A Spatial Critique of Intellectual Property Law and Policy

By Yu, Peter K. | Washington and Lee Law Review, Fall 2017 | Go to article overview

A Spatial Critique of Intellectual Property Law and Policy


Yu, Peter K., Washington and Lee Law Review


I. Introduction .................................................................... 2046

II. Law and Geography ....................................................... 2049

III. A Longstanding Link ..................................................... 2058

A. The Principle of Territoriality ................................. 2064

B. The Doctrine of Exhaustion of Rights ..................... 2067

C. Geographical Indications ......................................... 2073

D. Regional Intellectual Property Norms .................... 2079

IV. Geographical Complexities ............................................ 2089

A. Inside the Border ..................................................... 2091

B. Across the Border ..................................................... 2100

C. Beyond the Border ................................................... 2109

V. A Two-Way Dialogue ...................................................... 2117

A. Spatializing Law ...................................................... 2118

B. Legalizing Space ...................................................... 2123

1. Inside the Border ............................................... 2123

2. Across and Beyond the Border .......................... 2128

VI. Conclusion ...................................................................... 2132

I. Introduction

From border walls to travel bans to the import tax, President Trump and his earlier electoral campaign have embraced policies that evoke powerful geographical imageries.1 While the use of these imageries have excited supporters and reminded them of the president's commitment to putting "America First,"2 it has also raised considerable policy concerns while alarming the United States' neighbors in the north, the south, and across both oceans.3

Regardless of one's support for the current administration, however, location-based policy discussions are likely to continue in at least the next few years.

Coincidentally, there has been renewed scholarly, policy, and popular attention to geographical studies and spatial analysis. Having closed the Geography Department shortly after the Second World War, Harvard University reentered this intellectual turf by launching a new Center for Geographic Analysis in fall 2005.4 In addition, the geographically based works of Jared Diamond and Robert Kaplan have become New York Times bestsellers.5 Meanwhile, Nobel Laureate Paul Krugman successfully introduced "new economic geography" through his academic and popular works, bringing geography and international trade closer to each other.6

Interestingly, although geography has had an important and lasting impact on the development of intellectual property law and policy-at both the domestic and international levels7- geographical perspectives and spatial analysis have thus far not attracted much attention from policymakers and commentators. Only recently have we seen greater linkage between these two undeniably connected fields.8 Even with such linkage, the discussion tends to focus narrowly on specific issues, such as the parallel importation of pharmaceuticals,9 the protection of geographical indications,10 and the treatment of traditional knowledge and traditional cultural expressions.11

Taking note of the limited interactions between intellectual property and geography, this Article critically examines issues lying at the intersection of these two interconnected fields. Part II recounts how the post-war decline of academic geography in the United States helps explain the limited role of geographical insights and spatial analysis in law and policy debates.12 It further explores the revival of geographical studies just as intellectual property began to garner greater public attention in the 1980s and the 1990s.13 Part III notes that geography has had a longstanding and profound impact on the development of intellectual property law and policy. …

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