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Different national intellectual property legislation coexists within a common market, conferring privileges that restrict competition within the single market. The protection of intellectual property rights in a free trade market is essential to allow the free circulation of goods among member nations. In order to create a free trade market, member states must harmonize different intellectual property regimes and base the integrated system upon common rules of protection and enforcement. This is a difficult process due to divergences between national intellectual property regimes within a free trade agreement's member countries.

The focus of this article is on the convergence of national intellectual property norms into an international framework for the protection of intellectual property rights. Part I of this article examines the old system of international protection of intellectual property and its paradigms: the Paris Convention, the Berne Convention, and the World Intellectual Property Organization(WIPO). Part II studies the modern system of international protection of intellectual property rights consolidated in the World Trade Organization's Trade Related Aspects of Intellectual Property Rights (TRIPS), the North American Free Trade Agreement regional trading block (NAFTA), and the emerging regional trading block of MERCOSUR, as well as the ongoing process of harmonization of intellectual property norms within its member countries: Argentina, Brazil, Paraguay, and Uruguay.

European countries scored well in the latest Global IP Index, published by law firm Taylor Wessing, but the United States plunged to 24th place. That is in stark contrast to another index of IP regimes, published by the Global IP Center in February this year.

Congratulations or gefeliciteerd to all our friends in the Netherlands, ranked number 1 out of 43 jurisdictions in Taylor Wessing’s GIPI 5 report, the first time the country has achieved this honour. With a rating of 648 points, the Netherlands headed a European top three (Germany scored 646 points and the UK 643). Commiserations, though, to those in the US, which dropped a whopping 14 places to 24th, with just 597 points. That puts it level with Chile and behind Canada, two countries that are listed on the USTR’s latest Special 301 Report Priority Watch List and Watch List respectively.

Earlier this week, the U.S. Chamber of Commerce released the second edition of its Global Intellectual Property Index, a report which grades countries on the strength of their IP protection. This year’s index covers 25 countries, including all of the BRICS and most of the countries in the TPP negotiations. Countries are evaluated among 30 individual factors, which fall into one of six categories – Patents, Related Rights, and Limitations; Copyrights, Related Rights, and Limitations; Trademarks, Related Rights, and Limitations; Trade Secrets and Market Access; Enforcement; and Membership and Ratification of International Treaties. The full index is here, and the summary is here.

Introducing the Index at the launch event, David Torstensson said that the Index includes information on both the “legal situation” and “practical realities” in different countries. The authors based their scores on information from sources that are openly available, such as laws and regulations, industry documents, academic papers, and news stories. Nonetheless, there is still a fair amount of subjectivity that went into the scoring. One could argue about many of the decisions. For example:

Another measurement concern is the replicability of the indices. The results of the study conducted by Taylor Wessing LLP are partly based on a worldwide survey of assessments given by IP owners and users, and it is unclear how the raw data were reduced to specific ratings. The study for the IIPI is conducted by Pugatch Consilium consultancy, which provides in-depth explanations of the scoring methodology for each indicator used in the study. Although most of the indicators can be easily duplicated based on the described methodology, some of the indicators are measured based on the author’s expertise; hence the ability to replicate those results without that vast experience is limited. The replications of the IPR and the PEI are relatively straightforward due to the limited number of indicators included in the measurements and the simplicity of the scoring methods.

The resulting IPR index ranges from 0 to 10. A rating of 10 represents the strongest IPR regime and a rating of 0 indicates that there are basically no effective IPRs in the particular country. Most of the studies trying to measure the strength of the intellectual property regime rely solely on the Ginarte-Park Index. This measure has often been criticized as it only takes the enforcement of patent rights represented in law texts into account, i.e. these ‘book’ measures may hardly represent the extent to which patents are actually enforced (Maskus, 2000, Javorcik, 2004). By encompassing and extending the Ginarte-Park Index, the IPR index of the Property Rights Alliance provides a more objective and complete view on the strength of a particular IPR regime. While it is still an approximation of the effective IPR enforcement, it is arguably one of the best available measures directly related to IP. Other available measures of law enforcement, e.g. contract enforcement, are often only weakly related to IP enforcement.

