This episode is the international panel from DreyFEST, the celebration of Professor Rochelle Dreyfuss. It was recorded on March 24, 2023.
Graeme B. Dinwoodie (Moderator), Chicago-Kent College of Law
Susy Frankel (Moderator), Victoria University of Wellington
Christine Haight Farley, American University Washington College of Law
Justin Hughes, Loyola Law School
Ruth L. Okediji, Harvard Law School
Ana Santos Rutschman, Villanova University Charles Widger School of Law
Peter K. Yu, Texas A&M University School of Law
Announcer 0:00
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. This episode is the International Panel from DreyFEST, the celebration of Professor Rochelle Dreyfuss. It was recorded on March 24 2023.
Graeme B. Dinwoodie 0:20
So, the first of our panels, today is going to be on international IP. And that fact in itself, I think speaks to the profoundly positive influence or shelter and our colleagues at NYU organizing this event right up to command as highly as they possibly can, for putting the international panel first. Today, of course, that's entirely appropriate given Michelle's unique contribution to international IP. But I remember the days when I started teaching, and got invited to speak at some might be competition, the International Panel was always the last on the program. It didn't really matter what the conference topic was, the International title was almost always the one that was standing between the participants and the reception. There were many international panels in those days that didn't have as a Rachelle or Jerry reichlin. Speaking on the panel, and the maturation of international IP into the discipline that I think it now is, in the United States with the vibrant community of scholars working in the field, is a testament to the ability of Rochelle, along with Jerry to provide an international angle on almost any topic that any intellectual property conference could discuss. But alone international IP has been elevated. In that time, I find that even after probably teaching that course, almost every year for 30 years, it's still the hardest course I ever teach. And part of that is because it's very hard to even define or conceptualize the subject conversation for a show whether in writing articles and books, whether or co teaching course, whether here at NYU or in constantly, really constantly revising the materials for a casebook always makes me rethink. And I mean that a good way, the structure and dimension of what the subject is really all about. And for that I'm very grateful to Rochelle, for, among other reasons why I'm very grateful to Russia. But why is it so hard to think about and define conceptualize the subject? Well, I think the answer lies in part in the general ongoing and contested scholarly discussions about the nature of international law, which inevitably, also affect the nature of international IP law. And the answer has been made particularly difficult in the context of IP, because of the on the ground reality of the range of different institutions that are now involved in the regulation of intellectual property on a cross border basis. There are simply so many so many dimensions to the subject. And you will find and when do you start adverted? To this a little bit, the Rochelle has written important pieces on almost all aspects of the field of international IP. So just to mention a couple of examples, some might argue that international IP only really became a real as a discipline with the advent of trips and binding WTO dispute settlement resolution in 1995. Well, the first detailed exploration of what that meant, came in Michelle's groundbreaking article with a new loan filed a year later in the junior Journal of International Law. So before we got real WTO trips cases, which actually took another couple of years, many of us were teaching and learning from the hypotheticals that Rochelle and Andy dreamed up and brilliantly analyzed. In fact, in the first edition of our case, the whole chapter was basically Rochelle and Andy's article with those wonderful hypotheticals. Likewise, with the private international law of IP, which is clearly something different folks might come in or out of their understanding of what is international IP, but I think, is indispensable to our understanding of the field. Rochelle is workload the way there really wasn't much by way of a private international law of IP until the 1990s. But in 1999, Rochelle published her article in Illinois, alerting the IP bar to the importance of the proposed Hague Convention, which then led to her work with Jen Ginsburg on the preparation of the draft treaty and cross border IP. I'm from the air with the addition of also a dismal day to work on the airline principles on transporter IP disputes. The growth in scholarly and policy thinking about a private international life of IP across the globe, anywhere you look, in a quarter century has been remarkable and can be traced in part to our shells, early work. And of course, some of them work since then, has also been Michelle's writing and she's kept doing it writing with Linda so woman, in some cases, myself and Annette tour. Most recently, she has turned her attention to investment disputes writing a series of critical articles, most particularly with Suzy about a turn to that forum and IP matters. And that has again provoked an upsurge in scholarship around the world. examining those questions. I think we might get into some of that with Peter, in a moment or two. So those belaboring the point with further examples I could go on and what makes the subject of international peace of hard is the range of quite different bodies of thought with which it engages. And it takes a very special scholar to be able to do that at the level and with the impact that Rochelle has done in so many different ways. The chapters in the proving IP book that are shown as an overlap, and you can all get it all good bookstores sometime soon wants me to say that, that touch on international IP reflect this range of dimensions, with pieces viewing the topic through the lenses of human rights to health policy, trade policy and the light. And we're delighted that we have with us on this first panel, a group of scholars who have looked at very different aspects of the field. So what I'm gonna do now is turn things over to Susie, who will say a few more words by way of introduction, tell us how the panel is going to proceed, and then we'll get the discussion underway. So
Susy Frankel 5:33
