Author: Peter Yu

Customizing Fair Use Transplants

Abstract: In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the U.S. fair use model. Thus far, Israel, Liberia, Malaysia, Singapore, South Korea, Sri Lanka, the Philippines and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption. Written for a special issue on “Intellectual Property Law in the New Technological Age: Rising to the Challenge of Change?”, this article examines the increasing efforts to transplant fair use into the copyright system based on the U.S. model. It begins by briefly recapturing the strengths and weaknesses of legal transplants. The article then scrutinizes the ongoing effort to transplant fair use from the United States. Specifically, it identifies eight modalities of transplantation, drawing on experiences in China, Australia, Hong Kong, Ireland, Israel, Liberia, Malaysia, Singapore, South Korea, Sri Lanka, the Philippines and Taiwan. This article concludes with five lessons that can be drawn from the study of these transplant efforts. Yu, Peter K., Customizing Fair Use Transplants (October 13, 2017). Texas A&M University School of Law Legal Studies Research Paper No. 17-78. Available at...

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Five Decades of Intellectual Property and Global Development

Abstract: The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007. On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health. When all of these developments are taken together, the past five decades have seen the launch of a wide variety of pro-development initiatives relating to intellectual property law and policy. Written for a special issue on intellectual property and global development, this article aims to take stock of these important yet diverse initiatives and to think ahead about the varied ways to harness our intellectual property system to better promote global development. This article begins by looking back at the various contributions of the Stockholm Conference. The article then examines the present efforts to realize the SDGs in the intellectual property arena, bringing to the discussion insights drawn from the development of the UNDRD. This article...

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The RCEP and Trans-Pacific Intellectual Property Norms

Vanderbilt Journal of Transnational Law, Vol. 50, 2017 Forthcoming; Texas A&M University School of Law Legal Studies Research Paper No. 16-50 Abstract: In the past few years, the Trans-Pacific Partnership has garnered considerable media, policy and scholarly attention. Rarely analyzed and only occasionally mentioned is the Regional Comprehensive Economic Partnership (RCEP). This Agreement is currently being negotiated among Australia, China, India, Japan, New Zealand, South Korea and the 10-member Association of Southeast Asian Nations (ASEAN). Launched in November 2012 under the ASEAN 6 framework, the RCEP negotiations build on past trade and non-trade discussions between ASEAN and its six major Asia-Pacific neighbors. This article examines the RCEP, with a focus on the intellectual property norms that the partnership agreement seeks to develop. The first half of the article focuses on the RCEP as a mega-regional agreement. It begins by briefly discussing the partnership’s historical origins. It then explores three possible scenarios in which the Agreement will help shape trade and intellectual property norms in the Asia-Pacific region. Specifically, the article examines the scenarios in which the Agreement will function as a rival pact, a building block, or an alternative path. The second half of this article turns to a more specific focus on intellectual property norms that are being established through the RCEP negotiations. It not only discusses the latest leaked draft of the RCEP intellectual property chapter, but...

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The Investment-Related Aspects of Intellectual Property Rights

Abstract: From the debate among presidential candidates on whether the United States should ratify the Trans-Pacific Partnership (TPP) Agreement to the arbitrations Philip Morris and Eli Lilly have sought through the investor-state dispute settlement (ISDS) mechanism, the investment-related aspects of intellectual property rights have recently garnered considerable policy, scholarly, and media attention. This growing attention, to some extent, has brought back memories about the time when the WTO TRIPS Agreement began to transform intellectual property law by redirecting our focus to the trade-related aspects of intellectual property rights. Whether the recent developments on the investment front represent yet another paradigm shift in intellectual property law remains an important academic and policy question. To address this question, the present article critically examines the investment-related aspects of intellectual property rights, including the use of ISDS to address international disputes involving intellectual property investments. It begins by exploring the growing trend of using investment law and fora to set international intellectual property norms. It further evaluates the ISDS mechanism, examining both its strengths and weaknesses. This article then examines the various upgrades that the TPP investment chapter has provided to the ISDS mechanism. It further outlines the conceptual and institutional improvements that could make ISDS even better than the mechanism provided in the TPP Agreement. The article concludes by exploring whether the TPP ISDS mechanism has provided any silver linings if it...

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