The importance of norms of behavior and social protocols used by governmental institutional actors related to enforcement is highlighted by Erick Robinson, chief patent counsel for Rouse, an international law firm specialising in IP. According to Mr. Robinson (FT, 2015), “The Chinese government's new specialised IP courts now provide companies with an enforcement mechanism comparable to, if not better than, those in Europe and the US (…) but not all patent owners should rejoice (…) first, companies must have friends in China. In a country where everything is based on relationships, every company must have multiple levels of relationships with both government officials and influential Chinese industry leaders…”. This quote illustrates the importance of how effective protection of IPR in some locations depends not only on clear and extensive Law on the books, but also on understanding norms of behavior connected to Laws in practice. This requires an understanding of the norms of behavior of agents involved in enforcement and being embedded in complex social protocols that influence how Law in practice works. Effective protection of IPR therefore requires Law on the books and Law in practice to work in a complementary way and be available to all IP right holders regardless of their country of origin. In this context, liability of foreignness connected to IPR arises from misunderstanding behavioral aspects of key agents that enforce the Law in practice (Khoury et al., 2014; Orr and Scott, 2008).

The review found twenty-one indices with the potential for use as proxies for the measurement of the quality of Law on the books (see Table 1). Most of the measures focused on capturing the availability and scope of Law on the books provisions for different types of IP such as patents (e.g. Bosworth, 1980; Evenson, 1990; Ginarte and Park, 1997) copyright and trademarks (Reynolds, 2004), trade secrets (Lippoldt and Schultz, 2014), plant varieties (Campi and Nuvolari, 2015), and TRIPS (Hamdan-Livramento, 2009). In addition, some studies developed measures that capture the availability of Law on the books provisions related to specific industries such as the pharmaceutical industry (Liu and La Croix, 2015; Pugatch, 2006). Two studies focused specifically on measuring the availability of Law on the books provisions related to the administration process of patent applications as carried out by national patent offices (de Saint-Georges and de la Potterie, 2013; Yang and Sonmez (2013).

The way that law is enforced (or not) in practice is distinct to the existence of law on the books since enforcement depends on the behaviour of public agents (Dixit 2009). While IPR law in a country is codified and evidenced in writing in the legislative books of its IPR system, it is subject to the interpretation of the judiciary and other public IPR enforcement agents such as customs, police and trading standards. This is because the application of IPR law in practice is at the discretion of IPR enforcement agents who are bounded by the legislative norms of their perspective country (Hebert and McLemore 1973). The extent to which the public IPR enforcement agents will effectively engage and enforce IPR will be influenced by their ‘shared sets of beliefs’ about IPR infringement and if they consider an IPR infringing activity to be illegal. Also, even if the IPR legislative framework in a host country includes laws that enable punitive sanctions to IPR infringers, these may never be utilized by the judiciary or not enforced in practice by the customs officials. The same IPR laws available in two different countries may be applied differently depending on the way that the IPR law is decoded and interpreted by the IPR enforcement agents of the country (e.g., punitively in one country and non-punitively in another). Strong public IPR enforcement is expected to prevail in countries where public IPR enforcement agents effectively prosecute IPR infringement and judiciary independently and transparently apply IPR law in practice (Pajunen 2008). In contrast, weak public IPR enforcement is expected to be witnessed in countries with opaque, arbitrary and ineffective judiciary and enforcement authorities who are more receptive to corrupt practices and/or unlikely to enforce the IPR laws in practice because of lack of legislative/social norms conducive to law enforcement (Maskus 2004).

