The triangular interface between trade, intellectual property (IP) and human rights has yet to be... more The triangular interface between trade, intellectual property (IP) and human rights has yet to be fully formed, both doctrinally and normatively. Adding investor-state dispute settlement (ISDS) to the mix increases the complexity of the equations to solve. Two resultant issues are explored in this Article. First, the Article considers ways in which broader public policy objectives—in particular the protection of human rights—can and should be factored into determinations of whether a state’s action is compatible with its trade obligations and commitments in the state-to-state dispute settlement context. Second, the Article examines whether doctrinal tools used in state-to-state, trade-dispute settlement to make room for public interest considerations port to the investment/ISDS context. The Article uses the recent Lilly v. Canada case as backdrop to illustrate the points made. The Lilly case dealt with an ISDS complaint filed after the revocation of two Canadian patents on pharmaceu...
In many respects, the Internet may well be described as a technological taxi; but taxis need not ... more In many respects, the Internet may well be described as a technological taxi; but taxis need not give free rides. (Rothstein J in Entertainment Software Association v SOCAN) Introduction Just after the adoption of Bill C-11, the Supreme Court of Canada handed down five decisions, which are now referred to as the “pentalogy”, to follow the heretofore famous trilogy. The pentalogy, like its three-legged predecessor, marked a significant shift in Canadian copyright policy. The five cases dealt i..
This contribution reviews the role of the World Trade Organization’s (WTO) Appellate Body—a part ... more This contribution reviews the role of the World Trade Organization’s (WTO) Appellate Body—a part of its dispute-settlement mechanism—in interpreting the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It discusses, first, the way in which the Appellate Body functions when compared to a common law jurisdiction or a general or specialized domestic court. The contribution then turns to the three disputes concerning the TRIPS Agreement that have reached the Appellate Body since 1995, and the five cases filed against Australia challenging plain packaging measures targeting tobacco products. The primary purpose of the contribution is not to discuss those cases individually in detail but rather to offer a perspective on how the Appellate Body might play a greater role in building the interface between the rules and standards contained in the TRIPS Agreement, and those contained in international law outside the WTO.
The notion of governance is increasingly applied to the field of intellectual property. In this n... more The notion of governance is increasingly applied to the field of intellectual property. In this note, I explore how countries should make policy decisions in this key area, by keeping their focus on the promotion of domestic innovation while minimizing negative welfare impacts. The latter objective was well known when the TRIPS Agreement was negotiated in the 1990s, but the former, much less apparent. In this note, I consider recent research on innovation clusters and ways in which government, private capital and higher education institutions can work together, and specifically ways in which governments can “incentivize the quest” for innovation. I also discuss problems associated with the creation of incentives, including “patent trolls” and ways in which intellectual property might hinder full use of the internet as an innovation vector. Normal 0 false false false EN-IN X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Calibri","sans-serif";}
Research Handbook on Human Rights and Intellectual Property
What normative cement can human rights add to build, or rebuild, the foundations of intellectual ... more What normative cement can human rights add to build, or rebuild, the foundations of intellectual property and perhaps more prominently copyright?
The triangular interface between trade, intellectual property (IP) and human rights has yet to be... more The triangular interface between trade, intellectual property (IP) and human rights has yet to be fully formed, both doctrinally and normatively. Adding investor-state dispute settlement (ISDS) to the mix increases the complexity of the equations to solve. Two resultant issues are explored in this Article. First, the Article considers ways in which broader public policy objectives—in particular the protection of human rights—can and should be factored into determinations of whether a state’s action is compatible with its trade obligations and commitments in the state-to-state dispute settlement context. Second, the Article examines whether doctrinal tools used in state-to-state, trade-dispute settlement to make room for public interest considerations port to the investment/ISDS context. The Article uses the recent Lilly v. Canada case as backdrop to illustrate the points made. The Lilly case dealt with an ISDS complaint filed after the revocation of two Canadian patents on pharmaceu...
In many respects, the Internet may well be described as a technological taxi; but taxis need not ... more In many respects, the Internet may well be described as a technological taxi; but taxis need not give free rides. (Rothstein J in Entertainment Software Association v SOCAN) Introduction Just after the adoption of Bill C-11, the Supreme Court of Canada handed down five decisions, which are now referred to as the “pentalogy”, to follow the heretofore famous trilogy. The pentalogy, like its three-legged predecessor, marked a significant shift in Canadian copyright policy. The five cases dealt i..
This contribution reviews the role of the World Trade Organization’s (WTO) Appellate Body—a part ... more This contribution reviews the role of the World Trade Organization’s (WTO) Appellate Body—a part of its dispute-settlement mechanism—in interpreting the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It discusses, first, the way in which the Appellate Body functions when compared to a common law jurisdiction or a general or specialized domestic court. The contribution then turns to the three disputes concerning the TRIPS Agreement that have reached the Appellate Body since 1995, and the five cases filed against Australia challenging plain packaging measures targeting tobacco products. The primary purpose of the contribution is not to discuss those cases individually in detail but rather to offer a perspective on how the Appellate Body might play a greater role in building the interface between the rules and standards contained in the TRIPS Agreement, and those contained in international law outside the WTO.
The notion of governance is increasingly applied to the field of intellectual property. In this n... more The notion of governance is increasingly applied to the field of intellectual property. In this note, I explore how countries should make policy decisions in this key area, by keeping their focus on the promotion of domestic innovation while minimizing negative welfare impacts. The latter objective was well known when the TRIPS Agreement was negotiated in the 1990s, but the former, much less apparent. In this note, I consider recent research on innovation clusters and ways in which government, private capital and higher education institutions can work together, and specifically ways in which governments can “incentivize the quest” for innovation. I also discuss problems associated with the creation of incentives, including “patent trolls” and ways in which intellectual property might hinder full use of the internet as an innovation vector. Normal 0 false false false EN-IN X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Calibri","sans-serif";}
Research Handbook on Human Rights and Intellectual Property
What normative cement can human rights add to build, or rebuild, the foundations of intellectual ... more What normative cement can human rights add to build, or rebuild, the foundations of intellectual property and perhaps more prominently copyright?
Uploads
Papers by Daniel Gervais