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Global Intellectual Property Protection and New Constitutionalism: Hedging Exclusive Rights

Global Intellectual Property Protection and New Constitutionalism: Hedging Exclusive Rights

Author: Jonathan Griffiths; Tuomas Mylly
Publisher: Oxford University Press
ISBN: 9780198863168
Published In: November 2021
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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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.

1. The Transformation of Global Intellectual Property Protection: General Introduction

Tuomas Mylly and Jonathan Griffiths

Part I: Systemic and Conceptual Issues

2. Effects of Combined Hedging: Overlapping and Accumulative Protections for IP Assets on a Global Scale

Henning Grosse Ruse-Khan

3. The New Constitutional Architecture of Intellectual Property

Tuomas Mylly

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

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

Martin Senftleben

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

Nari Lee

Part III: Human Rights Hedging IP Rights

6. A Market-Friendly Human Rights Paradigm for IP Rights in Europe?

Aurora Plomer

Part IV: International Investment Treaty Protection of IP

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

Rochelle C. Dreyfuss

8. The Second Transformation of the International Intellectual Property Regime

Peter K. Yu

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

9. Technical Assistance as a Hedge to IP Exclusivity

Daniel Acquah

10. Too Small to Matter?: On the Copyright Directive's Bias in Favour of Big Right-Holders

Martin Husovec

Part VI: Counter-narratives

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

Caterina Sganga

12. The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses

Christophe Geiger and Luc Desaunettes-Barbero

13. Copyright, Human Rights, and the Social Function of Properties in Brazil

Allan Rocha de Souza

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

Graham Reynolds