Intellectual Property Law

Justice in Genetics: Intellectual Property and Human Rights from a Cosmopolitan Liberal Perspective by Louise Bernier (Edward Elgar) The opposition between human rights and intellectual property concretely, between civil society and industry has left millions of people without needed medicines and has had only limited success in encouraging research on the diseases that overwhelmingly affect the world's poor. If one truly wishes to address both the economic and health conditions in developing countries, one would need to overcome this opposition.

The analysis in Justice in Genetics offers a justification for engaging in a global and more equitable redistribution of health-related resources. Louise Bernier, Professor and Head, Law and Life Sciences Program, University of Sherbrooke, Quebec, examines if and how this theory of distribution translates into positive law and analyzes the barriers to legal compliance and global distributive justice in health. Other topics analyzed in Justice in Genetics include intellectual property and international human rights and the extent to which the philosophy and structure of each of these normative systems furthers the goal of distributing benefits equitably and globally; the use of strong and original normative landmarks to justify relying on a cosmopolitan approach to global justice based on health needs; and the social, political, economic and legal obstacles and opportunities resulting from the commercialization of the quickly evolving field of genetics.
As described in the preface, genetics is one sector in which there has been tremendous evolution and progress over the last few decades. While it is believed that genetics could offer tremendous opportunities for global health improvement, there is also a fear that existing global health inequalities will be amplified by the evolution of genetics.

It thus appears necessary to analyze the way current assumptions define what is just and acceptable with regard to global access and distribution of resources in this field. Given the importance of genetics to human health globally, Justice in Genetics evaluates two principal legal regimes intellectual property and international human rights to determine to what extent they further the goal of distributing the benefits of these technologies equitably and globally. The book undertakes this complex task by employing and building upon cosmopolitan liberal theories developed over the few last decades as an extension of the work of Rawls and Daniels.

Berniers analysis produces strong normative benchmarks based on justice considerations for engaging in a global and more equitable redistribution of the benefits likely to emerge from genetic science. Universal consideration of all human beings, importance of health needs, normal functioning and equality of opportunities are some of the notions that are analyzed to construct the framework in Justice in Genetics. Bernier attempts to determine how and if this theory of distribution translates into positive law and to identify and analyze the main obstacles to legal compliance with global distributive justice. She assesses two main international normative systems: intellectual property law and human rights law to determine if their underlying philosophy, structure, and functioning take account of the principles highlighted in her theoretical framework and how underlying politics and economics matter.

The first chapter of Justice in Genetics sets the contextual basis of her framework by providing justifications for a global application of distributive justice principles. To assess institutions and practices, she proposes a cosmopolitan methodology based on a global scheme of cooperation emerging from the idea of the universal importance of every human being as a unit of moral concern. This exercise gives readers a sense of how institutions involved in the distribution of genetic benefits should function and within which specific parameters they should handle distribution.

The second chapter elaborates an ideal conception of distributive justice in health to justify global access to genetics. Bernier establishes normative grounds as the basis for her scheme of global health/health care justice, focusing on the special characteristics of health and on its crucial role in normal human functioning. She analyzes the impact of normal functioning on the lives of individuals, using the criterion of the range of normal opportunities available to people. This helps establish clear links between health problems, lack of access to the resources emerging from genetic research, and a diminution of the range of opportunities for which individuals of equal skill can build life plans.

The second part of Justice in Genetics attempts to determine how and if her theory of distribution translates into positive law and to identify and analyze the main obstacles to legal compliance with global distributive justice. She focuses on two of the major international legal systems most concerned with distribution issues: intellectual property (IP) law (especially patent law) and human rights law. The first two chapters of the second part are dedicated to the presentation and analysis of those international normative systems in order to determine if their underlying philosophy, structure, and functioning take account of the principles highlighted in her theoretical framework.

Berniers analysis concludes that these two legal frameworks regulating the distribution of benefits and resources arising from genetics are deficient, each in their own way, in the reach, operation, and substantive content of the standards they promote. The discussion brings to light major power imbalances and a lack of focus on distributive justice issues mainly attributable to the political and economic contexts of application of the two systems and not to an irremediable incompatibility of the principles with diffusion and equitable access to knowledge. Both systems, although very different in their nature and purposes, are driven mainly by market considerations either in their philosophy, principles, and/or application and that they do not give enough attention and importance to justice and solidarity issues. Her analysis brings readers to acknowledge that the international order under which IP and human rights evolve inspires power struggles that shift attention away from justice principles standing at the source of a shared morality and a cosmopolitan perception of humanity.

