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    The present debate over the legal treatment of traditional knowledge (TK) and genetic resources tends to rationalize the precarious conditions in which Indigenous peoples and local communities live. The debate is organized around the question whether TK should be treated as part of the public domain or whether property rights should apply. Both sides presuppose either a robust utilitarianism or else a narrow conception of historical redress for past injustices. This Article argues that both property and the public domain depend on the disruption of places, people, and cultures that may stand in the way of the material conditions industrialized societies use as a proxy for human welfare. The TK debate tends to avoid fundamental moral and justice-related aspects of TK protection, including the centrality of TK to Indigenous peoples’ cultural identities and ways (and quality) of life, as well as their long-term socioeconomic development. The Article proposes a theological framework of “biblical stewardship” rooted in imago Dei—the foundational concept informing Jewish and Christian understandings of human nature and social interaction—to address the socio-moral dimensions that are constitutive of TK systems and the institutional context in which they unfold. The biblical stewardship framework focuses on the cooperative and kinship arrangements that enable and sustain productive capacity for TK. It centers the need for Indigenous peoples and local communities to be able to develop and protect their knowledge assets as a precondition for those communities’ thriving, both in the present and the future. Moreover, biblical stewardship supplies a basis for accountability by Indigenous peoples and local communities for how their TK is managed, shared, and utilized within a broader framework of progress and the public good—including obligations that foreclose access and benefit-sharing agreements that may undermine conditions for flourishing of plant, animal, or human life.

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    Modern legal systems are not usually designed to protect Indigenous traditional knowledge or traditional cultural expressions but are, more often, historically complicit in their misuse or suppression. The undefined status of traditional knowledge has left Indigenous communities vulnerable to harms not readily cognizable by either common or civil law systems: exploitation of those communities’ genetic resources and medical knowledge, demeaning of their sacred symbols, and further alienation from their culture and land following colonial dispossession. Indigenous groups have therefore sought greater protection of traditional knowledge through a range of domestic and international legal avenues. This Article examines the experience of Australia as the common law jurisdiction that has likely gone furthest in protecting traditional knowledge. Aboriginal Australian claimants have found varying degrees of success through mechanisms such as copyright law, patent law, consumer protection, fiduciary claims, and privacy rights. Even at their most successful, however, these claimants have not obtained recognition of the unique interests represented by traditional knowledge. Instead, they have been forced to translate their claims into terms close to the conventional utilitarian or personality-based justifications for intellectual property. Australia therefore illustrates the potential of a common law system’s ability to incrementally adapt to novel claims—but also that system’s ultimate inadequacy.

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    Governments in rich countries need to show moral courage and political will to redesign global intellectual property rules. A Covid-19 vaccine waiver is just the start, writes Ruth L. Okediji.

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    Many proponents of traditional knowledge (TK) seek legal protection comparable to the bundle of exclusive rights afforded creators of knowledge goods in the conventional intellectual property (IP) system. This chapter argues that the nature of the harm caused by such misuse differs meaningfully from the interests with which standard intellectual property law is occupied. It maps how private law claims have been applied, notably in Australia, to address TK misuse and highlights formal adherence by courts to the boundaries of private law subjects. Important aspects of the problem, such as how TK misuse disables cultural mechanisms designed to foster the production of knowledge goods for sustainable growth in Indigenous communities, while also posing a risk to cross-border scientific research important for pressing public health and environmental challenges, however remain beyond private law’s reach.The chapter identifies three types of harm that flow from the misuse of TK: relational harm, communal harm, and developmental harm. For such harms, individual private property—and common property for that matter—offers limited recourse. The chapter reflects on other private law tools that could extend to TK and that offer protection well beyond IP rights, but all are without the classic welfare limits attendant to knowledge goods under the IP system. The misalignment of harms, claims and remedies point to sui generis regimes as a more meaningful prospect for regulating TK.

