IP Enforcement Agenda Research Questions & Call for Papers

CALL FOR PAPERS: PUBLIC INTEREST REVIEWS OF THE INTERNATIONAL INTELLECTUAL PROPERTY ENFORCEMENT AGENDA

American University Washington College of Law’s Program on Information Justice and Intellectual Property is seeking to promote scholarship and analysis assessing the potential public interest impacts of the shift of international intellectual property norm setting to an enforcement agenda.

Paper submissions are due by August 26 through this online form.Papers will be considered for inclusion in a Symposium issue of the American University International Law Review due to be published in the Spring 2011. The issue will include a collection of both traditional law review articles of 20-40 pages in length, and shorter policy papers on discreet topics that may be of 8-15 pages each. Papers are invited from law and non-law disciplines as well as from academics and practitioners.

Papers will also be considered for online publication in a PIJIP working paper series on enforcement issues. 


In exceptional circumstances, the series will consider for publication works in progress that are not yet completed. To have such a paper considered for a publication offer, please fill out the form with the abstract, attach the latest draft and include in the abstract a statement as to when we can expect the final submission.

CITATIONS
Citations should follow the "Blue Book" uniform system for legal citations. Non-U.S. legal professionals may find the basic information they need to conform to the citation forms with the following examples, examples of basic citation forms, and through Cornell University's online guide


BACKGROUND ON AUIRL
The American University International Law Review ("AUILR") is one of the ten most frequently cited student-run international law publications in the United States. AUILR publishes articles, critical essays, comments, and case notes on a wide variety of international law topics, including public and private international law, the law of international organizations, international trade law, international arbitration, and international human rights. The review also publishes pieces on topics of foreign and comparative law that are of particular interest to the international legal community. AUILR collaborates with the American Society of International Law ("ASIL"), which gives the review the privilege of annually publishing the Grotius Lecture and Response from ASIL’s Annual Meeting.


BACKGROUND ON THE ENFORCEMENT AGENDA
The enforcement agenda includes the proposals for an Anti-Counterfeiting Trade Agreement (ACTA) at its center, but also includes other manifestations including the expansion of enforcement provisions in free trade agreements, seizures of drugs in Europe, broad “anti-counterfeiting” national laws and bills such as that passed in Kenya and being considered in other African countries, pressure on countries through Special 301 and GSP benefit determinations, foreign aid and technical assistance directives, and other means.


For copies of the text of ACTA proposals, and other resources on elements of the enforcement agenda, see the project’s collaborative website: https://sites.google.com/site/iipenforcement/

Specific questions of interest to the project are detailed below and in the attached description of research questions generated at a previous workshop on this issue. However, proposals on any aspect of the public interest impact of the enforcement agenda will be entertained.

PIJIP is particularly interested in examinations of the following issues:

  • Section by section analysis of the how adoption of major ACTA proposals would alter the law of a given country (either a current ACTA negotiating country or a country not yet in ACTA negotiations).
  • Analysis of the impact of ACTA’s proposed institutional mechanisms on the
  • current international institutional structure for intellectual property matters (including, e.g. WIPO and WTO) and how such alterations will impact public interests;
  • Analysis of the potential impact of ACTA proposals or other elements of the enforcement agenda on specific public interest concerns, including
    • access to knowledge imbedded goods and services,
    • libraries, 
    • fair use,
    • media literacy,
    • public media,
    • developing countries (including if ACTA were globalized). 

Analysis of the legality of elements of the enforcement agenda under international or domestic law, including, e.g.: Does the US Special 301 watch list program violate the WTO’s international dispute resolution mechanism? Do elements of the enforcement agenda violate international human rights obligations?


ACTAResearch Questions From February Meeting

 

ACTA’s effect on domestic law

  • How would adoption of ACTA require changein IP laws of a particular country (of immediate importance to ACTA negotiating countries, but also relevant to other countries that may later join the agreement)?
  • What will be the public interest impact of limiting such provisions?
  • How would ACTA impact privacy and civil liberties?
  • What is the effect of the lack of limitations and exceptions in the enforcement agenda?

 

ACTA’s effect on U.S. law in particular

  • What are the possible legal effects of an executive agreement on U.S. law? What would be the effect of an agreement that “colored within the lines” of current law on future legal change? What are some prime examples of current U.S. laws (statutory or case law) that may come under future reconsideration to meet public interest concerns that may be inhibited by internationalizing enforcement rules? What could be the effect of ACTA on statutory interpretations, common law or other judge made law, especially on questions not yet finally decided by the Supreme Court?
  • Related to the above questions, what are the current gaps, conflicts and ambiguities in the law of secondary liability and inducement in the U.S. How might ACTA decide or reify issues that are ambiguous or undecided in case law today?
  • What are the potential public interest effects of using an international agreement to codify judge made law?
  • How could ACTA change interpretation of U.S. law? How would it be interpreted and by whom? Would the agreement have the potential to introduce foreign or international interpretations into US law, directly or indirectly?
  • What may be the potential impacts of dispute settlement provisions in ACTA, and how does this question relate to the legal effect of an executive agreement?
  • What may be the political effect of an agreement that does not strictly adhere to existing law? How do aspirational agreements shift public rhetoric and framing? E.g. how are trade agreements used in congressional debates and public discourse to encourage ratcheting up protection?
  • How could ACTA impact the law of parallel imports in the U.S. and abroad? see Costco Wholesale Corp. v. Omega, S.A. (Supreme Court 2009). Are the concepts of parallel imports and counterfeits being conflated in the current debate and agreement text?
  • What have been the impacts of the DCMA on access to knowledge in the U.S. and what does that tell us about the desirability of internationalization of the regime?

