All posts by Kathy

Identity and IP: how who we are informs our work

ISHTIP Online Discussion. 19/20 July 2021

A discussion of personal and identity-based perspectives exploring how these connect in some way with IP writing and research.

Attendees: Fady Aoun, Kathy Bowrey, Veit Erlmann, Susy Frankel, Hyo Yoon Kang, Jessica Lai, Sharon Le Gall, Toni Lester, Charleston Thomas, Hai-Yuean Tualima, Andrew Ventimiglia, Andrea Wallace.

Academic Open Letter in Support of the TRIPS Intellectual Property Waiver Proposal

July 2021

ISHTIP members Prof Graham Dutfield (University of Leeds), Dr Hyo Yoon Kang (Kent Law School), Dr Luke McDonagh (London School of Economics), along with Dr Aisling McMahon (Maynooth University) and Dr Siva Thambisetty (London School of Economics) have drafted an open letter signed by over 100 IP academics in support of the Indian and South African proposal for temporary TRIPS waiver “as a necessary and proportionate legal measure towards the clearing of existing intellectual property barriers to scaling up of production of COVID-19 health technologies in a direct, consistent and effective fashion”.

Drawing upon the history and theory of intellectual property, the letter acknowledges that patents have never been absolute rights. They are monopoly rights granted to serve the public interest. Patents “ must not be allowed to stand in the way of measures designed to make accessible the health technologies needed to fight the COVID-19 pandemic, where universal global access is essential for the global public good.”

Monopolies over tacit and informal information, are also implicated in the current lack of global capacity for vaccine production and other health technologies, as well as in enabling their inequitable distribution.

The letter calls on the governments of the United Kingdom of Great Britain and Northern Ireland, Australia, Brazil, Japan, Norway, Switzerland and the European Union to drop their opposition at the World Trade Organisation and to support the TRIPS waiver proposal.

You can read the full letter and list of signatories here:

Panel Discussion on Intellectual Property Law Scholarship and Pedagogy 
in Times of Covid-19 Pandemic

Co-hosted by 
Center for Social Critiques of Law, Kent Law School and 

International Society for the History and Theory of Intellectual Property (ISHTIP)

Graham Dutfield (Leeds)
Hyo Yoon Kang (Kent)
Fiona Macmillan (Birkbeck)
Luke McDonagh (LSE)
Aisling McMahon (Maynooth)
Alain Pottage (Kent/ SciencesPo)
Els Torreele (UCL Institute for Innovation and Public Purpose) 

Traditionally IP law, and patent law in particular, had been regarded a legal technical and technocratic subfield. This panel discussion intends to review and discuss the state of the IP scholarship and pedagogy in light of the fissures within the field that have been laid bare at least since the so-called “TRIPS IP waiver” discussion. 

Over the course of the pandemic, issues around intellectual property law, especially regarding monopoly rights and trade secrets around the Covid-19 vaccine, have been problematised in general media. These have often centered around the ongoing battle for TRIPS IP waiver since October 2020. 

Amidst the ongoing discussions, intellectual property law and particularly patent law, have been catapulted into the public eye. After US threw in its limited support, there has been a divergence of perspectives on the Waiver proposal argued by IP scholars, both in favour and against the proposal and its significance. 

Diverse approaches to IP law and its purpose within the scholarship are not new. The current crystallisation of IP law’s current role in the prolonging of the Covid-19 pandemic, however, affords an apt opportunity to take review the scholarly field of of intellectual property law itself and its political and social role. 

The panel will discuss existing IP law scholarship and pedagogy, identifying their epistemological and ontological foundations, methodologies, and their relation to the current political economy. It will critically assess the past and present of the IP scholarly field and offer some thoughts for its improvement. 

Free registration:

‘Cultural Heritage and IP’, Fiona Macmillan in conversation with Jose Bellido and Kathy Bowrey

May 20 BST 11am/CET 12 noon/ Pacific 3am/EST 6am/AEST 8pm

‘Cultural Heritage and IP’, Fiona Macmillan (Birkbeck) in conversation with Jose Bellido (Kent) and Kathy Bowrey (UNSW)

The encounter between creativity and cultural production, on the one hand, and legal regulation, on the other, demonstrates the systemic and conceptual limits of the law. It raises a host of questions that traverse – in multiple senses and contexts – distinctions between things like public and private, property and the commons, individual and community, product and process, idea and expression, tangible and intangible, movable and immovable, conservation and destruction, authentic and fake, and, perhaps most fundamentally, nature and culture. This book is about these binary distinctions – about how they hold and how they do not hold – in the context of the legal regimes governing copyright and cultural heritage. While the book argues that these two legal regimes are held together by a common approach to these binary distinctions, they are also held apart by their dominant frames of reference. While copyright as a private property right locates all relationships in the context of the market, the context of cultural heritage relationships is the community, of which the market forms a part but does not – or, at least, should not – control the whole. The current international law concept of cultural heritage, however, is weakened and hollowed out by a fossilized vision of heritage that is not up to the task of resisting the constant impositions of the market. The book proposes a radicalized concept of cultural heritage/property that locates and regulates cultural production within the dynamic and mutually constitutive process of community formation. Only such a concept, the book argues, will provide a basis for resisting the reduction of everything to its value in the market, for resisting the commodification, and creeping propertization, of all our cultural production.

