Rezension zu: Inge Govaere and Hanns Ulrich (eds.): Intellectual Property, Public Policy and International Trade

The contemporary intellectual property rights (IPR) system is not a simple, smoothly working block of rules but is complex and full of ambiguities, and as many argue, imperfections. Some deficits relate on the one hand to the inherent centrality of authorship, originality and mercantilism to the ‘Western’ IP model, which leaves numerous non-Western, collaborative or folkloric modes of production outside the scope of protection. On the other hand, some imperfections stem from the way IPR are granted, whereby creators acquire a temporary monopoly over their works and thus exclude the public from having access to them. In this sense, it is often uncertain whether the existent IPR model appropriately reflects the precarious balance between private and public interests, and whether the best incentives to promote creativity and innovation - the initially stated objectives of intellectual property protection - are offered. The matter becomes still more complicated when one considers that the IPR system is not domestically contained but is globalised and strongly affected by rules at the regional and international levels. The question of whether the balance between private interests and public values is sustained within the international legal framework, epitomised by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), is precisely the topic of the book reviewed here. Review of Intellectual Property, Public Policy, and International Trade, edited by Inge Govaere and Hanns Ullrich, P.I.E. Peter Lang, 2007.

Innovation and Development in the Age of Climate Change Adaptation: Open or Closed?

Change Adaptation: Open or Closed? Paper read at the Second African International Economic Law Network Conference, 7-8 March 2013, Wits School of Law, Johannesburg, South Africa. In a time of rapid convergence of technologies, goods, services, hardware, software, the traditional classifications that informed past treaties fail to remove legal uncertainty, or advance welfare and innovation. As a result, we turn our attention to the role and needs of the public domain at the interface of existing intellectual property rights and new modes of creation, production and distribution of goods and services. The concept of open culture would have it that knowledge should be spread freely and its growth should come from further developing existing works on the basis of sharing and collaboration without the shackles of intellectual property. Intellectual property clauses find their way into regional, multilateral, bilateral and free trade agreements more often than not, and can cause public discontent and incite unrest. Many of these intellectual property clauses raise the bar on protection beyond the clauses found in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In this paper we address the question of the protection and development of the public domain in service of open innovation in accord with Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in light of the Objectives (Article 7) and Principles (Article 8) set forth in TRIPS. Once areas of divergence and reinforcement between the intellectual property regime and human rights have been discussed, we will enter into options that allow for innovation and prosperity in the global south. We then conclude by discussing possible policy developments.

Trade Versus Culture in the Digital Environment : An Old Conflict in Need of a New Definition

Following the recent UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, the first wave of scholarly work has focused on clarifying the interface between the Convention and the WTO Agreements. Building upon these analyses, the present article takes however a different stance. It seeks a new, rather pragmatic definition of the relationship between trade and culture and argues that such a re-definition is particularly needed in the digital networked environment that has modified the ways markets for cultural content function and the ways in which cultural content is created, distributed and accessed. The article explores first the significance of the UNESCO Convention (or the lack thereof) and subsequently outlines a variety of ways in which the WTO framework can be improved in a ‘neutral’, not necessarily culturally motivated, manner to become more conducive to the pursuit of cultural diversity and taking into account the changed reality of digital media. The article also looks at other facets of the profoundly fragmented culture-related regulatory framework and underscores the critical importance of intellectual property rights and of other domains that appear at first sight peripheral to the trade and culture discussion, such as access to infrastructure, interoperability or net neutrality. It is argued that a number of feasible solutions exist beyond the politically charged confrontation of trade versus culture and that the new digital media landscape may require a readjustment of the priorities and the tools for the achievement of the widely accepted objective of cultural diversity.

Watershed classification in the Lower Mekong Basin: Rapid economic growth - a source of increasing potential for conflict over resource use

In the Lower Mekon Basin the extraordinary pace of economic development and growth contradicts with environmental protection. On base of the Watershed Classification Project (WSCP) and the inclusion of a DTM for the entire LMB the potential degradation risk was derived for each land unit. The risks were grouped into five classes, where classes one and two are considered critical with regard to soil erosion when the land is cleared of natural resources. For practical use the database has an enormous potential for further spatial analysis in combination with other datasets, as for example the NCCR North-South uses the WSCP within two research projects.

Intellectual Property and Traditional Cultural Expressions in a Digital Environment

In the face of increasing globalisation, and a collision between global communication systems and local traditions, this book offers innovative trans-disciplinary analyses of the value of traditional cultural expressions (TCE) and suggests appropriate protection mechanisms for them. It combines approaches from history, philosophy, anthropology, sociology and law, and charts previously untravelled paths for developing new policy tools and legal designs that go beyond conventional copyright models. Its authors extend their reflections to a consideration of the specific features of the digital environment, which, despite enhancing the risks of misappropriation of traditional knowledge and creativity, may equally offer new opportunities for revitalising indigenous peoples' values and provide for the sustainability of TCE.This book will appeal to scholars interested in multidisciplinary analyses of the fragmentation of international law in the field of intellectual property and traditional cultural expressions. It will also be valuable reading for those working on broader governance and human rights issues.