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    Protecting intellectual property (IP) as an investment has important consequences for the emerging landscape of international investment law and for the very nature of IP rights. By recasting IP as an investment ‘asset’ it diminishes the public-oriented aspect of IP and deviates from the competition and social progress norms in which IP law is grounded. This chapter explores the unique characteristics of IP rights which render them unsuitable for classification as traditional investments and discusses the conditions under which IP could be considered an investment for arbitration purposes. It argues that investment arbitration invoked to contest IP laws should be permitted only under a prescribed set of conditions which are designed to preserve the ‘wiggle room’ that is inherent within the international IP system and is critical for preserving national sovereignty, as well as public faith in domestic legislative and judicial processes.

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    This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.

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    New technologies have profoundly changed the way content is produced, shared, and disseminated. Some commentators argue that the ubiquity of digitized content means that libraries have become superfluous in the digital age. This presentation presents evidence to the contrary. It will discuss challenges for libraries arising from globalized copyright, including issues related to fake news and threats to fair use. The presentation will also highlight the strategic ways libraries are being embedded in the design of copyright law nationally and globally, exploring whether these developments–that are sometimes conflicting–are good for libraries and the public in the long term.

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    Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law’s objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These outcomes indicate that the current configuration of limitations and exceptions (L&Es) in international copyright law has not advanced the human welfare goals that animate its leading justifications in developing countries. This Article considers the design of the international copyright system in light of what economists have learned about the conditions necessary for economic development and examines what changes to international copyright L&Es those insights demand. It concludes that a more realistic dialogue about the relationship between copyright and economic development compels new types of L&Es, thus underscoring where developing and least-developed countries should sensibly invest their limited economic and political capital when engaging with the international copyright framework.

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  • Ruth Okediji, Traditional Knowledge and the Public Domain in Intellectual Property, in Intellectual Property and Development: Understanding the Interfaces 249 (Carlos Correa & Xavier Seuba eds., 2019).

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    Legal protection for traditional knowledge raises difficult questions at the intersection of innovation policy and knowledge governance, with important implications for Indigenous peoples’ rights. A significant source of tension has been the difficulty in delineating entitlement interests in traditional knowledge consistent with prevailing doctrinal limits to intellectual property rights, such as the public domain. This paper advances the idea that, properly applied, the public domain does not constitute a barrier to the effective protection of traditional knowledge, and that a thoughtfully designed, custom-built public domain for traditional knowledge would align traditional knowledge protection with the overall architecture of the global innovation framework.

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  • Ruth Okediji, Jeremiah Smith Jr. & Bill Hannay, The Long Arm of the Law, Charlseton Library Conf. (2018).

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    Copyright Law in an Age of Limitations and Exceptions brings together leading copyright scholars and the field's foremost authorities to consider the critical role of copyright law in shaping the complex social, economic, and political interaction critical for cultural productivity and human flourishing. The book addresses defining issues facing copyright law today, including justifications for copyright law's limitations and exceptions (L&Es), the role of authors in copyright, users' rights, fair use politics and reform, the three-step test in European copyright law, the idea/expression principle with respect to functional works, limits on the use of L&Es in scientific innovation, and L&Es as a tool for economic development in international copyright law. The book also presents case studies on the historical development of the concept of 'neighboring rights' and on Harvard Law School's pioneering model of global copyright education, made possible by the exercise of L&Es across national borders.

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    Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods created as a result of open data policies, governments may fail to appropriate optimal returns to the public for its investment in big data. This Essay argues for coherence between open data policies and rules governing government ownership of intellectual property. It highlights the rule in US copyright law proscribing copyright in federal government works, arguing that public domain status is not invariably welfare-enhancing. The rule is sufficiently malleable to permit the federal government to assert ownership over knowledge assets developed from access to data that it owns or controls. Claiming copyright to engineer greater protection of the public interest could foster economic growth and facilitate the distributive welfare goals of intellectual property law more effectively than the public domain status that presumptively attaches to federal government works.

