This chapter proposes that the manifold tinkering and experimenting that happens in and around markets and their infrastructures over time holds valuable lessons for the future design of these markets. More specifically, we argue that a fair and equitable market design can only be achieved if the legal and political mechanisms that have shaped that particular market over time are understood, and misfires and repair attempts of the past are acknowledged and reflected upon. Using a historical perspective, this chapter maps the decades-long tinkering behind the HIV medications market, a market that has historically misfired in and through its very blueprint, which is strongly framed by its legal infrastructures. To examine the experiments in this particular market to create a collective good, we trace the relevant laws, property rights provisions and amendments, market governance practices, and civil society actions over the past forty years. Reflecting on the many misfires of this market and the equally numerous attempts to repair it, our study considers market tinkering as a reaction to overflows as an iterative, experimental process, but one that is likely to never fully transcend the market’s formative blueprint. Ending on an optimistic note, though, we also think through ways of radically redesigning the market for essential medicines.

Energy technologies are ‘the combination of hardware, techniques, skills, methods and processes’ involved in ‘producing, transforming, storing, transporting and using energy’. The IEA database captures over 500 mature and immature ‘clean energy’ technologies worldwide that contribute to achieving the goal of net-zero emissions. This chapter will show that international economic law is applicable to government interventions in even the early stages of technology development. For example, State-imposed R&D investment obligations may be banned by IIA provisions on performance requirements, and public incentives for R&D may be disciplined by WTO subsidy rules. Once commercialized, green technologies can reach foreign markets due to international trade and technology transfers that fall within the scope of international economic rules. Reducing trade barriers to environmental goods and services could give a further boost to the international movement of energy-related green technologies. While the importance of green technology transfers between countries is widely recognized, trade and investment rules must be consulted when imposing technology transfer measures.

This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the changing Chinese intellectual property landscape has altered developing countries’ coalitional dynamics within the WTO.

International economic law is an umbrella term with no fixed meaning. At its broadest, it covers all aspects of economic relations between states, including regulation of the conduct of individuals, corporations and international organisations. A narrower meaning is ‘the segment of public international law directly governing – rather than merely affecting – economic relations between States or international organizations’. The field also embraces governance arrangements, such as the World Bank, International Monetary Fund, and World Trade Organization, as well as the many UN and regional bodies that advance economic development. As space does not permit a discussion of all these aspects, this chapter focuses on two important areas: international trade law and international investment law. International trade law is the body of law, mainly treaty based, that governs the terms on which states permit the trade in goods and services across their borders.

In the preceding chapters of this book, we have seen a variety of national approaches to the issuance and tailoring of injunctive relief, characterized by a range of similarities and differences among jurisdictions. In this chapter, we synthesize the principal features of these different legal systems, provide an analytical framework for comparing them, and offer our observations about trends and the outlook for the future.

Traditionally, intellectual property’s right to exclude has implied that injunctive relief should always be available at the conclusion of a successful infringement action.1 However, in recent years that view has evolved. As discussed in Chapter 14, in the United States, the 2006 Supreme Court decision in eBay Inc. v. MercExchange imposed a four-part test requiring the plaintiff in a patent case seeking a permanent injunction to demonstrate “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”2 While this standard appears to impose quite a restrictive test, several members of the court emphasized that even under this discretionary standard, injunctive relief should remain available in the vast majority of cases.3

This chapter focuses on the scope and content of the Intellectual Property Chapter of the TPP, to examine how strict the new IP international protection and enforcement standard is, and to determine how far it goes beyond the existing FTAs and TRIPS. TPP provisions are compared with the “Pre-TPP relevant standards” (both intra-TPP and extra-TPP), and, of course, the WTO TRIPS Agreement. We looked at the NAFTA (the US, Canada, and Mexico) and the US agreements with Singapore, Chile, Australia, the CAFTA countries, Peru, and Korea (KORUS FTA). Some references were made to agreements signed by the European Union with Korea (EU--KOREA FTA) and the one with Canada, the Comprehensive Economic and Trade Agreement (CETA), as well as to the TPP predecessor -- the P4 Agreement -- signed between Brunei Darussalam, Chile, New Zealand, and Singapore. While reviewing the enforcement provisions, comparisons were made to the Anti-Counterfeiting Trade Agreement (ACTA).

