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  • 11 - Self-Executing International Intellectual Property Obligations?

  • from Part IV - Implementing International IP Provisions
  • Edited by Henning Grosse Ruse-Khan, University of Cambridge, Axel Metzger, Humboldt-Universität zu Berlin
  • Book:
    Intellectual Property Ordering beyond Borders
    Published online:
    06 October 2022
    Print publication:
    13 October 2022, pp 311-335
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  • Summary

    Self-execution is a matter of national rather than international law. While some countries regard international agreements as having direct effect, most do not consider international intellectual property agreements to be self-executing. This means that negotiators cannot assume that national law will be implemented in a manner that is entirely consistent with agreements as drafted. For intellectual property law, this situation is particularly problematic because the globalization of information, production, and manufacturing suggests that a high degree of integration is desirable. Nonetheless, there are many good reasons to preserve states’ sovereign authority in this arena. Intellectual property law involves balancing proprietary interests against public concerns. Because countries differ dramatically along the lines of culture, economics, technological capacity, and fundamental principles, it would be difficult to strike the same balance everywhere. Thus, consensus can often be achieved only through the use of “constructive ambiguities”– language that is unsuitable to direct application by judges but which allows for legislative tailoring to local needs, capabilities, and values. In addition, technologies and needs change over time. International lawmaking is too prone to capture, too shortsighted, and too cumbersome to deal effectively with such problems. In contrast, legislative intervention creates a degree of accountability to the public.

  • 17 - Trade Marks and Cultural Identity

  • from Part III - Across Disciplines
  • Edited by Graeme W. Austin, Victoria University of Wellington, Andrew F. Christie, Andrew T. Kenyon, Megan Richardson
  • Book:
    Across Intellectual Property
    Published online:
    27 March 2020
    Print publication:
    12 March 2020, pp 227-239

  • Summary

    In a 2017 decision, theUS Supreme Court held that constitutional commitments to free expression barred the Patent and Trademark Office from rejecting the registration of 'The Slants' for an Asian rock band, even though the term is understood to disparage Asians. Because we do not agree with the Court’s view that true speech can always correct false speech, we argue that the US can learn from the ways in which New Zealand trade mark jurisprudence protects cultural integrity while ensuring free speech. In so doing, we follow Sam Ricketson’s admonition that common law jurisdictions learn from one another.

Framing Intellectual Property Law in the 21st Century
  • Integrating Incentives, Trade, Development, Culture, and Human Rights
  • Edited by Rochelle Cooper Dreyfuss, Elizabeth Siew-Kuan Ng
  • Published online:
    08 October 2018
    Print publication:
    18 October 2018
  • As knowledge production has become a more salient part of the economy, intellectual property laws have expanded. From a backwater of specialists in patent, copyright, and trademark law, intellectual property has become linked to trade through successive international agreements, and appreciated as key to both economic and cultural development. Furthermore, law has begun to engage the interest of economists, political theorists, and human rights advocates. However, because each discipline sees intellectual property in its own way, legal scholarship and practice have diverged, and the debate over intellectual property law has become fragmented. This book is aimed at bringing this diverse scholarship and practice together. It examines intellectual property through successive lenses (incentive theory, trade, development, culture, and human rights) and ends with a discussion of whether and how these fragmented views can be reconciled and integrated.

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