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  • Julie E. Cohen, Lydia Pallas Loren, Ruth Gana Okediki & Maureen A. O'Rourke, Copyright in a Global Information Economy (Aspen Law & Bus. 4th ed. 2015).

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    1st edition 2002; 2nd edition 2006; 3rd edition 2010. Third edition: http://id.lib.harvard.edu/aleph/012608850/catalog. Copyright in a Global Information Economy explores the full range of copyright law and its relationship to technological innovations and globalization. Written with precision and clarity, this ambitious yet manageable casebook elucidates the fundamental disputes of copyright law with incisive and balanced perspective. The book features comprehensive coverage of domestic and international copyright law, a balanced treatment of controversial issues, as well as a wide selection of concisely edited cases, engaging and practical examples and discussions, and photographs that facilitate and stimulate discussion of cases.

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    The conclusion of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1994 established a minimum baseline for regulating access to technology and knowledge goods. This global regime of intellectual property rights has since been a contentious aspect of modern economic relations. It has been viewed by consumers around the world as a significant barrier to access to technology and associated knowledge goods, including stymieing opportunities for social and political engagement by citizens. Public disenchantment with intellectual property as a primary regulator of access to technology could be addressed by the explicit linkage of proprietary rights to a new welfare axis comprised of development aspirations, human rights norms, and liberty considerations. To the extent social norms that develop around new technologies facilitate positive returns recognized by these complementary legal regimes, intellectual property rights that are in tension with these regimes will likely continue to lose moral sway, making the future of the TRIPS Agreement far less stable and its minimum obligations more costly to enforce. Moreover, gaps in how formal law and social norms regulate technology are not easily captured by the rigid prescriptions of treaty provisions, and thus the TRIPS Agreement is far less capable of serving the important role of shaping contemporary approaches to access to technology. As technology continues to reach deep into the private lives of citizens, and to affect the capacity and trajectory of national development in less-advanced economies, the design and construction of formal laws around which technology is produced, disseminated, and used will have greater import if they purposefully accommodate other legal orders whose norms resonate powerfully in advancing stylized visions of societal progress and human well-being.

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    The author provides a comprehensive analysis of the latest economic, political and social research and advanced current thinking on the relationship between intellectual property and trade and development.

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    In recent years, Intellectual Property Rights - both in the form of patents and copyrights - have expanded in their coverage, the breadth and depth of protection, and the tightness of their enforcement. Moreover, for the first time in history, the IPR regime has become increasingly uniform at international level by means of the TRIPS agreement, irrespectively of the degrees of development of the various countries. This volume, first, addresses from different angles the effects of IPR on the processes of innovation and innovation diffusion in general, and with respect to developing countries in particular. Contrary to a widespread view, there is very little evidence that the rates of innovation increase with the tightness of IPR even in developed countries. Conversely, in many circumstances, tight IPR represents an obstacle to imitation and innovation diffusion in developing countries. What can policies do then? This is the second major theme of the book which offers several detailed discussions of possible policy measures even within the current TRIPS regime - including the exploitation of the waivers to IPR enforcement that it contains, various forms of development of 'technological commons', and non-patent rewards to innovators, such as prizes. Some drawbacks of the regimes, however, are unavoidable: hence the advocacy in many contributions to the book of deep reforms of the system in both developed and developing countries, including the non-patentability of scientific discoveries, the reduction of the depth and breadth of IPR patents, and the variability of the degrees of IPR protection according to the levels of a country's development.

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    Transferring environmentally sound technologies (ESTs) to developing countries is a primary means of addressing issues of local ecological sustainability and global climate change. This chapter reviews the essential determinants of, and roadblocks to, effectively expanding such transfers. We pay particular attention to the roles played by formal intellectual property rights (IPRs), which are supposed to facilitate international technology exchanges through such market mechanisms as foreign direct investment and licensing. While there is general evidence to support this view, for various reasons the effectiveness of IPRs may be limited in the realm of ESTs. Moreover, IPRs raise the clear possibility that owners of patents in new and critical technologies could limit international access through restrictive licensing terms and potentially anti-competitive behavior. The chapter analyzes available policy alternatives, ranging from nuanced changes in the legal scope of IPRs in the global system to innovative international funding mechanisms, such as prizes and green technology funds.