Following her discussion on the conceptual link existing both between IP law and access and human rights law and access, Berniers last chapter focuses on introducing practical examples to illustrate the intersection of IP and human rights law. Referring to a few examples, this chapter highlights the practical impact that those two systems have had on scientific data-sharing and on availability and affordability of genetics research tools, products, and services in developing countries. Following the presentation of those examples, the chapter concludes with a brief analysis of the intersection between IP rights and human rights in health.

Coming back to the evidence presented at the beginning of this work on the real potential of genetic research to improve global health, and on support for a notion of global distributive justice in health, readers are forced to realize that, as they currently function, the intellectual property and the human rights systems are not adequate to realize global benefit sharing in the field of genetics. Without arguing for the abolition of these systems or establishing detailed solutions and practical policy options, Justice in Genetics concludes with some suggestions of avenues that could be explored further to remedy this situation in order to further global distributive justice.

Instead of accepting the assumption that intellectual property and human rights are incompatible, Bernier provides a common starting point for analysis of each.The result is surprising to one who believes in the primacy of one over the other: that both advance and detract from justice equally. Only by combining both sets of laws can we truly advance the cause of access to medicines.

Moving us to the point of attempting to reconcile these disparate sets of laws is a critical first step. Bernier, at the end of Justice in Genetics, sketches out possible pathways to undertake that reconciliation. It is up to the rest of us to build on those pathways and to explore others. Richard Gold, from the foreword

Providing new insight into the ideas surrounding one of the longest running and hotly debated governmental issues, the global access to healthcare challenge, Bernier develops an original theoretical framework that builds upon cosmopolitan liberal theory. The groundbreaking analysis in Justice in Genetics offers a useful justification for engaging in a global and more equitable redistribution of health-related resources.
UUltimately, the book exemplifies the groundwork needed to initiate policy discussions and to eventually undertake concrete changes to achieve international redistribution of the resources emerging from genetics. It will be of great value to students and scholars interested in health, law, human rights and intellectual property.

Intellectual Property Law, 3rd d by Jennifer Davis (Core Text Series: Oxford University Press)

As part of the Core Text Series, Intellectual Property Law provides students with an overview and basic understanding of this area of the law. It covers the six key areas of intellectual property law; patents, copyright, industrial designs, confidential information, and unregistered and registered trademarks while also placing IP in its wider context, recognizing the economic and social influences on its development and examining associated ethical issues.
Close attention is paid to changes in technology and in the global economy which have affected the law's development, and this third edition offers expanded coverage of copyright and information technology, as well as database rights and internet issues. It also provides further information on confidence and the law in relation to privacy, and TRIPs.
In this book, Jennifer Davis conveys the excitement being generated as this area of the law advances into uncharted territories, whether in human creative enterprise or international commerce. She also casts a critical eye over the constant expansion of legal protection afforded to intellectual property law.

In this new addition to Oxford Core Text Series, Jennifer Davis provides a balanced, insightful, and detailed account of intellectual property law. Eschewing a narrow focus on technical legal issues, she takes the reader on a masterful tour of the complex economic, social and ethical aspects of the law. Davis demonstrates with great clarity the difficulty of establishing the rational boundaries of the law without paying careful consideration to these social and ethical issues. This new addition provides a basic understating of the law with junior students firmly in mind. The book covers the six key areas of copyright, confidential information, passing off, trademarks, patents, and industrial designs. Whilst placing intellectual property in its wider context, the book emphasizes the profound impact of economic and social issues in influencing the development of the law. At the end of every chapter, the book provides a further list of reading and self-test questions which are of a great help for students.