The strength of IPR systems depends on two distinct elements of a country’s institutional environment, the strength of IPR law protection and the effectiveness of public IPR enforcement (Peng et al. 2017a). Existing studies on the effect of national IPR systems on inward FDI horizontal productivity spillovers to domestic firms however, focus solely on the effect of IPR law protection (Arora 2009) and are therefore likely to suffer from biased results. Studies ignoring the effect of the strength of public IPR enforcement are likely to systematically overestimate the effect of IPR law protection strength (Papageorgiadis and Sofka 2020). This could also explain the mixed results in the existing literature, such as the finding of negative (Iršová and Havránek 2013), positive (Yi et al. 2015), and insignificant (Smeets and de Vaal 2016) effects on FDI horizontal productivity spillovers from inward FDI. Focusing on only one element of IPR systems in their empirical modelling but arguing for the importance of IPR systems overall, existing studies de facto assumed that both IPR law protection and the effectiveness of public IPR enforcement developed equally over time and have a uniform effect on inward FDI horizontal productivity spillovers. This leads to biased estimates of the effect of IPR law protection in each respective study and the mixed findings across studies and hence handicaps research narratives of the impact of IPR protection on inward FDI horizontal productivity spillovers to domestic firms.

The contemporary context of IPR systems internationally after the signing of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1995 is substantially different to the way it is theorized in the existing literature. Although most countries have significantly increased the availability of IPR law protection in their IPR systems after TRIPS, the effectiveness with which the IPR laws and legal mechanisms are enforced in practice by public authorities continues to be questionable for many countries (Athreye et al. 2020; Papageorgiadis and McDonald 2019; Peng et al. 2017a, 2017b). This is because although the TRIPS agreement requires signatory countries to provide a number of specific legislative procedures in relation to enforcement mechanisms, it does not set any obligations/requirements regarding how effectively IPR laws are enforced by relevant public agents in practice (WTO 2017). Therefore, while most WTO countries nowadays offer IPR law protection that is generally comprehensive (Park 2008; Peng et al. 2017a), the levels of effectiveness of public IPR enforcement continue to vary significantly between countries (Brander et al. 2017; Papageorgiadis and McDonald 2019).

IPR systems comprise of two distinct elements: (a) IPR protection and (b) public IPR enforcement (Khoury et al. 2014; Peng et al. 2017a). The IPR protection element relates to the availability of IPR law as this appears in the statutes of a country’s legislative framework. The range of IPR law in a country determines which intellectual assets can receive IPR protection, the duration of IPR protection (e.g., typically 20 years for patents) and the available legal sanctions that can be used by IPR enforcement agents (OECD 2014). For example, IPR law in a country determines the level and range of fines that IPR infringers may be sentenced with if convicted for IPR violation. Countries offering strong IPR protection generally provide legislative frameworks that offer IPR protection coverage to a wide type of IPR assets and a wide number of legal enforcement mechanisms for use by the IPR enforcement agents (Ginarte and Park 1997). In contrast, weak IPR law protection relates to the provision of some IPR protection however, protection may not be available for many other types of IPR that receive protection in other countries. There are differences in the availability and range of IPR law protection between countries internationally such as country specific legal exemptions or lack of IPR law availability for specific IPR assets e.g., the patentability of software and plant and animal varieties (Park 2008). Therefore, while IPR owners may be awarded IPR protection in one country they may not be able to register and protect their rights in another country. In addition, the available laws related to the enforcement of IPR may not provide a range of legal options to IPR enforcement agents to carry out their operations effectively. For example, this can relate to the potential lack of legislation that allows IPR enforcement agents to award and enforce preliminary injunctions in IPR infringement cases.

The way that law is enforced (or not) in practice is distinct to the existence of law on the books since enforcement depends on the behaviour of public agents (Dixit 2009). While IPR law in a country is codified and evidenced in writing in the legislative books of its IPR system, it is subject to the interpretation of the judiciary and other public IPR enforcement agents such as customs, police and trading standards. This is because the application of IPR law in practice is at the discretion of IPR enforcement agents who are bounded by the legislative norms of their perspective country (Hebert and McLemore 1973). The extent to which the public IPR enforcement agents will effectively engage and enforce IPR will be influenced by their ‘shared sets of beliefs’ about IPR infringement and if they consider an IPR infringing activity to be illegal. Also, even if the IPR legislative framework in a host country includes laws that enable punitive sanctions to IPR infringers, these may never be utilized by the judiciary or not enforced in practice by the customs officials. The same IPR laws available in two different countries may be applied differently depending on the way that the IPR law is decoded and interpreted by the IPR enforcement agents of the country (e.g., punitively in one country and non-punitively in another). Strong public IPR enforcement is expected to prevail in countries where public IPR enforcement agents effectively prosecute IPR infringement and judiciary independently and transparently apply IPR law in practice (Pajunen 2008). In contrast, weak public IPR enforcement is expected to be witnessed in countries with opaque, arbitrary and ineffective judiciary and enforcement authorities who are more receptive to corrupt practices and/or unlikely to enforce the IPR laws in practice because of lack of legislative/social norms conducive to law enforcement (Maskus 2004).

