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Concept Paper

The emergence of global markets, digital environments and new technologies has disclosed a number of new “spaces” that have profound implications for the development of intellectual property rights. Cyberspace and digital media, in particular, have opened new venues for creative activities and the sharing of what are, in many cases, new kinds of information. Besides that, such actors as users of intellectual products, right holders, developing countries or NGO’s have emerged as powerful players in the legal process. These changes urge for the reconsideration of the ‘balance of interests’ debate in contemporary intellectual property law.

The aim of this conference is to explore the possible implications of “institutional turn” in legal scholarship for copyright, patent and private international law aspects of the exploitation of intellectual property rights. The institutional methodology helps to identify “variables” (such as litigation costs or the limited resources/capacities of an institution) which are the causes of uncertainty existing in the legal decision-making process. In order to reduce the external costs of uncertainty institutionalism analyzes which institution (e.g. courts, legislator or administrative agencies) is the best decision-making body taking into account the type of decision being taken and an institution’s particular capacities. Institutionalism can further be used as a methodology in searching for the most appropriate formulation of norms (rules vs. standards) and interpretative approach in given institutional settings.

The conference will focus on three areas:

I. Copyrights. The copyright system’s “delicate balance” between the author’s exclusive rights and the public interest is threatened greatly in the new digital environment. The establishment of digital copyright system expanded the copyrights of right holders dramatically. Meanwhile, the “users” who are no longer merely passive consumers but active and potential future creators have emerged as vital stakeholders and begun to push more vigorously for their own rights. The institutional focus on “deciding who decides” might provide new insights in discussing proposals on rebalancing of rights between these new users and rights holders, or considering the choice between rights and exceptions as well as between precise or broad definitions of such rights and restrictions. 

II. Patents. Recent harmonization initiatives through the TRIPS Agreement have expanded patent protection substantively and territorially. Yet challenges exist both at the national and international level. Countries have to align domestic patent protection with international obligations not doing away with national economic and social policies. At the international level countries are very different in terms of their economic development and institutional capacities; therefore institutionalism might prove to be useful tool when trying to find the optimum for the global patent system.

III. Private International Law of Intellectual Property. In the field of private international law two main questions have caused turbulence: where should cross-border intellectual property disputes be litigated and which law shall be applied. If institutionalism would be adhered to, the increasing role of private parties would imply the need to reconsider the underlying principles and policies of private international law. It is expected that institutionalism may offer a new perspective on the “orthodox” grounds of establishing jurisdiction or interpreting such nebulous concepts as the “closest connection”.

The purpose of the Kyushu Annual Law Conference is to facilitate intra- and inter-disciplinary debate regarding the international exploitation of intellectual property rights, and to provide possible new approaches towards balancing interests among the growing circles of stakeholders and contribute to the North-South/East-West debate.

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