This third edition includes expanded coverage of specific issues in relation to copyright and information technology to reflect the growing importance of these areas. In this regard, the book contains a very interesting discussion on the interaction between copyright law and issues such as freedom of speech, moral rights, and protection of software, Internet service providers (ISP) and finally databases. In the course of highlighting these concerns, Davis casts a critical eye over the constant expansion of legal protection afforded to the law and questions whether the law strikes the correct balance between rights holders and the public. As the author puts it:

"Fears have been expressed that changes to copyright law pursuant to the introduction of digital technology and the internet have upset the balance between rights-holders and the public which is seen to lie at the heart of the justification for copyright. An equally interesting question is whether traditional copyright law, however it is amended in response to the new technology, is capable of providing a practical means for preventing large-scale copying via both the internet and by digital technology more generally."

The book also contains a good discussion on trade mark law. It provides good grounds for trade mark registration, infringement, licensing and more importantly the wider implications of the concept of trade mark exhaustion. It investigates the question of whether courts should allow traders to maintain control over the market of their goods and, hence, the value of their brands by preventing parallel importers from importing cheap products from outside the European Economic Area. That is, the opponent of parallel importation praised the notion that traders should have the right to:

"Maintain control over the marketing of their goods and, hence, the value of their brand's reputations, as well as by those EEA countries where manufactures might lose out from the importation of cheaper goods from outside the EEA. Those in favour of international exhaustion, however, suggested that it favoured the consumers with lower prices and, in an era of free trade, prevented the erection of tariff and trade barriers by indirect means."

To conclude, the reviewer can wholeheartedly recommend this very useful book for all undergraduate students who are interested in intellectual property law.

JAMIL AMMAR University of Edinburgh

Indigenous Heritage and Intellectual Property, 2nd ed edited by Silke von Lewinski (Kluwer Law International) For indigenous cultures, property is an alien concept. Yet the market driven industries of the developed world do not hesitate to exploit indigenous raw materials, from melodies to plants, using intellectual property law to justify their behaviour. Existing intellectual property law, for the most part, allows industries to use indigenous knowledge and resources without asking for consent and without sharing the benefits of such exploitation with the indigenous people themselves. It should surprise nobody that indigenous people object.

Recognizing that the commercial exploitation of indigenous knowledge and resources takes place in the midst of a genuine and significant clash of cultures, the eight contributors to this important book explore ways in which intellectual property law can expand to accommodate the interests of indigenous people to their traditional knowledge, genetic resources, indigenous names and designations, and folklore. In so doing they touch upon such fundamental issues and concepts as the following:

· collective rights to the living heritage

· relevant human rights norms

· benefit-sharing in biological resources

· farmers rights

· the practical needs of documentation, assistance, and advice

· the role of customary law

· bioprospecting and biopiracy and public domain.

As a starting point toward mutual understanding and a common basis for communication between Western-style industries and indigenous communities, Indigenous Heritage and Intellectual Property is of immeasurable value. It offers not only an in-depth evaluation of the current legal situation under national, regional and international law including analyses of the Convention on Biological Diversity and other international instruments, as well as initiatives of the World Intellectual Property Organization (WIPO), the UN Food and Agriculture Organization (FAO), and other international bodies but also probes numerous further possibilities. While no one concerned with indigenous culture or environmental issues can afford to ignore it, this book is also of special significance to practitioners and policymakers in intellectual property law in relation to indigenous heritage.

This book, here in its second edition, presents the most recent state of knowledge in the field.

This book is a multi-author work produced under the auspices of the Max Planck Institute. The majority of the authors are academics. The contributions cover the relation of intellectual property rights to indigenous peoples, biodiversity, traditional knowledge, genetic resources, and folklore.

The intended target audience of this book is probably legal academics, students and civil servants in international and national organisations dealing with these issues.

The contributions range in length from 40 to 100 or so pages each; in other words, they are lengthy enough for an in-depth discussion of the subject in question. This is one of the best features of the book. Although the authors are all of a uniformly high standard, this reviewer must say that he was particularly impressed by the two contributions of Antony Taubmann on "Traditional Knowledge" (with Matthias Leistner) and on "Genetic Resources". In the area this book deals with there is not much "black letter law" but rather declarations and resolutions by various international and national organisations and non-governmental organisations (NGOs). Such documents are not easy to find. The various authors must have done an enormous amount of work, both to find and reference such documentation, and then to weave these references into something coherent. For this reason alone this book is to be highly recommended for the above-mentioned target audience.