(4) Domestic The term “domestic” when applied to a corporation or partnership means created or organized in the United States or under the law of the United States or of any State unless, in the case of a partnership, the Secretary provides otherwise by regulations.

“Domestic Laws” shall mean the laws, rules or regulations of the United States or any State thereof or the District of Columbia.

Patent laws are geographically limited; they only protect an invention in the country that issued the patent. For example, one cannot make, use, offer to sell, sell, or import an invention protected only by a U.S. patent in the United States; however, one may do those things in another country where corresponding patent protection does not exist. Therefore, in order to waive patent protections worldwide, each Member subject the TRIPS Agreement’s requirement to have certain minimum intellectual property protection would have to waive its own domestic patent protections.

If provisions in Part II, Section 5 and the associated enforcement sections are waived, Members would no longer be required to issue patents or provide avenues for patent holders to enforce patent rights. The proposal does not, however, require Members to waive their own domestic patent rights. In other words, the proposal to waive certain provisions of the TRIPS Agreement, the “patent waiver,” does not directly waive any patent protections. Rather, the patent waiver grants Members permission to waive their own domestic patent protections.

Alito ’23 [Samuel; June 29; justice of the US Supreme Court, writing the majority opinion in a 9-0 decision; Abitron Austria GMBH et al. v. Hetronic International, Inc., https://www.supremecourt.gov/opinions/22pdf/21-1043_7648.pdf]

“It is a ‘longstanding principle of American law “that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”’” Morrison v. National Australia Bank Ltd., 561 U. S. 247, 255 (2010). We have repeatedly explained that this principle, which we call the presumption against extraterritoriality, refers to a “presumption against application to conduct in the territory of another sovereign.” Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 119 (2013) (citing Morrison, 561 U. S., at 265). In other words, exclusively “‘[f]oreign conduct is generally the domain of foreign law.’” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 455 (2007) (alteration omitted). The presumption “serves to avoid the international discord that can result when U. S. law is applied to conduct in foreign countries” and reflects the “‘commonsense notion that Congress generally legislates with domestic concerns in mind.’” RJR Nabisco, Inc. v. European Community, 579 U. S. 325, 335–336 (2016).

Intellectual Property Rights (IPR), including trademarks and patents, encourage creative activity for the benefit of a free society. Innovations are protected through IPR and inventors afford an opportunity to derive fair returns from their investments. The acquisition of Intellectual Property Rights is one of the primary tools for incentivizing creators in a modern economy. Property rights are human rights that spark innovation and nurture economic growth. It has been the most effective mechanism to guarantee civil rights and civil liberties. Protecting individual liberty is the fundamental reason for a system of strong private property rights.

Throughout the unprecedented pandemic crisis, there has been a continuing debate about pat- ents for medicines. The right balance provides early access to affordable medicines with sufficient flexibility to protect intellectual property (IP). Patents are a part of the solution for the COVID-19 vaccine. Dismantling patent protection is not correlated with IP. In fact, scientists developed vac- cines in record time because of the security and resources provided by IP systems.