okay, thank you. Okay, that's a typical conference and to say, I was not going to do it. But thank you very much. So if you're an international IP expert, and I know we're all here in person, so we're trying to forget about the pandemic. But if you're an international IP expert, as we're shuttles most certainly is, the COVID-19 has raised particular issues. If asked about COVID-19. We all talk about stories, we have personal what has happened to societies, what's happened to law, schools, and so on. But in some ways, if your concern is around health and access to medicines, watching the pandemic unfold, has been about watching the worst and best excesses of the International intellectual property system unfold before our eyes. Of course, the biggest plus if we put on the innovation hat, which Russia has taught us to put on constantly in the international IP regime, is that it's been wonderful that there have been innovations, of course, someone disagree, but I'm referring particularly to the innovations of vaccines, and there are many others. But the structural flaws of the International IP system have been laid open for all to see and the failure to, in my view, vaccinate the world almost simultaneously make medicines available to all. And that problem continues. So whilst we'd like to hit the panic, that pandemic is receding for many countries, that is not the case, and they do not have access to medicines. And this concern of access to medicines has really driven a lot of concerns from the International IP community, constantly referring both citing and not citing the wealth before health notion that Rachelle and one of her co authors, it introduced us to an international IP. Now, of course, blaming intellectual property for the pandemic is somewhat of an overstatement, because, but it's really about its particular contribution to making the problem, perhaps even worse, and here, without getting too much into the detail will move to substantive topics with us. Because this is the question of voluntary licensing, which just really has not happened with medicines, vaccines, and is continuing not to happen in spite of international dialogue around it. So it is really important that we have a long building of scholarship, driven by leaders such as Rochelle to really address these issues, even if international IP is still systemically failing to ensure access to medicines for all, one of the first things that Rachelle taught me was the notion that international IP has a global knowledge governance function. And although I think implicitly we knew this, a lot of Michelle's work and discussions with me over the time have really brought that up. In fact, her first substantive discussion with me and by substantive I mean, this follows the ones were Hi, how are you? Hey, you know, this sort of thing is to say, to make, you know, this draft article that because I gave her one of my first drafts this briefly, and that's really excellent feedback, as Harry mentioned, scholar friend, but for many of us also a mentor and driving us to improve the written word, and what we say. So I gave her this article around the Vienna Convention on the Law of treaties. Those of you who know me well know, I've written a wee bit about that from time to time. And she said to me, this is really great. We need this article bumped and instead, but and the beauty with what she delivers. Well, I think probably to all of us who right here in the room has been truly fantastic and really important, not only on the personal level, but actually for developing the dialogue, if I can say so here I am on a panel of international IP, you know, a few Americans and meat, right. And I know there's a couple of different origins and you know, maybe just got a bit of a Scottish, Wang and Peters, you know, hung out in Hong Kong for a while and things like that. But Russia has really worked hard to actually have international IP in the United States and as a non American, I can say just how tremendously important that is. For those of you who don't know me, I'm from Victoria University of Wellington to hit her in the locker and tell you how to write in a locker. I'm sure many of you have no idea what I just said. So let me say it again, hey, having a walker is in fact, the new name of my university along with Victoria University of Wellington. And you can guess where Victoria came from. It's something to do with the queen and you know, the colonies and all the rest of it, but Tahera in the walk, so a walker, some of you may have been to Hawaii and the Hawaiians are closely related to Maori in terms of English, and the World Cup is a boat, and taking a walk, literally translated means the bottles in which we all travel, and one of the qualities of Rochelle and international IP is to put us in the boat where we all travel, to have this dynamic debate around the topic. So although she never knew the Marina words from a university, she is the personification of this thing that that we have. So there are many themes to Michelle's work, which we will draw out through the panel and more specific questions. But when I do want to mention as the one size does not fit all, so international IP, we can often think of as being about the TRIPS agreement being about trade agreements, being about documents being about cases being about cross border issues. But one size does not fit all. And all of that's true, it is about those things, but it's as much about the relationship between culture between the law between science and the law. It requires, as Graham mentioned, an interaction with all kinds of areas of law, competition law, now sustainability development. Traditional knowledge is one of those areas, human rights, culture, health education. So one of the pure joys of international intellectual property is you get to talk about everything expert will not, but definitely an expert, in Rochelle, bringing American patent law and patent law internationally very widely into the field. But as the book which has kindly been launched by Harry, the tests to there's much more in Russia has scholarship, other fields also. So international IP, not only is it broad, it's the importance all that I think is much more than the law, it is about the actors and the institutions. And it is with that note that I promise not to talk about international IP all day that move to a couple of questions for our panelists. So what are we going to do on this panel, we're going to have a discussion panel, which we will also open for audience discussion. So rather than asking all our experts here, who who will come to in a minute to actually do presentations, we're going to ask them a few questions the way they will explain their research. So I'm going to begin with Ruth the cache. And Justin who's surprised but no, it says in the email to your question, well come off. So they know Me no introduction. So in our book, improving intellectual property, and I take the opportunity to say there are about 20 of the contributors here in the room, and you will meet them throughout the day. And of course, in a book like this, there are many contributors who today who weren't able to have everyone from the book or everyone in the book, that everyone is making a great contribution. So Ruth and Justin, in your chapter in the book, improving intellectual property, you discuss the very different approaches and goals of international negotiators, when compared to international IP academics. You note, Rachelle has comments that the World Intellectual Property Organization may be a more hospitable environment for more norm making them the World Trade Organization. And broadly, you agree with those that comment, although you make some considerable critique also about it. Can you tell us about some of the challenges for norm making that you see in the World Intellectual Property WIPOs current agenda, handing over to you?
