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Development of intellectual property law in the united states essay

That is what happened in the 1990s when the bloc made up of the United States, Europe and Japan was able to incorporate intellectual property matters in the trade agenda. The signing of the Agreement on Trade Related Aspects of Intellectual Property, more commonly known as TRIPS, created a unified global intellectual property regime with minimum standards and established a dispute settlement system to ensure its application and compliance.

At first blush it is surprising that the developing countries would agree to treat intellectual property in the framework of the World Trade Organization WTO and not in the customary body for such matters, the World Intellectual Property Organization WIPO. The larger, industrialized countries had their reasons for wanting this shift — namely, that the WTO has a dispute settlement mechanism that makes it possible to apply punitive measures against those countries that might violate the rules.

In 2001, it appeared that developing countries might make some progress in trade policies that affect their economic development. In response to the Doha Round, developed countries began to promote two types of treaties to advance their commercial interests: Both seek to expand the scope of coverage and the duration of intellectual property monopolies, a legal approach that obviously benefits large film studios, publishers, record labels and information vendors.

The two types of agreements also seek to add new legal provisions that reduce the flexibility of TRIPS provisions, to the detriment of developing countries.

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The European Union and the United States are especially active when it comes to promoting the signing of free trade agreements. The free trade agreement signed in 2011 by the European Union and South Korea contains numerous examples of such clauses, among them: The provision reduces the flexible terms of the TRIPS that otherwise make it possible for the countries to recognize test data to approve a generic drug.

Such restrictive technical measures can, for example, track usage to determine whether a work has been copied, loaned, read one or more times, shared, and even printed, in the case of texts. In some legal systems, such as the Digital Millennium Copyright Act of the United States 4evading these technical measures is a crime, even when done to exercise a right, such as access to works in the public domain, or fair use. These FTAs impose joint liability on these services for the actions of Internet users and requires services to look into, monitor, and swiftly act in response to a report of a copyright violation without specifying what type of report triggers the duty and without guaranteeing the involvement of a judge.

Such clauses override domestic judicial systems, constitutional due process guarantees and the presumption of innocence, and constitute a direct threat to freedom of expression on the Internet. The FTAs require that each country ratify a 1991 Act and its amendments that expand the coverage of the varieties to be protected, expand the rights of the breeder and limit the uses of derivative varieties.

These provisions threaten native seeds that peasant communities have been exchanging and improving over thousands of years. It is clear that free trade agreements are hostile to this structure of governance and resource management. By imposing private intellectual property rights on collective knowledge and resources such as seeds and plant varieties, FTAs are in effect modern tools for enclosing the commons.

This process has consisted of extending the terms of monopolies over knowledge, creative works, seeds, and medicines; ignoring the value of the public domain; and extending intellectual property rights to areas of life never before contemplated in copyright and patent law. If fifty years ago someone had said that a plant, a gene, a mathematical algorithm could be the private property of some person, we would have thought such ideas insane. Monopolies over such living things have been consolidated by means of the dispute settlement systems used in trade disagreements.

Thus Phillip Morris once brought an ICSID complaint against Uruguay for its anti-smoking public health policy, claiming that Uruguay was indirectly expropriating without compensation an investment of Swiss origin protected by the agreement.

The rules and norms that communities adopt to manage their collective resources are essential for preserving, promoting and defending them. The present-day legal architecture and regulation of intellectual property in the Development of intellectual property law in the united states essay and the IPAs do not reflect a consensus of the interests of communities directly involved.

In essence, most negotiations of free trade and investment protection agreements occur behind closed doors, with pre-assembled negotiating documents, and with zero public access to the proceedings or policy documents.

Moreover, because negotiations also involve such issues as customs duties reductions, national procurement operations and investments, developing countries often regard intellectual property as a secondary concern to be used as a bargaining chip to obtain more favorable results on larger trade priorities. It is common for the countries that rely on the export of a specific commodity such as copper in Chile and soybeans in Argentina to make concessions in intellectual property policy in order to assure that their key exports have access to international markets.

As a result, the negotiators close agreements step by step until they have a final document that the countries sign, with no possibility of new discussions. In other words, the development of intellectual property law in the united states essay are left in the hands of the negotiators operating in secret to advance private commercial interests.

Even the legislators of signatory countries have very little ability to influence the treaties. The role of communities It is clear that this system for establishing policies for intellectual property rights fails to allow communities to protect and preserve their commons. One cannot expect the governments to defend and promote the commons if these same governments are promoting the signing of the trade agreements.

Journal of Law, Information and Science

Meanwhile, numerous communities and various commons have been dismantled or damaged by FTAs, and the affected commoners have little if any ability to affect trade negotiations.

It destroys community spaces, privatizes the public domain and renders illegal many customary practices of communities, such as exchanging seeds and sharing culture. A never-ending story The outlook for the future of the commons in the context of trade negotiations could not be more discouraging. The dynamics described above can be seen in ongoing inter-regional negotiations between Mercosur and the European Union, and in bilateral treaties such as the one being negotiated between India and the EU, the one signed by South Korea and the EU in 2011 and in numerous bilateral treaties signed around the world.

Despite the Doha Round of the WTO, which seemed to open the door to greater flexibility in protecting the commons, it is clear that the strategy of enclosure based on a TRIPS-plus standard, is moving forward step by step.

If we are going to defend the commons from new enclosures and recover that which has already been expropriated from communities, we clearly must recover the concept of the commons as a strategic concern and begin the perhaps utopian yet essential task of removing the commons from the global trade agenda.

Development of intellectual property law in the united states essay

According to the European Generic Medicines Association, a generic is a medicine that contains the same active principle as a brand name product and acts identically on patients, respecting the regulatory controls of quality, safety, and efficacy. Generics can be produced once the patent on the brand name drug has expired, making possible competition and slashing the market costs of medicinal products.

Article 39 3 of TRIPS makes reference to all information that the health authorities of a country require to approve the marketing of a given pharmaceutical or chemical product in the national territory.

The text only requires protection against any use in unfair commercial use of the test data the origination of which entails a considerable effort. The article adds that the members will protect those data from any disclosure, except when necessary to protect the public or unless measures are adopted that guarantee protection of the data against unfair use.

One example of a good practice in the area is Law 24,766, in force in Argentina, which takes full advantage of the flexibilities of the TRIPS in terms of allowing the sale of generic medicines with an administrative procedure to determine the similarity of the active ingredient of the drug, and without requiring the submission of new test data which would considerably delay the time it would take for a generic to make it to market.

In the context of the intellectual property negotiations, a sui generis protection is a form of legal coverage implemented autonomously by a country. For example, India has its own law on seeds that is considered a sui generis framework. The first precedent is Diamond v. The Argentine government did not respond.

Beatriz Busaniche Argentina is a graduate of social communication and professor at the National University of Buenos Aires.

Her personal blog is http: