New York University Public Law and Legal Theory Working Papers

Document Type



Michigan J Intl Law, Vol. 36, 2015


Domestic patent, copyright and trademark regimes are traditionally justified on an incentive rationale. While international intellectual property agreements are nominally aimed at harnessing global markets to expand incentives, this article argues that as these agreements come into force, a subtle, but significant, reconceptualization is taking place. Free trade agreements treat intellectual property rights as commodities; bilateral investment treaties convert them into assets. Using examples involving the “working requirement” in patent law and pending disputes challenging Australia’s limits on the use of trademarks on tobacco products, we show that as these moves progressively detach intellectual property from its incentives basis, domestic authority to promote local concerns such as health, education, and development is increasingly impaired. The authors end with proposals for interpreting the impact of existing agreements and for revising international lawmaking so that intellectual property mechanisms can be exploited to motivate innovation without damaging state authority to safeguard public values. While we recognize that technologically sophisticated countries (such as the United States) will continue to demand stronger intellectual property protection worldwide to compensate for losses in their manufacturing sectors, a system that fails to recognize consumer interests also impedes follow-on innovation and entry by start-ups. Balance is, in short, important for every country, no matter where its sits in the technological hierarchy. Furthermore, those now pushing the commodification and assetization agenda must consider how reconceptualization will affect them in the future, when their position in the hierarchy may well be different.

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