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Research Handbook on Intellectual Property Exhaustion and Parallel Imports
From the Americas to the European Union, Asia-Pacific and Africa, countries around the world are facing increased pressure to clarify the application of intellectual property exhaustion. This wide-ranging Research Handbook explores the questions that pose themselves as a result. Should exhaustion apply at the national, regional, or international level? Should parallel imports be considered lawful imports? Should copyright, patent, and trademark laws follow the same regime? Should countries attempt to harmonize their approaches? To what extent should living matters and self-replicating technologies be subject to the principle of exhaustion? To what extent have the rise of digital goods and the “Internet of things” redefined the concept of exhaustion in cyberspace? The Handbook offers insights to the challenges surrounding these questions and highlights how one answer does not fit all.
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Critical Acclaim
Contributors
Contents
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This Research Handbook explores issues related to the principle of exhaustion of intellectual property rights. To date, the application of this principle continues to vary from country to country, and there is increasing pressure to clarify the extent of its application both at the national level and in the context of international trade with respect to parallel imports.
Notably, from the Americas to the European Union, Asia-Pacific, and Africa, courts and policy makers are asking similar questions: Should exhaustion apply at the national, regional, or international level? Should parallel imports be considered lawful imports? Should copyright, patent, and trademark laws follow the same regime? Should countries attempt to harmonize their approaches? To what extent should living matters and self-replicating technologies be subject to the principle of exhaustion? To what extent have the rise of digital goods and the ‘Internet of things’ redefined the concept of exhaustion in cyberspace?
The goal of this book is to explore these questions. The book also highlights how a one-size answer may not fit all the current challenges that the courts and policy makers are facing in this area.
This Research Handbook will be of interest to academics, judges and other practitioners looking for an in-depth study on the topic, offering both of detailed analysis of the current state of play, and a discussion of the challenges that arise on a global scale.
Notably, from the Americas to the European Union, Asia-Pacific, and Africa, courts and policy makers are asking similar questions: Should exhaustion apply at the national, regional, or international level? Should parallel imports be considered lawful imports? Should copyright, patent, and trademark laws follow the same regime? Should countries attempt to harmonize their approaches? To what extent should living matters and self-replicating technologies be subject to the principle of exhaustion? To what extent have the rise of digital goods and the ‘Internet of things’ redefined the concept of exhaustion in cyberspace?
The goal of this book is to explore these questions. The book also highlights how a one-size answer may not fit all the current challenges that the courts and policy makers are facing in this area.
This Research Handbook will be of interest to academics, judges and other practitioners looking for an in-depth study on the topic, offering both of detailed analysis of the current state of play, and a discussion of the challenges that arise on a global scale.
Critical Acclaim
‘Exhaustion of rights and parallel trade of goods protected by intellectual property are at the crossroad of international trade and exclusive rights. The contributions to this important volume ably interface the two legal concepts. Incorporating intellectual property in the WTO and preferential trade agreements is not without longer-term implications for today’s decentralised doctrine of exhaustion of intellectual property rights. The book makes a significant contribution to the quest for a proper balance between freer trade and legitimate exclusivity of different forms of IPRs. It is essential reading for all interested in the state of the law on parallel trading in different jurisdictions and the prospects of future and shared developments in international law aiming at a proper balance conducive to welfare and prosperity.’
– Thomas Cottier, Professor Emeritus of Law, World Trade Institute, University of Bern, Switzerland
‘The concept of exhaustion of intellectual property rights has proved to be thorny and complex. Collectively the chapters of this Handbook offer the reader a systematic and in-depth treatment of the theoretical, jurisdictional and contextual complexities of the concept. Irene Calboli and Edward Lee have produced an editorial tour de force.’
– Peter Drahos, Professor, Australian National University; Chair in Intellectual Property, Queen Mary University of London
‘This book is a deep dive into the enigmatic role played by the doctrine of exhaustion. The volume offers a framework and a detailed examination of the impact of parallel imports within each of the regimes of copyright, patent, and trademark. It studies exhaustion from the perspective of large and small economies; developed, emerging, and developing countries; right holders, importers, and exporters; producers and consumers; economists and free traders. The collection offers a comprehensive entry into this difficult and contentious issue.’
– Rochelle Dreyfuss, New York University, School of Law, US
‘To sum up: this Research Handbook is outstanding; not only is it well structured, but also greatly benefits from the collaboration of more than 30 internationally renowned specialists. Still, the book has significant room for development in future editions, for example by adding further chapters on newly emerging topics as well as by introducing the opinion of other regions/countries on the issues covered by this edition.’
