Thursday, February 18, 2021

WIPIP: PLENARY SESSION 3 — Why American WIP’ers Should Care About International Law

Jerome H. Reichman, Duke Law School, Duke University

Until 1994, there weren’t many options when a nation didn’t comply with IP treaties: complaints and retaliation against that country’s nationals. Then came TRIPS. Arbitration, including damages, became available; winner can also collect damages via tariffs. Hasn’t functioned recently because minimum # of judges lacking due to Trump but Biden should fix that. New change: compulsory patent license for export to meet the needs of a country that needs the product (vaccine) but can’t make it. Threat of compulsory license for export can often be enough. Regional pooling as a possibility using TRIPS flexibility.

Jane Ginsburg, Columbia Law School, Columbia University

One can’t separate out questions of local import from questions with international dimensions: was true before internet, even more true now.

There’s a caricature of US v. French approaches to ©. But going back to the sources, it’s much more complicated in motivations for ©--a lot of utilitarian motivation in France and a lot of natural rights/ “you create it, it’s yours” sentiment in America. That played out in case law as well.

Common wisdom was that printing privileges were about publishers and incentives, not creativity. But Roman (Vatican) privileges were more granted to authors than printers, and motivations expressed in requesting and granting them were a mixture of incentive arguments, effort arguments/anti-free riding arguments, and sentiments like “creativity should be rewarded.”

US termination system and EU contract regulations both try to deal with authors’ vulnerability/failure to anticipate future forms of exploiting work.

Rochelle Dreyfuss, New York University School of Law

Current regime started developing when nations were convinced that interconnection would lead to wealth and peace, but Global South has not become more wealthy; strong IP has contributed to inequality; we do not have peace; Brexit and US rejection of TPP/implosion of WTO dispute resolution, which actually began under Obama. Why move into a field that’s unraveling? Pandemic has highlighted unique opportunities in this field. Current regime encourages countries to engage in parallel play—rights in one’s own country—but it’s a very territorial system. Covid shows territoriality makes little sense. Need cooperative play/research/development; also should not ratchet up protection but should focus on access and equity. IT/interoperability; cybersecurity; other issues also require international treatment.

Scholarship wise, international comparisons provide important insights, and can be very useful in teaching students as well. Also: IP owners tend to take one win and try to export it, so you see what is going to come next.

Jorge Contreras, S. J. Quinney College of Law, University of Utah

Students often treat the results of court cases as the only possible way the doctrine could have developed, and outside-US cases show that’s not true. Lots of patent examples, from working requirements to different competition law interface. Knowing the alternatives helps you argue more broadly both for policy and for individual case outcomes.

Scholarship wise, you can become “the” expert even on a small area—your views are important outside the US because you are often the only US lawyer who comes to Shanghai, Bogota, etc., which magnifies your views and enables you to disseminate your ideas. Outside US conferences: submissions can be harder because their requirements are often more rigorous for methodology, quality of abstract, etc. but it is worth it. Teaching LLMs is also a way to reach out to foreign lawyers. LLMs can be high ranking officials in their own countries; they have careers. International IP blogs like IPKat and SpicyIP are read around the world: read it, write for it. There’s an appetite abroad for those interested in sharing their knowledge; surprising how few US academics do it.

Moderator: Irene Calboli, Texas A&M University School of Law

Love and hate for US requires navigating some sensitive issues. Open access is one way of reaching people we would otherwise never reach.

Reichman: important to address problems w/US approaches.

Discussion of use of foreign precedents, much more common in other countries than in US. Contreras suggests it’s legislators and agencies that are the real laggards.

Ginsburg: Especially good for US students to learn that (1) we aren’t completely on our own; we do have rules (even if US often doesn’t care to follow them) and (2) there are often other ways of doing things.

Contreras: our students need to know that their practices will have international issues; among other things, with eBay the US is a huge outlier in patent remedies, which is why all these cases are going to be brought in Germany!

Ginsburg: clients who have websites have to think about non-US law.

Reichman: Harmonization got a bad name because it was ever upwards; we have to think about compromise to protect the public interest.

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