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Daniel Gervais

The chapter considers the role of the World Trade Organization’s Appellate Body as a judicial body. It first looks at the arguments favoring specialized courts versus general ones, and courts versus legislative bodies. It then considers whether the Appellate Body can be compared to a domestic court, and if so, whether it can be compared to a common law court, and whether it is more similar to a general or specialized court. Three cases involving the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement are discussed. The chapter ends with a few concluding thoughts.

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Daniel Gervais

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Daniel Gervais

Written from the perspective of someone with experience in both WIPO and WTO, the author examines the present relationship between the two organizations, identifying it as one where, after the major change brought about by the successful negotiation of the TRIPS Agreement under the WTO umbrella, WIPO has maintained a comparative advantage over the WTO in terms of its technical expertise and resources. The relationship has not always been easy, particularly in the early days before the conclusion of the TRIPS Agreement. Overall, however, there is a healthy balance between the two organizations, each with its own role in relation to intellectual property matters.

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Daniel Gervais

This chapter begins by defining collective management (of copyright and related rights) and collective management organizations (CMOs). After briefly reviewing possible definitional characteristics, the first part of the chapter uses a functional approach to define CMOs and then explains their economic and noneconomic functions. The next part discusses key aspects of the economic analysis of collective management, namely the justification for collective management, and the valuation of licensed repertoires (or copyright works or objects of neighboring rights) and individual works within such repertoires. This includes a survey of major economic models used in this field. The second part ends with a discussion of efficiency issues related to collective management. The third and last part considers the specific aspects that arise in collective management when it is applied to online uses of copyright material

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Daniel Gervais

This chapter engages in a critical examination of various aspects of the substantive interface between trade, investment, intellectual property, and human rights. Using the Lilly v. Canada litigation it illustrates how human rights issues could arise in the context of Investor-State Dispute Settlement (ISDS) cases involving intellectual property (IP) and explicates the resulting conflicts between the private interests of foreign investors on the one hand and the regulatory autonomy of the host state to promote social welfare and to live up to its international human rights commitments on the other. It concludes by exploring possible paths forward for preserving a state’s regulatory flexibility in vital areas of socio-economic importance and/or the implementation of human rights obligations, with a particular focus on the interpretation of the notions of ‘indirect expropriation’ and ‘Fair and Equitable Treatment’ (FET).