 

Transparency & Participation

  • Compare the transparency and participation process to ACTA to other (and best) examples of international law making, especially in IP forums. (See KEI paper on this topic). What are the potential public interest impacts of ACTA negotiating secrecy?

 

Access to MedicineSafety & Counterfeit Goods

  • What are the potential impacts of ACTA on access to medicines if (1) the agreement includes patents, and (2) the agreement is restricted to trademarks and counterfeits?
  • What are the impacts of the enforcement agenda generally on access to medicines concerns, including the recent proliferation of national legislation (Kenya, bills in Uganda, Zambia, etc.), WHO initiatives, seizures in the EU, etc.?
  • Examine relationship (or absence of relationship) between drug quality & public safety and enforcement of copyrights, patents and trademark. What is the scope of the problem and best way to address (1) medicines on markets that are trademark counterfeits, (2) medicines on markets that are substandard? These questions may include:
    •  studies on prevalence of substandard and fraudulently mislabeled drugs, an
    • examination of statutory disclosure requirements and other duties for companies with knowledge of dangerous goods.

 

Penalties: Seizure of Goods & Statutory Damages

  • What are the larger implications of promoting seizure of suspected infringing ™ goods in transit? What has been the effect on access to medicines in pure trademark cases? What is the effect on economies and consumer interests of increasing seizures in non-medicines cases? Is increasing seizures with minimum evidentiary standards a best practice?
  • How successful have statutory damages been in jurisdictions that have implemented them? What does this tell us about the desirability of globalizing statutory damages?

 

Secondary Liability

  • How would ISP liability be affected by ACTA?
  • What is the relationship between trade and the liability of intermediaries? (see, e.g. OECD study).
  • Analyze the gaps, conflicts and ambiguities in the law of secondary liability and inducement in the U.S. How might ACTA decide issues that are ambiguous or undecided in case law today? [ this question also included in U.S. law section above]

 

Global Governance/ Political Science

  •  How does ACTA alter the relevance of WIPO and existing multilateral fora and global governance institutions, and how does this affect public interest concerns? What does ACTA tell us about the global governance strategies of its promoters?
  • How does ACTA represent an end-run around aspects of many national laws that pro-enforcement private sector actors view as undesirable (e.g., customs enforcement, 3 strikes, intermediary liability).
  • What is the political economic genealogy of ACTA? Who are the actors behind it inside and outside of governments? What are their strategies, tactics, interests, framing devices? How are they changing institutions and stakeholders? Where is the resistance and what is driving it? What does this analysis imply about the state of play and the opportunities to shift the debate towards more inclusive, transparent, and innovation-friendly grounds?
  • What are the likely sticking points in the ACTA negotiations and where are the potential stakeholders that can prevent ACTA from being signed? What are the major concerns of different countries in the process?
  • What strategies are available and how might alternative regimes be built given available resources in the WTO, WIPO, and elsewhere?
  • Is there a conflict between ACTA and the WIPO development agenda? (one-size-fits-all versus development agenda).
  • What are the jurisdictional issues between ACTA and WTO and other bodies?
  • How is the enforcement agenda an effort to bridge social and legal norms in ways that inhibit public interests? Do public interest objectives (e.g. access to learning materials) in some countries rely on under-enforcement of the laws on the books?
  • What is the evidence that enforcement is better, easier, more just under more flexible substantive legal regimes? What does this tell us about where international IP law making agendas should be directed?

 

Enforcement Agenda and Developing Countries

  • What is the map of the enforcement agenda in developing countries? Looking at, e.g., trade agreements, Special 301 pressure and international technical assistance, are the standards being promoted in developing countries more or less extreme than those being negotiated in ACTA?
  • What are the potential public interest impacts of recent east African counterfeiting legislation, particularly with respect to access to knowledge and other interests threatened by the copyright and trademark provisions?
  • What are the potential and actually observed effects of the enforcement agenda in developing countries? E.g.
    • How does the push to increase the powers of border agents affect anti-corruption agendas in developing countries (e.g. India)?
    • What are other unforeseen consequences of the enforcement agenda’s focus on increasing government enforcement channels?
    • What are the costs vs. benefits of increasing public enforcement spending on trademark and copyright enforcement (including police raids, etc.) versus other law enforcement objectives? What are some actual examples of resource shifts in particular countries?

 

Economics

  • What are the costs and benefits of the enforcement agenda, particularly increasing public investments on IP enforcement in particular countries? How does the development level of the country change the calculus?
  • Analyze and critique economic analysis supporting the enforcement agenda. This includes, e.g., loss figures by industry submitted into the Special 301 process.

 


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