The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities entered into force on September 30, 2016. The treaty aims to alleviate what has been described as the “book famine,” and has been lauded as a significant achievement in advancing the rights of and promoting equal opportunity for the visually disabled. Contracting states are required to implement copyright limitations and exceptions to facilitate access to copyrighted material for the global print-disabled community. This note will argue that, notwithstanding the treaty’s strong rights-based underpinnings, the treaty aligns comfortably with U.S. consequentialist copyright justifications. This note will also demonstrate the limitations of other copyright justificatory theories while discussing their incompatibility with the treaty’s philosophy.
The growing specter of globalization impacts industries from communication to transportation, resulting in an unparalleled proliferation of cultural diffusion unmatched throughout history. Naturally, this cultural diffusion has familiarized American consumers with foreign brands and foreign languages despite the obvious English dominance domestically, resulting in a trademark quagmire. Under the current American doctrine of foreign equivalents, trademark examiners and courts translate non-English words into English to determine whether they meet the general United States Patent & Trademark Office (USPTO) registration requirements. However, by treating English and non-English words alike, the pool of source-identifying marks is unnecessarily restricted. This note argues that a clear rule-like form that relaxes restrictions of registering descriptive foreign language marks through offering ‘descriptive’ foreign-language a presumption of eligibility for protection would mitigate inconsistent application of the doctrine. Such a rule would also limit costs on consumers and producers that are caused by restricting the range of available marks and inhibiting creative and communicative branding.
This article explains the importance of technology hubs as drivers of innovation, social change, and economic opportunity within and beyond the African continent. It includes a thorough review and synthesis of findings from multi-disciplinary literature, and integrates insights from qualitative data gathered via interviews and fieldwork. It identifies three archetypes of hubs—clusters, companies, and countries—and discusses examples of each archetype using Kenya as a case study. The article then discusses potential collaboration, conflicts, and competition among these archetypes of hubs, and concludes with recommendations for future researchers.
This Article examines a patent licensing practice that has hitherto escaped the attention of U.S. antitrust law: the no challenge clauses. Under these clauses, a patent licensee is prohibited from challenging the validity of the licensed patent. These clauses have so far only been examined under patent law in terms of enforceability. This oversight by antitrust law is unfortunate, as no challenge clauses can create consumer harm by protecting an otherwise invalid patent from challenges and artificially extending the exclusive period granted by the patent law. This means that consumers have to bear supra-competitive prices for longer than necessary. A number of factors are relevant to the analysis of the legality of no challenge clauses, such as market power, patent validity, and market structure at the licensee level. This Article proposes a framework based on the Rule of Reason that incorporates all of these relevant factors and structures them in a way that renders the framework easy to apply. Lastly, the Article rejects a number of justifications that have been offered to argue for the legality of these clauses across the board.
A recurring tension in international law is whether countries ought to strive for uniformity when developing legal regimes in any given subject matter, or ought to instead construct systems that are uniquely adapted to their particular circumstances. This foreword explores several areas in which that tension plays out in the context of intellectual property rights (IPRs) and also previews how the tension emerges in two of the articles featured in this journal issue.
Climate change is a pressing issue confronting the global community. The rapid development and diffusion of clean technologies (i.e., technologies necessary for adapting to or mitigating climate change) must be a central part of the solution. However, a stalemate has persisted in global climate change negotiations at the United Nations, caused by diverging views regarding the role of intellectual property rights “IPR” in the international transfer of clean technologies. Developed nations insist on strong IPR for clean technologies, while developing nations claim that IPR is a major barrier to the international transfer of clean technologies and demand to remove or reduce IPR for clean technologies.
This article explores two questions: (1) Is the existence of IPR a major barrier to the international transfer of clean technologies, and (2) why has the international transfer of clean technologies to developing nations been limited? Analyzing evidential data available, this article concludes that IPR probably has not been a major barrier to the international transfer of clean technologies. However, sustainable international transfer of clean technologies requires the joint efforts of developing and developed nations. To prepare for sustainable international transfer of clean technologies and to advance the effort for addressing climate change, this article proposes a new paradigm based on domestic innovation, international aid and international technology collaboration.
This article highlights the emergence of a new dialectics between the protection of intellectual property and public health in international investment law and arbitration. International investment law is a vital area of international law, which has furthered the protection of intellectual property, considering it a form of investment and providing intellectual property owners access to investor-state arbitration. While investor–state arbitration constitutes a major development in international law and facilitates the access of foreign investors to justice, it may endanger the fundamental values of the international community as a whole, unless arbitrators duly take into account their role as “cartographers” of international law within their role as “adjudicators.” Have arbitral tribunals taken public health considerations into account when adjudicating pharmaceutical patent-related cases? If so, have they considered public health either as an exception to investment treaty standards or as a part of the interpretation of the same standards? What techniques are available to avoid regime collisions between international investment law and other fields including public health law? This article offers a primer on recent investment disputes concerning pharmaceuticals. The underlying assumptions of this article are that adjudication is a mode of governance, and it has a fundamental importance with regard to the concrete implementation of a given legal regime. The article argues that arbitrators should not put an excessive emphasis on the private interests embodied by pharmaceutical patents, but adequate consideration should be paid to the public interest equally embodied in these rights.