Originally from Investment Treaty Arbitration and International Law - Volume 11

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The intangible nature of intellectual assets, intellectual property rights and technology makes these resources and valuables detached from a physical location. The ubiquitous nature of these assets required the introduction of a legal fiction, which is shared internationally to offer protection to assets which are mainly the fruit of an intellectual exercise. It took several centuries for such a legal concept to emerge. And, maybe quite ironically, free access to new revolutionary technologies has stimulated the creation of intellectual property rights. Once the concept was introduced in various countries across the world, people quickly understood that, for an protection of intellectual property and technology, international cooperation and harmonization was needed. But the world in which the international legal framework for the protection of intellectual assets was created is very different today. And, as will be explained in this article, the international legal framework could use some updates to adapt to the needs of today’s fast evolving information society.

I. HISTORICAL CONTEXT 

Paraphrasing Carl Sagan, to understand and to shape the future, we must look at the past.  We should try to understand the reasons behind the creation of intellectual property rights as well as the context in which international cooperation was sought.

A. Introduction: Society’s Changed Perspective on Copying

As we have become more familiar with the concept of intellectual property, our vision on copying the creations and innovations of others has shifted, quite dramatically. For centuries, knowledge was passed on simply by copying your ancestors. This mechanism is still omnipresent in many tribal communities. For ages, society valued the perfect or enhanced copying of old masters. E.g., in Ancient Rome, artists were heavily inspired, and to a large extent copied, the art and poetry of the Greeks. Roman architects did the same with the building techniques. And they all tried to make improvements, adhering to the principle of imitatio et aemulatio. Artists, authors and architects used the state of the art to build further on it. Thanks to monks copying ancient books in the Middle Ages, society was able to preserve treasures from ancient times. Also during the renaissance period, the principle of imitatio et aemulatio reigned supreme.