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Susy Frankel

The article explores what may be some unintended effects of the increasing depth and breadth of intellectual property rights. First, the various methods of increases in intellectual property protections are discussed. The second part presents an analysis of what is incentivised by these various modes of increase and what trajectories such modes create. The third part discusses the various areas in which intellectual property has reached a kind of tipping point in which overprotection is meeting hurdles and occasionally being curbed. Intellectual property related incentives may sometimes work but are ever context dependent and are not always effective. Too many incentives can cause complacency. The globalisation of incentives means that, at least in theory, they are there for everyone. Those who are new to the intellectual property game have responded to the framework. China, may even be an example of a country that is making better use of intellectual property than was anticipated by those whose incentive rhetoric built the global standards of intellectual property. This article concludes that the increasing levels of protection and the diverse range of incentives (carrots) has begun to and may well continue to backfire in at least two ways. First, the carrots no longer incentivise and, second, those who created the so-called incentive framework might be beaten at their own game. Keywords copyright, free trade agreements, globalisation, incentives, intellectual property, TRIPS Agreement, patents

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Susy Frankel

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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Susy Frankel

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Susy Frankel

This chapter discusses the ways in which the creative sector utilises traditional knowledge. It explains how some of those uses exploit the knowledge without payment to, or even acknowledgement of, the indigenous peoples’ and communities that are the source of the knowledge. In such circumstances, there is a sound normative basis for the protection of traditional knowledge against misappropriation and derogatory uses. The development of international norms to achieve that protection is complex. The chapter concludes with a discussion of how, even without legal norms of protection, cooperative arrangements can be made for the benefit of both the creative sector and traditional knowledge holders. Examples from around the world are given, including in particular the use of m_tauranga M_ori (traditional knowledge) in New Zealand.

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Susy Frankel

This chapter demonstrates that a proper approach to the interpretation of international intellectual property (IP) treaties in international, regionaland national courts and tribunals would give greater consistency to the scope and flexibilities of internationally agreed IP. In many instances the protection of rights is so dominant in the process of interpretation of the international rules that flexibilities and the interests of those who access and use IP are side-lined. th. Consistency in the method of interpretation is more likely to reflect that minimum standards allow for diverse approaches to IP precisely so that the law can support a variety of legitimate policy goals.