Professor Graham Dutfield's Publications
Knowledge Management and Intellectual Property Concepts, Actors and Practices from the Past to the Present, ed. by Dutfield G and Arapostathis S (Edward Elgar Pub, 2013)
Essential reading, not just for IP historians and lawyers, but for anyone concerned at the insidious corporate take-over of modern life.
Intellectual property and human development: Current trends and future scenarios, ed. by Dutfield G and Wong T (Cambridge University Press, 2012), 1-397
Review in nature biotechnology by Philip Grubb "A patently negative view of industry" - http://www.nature.com/nbt/journal/v21/n12/full/nbt1203-1439.html
© Public Interest Intellectual Property Advisors 2011. Copyright, the category of intellectual property (IP) most associated with the arts, is currently undergoing scrutiny from several sectors. Industry-oriented copyright owners, like music labels, are lobbying for more control of their songs. At the same time that digital rights management models are being reworked, the public is demanding greater access and less cost for copyrighted works. Authors and artists (who are not necessarily owners of their copyrighted work) are, ironically, not at the centre of this debate, although it is usually their creations over which these other parties are debating. Indeed, the individual artist working in today's IP environment has a different set of concerns than does the agency that commodifies his or her work. The legal interests of creators and the legal interests of copyright holders can be very different, and many of the legal issues at stake (e.g. moral rights) are highly dependent upon the jurisdiction in which the artist is working. The following sections describe some of the situations where contemporary artists face challenging IP issues, including jurisdictional inconsistencies. For these purposes, ‘contemporary art’ comprises visual and multimedia creative expressions made after the Second World War.
Intellectual Property Rights and the Life Science Industries: Past, Present and Future, Second (World Scientific, 2009),
Global Intellectual Property Law (Edward Elgar, 2008),
Innovation without patents: Harnessing the creative spirit in a diverse world, ed. by Dutfield G, Suthersanen U and Chow KB (Edward Elgar Publishing, 2007)
Review in the Journal Intellectual Property Law and Practice by philippe de Jong "A new world view" - http://jiplp.oxfordjournals.org/content/early/2008/05/22/jiplp.jpn096.short
Focusing on innovation and development, this book, easy to read and full of interesting detail, provides both valuable insight into the theoretical framework of innovation as supported by intellectual property protection and contains valuable case studies of national systems of innovation in the Pacific Rim States. - Thomas Dreier, University of Karlsruhe, Germany. This book is concerned with the extent to which innovations should or should not be protected as intellectual property, and the implications this has upon the ability of local manufacturers to learn to innovate. © The Editors and Contributors Severally 2007. All rights reserved.
Intellectual property, biogenetic resources and traditional knowledge ([n.pub.], 2004), 1-258,
© Graham Dutfield, 2004. All rights reserved. Biogenetic resources - the critical biological and chemical materials that underpin so much of medicine, both modern and traditional, agriculture, and wider economic activity in so many fields - are at the centre of heated debate regarding their use, development, and ownership, and the issues of ethics and equity that impinge on all of these factors. This book is a comprehensive examination of the key issues, institutions and ideologies in this area, presenting definitions and explanations of the fundamentals of intellectual property rights (IPRs), biogenetic resources and traditional knowledge. It uses the insights from this to build a picture of how these factors interact in practice, bringing to the surface issues such as: the conservation and sustainable use of biodiversity, benefit sharing from the commercial use of biodiversity, biotechnological innovation and the transfer of technology, agriculture, food security, rural development, health and international justice. Part 1 describes the relevant international IPR laws, highlights the extent to which modern commerce depends on such resources, and traces the way in which modern IPR law has evolved to accommodate this dependence. Part 2 shows how stronger IPR protection in the area of life science innovation has given rise to controversies such as 'biopiracy', 'terminator' genes and genetic uniformity. Part 3 focuses on traditional knowledge, its nature, its importance, and the applicability of IPR-style protection. Part 4 covers the international negotiation and policy-making of the WTO, WIPO and CBD and the legislative initiatives of national governments of Asia, Africa and Latin America. Finally, Part 5 focuses on two developing country case studies - of India and Kenya - assessing whether they will be able to gain economic benefit from development of their natural resources within the current regulatory system and whether this will encourage the conservation and sustainable use of the resource base. With its multidisciplinary approach and breadth of coverage, this book will appeal both to those new to the subject and to those with professional and specialist interest, including students, academics, legal practitioners, government policy-makers and the private sector.
