, aesthetic worth of culinary arts and gastronomic experiences. This accessible book will be of value to scholars, students, practitioners and others with interests in the areas of intellectual property, food law and food studies. (shrink)

What is 'intellectual property'? This book examines the way in which this important area of law is constructed by the legal system. It argues that intellectual property is a body of rules, created by the legal system, that regulate the documented forms of abstract objects, which are also defined into existence by the legal system. Intellectual property law thus constructs its own objects of regulation and it does so through the application of a collection (...) of core concepts. By analyzing the metaphysical structure of intellectual property law and the concepts the legal system uses to construct 'intellectual property', the book sheds new light on the nature of this fascinating area of law. It explains anomalies between social and intellectual property uses of concepts such as authorship - here dubbed 'creatorship' - and originality and it helps to explain the role of intellectual property from a structural perspective. (shrink)

Intangible cultural heritage is an invaluable treasure for human being and China is a country endowed with rich ICH. Among all the measures of safeguarding ICH, intellectual property tools are effective while controversial. As China started relatively late in the legal protection of ICH, the gap between legislation and judiciary needs to be filled in. This study examines the IP protection of ICH in China based on the current laws and regulations and then provides a semiotic approach to (...) the relevant legal evolution in China. This study, taking in some experiences outside China, goes further to provide recommendations for improving the IP protection in China. (shrink)

This paper responds to an invitation by the editors to consider whether the intellectual property regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by (...) domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognised by European and international law in respect of authorial works. In the argument made, both of these species of IP right may suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to accommodate the relevant public and private interests in respect of the same. (shrink)

Drawing on macro-historical sociological theories, this book traces the development of intellectual property as a new type of legal property in the modern nation-state system. In its current form, intellectual property is considered part of an infrastructure of state power that incentivizes innovation, creativity, and scientific development, all engines of economic growth. To show how this infrastructure of power emerged, Laura Ford follows macro-historical social theorists, including Michael Mann and Max Weber, back to antiquity, revealing (...) that legal instruments very similar to modern intellectual property have existed for a long time and have also been deployed for similar purposes. Using comparative and historical evidence, this groundbreaking work reflects on the role of intellectual property in our contemporary political communities and societies; on the close relationship between law and religion; and on the extent to which law's obliging force depends on ancient, written traditions. (shrink)

US law has until recently treated unmodified and merely “isolated” genes as a form of intellectual property. Patents protect processes, methods, manufactures, and compositions of matter. Legal theorists and intellectual property scholars have similarly weighed in on the patentability of genes, often uncritical of the strained lines of reasoning that made first “isolated and purified” products of nature patentable, or simply weighing the costs vs. benefits. In the early fifteenth century, the first robust institutionalized forms of (...) intellectual property protection emerged in Europe. This chapter examines the theory of intellectual property implicit in its historical development and looks more closely at the question of whether genes belong to the general category “intellectual property.” The purpose of intellectual property law is to encourage innovation, to discourage secret‐keeping, and to move new knowledge into the public domain after a period of time. (shrink)

The last several decades have seen the emergence of intellectual property rights (IPRs), especially patents, as a key issue in developments across the fields of law, the economy and the biosciences, and as part of the burgeoning "bioeconomy". This paper examines how the categories of nature and knowledge, so vital to IPR regimes that support bioeconomy-type projects, are challenged by the allegation of biopiracy. It reflects on the relationship between nature, IPR and the bioeconomy, and presents an example (...) of how the creation of new categories, in this case genetic resources, come to impact on how we come to understand nature in relation to the economy and IPRs. The paper then follows this with an analysis of how knowledge is treated in those same systems, focusing specifically on some of the challenges that arise when attempting to bring traditional knowledge (TK) under the rubric of the IPR system. Finally, it examines the allegation of biopiracy in greater depth, and reflects on how it critiques the way the bioeconomy and the IPR regime treat nature, culture, knowledge, and the relationship between them. (shrink)

As a central part of the regulation of contemporary economies, intellectual property (IP) is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. But if IP is power, what kind of power is it, and what does it do? Building on the work of Michel Foucault, Gordon Hull examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of (...) public welfare, and as promotion of neoliberal privatization. He argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. This work should be read by anyone interested in understanding why the struggle to conceptualize IP matters. (shrink)

An argument for the elective abolition of Intellectual Property Rights (IPR). The premise is that IPR law is a form of slavery to Capital, for authors and for artists. The ontological reduction of IPR is part and parcel of the "Proof of Concept" phase for a PhD dissertation project, dating to September 2021, entitled Works for Works: "No Rights".