Global Intellectual Property Protection and New Constitutionalism: Hedging Exclusive Rights


The constitutionalisation of intellectual property law is often framed as a benign and progressive integration of intellectual property with fundamental rights. Yet this is not a full or even an adequate picture of the ongoing constitutionalisation processes affecting IP. This collection of essays, written by international experts and covering a range of different areas of intellectual property law, takes a broader approach to the process. Drawing on constitutional theory, and particularly on ideas of ‘new constitutionalism’, the chapters engage with the complex array of contemporary legal constraints on intellectual property law-making. Such constraints arising in international intellectual property law, human rights law (including human rights protection for right-holders), investment treaties, and forms of private ordering.

Table of Contents

  1. The Transformation of Global Intellectual Property Protection: General Introduction (Tuomas Mylly and Jonathan Griffiths)
    Part I: Systemic and Conceptual Issues
  2. Effects of Combined Hedging: Overlapping and Accumulative Protections for IP Assets on a Global Scale (Henning Grosse Ruse-Khan)
  3. The New Constitutional Architecture of Intellectual Property (Tuomas Mylly)
    Part II: International and Transnational IP Norms as ‘Constitutional Hedges’ of IP
  4. From Flexible Balancing Tool to Quasi-Constitutional Straitjacket: How the EU Cultivates the Constraining Function of the Three-Step Test (Martin Senftleben)
  5. Hedging (into) Property?: Invisible Trade Secrets and International Trade in Goods (Nari Lee)
    Part III: Human Rights Hedging IP Rights
  6. A Market-Friendly Human Rights Paradigm for IP Rights in Europe? (Aurora Plomer)
    Part IV: International Investment Treaty Protection of IP
  7. Hedging Bets with BITS: The Impact of Investment Obligations on Intellectual Property Norms, Rochelle C. Dreyfuss
  8. The Second Transformation of the International Intellectual Property Regime (Peter K. Yu)
    Part V: Informal Measures and Private Regulation as Constitutional Hedges of IP
  9. Technical Assistance as a Hedge to IP Exclusivity (Daniel Acquah)
  10. Too Small to Matter?: On the Copyright Directive’s Bias in Favour of Big Right-Holders (Martin Husovec and Joa~&o Pedro Quintais)
    Part VI: Counter-narratives
  11. Multilevel Constitutionalism and the Propertisation of EU Copyright: Even Higher Protection or a New Structural Limitation? (Caterina Sganga)
  12. The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses (Christophe Geiger and Luc Desaunettes-Barbero)
  13. Copyright, Human Rights, and the Social Function of Properties in Brazil (Allan Rocha de Souza)
  14. Hedge or Counterweight?: New Constitutionalism and the Role of the Canadian Charter of Rights and Freedoms in Intellectual Property Litigation (Graham Reynolds)

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