Fiona Macmillan is Professor of Law at Birkbeck, University of London, and Visiting Professor of Law at the University of Roma Tre and the University of Technology, Sydney. She is a member of the ISHTIP Executive Committee. Her new book, Intellectual and Cultural Property. Between Market and Community, was published by Routledge, 2021.

Jose Bellido is Reader in Law at Kent University. He is a member of the ISHTIP Governing Board and a PASSIM project team member.

Kathy Bowrey is Professor at the Faculty of Law & Justice, University of New South Wales and Co-Director, ISHTIP. She is a Visiting Scholar, State Library of NSW (2021) and Research Fellow, Museum of Applied Arts and Sciences, Australia.

To download a transcript of this discussion:

Coming soon

‘Patent Capital in the Covid-19 Pandemic’, Hyo Yoon Kang in conversation with Mario Biagioli and Javier Lezaun

May 4 BST 10am/CET 11am/Pacific 2am/EST 5am/ AEST 7pm

‘Patent Capital in the Covid-19 Pandemic’, Hyo Yoon Kang (Kent) in conversation with Mario Biagioli (UCLA) and Javier Lezaun (Oxford)

In the present pandemic, there has been increased public interest and media reporting on intellectual property, in particular patents and know-how, in relation to the vaccine and other medicines against Covid-19. The WTO is still considering the proposed waiver of TRIPS related enforcement of intellectual property rights in Covid-19 medicines. Such an interest in the purpose and effects of patent rights has also been accompanied by some misunderstandings and misleading polemics.

Drawing on her recent writing about ‘Patent Capital in the Covid-19 Pandemic’ as a starting point, Hyo Yoon Kang will be in conversation with Mario Biagioli and Javier Lezaun. In light of the current extraordinary mobilisation of scientific, technical and financial resources, the panel will discuss the justification for patents and the notions of commons and publics, and consider them within the interdisciplinary intellectual property, science and technology studies scholarships.

Hyo Yoon Kang is Reader in Law at University of Kent. She leads Kent Law School as a project partner in the ERC PASSIM project.

Mario Biagioli is Distinguished Professor of Law and Communication at the University of California at Los Angeles. He is a member of the ISHTIP Advisory Board.

Javier Lezaun is Associate Professor in the School of Anthropology and Museum Ethnography and Director of the Institute for Science, Innovation and Society (InSIS) at the University of Oxford.

To download a transcript of this discussion:

‘Commodification of creativity’, Kathy Bowrey in conversation with Martin Fredriksson and Brad Sherman

22 April BST 11am/CET 12 noon/ Pacific 3am/EST 6am/AEST 8pm

‘Commodification of creativity’, Kathy Bowrey (UNSW) in conversation with Martin Fredriksson (Linköping) and Brad Sherman (Uni of Queensland)

There is an enduring and wide-reaching interest in understanding how copyright interacts with creativity, free speech, national cultures and new technologies. Without tracing the incorporation of authorship into the actual business practices of the global book, music and film industries we can’t begin to fully appreciate creator investments in copyright philosophy. How was the author’s right to intangible property as established in the 19th century so effectively mobilised by multinational corporations to create the modern cultural industries of the 20th century? Despite the image projected in advocacy that highlighted the benefits of copyright to all in the abstract, not all writers exploited copyright in the same manner or had access to the same social privileges, though standard forms of exploitation did emerge. To understand why some benefited and why others did less well, the relevance of writers’ different personalities, personal objectives, knowledge, experience, social networks and fortunes needs to be taken into account, but these factors play out differently depending upon genre, anticipated market, commodity forms and geographical location. Change in the significance of copyright and better outcomes for creators can come about when the value of authorship is reconsidered in light of a deeper understanding of how law functions in the cultural marketplace. It is hoped that readers of this book will support this endeavour by drawing upon a more critical understanding of copyright’s history in the 20th century and, in helping shift how relationships between art, law and society are perceived, deliver more control over creative lives than was evident in the previous century.

Kathy Bowrey is Professor at the Faculty of Law & Justice, University of New South Wales and Co-Director, ISHTIP. Her new book Copyright, Creativity, Big Media and Cultural Value. Incorporating the Author was published by Routledge, 2021.

Martin Fredriksson is Associate Professor at the Unit for Culture and Society (Tema Q), Linköping University. He is a member of the ISHTIP Governing Board.

Brad Sherman is Professor of Law and UQ Laureate Fellow at the TC Beirne School of Law, University of Queensland. He is a member of the ISHTIP Advisory Board.

To download a transcript of this discussion:

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