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    This text addresses critical and timely questions in patent law from a truly global perspective, with contributions from leading patent law scholars from various countries and various disciplines. The rich scholarship featured reflects on a wide range of perspectives, offering insights and new approaches to evaluating key institutional, economic, doctrinal, and practical issues that are at the forefront of efforts to reform the global patent system, and to reconfigure geo-political interests in on-going multilateral, trilateral, and bilateral initiatives.

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    This book examines the tension between intellectual property law and access to medicine in a set of developing countries caught between their international trade obligations and their commitment to the health of their citizens.

  • Margo A. Bagley, Ruth L. Okediji & Jay Erstling, International Patent Law and Policy (West Acad. Publ'g 2013).

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    This casebook provides comparative and international materials for a range of patent law topics, emphasizing the doctrinal, normative and practice-related issues resulting from global harmonization and cooperation efforts, the impact of such efforts on countries at different levels of economic development, an overview of the principal international intellectual property regimes, discussion of key policy issues that will frame international patent law’s future, and coverage of multinational patent enforcement.

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    Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena. Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. Today, however, the formidable array of legislative maneuvers to tighten the grip of copyright laws in defense of cultural industries whose business models were upended in the online environment have, deliberately or not, undermined the ability of the scientific community to access, use, and reuse vast amounts of basic knowledge inputs. Database protection laws, reinforced by electronic fences and contracts of adhesion, further subject copy-reliant technologies to the whims of publishers and hinder the pooling of publicly funded resources that empower collaborative research networks and the formation of science commons in general. The authors analyze the different components of a complicated transnational legislative fabric that have changed world copyright law into a science-hostile environment. Given the global nature of digital scientific research, they focus attention on comparative laws that fragment research inputs into diversely accessible territorial compartments. This analysis shows that users of automated knowledge discovery tools will likely become collective infringers of both domestic and international property laws. In response to this challenge, the authors discuss possible solutions to the problems that intellectual property laws have created for digitally integrated scientific research from two very different angles. First, the authors skeptically consider the kinds of legal reforms that would be needed if commercial publishers continued to act as intermediaries between producers and users of scientific information and data, as they do today, without regard to the likelihood that such reforms would ever be enacted. The authors then reconsider the role of publishers and ask whether, from a cost-benefit perspective, it should be significantly modified or abandoned altogether. Finally, the authors examine alternative strategies that the scientific community itself could embrace in a concerted effort to manage its own upstream knowledge assets in ways that might avoid, or at least attenuate, the obstacles to digitally empowered scientific research currently flowing from a flawed intellectual property regime. The Article concludes by stressing the need to bridge the current disconnect between private rights and public science, in the overall interest of both innovation and the advancement of knowledge.

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    African and Pacific countries continue to negotiate the challenging Economic Partnership Agreements (EPAs) with the European Union. These new agreements have the potential to help African countries accelerate their economic growth and develop more resilient economies. However, the presence of negotiating deadlocks or a sense of fatigue as well as the lack of real appetite for these agreements among many African, Caribbean, and Pacific (ACP) negotiators, raise legitimate questions regarding their structure and content, as well as their ability to constitute instruments to leverage economic growth.

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  • Ruth L. Okediji, Beyond Fragmentation: WIPO-WTO Relations and the Future of Global IP Norms, 39 Neth. Y.B. Int'l L. 69 (2008).

