Research Handbook on Intellectual Property and Climate Change
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Research Handbook on Intellectual Property and Climate Change

  • Research Handbooks in Intellectual Property series

Edited by Joshua D. Sarnoff

This innovative research tool presents insights from a global group of leading intellectual property, environment, trade, and industrial scholars on the emerging and controversial topic of intellectual property and climate change. It provides a unique review of the scientific background, international treaties, and political context of climate change; identifies critical conflicts and differences of approach; and describes the relevant intellectual property law doctrines and policy options for regulating, developing, or disseminating needed technologies, activities, and business practices.
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Chapter 4: Climate change, the international intellectual property régime, and disputes under the TRIPS Agreement

Daniel J. Gervais

Extract

Current multilateral intellectual property rules and standards emerged in the second half of the 19th century, namely in the 1883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works. Both instruments are still in existence today. They have been updated several times and are administered by the World Intellectual Property Organization (WIPO). In their initial version, they essentially aimed to limit discrimination against foreign right holders (that is, to impose ‘national treatment’). The substantive content of both instruments had a very different starting point. In addition to national treatment, in its original incarnation the Berne Convention defined protected subject matter, minimum rights, some exceptions to those rights and the minimum term of protection of copyright. By contrast, the Paris Convention only contained basic rules such as those concerning priority dates for foreign application for patent and trademarks and rules concerning international exhibitions (fairs). While both instruments were modified several times, the last substantive modifications – except for a 1971 developing countries appendix to the Berne Convention – date back to the 1967 Stockholm Act of both the Paris and Berne Conventions of almost 50 years ago. Despite the revisions, the Paris Convention still fails to define the basic terminology that underpins its substantive obligations, including terms such as ‘patent’, ‘invention’ and ‘trademark’. Nor does it specify the term of protection or even the minimum rights that a patent or trademark holder should enjoy.

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