Intellectual Property, Biogenetic Resources and Traditional Knowledge (Earthscan, 2004), xiii,258p,
Intellectual Property Rights and the Life Science Industries: A Twentieth Century History (Ashgate, 2003), ix,288p,
Trading in knowledge: Development perspectives on TRIPS, trade and sustainability, ed. by Dutfield G, Bellmann C and Meléndez-Ortiz R (Routledge, 2003), 1-358
Review in World Trade Review 3.02 (July 2004) by Cynthia Cannady "North–South trade in intellectual property: can it be fair?" - http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=245327
© International Centre for Trade and Sustainable Development (ICTSD), 2003. An unprecedented surge in the scope and level of intellectual property rights (IPR) protection has been engulfing the world. This globalizing trend has shifted the balance of interests between private innovators and society at large and tensions have flared around key public policy concerns. As developing nations' policy options to use IPRs in support of their broader development strategy are being rapidly narrowed down, many experts are questioning the one-size-fits-all approach to IPR protection and are backing a rebalancing of the global regime. Developing countries face huge challenges when designing and implementing IPR-policy on all levels. This book offers perspectives from a diverse range of developing country participants including civil society participants, farmers, grassroots organizations, researchers and government officials. Contributions from well-known developed country authorities round out the selections.
‘TK unlimited: The emerging but incoherent international law of traditional knowledge protection’, Journal of World Intellectual Property, 20.5-6 (2017), 144-159,
DOI: 10.1111/jwip.12085, Repository URL: http://eprints.whiterose.ac.uk/123051/
© 2017 The Authors. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd There is an emerging international regime complex concerning traditional knowledge (TK). Debate continues on what form legal protection should take including how benefits from commercial use ought to be shared. This article considers how far progress is feasible. It makes three related claims. First, dominant in policy debates has been a tendency to position “tradition” in direct and binary opposition to “modern”. We show how this is ahistorical, reinforcing misconceptions regarding the nature of TK, and its relationship to other knowledge systems. It also tends to discourage possibilities for mutually advantageous collaborations based on respect for local norms regulating access, control and ownership. The second claim is that many TK advocates, by misconceiving it this way, are too expansive in terms of the knowledge that they demand the proposed international regimes should cover. This precludes possibilities for policy coherence. The third is that the access and benefit sharing measures envisaged by the Convention on Biological Diversity tend to downplay the social and cultural value of TK for holders and their communities themselves. This matters because of TK's significance to local people's lives, which is likely to outweigh potential monetary value that may arise from its translation into biotechnological knowledge inputs.
‘Healthcare innovation and patent law's 'pharmaceutical privilege': Is there a pharmaceutical privilege? And if so, should we remove it?’, Health Economics, Policy and Law, 12.4 (2017), 453-470,
DOI: 10.1017/S1744133117000111, Repository URL: http://eprints.whiterose.ac.uk/114895/
© 2017 Cambridge University Press. This article reviews current trends in patent claims regarding personalised, stratified and precision medicine. These trends are not particularly well understood by policymakers, even less by the public, and are quite recent. Consequently, their implications for the public interest have hardly been thought out. Some see personalised and other secondary drug patent claims as promoting better targeted treatment. Others are inclined to see them as \manifestations of 'evergreening' whereby companies are, in some cases quite cynically, trying to extend market monopolies in old products or creating new monopolies based on supposedly improved versions of such earlier drugs. The article claims that the relaxation of 'novelty' is a privilege unavailable to inventions in other fields and that on balance the patent system does privilege this industry and that no adequate case has yet been made thus far to prove the public benefits overall.
