Intellectual Property Arbitrage: How Foreign Rules Can Affect Domestic Protections

Pamela Samuelson

1/01/2005
(Original Publish Date: 2003)

Differences in national intellectual property rules may cause economic activity to shift from one jurisdiction to another such that a higher protection rule in one jurisdiction will be undermined by lower protection rules in other jurisdictions. This article illustrates this phenomenon with four examples: as to rules on the enforceability of anti-reverse engineering clauses of software licenses, the protectability of bioengineered research tools, peer to peer file sharing, and exceptions to anti-circumvention rules. It considers several options nations may have to respond to intellectual property arbitrages, none of which is likely to be very effective.