WIPIP: PLENARY SESSION 3 — Why American WIP’ers Should Care About International Law

Jerome H. Reichman, Duke Law School, Duke University

Until 1994, there weren’t many options when a nation didn’t
comply with IP treaties: complaints and retaliation against that country’s nationals.
Then came TRIPS. Arbitration, including damages, became available; winner can
also collect damages via tariffs. Hasn’t functioned recently because minimum #
of judges lacking due to Trump but Biden should fix that. New change:
compulsory patent license for export to meet the needs of a country that needs
the product (vaccine) but can’t make it. Threat of compulsory license for
export can often be enough. Regional pooling as a possibility using TRIPS
flexibility.

Jane Ginsburg, Columbia Law School, Columbia University

One can’t separate out questions of local import from
questions with international dimensions: was true before internet, even more
true now.

There’s a caricature of US v. French approaches to ©. But
going back to the sources, it’s much more complicated in motivations for ©–a
lot of utilitarian motivation in France and a lot of natural rights/ “you
create it, it’s yours” sentiment in America. That played out in case law as
well.

Common wisdom was that printing privileges were about
publishers and incentives, not creativity. But Roman (Vatican) privileges were
more granted to authors than printers, and motivations expressed in requesting
and granting them were a mixture of incentive arguments, effort
arguments/anti-free riding arguments, and sentiments like “creativity should be
rewarded.”

US termination system and EU contract regulations both try
to deal with authors’ vulnerability/failure to anticipate future forms of
exploiting work.

Rochelle Dreyfuss, New York University School of Law

Current regime started developing when nations were
convinced that interconnection would lead to wealth and peace, but Global South
has not become more wealthy; strong IP has contributed to inequality; we do not
have peace; Brexit and US rejection of TPP/implosion of WTO dispute resolution,
which actually began under Obama. Why move into a field that’s unraveling?
Pandemic has highlighted unique opportunities in this field. Current regime encourages
countries to engage in parallel play—rights in one’s own country—but it’s a
very territorial system. Covid shows territoriality makes little sense. Need
cooperative play/research/development; also should not ratchet up protection
but should focus on access and equity. IT/interoperability; cybersecurity;
other issues also require international treatment.

Scholarship wise, international comparisons provide
important insights, and can be very useful in teaching students as well. Also:
IP owners tend to take one win and try to export it, so you see what is going
to come next.

Jorge Contreras, S. J. Quinney College of Law, University of
Utah

Students often treat the results of court cases as the only
possible way the doctrine could have developed, and outside-US cases show that’s
not true. Lots of patent examples, from working requirements to different competition
law interface. Knowing the alternatives helps you argue more broadly both for
policy and for individual case outcomes.

Scholarship wise, you can become “the” expert even on a
small area—your views are important outside the US because you are often the only
US lawyer who comes to Shanghai, Bogota, etc., which magnifies your views and
enables you to disseminate your ideas. Outside US conferences: submissions can
be harder because their requirements are often more rigorous for methodology,
quality of abstract, etc. but it is worth it. Teaching LLMs is also a way to
reach out to foreign lawyers. LLMs can be high ranking officials in their own
countries; they have careers. International IP blogs like IPKat and SpicyIP are
read around the world: read it, write for it. There’s an appetite abroad for
those interested in sharing their knowledge; surprising how few US academics do
it.

Moderator: Irene Calboli, Texas A&M University School of
Law

Love and hate for US requires navigating some sensitive
issues. Open access is one way of reaching people we would otherwise never
reach.

Reichman: important to address problems w/US approaches.

Discussion of use of foreign precedents, much more common in
other countries than in US. Contreras suggests it’s legislators and agencies
that are the real laggards.

Ginsburg: Especially good for US students to learn that (1)
we aren’t completely on our own; we do have rules (even if US often doesn’t
care to follow them) and (2) there are often other ways of doing things.

Contreras: our students need to know that their practices
will have international issues; among other things, with eBay the US is a huge
outlier in patent remedies, which is why all these cases are going to be
brought in Germany!

Ginsburg: clients who have websites have to think about
non-US law.

Reichman: Harmonization got a bad name because it was ever upwards;
we have to think about compromise to protect the public interest.

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