Ruth L. Okediji 14:16
Yes, are we allowed to say something about our show? Oh, wow. So Michelle, thank you for being of light for me personally, and a voice of wisdom and guidance. I've learned over the years if you don't want the truth, don't ask or shall mistake, the mistake no platitudes. No glossing over. That said, I'm so grateful for the stern corrections, the pragmatic advice and all all of the comments on where I've gotten it wrong on one piece or one argument to the other, it has been invaluable for me. And and I want to say thank you, Margot Bagley and I fight a lot about when we met and how we met. But the one thing we don't fight about is the women who have been so significant in our lives, and is to women of color in this field. You know, typically her first responses, will Rochelle said this, or I say, well, Rochelle didn't tell me that. You know, we just, I'm just so grateful. And I want to say thank you. Thank you. Thank you. Okay. See? Okay, you forgot your question. No, I did not. I do not forget the question. I should also record it. I should tell a secret about negotiating at WIPO. So one of the challenges about negotiating in global, especially as academics in global fora is that the schedule doesn't differ to the academic calendar. Surprise, I was an unnamed a colleague who's sitting at this table would text me in the middle of negotiations. I teach Monday, Tuesday, Wednesday. What's your schedule? I teach Tuesday, Wednesday, Thursday. Okay, we're not meeting for negotiations on those days. And the next thing that would happen is there would be an announcement on the floor, the delegation of SO SO and SO would like to propose the following meeting agenda for the next three negotiation periods. And this is how international IP treaties were made differing to the schedule of academic classes, sometimes, sometimes. So what are the challenges that the World Intellectual Property Organization, as many of you know, the politics of what happens in Geneva is starkly different from the political economy of IP lawmaking in every country, including the United States. So when you get to Geneva, you're often dealing not only with the positions doctrinally or politically that the capital who's instructed but you're also trying to navigate the dynamics internally between ambassadors, who often engage in horse trading, and then come back to tell the negotiators, here's what you're going to do. And I can say that about Justin, but I can certainly say that my experience at WIPO made me regret about 10 or 12 articles that I had written, criticizing numerous treaties on IP, because when you're in the sausage making business, you realize that there's only so much room at the table. And the constraints are often imposed not by the people at the table, but by actors that are often far away. And so the idea of IP lawmaking itself, in the literature, I found needed, at least for me, some re examination re examination about the assumptions about what political actors can or cannot agree to compromise on any particular calculus about what matters for that country at the moment. So a country negotiating a free trade agreement that is also involved in a negotiation at WIPO, is less likely to take positions that are in its interest as a pure IP question, as opposed to considering the costs across the board based on the carrots and sticks that are at the broader multilateral or bilateral negotiation. And so all my criticism of negotiations and the the text that emerged from tense negotiations really had to give way to this pragmatic and often dynamic repeat of tensions and compromises that are made not over IP, but over broader geopolitical goals. And I think that's, that's a key thing. The second issue that I would raise and then I'll let Justin jump in here is the question of distrust. It's quite the case that negotiators in Geneva meet over are a wide variety of topics. They meet repeatedly. And they meet for lunch and they attend their children's birthday parties and they form an insular group. And it's a group that learns how to both oppose each other at the negotiating table. But they also know how to send messages about how negotiating stances might change. And what really drives that is the sense of trust within the group. And so as an outsider coming into negotiations, even when you take the same position as UN as other country groups, your opposition may not be welcome, because of the unstated often very thick, cultural environment and social environment that surrounds these negotiators. And so certainly for me, realizing that especially negotiators from developing countries are navigating interpersonal considerations because they know that in a month after the WIPO negotiations are over, we're going to be at the Human Rights Council and I need their vote there. They too are parlaying their votes across four. And those two realizations I think affected my scholarship, certainly after the Marrakesh Treaty, and even till now, just
Justin Hughes 21:26
so I, Rochelle, thank you, too. And as a truth teller, I do have Thank you. I remember the couple of horrendous times I had to be on appointments committees, and when I wanted to know the truth about a patent scholar, I'd call her show. Nobody got hired.
I agree with everything Ruth said, in a way, academics should keep writing idealistically. But I wish that they had a better knowledge of what happens on the ground. So in fact, one of the chapters in the book says something about something in Geneva. And it's like that is blatantly wrong. It's like the exact opposite of the reality. Did you bother to talk to anyone? Right. So although I would like academics to continue to write idealistically, I really would recommend that if you're writing about something where people who worked on it are still alive and breathing. Talk to them. If you're just writing about, you know, 19th century copyright law developments in Uganda, you know, don't worry about just work on the paper record. But if you're writing about things where people are alive, you really need to talk to them as scholars, even if you want to still take a very idealistic position. So I agree with all that it's very personal. Sometimes it's very frustrating. Were you there at this meeting at this meeting with these ambassadors, where it's the IP experts, and within NASA, some ambassadors or one Ambassador keeps going on about, I don't understand the problem here with fair trade. Everyone should be in favor of fair trade, fair trade, and finally, the experts.
And so, you know, that's the kind of thing that happens in Geneva, and you really have to get used to it. And yeah, I think I probably did text you about when meeting should be yes. I also secret secret of diplomatic success. I used to hand out candy at the end of every meeting, bags and bags of candy.
Susy Frankel 23:40
So I'm going to follow up with every challenge question. As we we heard the panel runs the first time I met Justin, he said to me, why should I care about New Zealand there are more people in Orange County. So although Ruth and Justin purport to agree with each other, I never agree with Justin and always agree with Ruth. So I don't know what's going on here. But they've been negotiating out in the corridors and that's actually where a lot of negotiations happens at an international institution, you know, candidate side. So I'm gonna ask them to address one more concrete example. And that's a negotiation and perhaps this is a little more for Ruth. But that's a negotiation that has been critiqued and said to not be legitimate at WIPO, said to be very problematic, but is quite important for a number of countries and not so much this one. But the although it's become very important and should be imported to the United States. And this is the WIPO IGC around the traditional knowledge of generic resources. And we're not going to veer off into so much talking about this subject, but I just thought it might be useful to use that example. Just to illustrate This point about what actually happens in the formal treaty process. But what happens in reality, and one of the reasons that a brief comment on this I think is really useful is that we have started by talking about international norm making, and then they're set versus not actually happening. But one of the strange things about the traditional knowledge debate, and it's more complex than this, just just briefly is that the norms are not made internationally yet. And this is actually causing a rise of national norm making that didn't really exist before the treaties. And that is the complete reverse of the TRIPS Agreement, where the norms that go into that agreement, actually do exist in national states. So I come from one of the few countries where there are kind of a few norms around traditional knowledge, except would never call it that would call it more thorough than the Maori. But that's a developed country, in spite of having fewer people than Orange County. He knows I'm kidding. And that's a very different situation than developing the least developed countries and the protection of traditional knowledge. So my question just a target some of your comments, Ruth really is, do you see that general comment you made about negotiations? And what occurs and corridors and what brings been the same in the IGC? Or are there particular differences with that current negotiation?
Justin Hughes 26:29
Well, I think we would both agree that part of the answer to what you're saying is lack of capacity, or differences in capacity. So, you know, Peru is is sophisticated enough and has enough capacity to write their own TK law, but many countries don't. And, and so I think it's really really underappreciated. When we talk about Rachele and Graham's work and Neo Federalist idea of IP, and diversity and national experimentation, you have to have national capacity. And Brazil has capacity and Mexico has capacity and South Africa has capacity. But dozens of countries don't. And we, it's very hard to very hard to talk about that.