Automated driving systems (ADSs) are growing exponentially as one of the most promising AI applications. ADSs promise to transform ways in which people commute and connect with one another, altering the conventional division of labor, social interactions, and provision of services. Regulatory issues such as testing and safety, cybersecurity, connectivity, liability, and insurance are driving governments to establish comprehensive and consistent policy frameworks. Of key importance is ADSs’ ethical challenges. How to align ADS development with fundamental ethical principles embedded in a society remains a difficult question. The “Trolley Problem” aptly demonstrates such tension. While it seems essential to have rules and standards reflecting local values and contexts, potential conflicts and duplication may have serious trade implications in terms of how ADS is designed, manufactured, distributed, serviced, and driven across borders. This chapter examines the multifaceted, complex regulatory issues related to ADS and uses the most controversial, ethical dimension to analyze the tensions between the protection of public morals and trade secrets under the WTO. It unpacks three levels of challenges that may translate into a regulatory dilemma in light of WTO members’ rights and obligations under GATT, TBT Agreement, and the TRIPS Agreement and identifies possible venues of reconfiguration.

Customs surveillance of intellectual property is an efficient way to quickly and effectively provide legal protection to the right-holder, as it allows to nip the infringements in the bud. Technology has drastically changed the means and mechanisms of customs enforcement, as it increases the possibilities of identifying and detaining goods infringing IPRs, and makes it more feasible to assess in advance where control is required.

However, assessing in advance and acting when appropriate does not always match well with fundamental intellectual property principles (territoriality), global trade norms (freedom of transit), global intellectual property rules, and due process requirements.

This chapter explores some of the challenges and opportunities brought by AI, big data and distributed ledger technologies to customs enforcement of IPRs. It looks at AI’s transformative influence on IP enforcement and the digitization and use of big data in customs control.

Artificial intelligence is an emerging topic in intellectual property protection. The chapter starts by useful definitions of big data and AI and explores some of the work done on AI and big data in the WTO and in particular under the Agreement on Trade-Related Intellectual Property Rights (TRIPS). The chapter then asks what needs to be done to adapt IP law to meet the challenge of big data and AI, by looking at distinct provisions of TRIPS.

This chapter methodically discusses the rules of the WTO framework and disciplines relevant to energy, including several outstanding issues treated in case law. It follows the current structure of WTO agreements on goods, services, intellectual property and plurilateral agreements. On this basis, it reveals the where the WTO agreements do not optimally correspond to the realities of the energy sector (eg the goods/services divide). The chapter also highlights outstanding issues in case law and provides a summary table of energy-related disputes to date.

This chapter focuses on the international extension of modern intellectual property, highlighting America's place in a regime of intellectual property that today is global. We trace the foundations for this global regime in international treaty frameworks, focusing on the legal parallels between treaties and contracts, as instruments of legal power. We briefly sketch the twentieth century developments of intellectual property law in the U.S., highlighting the juristic "solicitude" that is shown to intellectual property in U.S. lawmaking and international diplomacy. In the wake of World War II, the U.S. has used its position of global economic power to solidify commitments to intellectual property in a legal framework for trade relations that constitutes a super-national organization, the World Trade Organization, one that has facilitated global convergence in intellectual property law. New dangers and challenges are facing us today, in this globalized legal order, with the rise of artificial intelligence, and with patent claims extending very deeply into the social dimensions of human life, through computer-implemented inventions.

The Berne Convention was intended to be regularly revised, but we've now gone almost half a century with no substantive change - and it is looking increasingly unlikely to ever be changed again. But as the world radically transforms around it, Berne’s superseded structures continue to be locked in and given teeth by TRIPS. This chapter explores the practical extent of that lock-in, and provocatively argues that we may soon reach a point where rational countries choose to take Berne’s ‘front door out’: to exercise their rights to domestically depart from its minima to reach a more satisfactory copyright bargain for their authors and the broader public.

The negotiators of the WTO TRIPS Agreement made a conscious and far-reaching decision to incorporate substantive provisions of the central pillars of the multilateral intellectual property system, the Paris and Berne Conventions, not only into the TRIPS Agreement itself but also into the broader complex of multilateral trade law. Subsequent dispute settlement practice has eased concerns that this fundamental structural decision would lead to a fragmentation of the international law of intellectual property. Yet the intent behind, and the full consequences of, this decision are not entirely apparent. This chapter maps out the issues, and draws on the practice of dispute settlement thus far and on the lessons of domestic policy making and legislation to suggest a systematic and coherent approach to showing the 'respect' to these venerable conventions that the TRIPS Agreement text ostensibly requires.

Chapter 3 provides a short overview of IP law for those not familiar with it. It introduces the major concepts of patent law, copyright law, trademark law, and design patent law, focusing on internationally agreed upon frameworks and treaties such as the Berne Convention, the Paris Convention, and TRIPS. It also walks readers through fundamental concepts like territoriality, validity, direct and indirect infringement, and remedies.