The tone of the book is practical rather than philosophic in that it is largely descriptive of what is being done and said in this field.

This approach has produced a useful book; however it leads to the avoidance of what seems to this reviewer to be some major issues. Without being able to pin down what exactly it is about this topic that makes this reviewer somewhat uneasy, the problem seems to be not so much the notorious difficulty (discussed at length in Part II, starting on page 7) of defining an indigenous person, but the problem of saying why this reviewer, (and presumably most readers of the European Intellectual Property Review), is not an indigenous person. The book somewhat obliquely addresses this in the Introduction:

"We are aware of the fact that this study has been written only by representatives of the Western Civilisation, and only by academics .. .

. . . Indeed, one of the exceptional challenges of this topic is the clash of two basically different worlds: that of indigenous peoples and the other of the so-called Western civilizations. Concepts such as the holistic concept, property, definitions, traditions, belief systems, the importance of creation or knowledge in society and the notion of 'public domain' are fundamentally different. For example, indigenous peoples have stated that the concept of 'property' is `alien and antithetical to their collective values' and that their songs, designs, etc., 'are inalienable and, therefore, can never be property'. It is not astonishing that from the outset, it seems difficult to find a common basis for communication between those worlds in order to be able to meet halfway".

The above passage seems to imply that there is some basis to the idea of "polylogism", that is that not all humans have the same logical mental structure. This is a philosophical fallacy that has two famous forms: the Communist one is that social class determines the logical structure of the human mind, only proletarian logic being true logic, and the second is the Nazi one that race determines the logical structure of the human mind, only Aryan logic being true logic. In addition, the authors seem to consider that property is not a logical and practical necessity of human existence; on this point it should be noted that even the most primitive hunter-gatherers of the past had to decide how to divide up what was hunted and gathered, also the inalienability of a thing does not mean it is not property.

The issue of why non-indigenous people should be treated differently than indigenous people appears to this reviewer to raise interesting issues as regards "folklore" where the question to be answered is when musical, literary and artistic works become "folklore". Again this section of the book can be used as an encyclopaedia of national and international measures on folklore and cultural heritage and its author deserves credit for pulling all of this material together. The author deals with some attempts to define folklore:

"For every ethnic group folklore is its identity; for a country, it is the root of the nation's cultural tradition; for all mankind, it is the rich and varied but non-regenerative resources as well

as the incomparably valuable heritage of human society . .

. . . there seems to be an agreement to retain two principal criteria for the definition: anonymity and traditional character, to which is occasionally added the oral mode of transmission . . .".

And, from the Nigerian Copyright Act:

"Folklore means a group-oriented and tradition-based creation of a group of individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means."

The author indicates that the general thrust of the laws relating to folklore and statements and declarations from international bodies is that rights in folklore are collective rights. Collective rights are of course individual rights. The people who exercise these rights claim that they exercise them in the best interests of other individuals who are described as making up the collective. Such claims could do with a bit of critical examination.

There is also a tendency for this approach to lead to the assertion of a very wide scope for rights over folklore. The author quotes from the relevant Philippine law:

"Community Intellectual Rights .. . . . . Indigenous cultural communities/indigenous peoples have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of

their cultures as well as the right to restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs.

To this purpose the indigenous peoples have the right to own, control, develop and protect: a) the past, present and future manifestations of their cultures, such as, but not limited to. . .artefacts, designs, ceremonies, technologies, visual and performing arts and literature. . . . c) language, music, dance . . .".

The thought may cross the reader's mind at this point as to what this would all mean if the Icelanders could be considered as an indigenous people. Presumably they should receive a collective royalty on any performance of Wagner's "Ring Cycle", this payment consisting partly of damages to feelings given the rather loose treatment that Wagner gave to the original source material from the Völsunga saga. In passing one can also note that many non-indigenous people have about as much idea about "the root of [their] national cultural tradition" as a cargo of horned cattle.

These idle speculations aside, this book can be thoroughly recommended as a description of the current state of this subject, and as offering the interested reader an excellent starting point for their own research.

DAVID ROGERS
Boards of Appeal, European Patent
Office, Munich

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