– Journal of Intellectual Property Law and Practice
– Thomas Cottier, Professor Emeritus of Law, World Trade Institute, University of Bern, Switzerland
‘The concept of exhaustion of intellectual property rights has proved to be thorny and complex. Collectively the chapters of this Handbook offer the reader a systematic and in-depth treatment of the theoretical, jurisdictional and contextual complexities of the concept. Irene Calboli and Edward Lee have produced an editorial tour de force.’
– Peter Drahos, Professor, Australian National University; Chair in Intellectual Property, Queen Mary University of London
‘This book is a deep dive into the enigmatic role played by the doctrine of exhaustion. The volume offers a framework and a detailed examination of the impact of parallel imports within each of the regimes of copyright, patent, and trademark. It studies exhaustion from the perspective of large and small economies; developed, emerging, and developing countries; right holders, importers, and exporters; producers and consumers; economists and free traders. The collection offers a comprehensive entry into this difficult and contentious issue.’
– Rochelle Dreyfuss, New York University, School of Law, US
‘To sum up: this Research Handbook is outstanding; not only is it well structured, but also greatly benefits from the collaboration of more than 30 internationally renowned specialists. Still, the book has significant room for development in future editions, for example by adding further chapters on newly emerging topics as well as by introducing the opinion of other regions/countries on the issues covered by this edition.’
– Journal of Intellectual Property Law and Practice
Contributors
Contributors: F.M. Abbott, I. Calboli, V. Chiappetta, A.G. Chronopoulos, C.M. Correa, J.I. Correa, J. Drexl, S. Frankel, D.J. Gervais, S. Ghosh, C. Heath, R.M. Hilty, A. Katz, B. Kim, M. LaFrance, E. Lee, Y.J. Liebesman, K.-C. Liu, N.-L.W. Loon, S.M. Maniatis, K.E. Maskus, P.-E. Moyse, Y. Pai, A. Perzanowski, J.H. Reichmann, J.A. Rothchild, J. Schultz, C.M. Stothers, M. Trimble, M.S. Van Houweling, S.R. Wasserman Rajec, G. Westkamp, B. Wilson, C. Yin, X. Yu
Contents
Contents:
PART I: THE THEORETICAL FRAMEWORK OF INTELLECTUAL PROPERTY EXHAUSTION
1. Incentives, Contracts, and Intellectual Property Exhaustion
Shubha Ghosh
2. The Economic Rationale for Exhaustion: Distribution and Post-Sale Restraints
Ariel Katz
3. Exhaustion and Personal Property Servitudes
Molly Shaffer Van Houweling
4. “Exhaustion” in the Digital Age
Reto M. Hilty
PART II: INTELLECTUAL PROPERTY EXHAUSTION AND PARALLEL IMPORTS: THE INTERNATIONAL CONTEXT
5. International Intellectual Property Rules and Parallel Imports
Susy Frankel and Daniel J. Gervais
6. Economic Perspectives on Exhaustion and Parallel Imports
Keith E. Maskus
7. Working Toward International Harmony on Intellectual Property Exhaustion (and Substantive Law)
Vincent Chiappetta
8. Parallel Trade in Pharmaceuticals: Trade Therapy for Market Distortions
Frederick M. Abbott
PART III: INTELLECTUAL PROPERTY EXHAUSTION AND PARALLEL IMPORTS: REGIONAL AND NATIONAL APPROACHES
9. The European Internal Market: Exhaustion Plus
Christopher M. Stothers
10. The Exhaustion Doctrine in Singapore: Different Strokes for Different IP Folks
Ng-Loy Wee Loon
11. Parallel Imports and the Principle of Exhaustion of Rights in Latin America
Carlos M. Correa and Juan I. Correa
12. Exhaustion of Intellectual Property Rights and the Principle of Territoriality in the United States
John A. Rothchild,
PART IV: SELECTED ISSUES (AND CHALLENGES) ON PATENT EXHAUSTION
13. Patent Exhaustion and Free Transit at the Interface of Public Health and Innovation Policies: Lessons to be Learned from EU Competition-Law Practice