Ruth L. Okediji 27:19
I think I would also say a couple of things, one. And again, another reason that I'm grateful to Rochelle. And you know, Wendy mentioned their little group, Rochelle, and and Pam and Wendy, have taught us, I think, a generation of IP scholars the importance of mentorship, and of pulling the next generation behind you. I mean, I think, as I look at across this room, I don't know of anyone that did that more than these three, it's certainly from my life, and my career. And it's something that has stuck with me, because the task of raising negotiators from the Global South, who who can effectively navigate around the dynamics of a very rapidly moving negotiation is extraordinarily hard. And it is extraordinarily urgent, it is the most urgent task that we have. And I think is we are, I was telling Margo, how badly I feel because after COVID, I sort of stopped going to a lot of conferences, and I don't know a lot of the younger IP scholars that are coming up. But to your point about making sure that we are available to mentor. I can say that that was that's one of the greatest gifts. And it's true in academia, it is very true in IP negotiations. And I think if we are not intentional about doing that, we will write even worse pieces than we do today. It's really important. So let me just say a couple of things. Justin, jokes about the fact that he would hand out candy, but there are a couple of things that that happened. I actually got to really know Justin, during their cache. But one of the reasons that it was so invaluable to me was because Justin, I don't agree on a lot of things back then. But he interviewed me when he was still working for the federal government, just just after trips, and he said, Now you don't really believe this and footnote, whatever, whatever some article that I wrote, I was like, Who is this man? That's that was how I met Dustin. And but I got hired to go do that training or whatever it was to Justin's last in credit. As I said he didn't agree with anything in that piece, but found enough to fight for me to be one of the government's advisors So, now fast forward 25 years where we're in this room. And he is very sensitive to the fact that there very few women in the room, there are very few negotiators who really have a capacity to sort of deal with the US, in particular in the EU. And so one of the things that I observed happening in the rooms, Justin, sort of pulling up an article and sending to negotiators, you might want to read this, if that's really your position, he would put on the academic hat, put it off, you know, on breaks, he would be the professor negotiations, he would be the US representative. But it was an important reminder that our role is academics, educating the public and educating policymakers really is not a role that we can ever put down. And that has been a legacy of Michelle's work. And I think it's crucial that that's the case, he would hand out the candy at the end. Because I don't know if you know that, when we're in these negotiations, they're 18 hour days there. We didn't finish Marrakech until 2:25am. In the morning, we started at 730. And so for African and Latin American, basically negotiators from the global south in Geneva, who are running between five and six negotiations, they get to the IP negotiations, and they're like, what's the technical interface I'm like, you literally are having to do this work. And, and, and Justin's feeding them, we he kind of very cleverly massive, but it was part of saying we understand the fatigue. And we have to keep going. And some of the best ways of resisting the overreach of more powerful countries is building a confidence of negotiators from the developing world to do the kind of negotiations that we're going to need at the IGC. And that lesson is partly what you what Graham and Rochelle wrote about a new federalism, but it's also the lesson that is coming into IGC today.
Graeme B. Dinwoodie 32:03
Thanks, Ruth. Thanks, Jason, I'm really broaden the conversation are ringing, Peter and Christina, a couple of different sets of questions. So Peter, your chapter in the book is on investment, growth, investing a lot in IP, and you suggest it's a little bit early to work out what that impact will be. And Michelle, Susie will written a fair amount on this. And he posted a quote for the fast expanding area which ISDS Disputes can arise involves cutting edge technologies, such as machine learning, artificial intelligence, virtual and augmented reality, and blockchain and cryptography. Can you tell us how you see those areas giving rise to investment disputes?
Peter K. Yu 32:38
Happy to so when I was asked to write a chapter for this book, I thought it is a very good way to look at investor state dispute settlement. Because we learned from Rochelle, not just about how this been developing. I've learned a lot from OSHA, over the years about the TRIPS Agreement, and I was going through some of my past writings. And I see this is from Osho this from Osho. And I even have Patria coming up here and there. So but for investor state disputes Hellman is a very interesting topic in the sense that I learn as much from her as I'm joining her on the journey. So I can see firsthand how you actually approach a new topic. from very beginning, I do get a chance to see that about a TRIPS agreement. I joined that debate a decade or so later, for for investor state dispute settlement. I got to do that. So the chapter talks about the future of investor status presentment. And one claim that I've made is that it's likely that ISDS will be used in areas about big data about artificial intelligence about machine learning. And I tend to get a lot of questions about do you really believe in that? And my reaction to that question is the same reaction I got when Eli levy a plan to file a complaint against Canada, based on investor state dispute settlement, and we were incredulous when we heard about the complaint, and yet it has been going on in led to other companies doing the same. And I suspect that will be the case. The logic is not that difficult to understand. One is that for artificial intelligence, big data platforms, they put in a lot of resources, they put in a lot of investment. If you follow what when he was talking about early on about rochers criticism of evaluate and right, then if you have investment, then they will go for ISDS. So he says actually very logical when you think about why they will be very eager to do that. And when you think about how a lot of those platforms are now pushing the business models, they're also relying on getting data, they're not getting money instead. Right and so Companies and some countries also look at data as the new oil for the 21st century, we have investor state dispute settlement in oil and gas all the time. If data is the new oil, why would we not be surprised that you'll be used, whether they actually will use investor state dispute settlement to deal with those issues is a separate question. And that I can actually go back to some of the chapters that Rochelle has written, actually, during the pandemic. So two of them actually stand out. And she explore why we have not seen a lot of actions coming from ISDS, or why the dog didn't bark. And she offered two different reasons. For the first chapter and the offer. The reason, which I add on to based on the second chapter, the first reason is that the mission is accomplished. So the goal of Allah of those companies trying to use ISDS is not to use this as a new source of tactics, to address those IP issues. But actually to send a message so that a lot of countries will actually slow down on the regulation. So they will actually constrain themselves in terms of what they're going to do in the IP space. And as long as the mission is accomplished, that signal has been sent, then they start from there. The second reason she offers is that ICS is maturing. So is this continue to evolve, and move along of reforms. And so that also make the adjustment in terms of how they actually rely on the ISDS to push for those issues. And the third reason, which is from the latest chapter, which is a follow on in ebook of international investment law, is that no cases have been filed since COVID. And so we also have seen some slowing down with respect to what's going on. And the interesting question I can put together based on both the right text as well as for that chapter is, if what we have seen is ISDS and IP 1.0. Right, what would you plan to be like, would look like? And any thinking about that question we actually can rely on I love the writing several shout has done about ISDS 1.0. And we can actually think about how we can go forward and what they will be like.
