Kal Raustiala 2014-03-07 6:00 PM

国际知识产权法的比重与冲突  Density & Conflict in International Intellectual Property Law

Abstract
    
One of the signal features of contemporary world politics is that intellectual property rights are increasingly an arena for global cooperation and conflict. The proper role, scope, and stringency of international intellectual property (IP) rules are highly contested questions, questions that more and more arouse both passions and interests. Once limited to a set of relatively anemic treaties that lacked an effective means of international enforcement, international IP law has, in the last decade, been transformed by the arrival of a dense array of new institutions and agreements. This dense array of institutions has in turn transformed both the substance and the process of international IP lawmaking. This paper comments on Laurence Helfer's contribution to the 2006 UC Davis Law Review symposium, entitled 'Toward a Human Rights Framework for Intellectual Property'. Helfer's specific focus is the intersection of human rights and IP law. His core claim is that human rights agreements and human rights treaty bodies increasingly engage with questions of IP, and IP institutions and agreements increasingly use human rights language and rhetoric. There is no question that the underlying phenomena Helfer identifies - an increasingly dense system of international institutions, and rising competition and conflict among differing rules and institutions - exist and are growing in importance. In this regard 'Toward a Human Rights Framework' raises important positive and normative points, which I will take up in turn in this short paper. Part I considers the positive claim that the processes by which IP law is made are shifting. I concur with this assessment, and indeed expand upon it by situating the claim within broader trends in international law and politics. Using the concept of a regime complex I argue that international IP law exhibits particular features, features which are explicable only once the impact of institutional density is recognized. Part II then turns to normative questions, and briefly queries whether the marriage of human rights and IP is bound to be a happy one. In particular, I question whether the infusion of human rights concepts and rhetoric will serve, on balance, to make international IP rights more socially just, or just more powerful. I look to recent examples of propertization in traditional knowledge and geographic indications and argue that these cases illustrate some benefits, but also some pitfalls, from the intersection of human rights and IP law.

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Kal Raustiala

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