Global Intellectual Property Protection and New Constitutionalism

Auteur
Jonathan Griffiths is Professor of Intellectual Property Law at Queen Mary University of London. His research interests lie predominantly in copyright law (particularly European copyright law) and in the relationship between intellectual property law and fundamental rights. He is the editor of the United Kingdom chapter of the leading international treatise on "International Copyright Law & Practice" (ed. Bently) and is a member of the editorial and advisory boards of the Journal of Media Law, the Media & Arts Law Review, and the Nottingham Law Journal. He is a member of the European Copyright Society, a group of scholars founded with the aim of creating a platform for critical and independent scholarly thinking on European copyright law. Tuomas Mylly is Professor of Commercial Law at Faculty of Law, University of Turku (Finland) and director of the IPR University Center. He has previously held a chair of European Economic Law. His research interests lie in European and global intellectual property, competition and constitutional law, and their interactions. His current research is focused on the historical evolution of international and European intellectual property protection and constitutional and other aspects of IP protection.

Texte du rabat

This collection of essays, written by international experts and covering a range of different areas of intellectual property law, draws on constitutional theory, and particularly on ideas of "new constitutionalism", to engage with the complex array of contemporary legal constraints on intellectual property law-making.

Résumé
The constitutionalization of intellectual property law is often framed as a benign and progressive integration of intellectual property with fundamental rights. Yet this is not a full or even an adequate picture of the ongoing constitutionalization processes affecting IP. This collection of essays, written by international experts and covering a range of different areas of intellectual property law, takes a broader approach to the process. Drawing on constitutional theory, and particularly on ideas of new constitutionalism, the chapters engage with the complex array of contemporary legal constraints on intellectual property law-making. Such constraints arising in international intellectual property law, human rights law (including human rights protection for right-holders), investment treaties, and forms of private ordering. This collection aims to illuminate the complex role of this "constitutional" framework, by analysing the overlaps, complementarities, and conflicts between such forms of protection and seeking to establish the effects that this assemblage of global and regional norms has on legal reform projects and interpretations of IP law. Some chapters take a broad theoretical perspective on these processes. Others focus on specific situations in which the relationship between intellectual property law and broader "constitutional" norms is significant. These contexts range from Art 17 of the EU's Digital Single Market Directive, to the implementation of harmonized trade secrets protection, from the role of Canada's Charter of Rights to the impact of the social model of property in Brazil.

Contenu

• 1.: Tuomas Mylly and Jonathan Griffiths: The Transformation of Global Intellectual Property Protection: General Introduction

• Part I: Systemic and Conceptual Issues

• 2.: Henning Grosse Ruse-Khan: Effects of Combined Hedging: Overlapping and Accumulative Protections for IP Assets on a Global Scale

• 3.: Tuomas Mylly: The New Constitutional Architecture of Intellectual Property

• Part II: International and Transnational IP Norms as 'Constitutional Hedges' of IP

• 4.: Martin Senftleben: From Flexible Balancing Tool to Quasi-Constitutional Straitjacket: How the EU Cultivates the Constraining Function of the Three-Step Test

• 5.: Nari Lee: Hedging (into) Property?: Invisible Trade Secrets and International Trade in Goods

• Part III: Human Rights Hedging IP Rights

• 6.: Aurora Plomer: A Market-Friendly Human Rights Paradigm for IP Rights in Europe?

• Part IV: International Investment Treaty Protection of IP

• 7.: Rochelle C. Dreyfuss: Hedging Bets with BITS: The Impact of Investment Obligations on Intellectual Property Norms

• 8.: Peter K. Yu: The Second Transformation of the International Intellectual Property Regime

• Part V: Informal Measures and Private Regulation as Constitutional Hedges of IP

• 9.: Daniel Acquah: Technical Assistance as a Hedge to IP Exclusivity

• 10.: Martin Husovec and Joa~ando Pedro Quintais: Too Small to Matter?: On the Copyright Directive's Bias in Favour of Big Right-Holders

• Part VI: Counter-narratives

• 11.: Caterina Sganga: Multilevel Constitutionalism and the Propertisation of EU Copyright: Even Higher Protection or a New Structural Limitation?

• 12.: Christophe Geiger and Luc Desaunettes-Barbero: The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses

• 13.: Allan Rocha de Souza: Copyright, Human Rights, and the Social Function of Properties in Brazil

• 14.: Graham Reynolds: Hedge or Counterweight?: New Constitutionalism and the Role of the Canadian Charter of Rights and Freedoms in Intellectual Property Litigation