Graeme B. Dinwoodie 37:22
Thanks, Peter. So before we open things to questions from Noreen, so we'll bring in Christina and try and bring a trademark dimension to some of this. Christina approaches to international trademark law nor information that differ from other aspects of the International IP system? And if so, do they present any models that the cooperating pattern other people might be able to draw?
Christine Haight Farley 37:47
That's a great question, I would ask Graham Dinwiddie.
Every speaker thus far and probably every speaker for the rest of the day, we'll begin by thanking Michelle by talking about Michelle first, before answering the question. I'm going to talk about myself first. I just want to say how honored and delighted I am to be here to be, and to speak for all of you, for all of the people in this room for all of the people in that book. I think we each represent such a vast multitude of other people who have been inspired by Rochelle who have been informed by Michelle who have been helped mentored by Michelle. And so to be on the shortlist of people who get to be here and say, Thank you. I just feel incredibly honored. So so thank you for sharing. And to your question. So it's a great question. And I guess you could say that when you compare trademarks to other forms of intellectual property, there may be reason to think that although some forms of intellectual property are available to individuals and small businesses, and low and medium income countries, that kind of fit the subject matter criteria, and therefore we could have lots of individualized developments of norms and experimentation that you and Rochelle have have written so much about. trademark law may be amongst the forms that could offer the most variety, because maybe unlike some other forms of intellectual property, at least those individuals and small businesses stand in the position of having actual disputes at their doorstep, right having having needs to rely on trademarks in a way that you know, the copyright that they have or the trade secret that they have is not kind of at the forefront of their of They're concerns and so we could expect much more diversity and experimentation. And have we right and what maybe why not. So this gives me an opportunity to mention something that so many of you, especially everybody on this panel knows that I take no, I missed no opportunity to mention the 1929 Inter American Convention on trademarks.
Graeme B. Dinwoodie 40:30
Florida is complete.
Christine Haight Farley 40:34
Today, and today only, it's actually appropriate. Because back to Michelle as mentor. I blame Michelle, she's encouraged me. She has really encouraged me. And I think and this gets to, you know, I've been reflecting in thinking about this, I've been reflecting on why Rochelle is such a phenomenal mentor to so many people. I mean, everybody has a story of her mentorship, and you can just see it, about how she's been so instrumental. And I think it relates to things that have already been said about her scholarship, being so broad, and, and kind of understanding. You know, she, she puts problems into broader frameworks and contexts and institutional dimensions. And that allows her to see in other scholars, some little germ of something that could be important. And so while I haven't gotten there, in my own scholarship of making the case about why this tree is important, Rochelle has found that might be important. And so so this treaty, which was meant, which was well, which was meant to be a harmonization and development of trademark norms in the Americas, was a great experimentation, right, because it created rights that had never before existed that have ever since existed when it leapfrogged over the Paris Convention and the very recent Hague revision that happened five years earlier, to have extensive unfair competition protections, extensive and very in the broadest geographical indications protection. So it was a case in point of experimentation within trademark law. But one of the things that that I tried to raise and and it really latches on to some of the things that especially Ruth and Justin were talking about, is that there was no capacity from the other negotiators to bring to the table any any pushback or any of their own ideas about what that experimentation might look like. So it was it. The documents and the texts, it was already there. Where did it come from was a mystery. And thank God that I can't be accused of not talking to the people, because they're but that, oh, that's the great mystery. Right? You know, how did it end? And and there's like intrigue about, you know, that text was proposed by a Cuban delegate. No way. It was provoked. It was proposed by Edward Rogers and Steven lattice. But But I think it's a case in point of that. And even looking back at some of these things, it just and maybe this is a good segue into future conversation. I mean, thinking about design treaty and tk treaties, I think, you know, we see a pattern and I think some of the question is, what are the unnamed constraints? Some have already been mentioned.
Graeme B. Dinwoodie 43:50
Thanks, Christine. So I've got a few more followers, but at this point wouldn't be open the floor to anyone who's got questions based upon anything that panelists have already said, or was it the general topic of international IP?
Unknown Speaker 44:08
Two questions. Number one,
Announcer 44:10
I find a lot of data on
Unknown Speaker 44:11
the goal of climate change and trade are mining companies University of Florida to search the nexus between that and IP Global Innovation Network Research Network and IP number two, if you can give me a quick insight on India and its intellectual property regime because I think we're expecting a lot of investment to India now if you know anything about it. Thank you.
Graeme B. Dinwoodie 44:46
Does anyone have expertise in India?
Justin Hughes 44:50
Well, the best way is actually to talk start with Indian academics or Indian government people so I can I can connect you with one person at least who was the right Just throw copyrights in India. But, you know, just ask me afterwards.