Josef Drexl
14. Regulatory Responses to International Patent Exhaustion
Sarah R. Wasserman Rajec
15. Patent Exhaustion Rules and Self-Replicating Technologies
Christopher Heath
16. Development of Patent Exhaustion in Mainland China
Xiang Yu and Conghui Yin
17. The Hermeneutics of the Patent Exhaustion Doctrine in India
Yogesh Pai
PART V: SELECTED ISSUES (AND CHALLENGES) ON TRADEMARK EXHAUSTION
18. Trademark Exhaustion and Its Interface With EU Competition Law
Apostolos G. Chronopoulos and Spyros M. Maniatis
19. Trademark Exhaustion and Free Movement of Goods: A Comparative Analysis of the EU/EEA, NAFTA and ASEAN
Irene Calboli
20. Using Trademark Law to Override Copyright’s First Sale Rule for Imported Copies in the United States
Mary LaFrance
21. New Developments on Trademark Exhaustion in Korea
Byungil Kim
22. Trademark Exhaustion and the Internet of Resold Things
Yvette Joy Liebesman and Benjamin Wilson
PART VI: SELECTED ISSUES (AND CHALLENGES) ON COPYRIGHT EXHAUSTION
23. How Could Taiwan Copyright Act Follow the Patent and Trademark Regime and Adopt International Copyright Exhaustion?
Kung-Chung Liu
24. The Marrakesh Treaty and the Targeted Uses of Copyright Exhaustion
Marketa Trimble
25. From Importation to Digital Exhaustion: A Canadian Copyright Perspective
Pierre-Emmanuel Moyse
26. Exhaustion and the Internet as a Distribution Channel: the Relationship Between Intellectual Property and European Law in Search of Clarification
Guido Westkamp
27. Digital Copyright Exhaustion and Personal Property
Aaron Perzanowski and Jason Schultz
Index
PART I: THE THEORETICAL FRAMEWORK OF INTELLECTUAL PROPERTY EXHAUSTION
1. Incentives, Contracts, and Intellectual Property Exhaustion
Shubha Ghosh
2. The Economic Rationale for Exhaustion: Distribution and Post-Sale Restraints
Ariel Katz
3. Exhaustion and Personal Property Servitudes
Molly Shaffer Van Houweling
4. “Exhaustion” in the Digital Age
Reto M. Hilty
PART II: INTELLECTUAL PROPERTY EXHAUSTION AND PARALLEL IMPORTS: THE INTERNATIONAL CONTEXT
5. International Intellectual Property Rules and Parallel Imports
Susy Frankel and Daniel J. Gervais
6. Economic Perspectives on Exhaustion and Parallel Imports
Keith E. Maskus
7. Working Toward International Harmony on Intellectual Property Exhaustion (and Substantive Law)
Vincent Chiappetta
8. Parallel Trade in Pharmaceuticals: Trade Therapy for Market Distortions
Frederick M. Abbott
PART III: INTELLECTUAL PROPERTY EXHAUSTION AND PARALLEL IMPORTS: REGIONAL AND NATIONAL APPROACHES
9. The European Internal Market: Exhaustion Plus
Christopher M. Stothers
10. The Exhaustion Doctrine in Singapore: Different Strokes for Different IP Folks
Ng-Loy Wee Loon
11. Parallel Imports and the Principle of Exhaustion of Rights in Latin America
Carlos M. Correa and Juan I. Correa
12. Exhaustion of Intellectual Property Rights and the Principle of Territoriality in the United States
John A. Rothchild,
PART IV: SELECTED ISSUES (AND CHALLENGES) ON PATENT EXHAUSTION
13. Patent Exhaustion and Free Transit at the Interface of Public Health and Innovation Policies: Lessons to be Learned from EU Competition-Law Practice
Josef Drexl
14. Regulatory Responses to International Patent Exhaustion
Sarah R. Wasserman Rajec
15. Patent Exhaustion Rules and Self-Replicating Technologies
Christopher Heath
16. Development of Patent Exhaustion in Mainland China
Xiang Yu and Conghui Yin
17. The Hermeneutics of the Patent Exhaustion Doctrine in India
Yogesh Pai
PART V: SELECTED ISSUES (AND CHALLENGES) ON TRADEMARK EXHAUSTION
18. Trademark Exhaustion and Its Interface With EU Competition Law
Apostolos G. Chronopoulos and Spyros M. Maniatis
19. Trademark Exhaustion and Free Movement of Goods: A Comparative Analysis of the EU/EEA, NAFTA and ASEAN
Irene Calboli
20. Using Trademark Law to Override Copyright’s First Sale Rule for Imported Copies in the United States
Mary LaFrance
21. New Developments on Trademark Exhaustion in Korea
Byungil Kim
22. Trademark Exhaustion and the Internet of Resold Things
Yvette Joy Liebesman and Benjamin Wilson
PART VI: SELECTED ISSUES (AND CHALLENGES) ON COPYRIGHT EXHAUSTION
23. How Could Taiwan Copyright Act Follow the Patent and Trademark Regime and Adopt International Copyright Exhaustion?
Kung-Chung Liu
24. The Marrakesh Treaty and the Targeted Uses of Copyright Exhaustion
Marketa Trimble
25. From Importation to Digital Exhaustion: A Canadian Copyright Perspective
Pierre-Emmanuel Moyse
26. Exhaustion and the Internet as a Distribution Channel: the Relationship Between Intellectual Property and European Law in Search of Clarification
Guido Westkamp
27. Digital Copyright Exhaustion and Personal Property
Aaron Perzanowski and Jason Schultz
Index