Genetic engineering and the world trade system

While the WTO agreements do not regulate the use of biotechnology per se, their rules can have a profound impact on the use of the technology for both commercial and non-commercial purposes. This book seeks to identify the challenges to international trade regulation that arise from biotechnology. The contributions examine whether existing international obligations of WTO Members are appropriate to deal with the issues arising for the use of biotechnology and whether there is a need for new international legal instruments, including a potential WTO Agreement on Biotechnology. They combine various perspectives on and topics relating to genetic engineering and trade, including human rights and gender; intellectual property rights; traditional knowledge and access and benefit sharing; food security, trade and agricultural production and food safety; and medical research, cloning and international trade.

Towards a treaty instrument on marine genetic resources

Marine genetic resources other than fish and mammals are of increasing commercial interest and importance in genetic engineering, but fail being properly addressed in the law of the sea and in international economic law. The paper analyses the implication of the United Nations Convention on the Law of the Sea, the Convention on Biodiversity, the WTO Agreement on Trade Related Aspects of Intellectual Property Rights and related instruments under the auspices of WIPO. The paper argues that the triangle of these agreements does not adequately address marine genetic resources in particular in the high seas. Neither concerns of protecting biodiversity nor of access and benefit sharing find appropriate answers commensurate to the commercial potential of marine genetic resources. The paper suggests developing an instrument inspired by, and comparable to, the mechanisms developed by the International Treaty on Plant Genetic Resources for Food and Agriculture. The instrument would grant facilitated access to marine genetic resources and offer a more detailed set of rules with respect to the sharing of benefits resulting from their use, thereby addressing the existing legal gaps in a comprehensive way.

The Dialectical Relationship of Preferential and Multilateral Trade Agreements

Preferentialism and multilateralism are not two independent and succinct avenues in the pur-suit of market access and regulatory policies. They historically build upon each other in a dialectical process, closely related and linked through regulatory bridges and references. They influence and direct each other in various ways. The paper mainly focuses on the evolution of international protection of intellectual property rights and of services. The multilateral regulation of the TRIPS and others derive from years of regulatory experience and high numbers of preferential agreements across the globe. The GATS and others, on the other hand, have entered the pluri- or multilateral stage early. Once regulation has reached the mul-tilateral stage, preferentialism focuses on WTO-plus and -extra commitments. Both areas, however, show close interaction. The principle of MFN ensures that multilateralism and preferentialism do not evolve independently from each other. It produces significant spill-over effects of preferential agreements. Such effects and the need to develop uniform and coherent regulatory standards have led in parallel to a number of preferential, plurilateral and multilateral regulatory initiatives. We submit that the process will eventually encourage the return to multilateralism and negotiations in international fora, in particular the WTO while traditional market access may stay with preferential relations among Nations. Such burden-sharing between different regulatory fora should be reflected in future WTO rules providing the overall backbone of the system.

Making research relevant to policy-makers, development actors, and local communities: NCCR North-South report on effectiveness of research for development

Bridging the gap between research and policy is of growing importance in international development. The National Centre of Competence in Research (NCCR) North-South has rich experience in collaborating beyond academic boundaries to make their research relevant to various societal actors. This publication is the first to provide an overview of the effectiveness of NCCR North-South researchers’ efforts to interact with policy, practice, and local communities with a view to effecting a change in practices. A systematic assessment of researchers’ interactions with non-academic partners is presented, based on principles of monitoring and evaluation. On this basis, tools for collective learning and widespread adaptation are proposed. The report shows with what types of societal actors NCCR North-South researchers collaborate and analyses examples of how researchers conduct dialogue beyond academic boundaries, leading to specific outcomes. It also explains the frame conditions considered decisive for successful and sustainable policy dialogue and concludes with recommendations about how the NCCR North-South can increase the effectiveness of its research for development. The publication is a valuable source of inspiration for those interested in better understanding how to generate the multiple benefits of making science relevant to society.

Making Research Relevant to Development - Experience from the NCCR North-South

Making research relevant to development is a complex, non-linear and often unpredictable process which requires very particular skills and strategies on the part of researchers. The National Centre of Competence in Research (NCCR) North-South provides financial and technical support for researchers so that they can effectively cooperate with policy-makers and practitioners. An analysis of 10 years of experience translating research into development practise in the NCCR North-South revealed the following four strategies as particularly relevant: a) research orientation towards the needs and interests of partners; b) implementation of promising methods and approaches; c) communication and dissemination of research results; and d) careful analysis of the political context through monitoring and learning approaches. The NCCR North-South experience shows that “doing excellent research” is just one piece of the mosaic. It is equally important to join hands with non-academic partners from the very beginning of a research project, in order to develop and test new pathways for sustainable development. Capacity building – in the North and South – enables researchers to do both: To do excellent research and to make it relevant for development.