Susy Frankel 45:06
So I'm not going to purport to be an expert on India, but I am going to purport to take your question and it may sort of apply to India or just about the way in which Global Intellectual Property intersects with other areas of trade. And that is both good and bad. And then the since there, what, what I've referred to is the global value change. So, one of the things that has drawn Rochelle and I together, and I work as I teach international trade law, and the reason I teach international trade law is when the WTO came out with these decisions about intellectual property, I thought, what are these people talking about? Because this is not intellectual property, and to understand it, and need to look at international trade. And I think that India has come into that for with a very, very different perspective. Right. And so, I can't answer your question exactly, because I'm not an Indian expert. But what we do know is that when, in effect can draw on some of the comments that Christine followed up with, what are the constraints and of course, the constraints, even for large countries with capacity and India has certain kind of capacity is what that capacity is directed to and what it's about. And India has played a very critical role in critiquing IP and saying those pharmaceutical patents Forget it, right. I mean, many in the audience know the detail of that. But that has been enormously important. And it continues to be important. So in what was became rather famous for the Trans Pacific Partnership, and the United States removing itself from that. India actually has really critiqued what has gone on subsequently. And it really removed itself from these sort of accesses of IP. And around that there's quite a lot of data and information. And that's partly about local innovation, but it's also about other trade concerns. So I would just sort of add to that, that that trade IP interface, which is very much at the head of international IP negotiations, even if it's not always the central concern, for many, is enormously important. And it's constrained not just by capacity, it's constrained also by focus. So I come from a country with a great deal of capacity, relative to size, right. But our focus is entirely on agriculture. And West, we have a few things to say about the traditional knowledge debate, the country openly chooses to chair the agricultural negotiations to push these things through, because the survival and this is obviously an example which can be mapped on to other countries, the survival of the internet connectedness of New Zealand, is to try and sell more milk products, the United States to the rest of the world. Right. And, you know, I'm not putting that facetiously. That's actually what's going on, right? Why we are a very large exporter relative to the size. So the constraints are, where does it fit in your agenda? And that is, that is one of the difficulties. India itself puts a lot of focus on certain IP industries and international negotiation. So I read up your question, and I will silence myself now. But I hope that helps build something
Graeme B. Dinwoodie 48:26
that was very helpful. Barbara,
Unknown Speaker 48:28
I have a question about the field of international IP, we touched on the beginning, you said the field of international IP law you talked about at the beginning that you know, what is international IP and and does it do what to what extent does it encompass the kind of private IP law issues on a global scale? So my question is considering that recently, we had Albatron. And the Supreme Court, which talks about kind of extraterritorial reach. We've got the issues of anti anti suit injunctions and standard essential patent licensing. Is it time for a subfield of transnational IP law?
Graeme B. Dinwoodie 49:07
Anyone want to cry?
Ruth L. Okediji 49:09
I mean, let me help her. I don't think this here or haven't seen him, but I think first we started with transnational IP law. I mean, that was where we started. Then we went to international. Then we went to multi lateral and then spawned off a bunch of bilaterals and regionals and now we're back to national. And someone told me when I first became a law professor, actually, Arthur Miller, I think was one who said this to me. You'll see these pendulum swings, and certainly for our field, which began in the very narrow trenches of friendship, commerce and navigation treats me like these three page treaties that have been around. I think you'll see the transnationalism has been Part of the spine of the field. And we are never that far away from it. Even if we give it other names, it comes down to both what particular coalitions of countries practice, the form of the formal ways in which they draw other nations into those practices. And then what ultimately gets negotiated in WIPO. So my my view is that we've never left transnationalism, it's just a matter of what we emphasize, given what the concerns of the day might be. Pristine
Christine Haight Farley 50:39
relatedly comparative law, right. So I was struck in the Congress, I was struck by the argument in Albatron. About kind of comparing US law to international standards to European standards, German trademark law, the European Union filed an amicus brief saying everything a plaintiff is trying to do in the United States they could have done in Germany to the same effect, right. So kind of suggesting to the Supreme Court, that the law is completely harmonized, it makes no difference. And there was much discussion about how well you know how the likelihood of confusion plays out in US law will take care of all of the transnational issues all of the extra Tory, extraterritorial reach problem. Yeah. And, and and I think that just speaks to the need, which I think was raised by the previous question to to really understand in a world of harmonized standard, where the differences exactly are, and we need to do we need to we need to stop glossing over these differences and suggesting ways in which they are alike and drill down on on the differences,
Graeme B. Dinwoodie 51:56
then I know you were in it was since you mentioned avatar, I know you were in listening to the argument, do a sense that we're going to end up with a very different role of extraterritoriality of trademark after after June.
Christine Haight Farley 52:08
So I think what we'll end up with is the broadest statement about how there's a presumption against extraterritoriality backed up by a second part of, but likelihood of confusion solves the problem. And so there is no problem. So we it's a statement about the extra territorial problem by eliminating it completely. That's my optimistic view.
Graeme B. Dinwoodie 52:32
Any other questions?
Unknown Speaker 52:37
Yes. So I was struck by the statement that these same negotiators order every negotiation, I think another problem in international law is fragmentation. So why do we have fragmentation if all the same guys are at all of the same conferences? And is there anything that we can do about that?
Justin Hughes 52:56
Would you mean fragmented? Well, well,
Unknown Speaker 52:58
I mean, the TRIPS agreement says one thing, and another woman says something different. The TRIPS agreement says, authors have rights and human rights treaty say that other people have rights.
Justin Hughes 53:09
So so so in May, the angle and representative has to jump from meeting to meeting to meeting, but by next January, it's somewhat different. And that person may have a great deal of education, they may have a one, you know, they may have a stellar resume, but they just don't know. I mean, Larry's chapter talks about the beginning of Marrakech was this, you know, 1967 revision of burn? And this is what happened on Article Nine. It's like, no one mentioned that for four years, like no one, and you know, they're like, we're not idiots about that stuff. So So, so institutional memory is a real issue, even with countries that have a great deal of capacity, because they're they are diplomats, they're rotating. So that's a huge issue.
Ruth L. Okediji 54:05
I should also add that and Margo will probably speak about this because she's been a friend of the chair at WIPO for the last five years, and it's kind of really leading the IGC work. But the other thing is that the Secretariat's have their own vision of what the world should look like. And they are often in especially in HRC, and some of the other fora, they are the invisible hand. And this is an area where I think our scholarship is falling short is we look at the text, we started looking at the negotiators, we look at the geopolitics. We have done very little work on the institutions and the agencies that really drive the agenda of international IP and that I would suggest is a work that we must take on
Justin Hughes 54:58
but it varies from me agency to agency how much they can drive it. And it varies from motion to regime like now WIPO. Now at WIPO, the clear message to the bureaucracy is you can be a little more out front, under Francis, the message was, don't do not, you know, do not do not have anybody come into my office and say, Why are you saying, why are your people saying that? Now, they're a little more forward leaning?