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    The World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has been the focus of intense scholarly debate regarding the effects of IP protection on the development interests of the global South. Far less attention has been directed at the organizational framework in which future IP norms should be developed. The governing assumption has been that the norm-setting role of the World Intellectual Property Organization (WIPO) remains unchanged notwithstanding the primacy of the WTO as an Organization with explicit mandate for global IP regulation. In this Article, I argue that the WTO, in a hierarchical division of labor with WIPO, should be promoted as the locus of IP norm-setting, particularly with respect to those norms that affect the regulation and supply of global public goods. IP norm-setting in the WTO is not without risks. Nonetheless, an organizational culture in which IP protection is one of many tools to accomplish defined welfare goals, rather than the raison d'être of the organization's existence, may force open important institutional space in which future IP norms consistent both with the interests of less developed countries and the ideals of mature IP systems, can be meaningfully negotiated. At a minimum, a hierarchical relationship could facilitate inter-institutional competition between the WTO and WIPO, generating additional welfare gains for the international community in the form of greater transparency in the processes of IP norm-setting, improvements in the democratic deficit inherent in international organizations generally, as well as systemic gains from enhanced accountability in the global management of IP.

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    This chapter explores the technology-related focus of the IP-development linkage and outlines WIPO's role in the initial development paradigm, which prevailed from 1964 to 2004 when a proposal for a WIPO Development Agenda was first submitted. It then examines the WIPO Development Agenda in light of this history and identifies possible paradigm shifts discernible both in the structure of the Agenda and in preliminary considerations regarding its implementation. Finally, the chapter suggests a number of ways to interpret the WIPO Development Agenda and reflects briefly on how these different “faces” of the Agenda might inform WIPO's institutional role in responding to a spectrum of development interests in an era of rapid technological transformation.

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    The goal of translating the diffuse gains from domestic intellectual property (IP) protection in the global North into an international setting characterized by vast disparities in national income levels, diverse cultural and historical contexts, and distinct legal institutions has long caused pathological behavior in global IP politics. The A2K movement reflects this pathology in new ways. The paradox of the movement, well captured in Amy Kapczynski’s article, is that it depends so integrally on the core assumptions that sustain the legitimacy of the international IP system, the most essential of which is that technological innovation is a principal cause of national economic growth. Yet fostering endogenous economic growth has not occupied a central place in A2K strategies. If altering the terms and text of the debate over the global conditions of IP protection is the organizational hook to the A2K mobilization, it is striking that the fundamental theme of the debate—inducing economic growth—is not central to the movement’s internal self-legitimation. In this brief Response, I put forward a few insights highlighting the discursive nature of the movement, the entrenchment of Coase’s firm in rationalizations of the global necessity for IP protection, and the movement’s own reliance on IP and market rules to maintain its position of influence in multiple international fora.

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    This book provides a comprehensive analysis of the latest legal, economic, political and social research and advanced current thinking on the relationship between intellectual property and trade and development.

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    This first of a two-volume work on Standard-setting in UNESCO contains the essays presented at a symposium held on the occasion of its sixtieth anniversary.

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    This edited volume brings together scholars and practitioners to address the question as to whether, in our globalized world, the protection of economic, social, and cultural rights should become the duty of actors beyond the state.

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    This is the first book to assess the public processes and inputs that an emerging transnational system of innovation will need to promote technical progress, economic growth and welfare for all participants.

  • Ruth L. Okediji, Rules of Power in an Age of Law: Process Opportunism and TRIPS Dispute Settlement, in Handbook of International Trade: Economic and Legal Analyses of Trade Policy and Institutions 42 (James Hartigan & Kwan Choi eds., 2005).

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    This second volume of the Handbook of International Trade focuses on the economic and legal analysis of international laws and institutions as they impact trade.

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    The Canada-Mexico International Workshop on Access and Benefit-sharing convened a broad range of experts in Cuernavaca, Mexico, October 24-27, 2004, to discuss a number of issues key to the negotiation, under the Convention on Biological Diversity (CBD), of the International Regime on Access and Benefit-sharing (ABS).

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