Prometheus: Vol 16, No 3 (1998)

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Editorial
Property Rights in Information: The Trade Paradigm
Peter Drahos
Pages: 245-248

Trade and Intellectual Property: Some Observations
Anthony Mason
Pages: 249-254

ABSTRACT

Intellectual property rights run counter to the interests of consumers and the public. They are also exploited in anti-competitive ways. On this account these rights should be qualified or subjected to competition regulation. The globalization of intellectual property exposes the interests of consumers and the public to greater risks unless appropriate mechanisms of protection are developed.

Intellectual Property and Trade: Economic Perspectives
Don Lamberton
Pages: 255-260

ABSTRACT

Despite the hype, regionalization frequently appears a better description of world market evolution than globalization. There has been convergence among the advanced nations but in other countries there is a mixed record of take-offs, stalls and nose dives. Given these circumstances, it is important that economics is still trying to come to grips with knowledge-based economic activity and has yet to develop the not-so-simple economics of intellectual property. We have to recognize that information is capital and the discrete piece of information lawyers see as the basis of patents is in reality a large, complex information structure, meshing into elaborate networks. Patenting and other strategies to appropriate benefits from innovation may therefore be more successful than has been conceded generally. Implications extend from domestic innovation to world trade and institutional arrangements.

Intellectual Property Rights Protection and International Trade: An Economic Survey
Peter Hall
Pages: 261-273

ABSTRACT

Intellectual properly right (IPR) protection provides incentives for innovation and consequent spillover benefits for the global economy, but it may also have anti-competitive effects. Economic theory has only recently addressed the international trade flow implications of different IPR protection regimes—including those consistent with the TRIPS agreement. The theory suggests IPR protection offers grounds for both conflict and congruence between net technology importers (mostly developing countries) and net technology exporters. Empirical evidence suggests that IPR protection influences trade and investment flows, but that economic impacts vary across nations and industries. Debate continues over crucial measurement issues.

The Intellectual Commons: A Rationale for Regulation
Andrew C. Dawson
Pages: 275-289

ABSTRACT

This article characterises the ‘intellectual commons’, and the relationship between it, commoners and the state. It is argued that in a democracy the State should adopt a steward-type role over the intellectual commons. This role dictates that regulation should be in the best interests of the commoners, without undue interference with their inherent rights and will only be justified if it is based upon a coherent rationale. Economic theory can provide such a rationale when the costs of open entry to the commons exceed the benefits. Innovative, cooperative direct regulation has the best potential for success.

TRIPS, Cultural Politics and Law Reform
Johanna Sutherland
Pages: 291-303

ABSTRACT

This article examines the intensification of inter-‘national’ and international cultural contestations over intellectual property rights (IPRs). Examples are given of disputes over biological materials and their commercial use in biotechnology and natural products, and concepts of culture, properly and fair return. These disputes are also about culture and political liberalism. Corporate stakeholders, governments, indigenous peoples’ organisations (IPOs) and non-governmental organisations (NGOs) are involved in democratic, and with some exceptions, lawful political activity to secure law reform.

Copyright, Culture and Private Power
Fiona Macmillan
Pages: 305-316

ABSTRACT

This article considers how copyright serves concepts of culture and development. It suggests that copyright’s role in relation to culture is best characterised as instrumental rather than fundamental. An indicator of this instrumental approach is the commodification of the copyright interest. The article argues that this commodification has been used by corporate interests to build an edifice of private power. The end result of this private power over cultural output is the global homogenisation of that output.

Regulating the Collective Exploitation of Copyright
Jeremy Thorpe
Pages: 317-329

ABSTRACT

Collective enforcement of copyright law is an increasingly important element in copyright-based industries. This article suggests that collective enforcement creates two forces: increased compliance with copyright laws; and a tendency for copyright collecting societies to act as monopolists. The interaction of these forces is discussed and the price and output consequences identified. From this position, using the Australian regulatory experience as a guide, the article highlights a number of regulatory shortcomings and suggests a range of principles upon which to base the regulation of copyright collecting societies.

Trade in Education: The Role of Copyright
Leanne Wiseman
Pages: 331-339

ABSTRACT

In Australia, as in many other countries, education is increasingly thought of in terms of trade. Given that copyright law has long functioned as a trade regulation device, it may be reasonable to expect that consideration would be given to the role that copyright may play in regulating the so-called education industry. However, the approach taken to copyright law is often disparate and confusing. This article re-examines approaches to ownership of copyright of works in universities and how copyright may be seen, not as a property right to be fought over but as a specific tool of regulation and governance.

The Role of Intellectual Property Law in Regional Commercial Unions in Europe and Asia
Michael Blakeney
Pages: 341-350

ABSTRACT

The establishment of a global multilateral trading system moderated by the World Trade Organisation (WTO) is in apparent tension with the proliferation of regional trade arrangements. A significant feature of these regional arrangements is the proposal to establish harmonised regional intellectual property systems. This intellectual property harmonisation may well operate to reconcile the countervailing strains of globalisation and regionalisation of trade. This article examines the coordination of intellectual property in regional trade arrangements in Europe, Asia and North and South America. Specifically, the article examines the intellectual property regimes of the European Union, the Central European Free Trade Agreement, the Association of South East Asian Nations and the North American Free Trade Association.

Trade, Competition and Intellectual Property
Warwick A. Rothnie
Pages: 351-366

ABSTRACT

TRIPS does not lay down rules on parallel imports. Its provisions, however, do give states the discretion to apply competition rules to the exercise of intellectual property rights. The indeterminacies of competition law and its application mean that intellectual property owners lack objective criteria by which to plan their strategic uses of intellectual property. Competition policy, if not clearly and consistently worked out, may well serve to undermine the incentive effects of intellectual property.

Competition over Competition Policy for International Trade and Intellectual Property
Christoper Arup
Pages: 367-381

ABSTRACT

Increasingly, international trade law demands that national competition policy play a role making domestic markets more accessible to foreign traders. But can international competition policy also control transnational business practices? New international intellectual property power is providing a reason why such control is needed. This article gauges the competition over the nature of competition policy in a global era.

The Interface between Intellectual Property Rights and Competition Law and Policy: An Australian Perspective
Jill Walker
Pages: 383-393

ABSTRACT

The interface between intellectual property and competition policy is a difficult one. Both aim to correct for market failure in the pursuit of economic efficiency. However, in correcting for one market failure, we may exacerbate another. This article raises a number of specific issues which have arisen at this interface, at both the policy and enforcement levels. It discusses the Australian response to questions of spare parts, journalists copyright, parallel imports, databases and collecting societies, all issues which have arisen internationally in recent years.

Intellectual Property Disputes and the Supercourt of the World Trade Organisation: The Case for a New Model of Dispute Resolution
Gail E. Evans
Pages: 395-410

ABSTRACT

The closing decade of the 20th century witnessed the emergence of a WTO ‘supercourt’ having the power to review states’ intellectual property legislation. This article challenges the use of law as an instrument of global economic integration without a commensurate growth in legitimacy and public accountability to accompany the process. The recent case of United States and India—Patent Protection for Pharmaceutical and Agricultural Chemical Products provides a focal point for an analysis of key issues of legitimacy in the dispute resolution process. The article concludes that matters would be best remedied with an appropriate theoretical model in mind. To this end, having reviewed various models of trade legalism, the author endorses the stakeholder model as best suited to underpin the necessary reforms.