Intellectual Property and Access to Im/material Goods

Intellectual Property and Access to Im/material Goods

Elgar Law, Technology and Society series

Edited by Jessica C. Lai and Antoinette Maget Dominicé

Traditionally, in order to be protected intellectual property goods have almost always needed to be embodied or materialised (and – to a certain extent – to be used and enjoyed), regardless of whether they were copyrighted works, patented inventions or trademarks. This book examines the relationship between intellectual property and its physical embodiments and materialisations, with a focus on the issue of access and the challenges of new technologies. Expert contributors explore how these problems can re-shape our theoretical notion of the intangible and the tangible and how this can have serious consequences for access to intellectual property goods.

Chapter 8: Tangible meets the intangible: international trade in intellectual property

Susy Frankel

Subjects: innovation and technology, intellectual property, law - academic, cultural heritage and art law, intellectual property law


International trade up until the late twentieth century usually was primarily about trade in tangible goods and not the cross-border flow of intangible intellectual property, or even intangible intellectual property goods (such as digital works). The piracy possibilities that can arise as a result of the increase in the trade of goods incorporating intellectual property became a substantial concern in the nineteenth century and resulted in the 1883 Paris Convention and 1886 Berne Convention. The relationship between intellectual property and international trade was extended when the TRIPS Agreement was adopted as part of the WTO in 1994. This chapter examines that relationship, in particular by addressing the TRIPS Agreement and its aims in comparison to – and as a subset of – the WTO GATT and GATS constellation. The chapter discusses the exhaustion of intellectual property (and accordingly parallel importing) within the international trade law context and why there is confusion or conflation of intellectual property with its physical embodiments in the international trade context. The final part of the chapter addresses how understanding the intangible nature of intellectual property might assist in untangling the uses of intellectual property law in trade to control tangibles that arguably have negligible trade benefits and may in fact be more trade distorting than trade enhancing.

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