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Monday, 12 May 2008

Unsettled international IP issues

A slim volume, with a disclaimer that the views expressed in it are those of the author and not of his employer (the World Intellectual Property Organization), Unsettled International Intellectual Property Issues is a curious little book by Dr Tshimanga Kongolo. According to the forward, Dr Kongolo -- a graduate from the Faculty of Law at Kinshasa University, Congo -- continued his studies under the eminent Japanese scholar Junichi Eguchi at Osaka University. This experience must have helped him cultivate a sensitivity to unresolved problems and the delicate balance of issues that must be achieved before they can be resolved. As the publisher's blurb writes:

"The interface between intellectual property and other fields, such as public health and biotechnology, has raised expectations from both developed and developing countries. At the same time, a variety of issues have arisen from these relationships. Debates over public health, protection of traditional knowledge and traditional cultural expressions or expressions of folklore, and the control of biological resources and access to genetic resources pose major challenges to the current global system of intellectual property. This thoughtful book serves not only to contribute to these ongoing debates but also, through in-depth analysis and well-grounded recommendations, to move them closer to resolution in a manner beneficial to all interested parties. Among the matters discussed are the following:

* intellectual property and public health;
* intellectual property and traditional knowledge and traditional cultural expressions or expressions of folklore;
* intellectual property and plant varieties, biodiversity and access to genetic resources;
* use of marks and other signs on the Internet;
* the international framework in respect to geographical indications.

... the author offers clear, well-thought-out proposals on how to respond to these issues. In the same vein, the author makes a number of proposals on how to strike a balance between the exclusive rights of the patentee and the right to public health or access to medicines, especially in the context of the HIV/AIDS crisis. In addition, holding that the owners or possessors of traditional knowledge or traditional cultural expressions or expressions of folklore are entitled to intellectual property rights protection, he advocates the development of a global and binding international ‘protection instrument’ that takes particular features of these rights into consideration. He proposes the extension of the scope of applicability of the requirement of the disclosure of the country of origin of genetic resources, both at the international and national levels. He also proposes refinements to the system for multilateral notification and registration of geographical indications in respect to wine and spirits and the extension of the higher protection of geographical indications to other products and suggests new ways to approach unsettled issues arising from the use of marks or other signs on the Internet."
The text of this book is a good deal shorter than its nominal 214 page word count suggests. Dr Kongolo's essays end on page 133; the rest of the book consists of appendices. In the olden days, before the internet was invented and when it was generally difficult to procure primary materials, full source appendices often added great value for the purchaser. That is no longer the case and lengthy appendices merely add to (i) the price that can be charged for a publication and (ii) its carbon footprint.

The IPKat was initially disappointed to discover that the "unsettled international intellectual property issues" were the public kind, rather than the exciting private law world wars over BUDWEISER, Atorvastatin (LIPITOR), GLEEVEC, GLIVEC and other bitterly contested IP icons of the sort you find listed in Duncan Bucknell's Scorecards. Once this disappointment was overcome, he was pleased to find a set of short, well organised discussions, followed by some real live proposals concerning the settlement of the presently unsettled. The author has managed to read and digest a quantity of dry and prima facie indigestible official material generated by international bodies whose positions may unclear or inconsistent with one another, and he has never lost sight of the fundamental issues that remain in contention.

The IPKat notes that the author's recommendations are of a relatively general variety, as to where in terms of principle the resolution of unsettled issues should go -- whether in terms of making positive suggestions or in identifying further areas in which research is needed. The real problem which we face, though, is not in identifying solutions but in making the compromises and summoning up the determination that will enable us to put them into practice. But that is worth another book ...

Bibliographic details: publication date February 2008 (Kluwer Law International). Hardback, xxiii + 214 pages. ISBNs 9041126414 and 13: 9789041126412. £68. Rupture factor: low. Full details from the publisher online here.

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