As does its federal counterpart, Mil. R. Evid. 201 authorizes judicial notice of "adjudicative facts" which are defined as "simply the facts of the particular case." See Drafters' [**9] Analysis at A22-4. Domestic law can constitute an adjudicative fact and be eligible for judicial notice if it is a "fact that is of consequence to the determination" of the case.3

[BEGIN FOOTNOTE 3] "Domestic law" includes treaties of the United States; executive agreements between the United States and any State, foreign country or international organization; the laws and regulations of the United States (which includes regulations of the armed forces) or of a State; international law; and the common law. See Drafters' Analysis, Drafter's Analysis, Manual for Courts-Martial, United States, A22-5 (2008 ed.) (hereinafter "Drafters' Analysis"). See United States v. Ayers, 54 M.J. 85, 90 (C.A.A.F. 2000) (a general regulation is a proper subject of judicial notice in a case charging a member with a violation of such a regulation). United States v. Commander, 39 M.J. 972, 977 (A.F.C.M.R. 1994) (panel instructed the military judge had taken judicial notice that anabolic steroids are a Schedule III controlled substance under the Controlled Substances Act of 1970). [END FOOTNOTE 3]

Multilateral IP Rules. TRIPS established minimum standards of IP protection that most WTO members must provide, based on core WTO nondiscrimination principles. It set civil, administrative, and criminal enforcement procedures and remedies, and border measures. TRIPS obligations are subject to WTO enforcement.

TRIPS has certain exceptions and flexibilities. It allows compulsory licensing for patents in specific circumstances, and exempts least-developed countries from most obligations until July 1, 2034, and pharmaceutical-related obligations until January 1, 2033. In the 2001 WTO “Doha Declaration,” WTO members agreed to interpret TRIPS to support WTO members’ right to protect public health, particularly to promote access to medicines. TRIPS has elicited some stakeholder debate about how it seeks to balance innovation and other aims.

According to plaintiffs, "the [Internal Revenue] Code need not expressly provide for a foreign tax credit if the foreign levy in question falls within the treaty definition of a creditable tax" because "what constitutes a United States income tax for purposes of the application of a treaty derives from the treaty's definition and not from domestic law."32 (emphasis in original; alteration added). Plaintiffs argue that "[d]omestic law therefore does not constitute an absolute limitation on the rights and entitlements that may be granted to treaty beneficiaries under the terms of a U.S. tax treaty." (alteration added). Plaintiffs state that "[t]he parties agree that the NIIT constitutes a United States income tax as defined in Article 2(1) and 2(2) of the French Treaty," and, therefore, "that when a treaty provides a definition of a covered tax, it is that definition, and not the more limited definition under United States or foreign law, that is applied." (alteration added).

I think it is fair to say that international intellectual property is generally seen as distinct from general (i.e. domestic) intellectual property (IP), both in terms of scholarship and teaching. Thus, from what I gather, international intellectual property panels tend not to draw huge crowds during the annual IP scholars meetings. However, I see a fair amount of overlap between general IP scholarship and the international IP issues that some of us tend to explore. Among others, I see overlap when it comes to questions about the role of IP, the scope of IP rights, and whether the current international model and the mandated levels of intellectual property protection align with societal goals.

Writing international intellectual property scholarship requires an understanding of international law, and trade law in particular. This is due to the merger between trade law and intellectual property law that came about as a result of the World Trade Organization Agreement on Trade-Related Intellectual Property, commonly referred to as TRIPS. Post-TRIPS, there have been a number of other “trade-related” agreements that aim to protect intellectual property rights in the global arena. In addition to various bilateral trade agreements and investment treaties, there are multilateral agreements that have chapters or provisions on intellectual property. These include the Anti-counterfeiting Trade Agreement, the Trans-Pacific Partnership, and the Trans-Atlantic Trade and Investment Partnership. The two latter agreements are currently being negotiated.

The World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a comprehensive international agreement dating from 1995 that establishes minimum intellectual property (IP) protections. Signed by the vast majority of WTO member countries, TRIPS provides a basic global floor for IP standards. TRIPS seeks to ensure that IP is protected and enforced across borders and that bad actors do not get a free ride on innovators’ investments. Least-developed countries are exempt from meeting most substantive TRIPS obligations, while countries seeking to promote and lead innovation, such as the United States, provide IP protections beyond the minimum requirements of TRIPS.