Peter K. Yu 55:29
I think one thing, put some more documents online. Oh, yeah. So So I think one thing people don't say too much, is how divided a lot of countries are. And then that actually goes to the question from the gentleman about India, right? If you hear any single narrative about country, that's likely to be wrong. Right? We love to talk about how India is very much about the generics industry, it is the pharmacy of the developing world, and look at what's going on with the COVID-19 trips waiver. They are pushing for halfword waiver in Geneva. And the capital is saying, No, we don't want to go for that. Right. And I think that's a very good case of how a lot of countries are pre divided. It's not just India, it's the same thing for China, for a lot of emerging countries. Some industries want to go certain way, other ministries want to go the other way. And if you go to a forum where some industries and some ministries get dominated, they will be able to push the positions they need in order for him. And so that will end up be somewhat different.
Susy Frankel 56:37
So part of the issue around fragmentation, and it just another point is when you're at WIPO, their focus is intellectual property. And of course, in other forums, if it's mentioned, the focus is different. Of course, the reality around free trade agreements and trade negotiations isn't so much necessarily that the focus is just trade. It is a recognized problem, that the way in which the negotiations are split to goods, services, and intellectual property actually has no bearing on reality, and what actually happens in the real world, because this is not how any business necessarily operates. But it is how governments structure their negotiations. So fragmentation, just another angle. And you know, this is pretty hard to solve as often arises, because you have a particular framework to negotiation. So this can also be true of WIPO that actually doesn't reflect what intellectual property and innovation is happening and how it works. And that may spill out on dialogues around global value chains that may spill out another way. So that's another way to address the fragmentation point.
Graeme B. Dinwoodie 57:42
Any questions before? Well, I'll just avoid them. Yes.
Thank you.
Unknown Speaker 57:57
Thank you. My question relates to the negotiations at international institutions for international treaties. So as Professor COVID, you mentioned, since there is not much room for deciding on what will go in the text, we when we look at past three days, when we are especially if it's a question relating to new technologies, we refer to supplementary texts for interpretation, because we know the text will not be enough for us to address a specific situation. So we look at for example, preparatory bricks to discussions that took place. So my question is, it's actually addressed to everyone but might be more relevant to Professor Hughes and Professor Kennedy, did you have a strategy to decide to determine what will at least go into discussions so you know that it will not go into text? But did you have an agenda to determine what will at least be maybe use a supplementary means in the future?
Justin Hughes 58:54
Well, the Americans treaty is unusual, because one of the ways it is written, And Larry's contribution to the book to Rochelle talks about this is that it actually says, here's the international legal norm, here's how you can implement it. And it's designed for countries of all levels of capacity. So that they don't have to, they have a template to just implement it by taking the provisions just as they are. So that was an intentional effort to address the capacity problem. And to produce uniformity and to overcome concerns about developed countries leaning on other countries and saying, Well, don't do it that way, or you're going too far. If there was a template in the treaty saying you do it this way, you're fine. I would be very impressed about national governments that actually look at preparatory works. The tribal prepper at twice ignored too often, in my opinion, including bIack academics who do a crappy job of actually studying the turbo pepper are taught to understand how something evolved.
Ruth L. Okediji 1:00:07
But yeah, I should just say, this question should go to Professor Reitman and Professor Samuelsson because the only model that I think we have is the WC T and all of the agreed statements. And because that was done, in my view, so Well, it was avoided. We don't we have a couple we use a couple in Marrakech. But that became essentially the standard. I mean, we said, well, VCT did it and when we couldn't agree on the text, we just dumped stuff in the read statements. And
Justin Hughes 1:00:47
I don't know how many of you have noticed this. But IP world treaties are full of agreed statements. The only other place I found them in international law. Interestingly enough his arms control treaties. International Treaties don't do this agreed statement stuff. So that arms control nuclear weapon treaties are Bae on agreement statements. So IP and
Graeme B. Dinwoodie 1:01:09
I should say the addition to Palantir is working on that really fine article in the same issue that powers peace and resolves peace with anyone unfolds in biennial net now that explores that through the lens of the Vienna Convention, which I think is actually well worth, well worth reading. One follow up was written and Justin in your chapter, you really suggest that WIPO as a more hospitable institutional design for the development of some of the values that you think are important international IP system. So that means as a result, we have two very different institutions out there and WTO and WIPO. Would it be better if the WTO became more like WIPO? Or is it a good thing, that you have two differently constructed constructed institutions?
Justin Hughes 1:01:53
I don't place I teach international trade to I don't place much future in the WTO.
Graeme B. Dinwoodie 1:01:59
So that means we have what do you think do you think basically, that we should write them off? And that that's no the prevailing reason for why we moved away? Or is it an institutional design point, more
Ruth L. Okediji 1:02:12
than what you said the WTO, not too long ago, or what I will say is for IP, I would write off the WTO unless we have a global pandemic or crisis that requires high political compromise in a very short period of time, because that's not what you get. But certainly, I feel very vindicated in my work. But you know, I think both Jared and Rochelle did not agree with me in the beginning. And I said, this trips thing is short lived. And I think we are we've seen the effective end of trips. And I don't think we're going to see that kind of treaty outside of WIPO, it nor setting treaty outside of WIPO for a very, very long time. If ever again, I think the idea that we're all going to submit to the interpretations of the panel is something that the US thought it could live with. And I think the US will not live with it. And I think the US also far less influenced by
Graeme B. Dinwoodie 1:03:13
it even you may not because of the IP angle, work with the broader concerns. But yeah.
