Search Results

You are looking at 1 - 10 of 18 items

  • Author or Editor: Susy Frankel x
Clear All Modify Search
You do not have access to this content

Susy Frankel

International trade up until the late twentieth century usually was primarily about trade in tangible goods and not the cross-border flow of intangible intellectual property, or even intangible intellectual property goods (such as digital works). The piracy possibilities that can arise as a result of the increase in the trade of goods incorporating intellectual property became a substantial concern in the nineteenth century and resulted in the 1883 Paris Convention and 1886 Berne Convention. The relationship between intellectual property and international trade was extended when the TRIPS Agreement was adopted as part of the WTO in 1994. This chapter examines that relationship, in particular by addressing the TRIPS Agreement and its aims in comparison to – and as a subset of – the WTO GATT and GATS constellation. The chapter discusses the exhaustion of intellectual property (and accordingly parallel importing) within the international trade law context and why there is confusion or conflation of intellectual property with its physical embodiments in the international trade context. The final part of the chapter addresses how understanding the intangible nature of intellectual property might assist in untangling the uses of intellectual property law in trade to control tangibles that arguably have negligible trade benefits and may in fact be more trade distorting than trade enhancing.

You do not have access to this content

Edited by Susy Frankel

Much of the debate around the parameters of intellectual property (IP) protection relates to differing views about what IP law is supposed to achieve. This book analyses the object and purpose of international intellectual property law, examining how international agreements have been interpreted in different jurisdictions and how this has led to diversity in IP regimes at a national level.
This content is available to you

Susy Frankel

Much of the debate around the parameters of intellectual property protection and the extent of how flexible the law should be, at both national and international levels, relates to policies and views about what the law is supposed to achieve. Also relevant to the debate is whether the law reflects its underlying justifications and whether those justifications come to fruition or whether other outcomes are occurring. Put differently, are intellectual property laws and their application achieving their objectives and purposes? The different objectives and rationales that underpin national regimes are variously reflected in international agreements, which also have their own object and purpose. The international agreements embody many objectives and the various rules for minimum standards for intellectual property protection are the vehicles to achieve those objectives. National regimes, which are collectively called intellectual property, also make up aspects of the ‘object and purpose’ of international treaties, to quote the words of Article 31 of the Vienna Convention on the Law of Treaties. The object and purpose of intellectual property include copyright’s role in encouraging creativity based on utilitarianism and natural rights; patent law’s connection to innovation policy and the encouragement of invention; and trade mark law’s business and consumer information-supporting functions.

This content is available to you

Edited by Susy Frankel

This content is available to you

Edited by Susy Frankel

The international intellectual property system is framed as one where states can create policies and laws that reflect local economic, social, innovation and development conditions. As such, the optimal international intellectual property regime is arguably a system of functional pluralism. At international law the concept of functional pluralism often describes the various systems in international law, which include subsystems and, at the same time, form a whole. Depending on their subject matter, subsystems of international law reflect differences and, as a consequence, pluralism of approaches at regional and national level is an inevitable result. International intellectual property law is almost certainly a sub-system of international law that has many parts and may sub-systems of its own. The minimum standards international framework and the dynamic nature of its subject matter allows intellectual property law to constantly evolve in response to internal stimuli, particularly in jurisdictions with established regimes. Rules are important so that those involved in intellectual property can frame policy, do business, create and solve disputes in ways that leads to concrete solutions. This process is not possible for all countries as many nations still face hurdles to implement seemingly high levels of protection and an even greater struggle lies in adapting any standards to the reality of local conditions. Other countries have been able to rise to the challenge of implementation and have experimented with and innovated in the development of their laws. In some instances, national laws are relatively uncontested, but in others the degree of flexibility used is controversial.

You do not have access to this content

Edited by Susy Frankel

The international intellectual property (IP) law system allows states to develop policies that reflect their national interests. Therefore, although there is an international minimum standards framework in place, states have widely varying IP laws and differing interpretations of these laws. This book examines whether pluralism in IP law is functional when applied to copyright, patents and trademarks on an international basis.
You do not have access to this content

Susy Frankel

This chapter demonstrates that a proper approach to the interpretation of international intellectual property (IP) treaties in international, regionaland national courts and tribunals would give greater consistency to the scope and flexibilities of internationally agreed IP. In many instances the protection of rights is so dominant in the process of interpretation of the international rules that flexibilities and the interests of those who access and use IP are side-lined. th. Consistency in the method of interpretation is more likely to reflect that minimum standards allow for diverse approaches to IP precisely so that the law can support a variety of legitimate policy goals.

You do not have access to this content

Susy Frankel

This chapter analyses how investment agreements that purport to include intellectual property (IP) in their scope should be interpreted. The internationally agreed rules of treaty interpretation found in the Vienna Convention require that the object and purpose of a treaty inform its interpretation. When IP is part of an investment treaty then both the object and purpose of investment and of the relevant IP at issue should be part of the interpretative exercise. The chapter examines how the mingling of IP and investment ought to impact the interpretation of object and purpose in light of the scope of intellectual property, intellectual-property-related investment obligations and the complexities of the relevant international regimes. With reference to recent high-profile disputes, it proposes how the Vienna Convention rules of interpretation can be used effectively to recognise, in consistent ways, the object and purpose of international intellectual property law in its different contexts.