Susy Frankel 1:03:20
Just briefly, I'd add a couple of points. So I think that because the US has a concern with the WTO, it actually has provoked, in some ways other countries revitalizing the WTO. And you shouldn't underestimate what the WTO will do with IP because then the way we can say, trips has come to a standstill, we're not going to renegotiate the norms, but in fact, it's one of the few WTO treaties that has been renegotiated even if not properly since the formation of the WTO. Although there have been subsequent ones on trade facilitation and fishing subsidies, not our topic of today, actually changing American trucks as it has been twice, even if not effectively, that is actually significant. So I don't entirely agree. Also, the WTO is a more hospitable forum, ironically, for some of the broader IP issues, because WIPO, has in fact, broadened its agenda partly because I thought it was losing it to the WTO. So the relationship of having another institution to drive WIPO to boredom, its agenda is enormously important. So I wouldn't even just say it's a direct effect. It's an indirect effect. And of course, part of my job is to always disagree. Additionally, I do want to pick up on a point because it's very hard for me to let it go. It's really important that scholars and everyone look at the Travon repertoire, but it's also really important, they don't believe it, because frequently the trombone is written by the length negotiators. So if we're concerned with the capacity building of developing countries, why should we look at the draft that is presented by the United States or by the EU as a method of determining the final law Great greement And that is why the Vienna Convention rules actually say that that is supplementary and not your starting point. So I don't mind if an article never even gets to the Travon because of the supplementary. So the process that is agreed internationally is read the words that ordinary meaning and life object and purpose and context, man, that's not to say that it's not about future problems of itself. But I think it was exactly no problem to look at that, to avoid the trouble of the TRIPS agreement. It tells you something interestingly, historical, but it is not primarily the interpretation method. And so therefore, I have it, but I disagree.
Graeme B. Dinwoodie 1:05:39
To one very quick one with Michael Mathias your question and
Unknown Speaker 1:05:50
thank you so much. So if now even the interventions from the audience thought praising Rochelle, I am afraid we will have to end up tomorrow morning like in an international trade negotiator. But just briefly, I'm very much into US patent law now independent been for the inspiring papers by Rochelle in the beginning of the 2000s. I probably wouldn't do it. So thanks very much. And here's my question. And it really troubles me it's about the idealistic literature on international IP treaties, because there is a kind of Voldemort catch 22 here. And that is that traditional wisdom tells you on methodology, that historic interpretation of these treaties shouldn't rely so much on the historic because you've just had the tribal prepper to are, they are sometimes very limited in scope. And what you really have to do is talk to people. But then if you write academically. From a methodological viewpoint, you mustn't talk about this. Because several people might tell you several things, there is no reliability to this. So how do you deal with it that catch 22 It is indeed a Voldemort catch 22 It's that knowledge you must not talk about. Because methodologically as long as this isn't later on in official notes, and official travel preparatory, or how to use it in an academic paper. And this really troubles me because on the one hand, you will know. And you want to derive certain consequences from this. On the other hand, you mustn't tell the audience about the premises because everyone will tell you, but this is just what some persons told you. Others might felt here might have felt differently. So how from an academic viewpoint, would you deal with that catch? 22?
Graeme B. Dinwoodie 1:07:43
Ruth, Justin quickly?
Justin Hughes 1:07:44
Well, I don't if you said to a historian, Professor, you shouldn't interview people from an academic methodological perspective, they'd say, or you're crazy. So I'm not sure why legal academics in this kind of question, shouldn't look at historical academics, history academics to say how do you do it? That's always troubled me about writing about the past is I want to know what a historian would do. And I think I started with interviewing people even it was applying a grain of salt.
Ruth L. Okediji 1:08:14
So I'm going to end up with saying something about Rochelle, again, to answer your question. I had not met Rochelle, when I read her piece with Andreas low and failed about the TRIPS Agreement. Conflict, new dispute resolution, and I, I hugged that piece every night. That's how much I loved it. And I That's weird. But that's how much I loved it. It's dog eared. But there's something really important about that piece. It was the piece that number one said that there were senior academics who were taking international IP seriously, both for its impact on US law, and its impact in shaping the field more broadly. But second, that piece fully engaged. This idea that IP was interdisciplinary, and that really opened up a space. And so if you look at the work of Greg Schaefer, who writes on access to medicines and patent law, and Fay Roberts who writes on international public law making, this is a phenomenon we're seeing, you're raising it as an IP issue. It's actually political scientists and International Relations scholars have been doing this exact thing really regularly. So the challenge is for IP scholars, and in particular international IP scholars to begin to look at the methodological approaches, and really begin to conceptualize what is it about IP that makes the field so vulnerable to questions of legitimacy simply because the formalities have not been adhered to in the process of lawmaking.
Graeme B. Dinwoodie 1:09:55
So Harry, do you have a quick win and Michael
Unknown Speaker 1:10:01
So I'm sort of an outsider to this, but the whatever prepper a tar? I mean, it sounds cool. I have never heard of that before. And, you know, it sounds like this is all countries negotiating. I haven't heard anything about what's really behind these countries, the IP rights holders, I mean, I don't get it trips, what is this big pharma? Whereas, you know, the major platforms, the major holders of IP rights, they're silent somehow, you know, don't ask me, it's just affecting my whole business. So I sort of my tendency is to look through, you know, what government negotiators are negotiating for, and saying, so what would Google say, you know, what is Google one? What is Amazon one? What is Alibaba one? And that to me? I mean, I haven't I don't think I've heard much about that as a driver of international negotiations. But I'm sure that Rochelle has written about it. And well, she's talked about it anyway. We've maybe within the I don't know. So that's my just brief, but ending question and comment about our discussion, which I found interesting. And, you know, some of them are very new to me. Thanks.
Graeme B. Dinwoodie 1:11:19
Thanks. Sorry. I mean, there's a fair amount written around the timing of trips, Susan cell and others who wrote about the extent to which actually chips was pushed by particular industry industries. And one of the, I think, interesting and Ruth and Justin can either confirm or reject this as I actually think that there's more balanced probably from the mid 90s on in terms of the industries that are actually having input to some of the policy and you've got large players, Google and others now who actually a very different view of intellectual property than perhaps the people were pushing trips from 1991 to 1994 1995. But your take as a political reality, as a positivist is entirely correct. Let's, since we're a couple of minutes over and Michael will kill me if we go any further. Let me on behalf of all of us, thank the panel, and OMAP all of us that are charlatans we're gonna do
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