‘Designing a labelling system for biocultural heritage-based products’, Policy Matters, ed. by Castka P and others 2016, 140-148,
Repository URL: http://eprints.whiterose.ac.uk/115061/
Although labelling and certification schemes exist for ecological and fair trade products, there is no such scheme that seeks to benefit producers and at the same time specifically protect biological and cultural diversity. A certification system promoting unique biodiversity-based products could be based on the strong overlap between areas of high biological and cultural diversity, and growing evidence that cultural values play a critical role in conserving biodiversity. The interaction between a particular culture, traditional knowledge, and biodiversity and landscape (i.e. ‘biocultural heritage’) is a source of creativity for developing such products. This paper reviews experiences with the Potato Park’s informal trademark, the use of Geographical Indications (GIs) and the Maori Organics label. It shows that existing schemes such as GIs and collective trademarks can be hard for indigenous producers to access, while indigenous schemes can be effective in conserving biodiversity. It presents an alternative ‘Biocultural Heritage Indication’ (BCHI) labelling system which is being developed to ensure wide and easy access by indigenous peoples and protect biocultural diversity.
‘Corporate Crops: Biotechnology, Agriculture and the Struggle for Control’, JOURNAL OF ENVIRONMENTAL LAW, 26.3 (2014), 541-544,
‘Who invented glivec? Does it matter anyway?’, Economic and Political Weekly, 48.32 (2013), 41-42,
This article looks at Glivec's journey from its invention to its patenting and sale while questioning the concept of credit for inventions in science and technology.
‘Collective Invention and Patent Law Individualism: Origins and Functions of the Inventor’s Right of Attribution’, The WIPO Journal, 5.1 (2013), 25-34,
‘Transboundary Resources, Consent and Customary Law’, Law, Environment and Development Journal 2013, 259-263,
This brief commentary focuses on the unresolved access and benefit sharing (ABS) challenges of transboundary resources and situations where getting prior informed consent is not possible. In the absence of the global mechanism envisaged by the Nagoya Protocol, satisfactory ABS deals can still be struck but these are unlikely to be either common or effective in generating substantial benefits for the indigenous peoples. The commentary closes by underlining the moral imperative of ensuring that traditional knowledge and genetic resource users comply with the laws and customary practices established by indigenous groups rather than simply impose their own norms. However, there are many legal and conceptual obstacles to be overcome first.
‘Patent on Steroids: What Hormones Tell Us about the Evolution of Patent Law’, Intellectual Property Journal, 23.3 (2011), 249-266,
The hormones era from 1900 to the 1960s was a period of intensifying pharmaceutical industry internationalisation and competition within and across national boundaries. Patents and patent strategy were essential aspects of this evolutionary process. Hormones are chemical messengers produced by living organisms including humans. They form a wide range of products from anti-inflammatories to contraceptives. As soon as hormones were found to have commercial potential, industry faced the challenge of how to mass-produce them. This was obviously a scientific matter, but it was also a business issue and an intellectual property one. Both production pathways of extraction and hormone synthesis turned out to be equally capable of resulting in patentable subject matter. This was so even when said matter was based on a substance produced by an organism or else was a laboratory-produced copy of one. This set a historic precedent for the patenting of “natural” things like antibiotics, genes, cells, microbes, plants and animals. Thus, the patenting of hormones helped allow us to conceive of biotechnological products as patentable inventions.
‘The Manchester Manifesto: A missed opportunity?’, Prometheus (United Kingdom), 29.3 (2011), 353-357,
Graham Dutfield is professor of international governance at Leeds, research affiliate of the Intellectual Property Law and Technology Program at York University, Toronto, and adjunct professor at the Center for Studies of Intellectual Property Rights at Zhongnan University of Economics and Law, Wuhan. His research on intellectual property crosses several disciplines, including law, history, politics, economics and anthropology. © 2011 Copyright Taylor and Francis Group, LLC.
‘A critical analysis of the debate on traditional knowledge, drug discovery and drug-based biopiracy’, European Intellectual Property Review, 33.4 (2011), 237-243,
‘Why traditional knowledge is important in drug discovery’, FUTURE MED CHEM, 2.9 (2010), 1405-1409,
‘Who invents life – blind watchmakers, intelligent designers or genetic engineers?’, Journal of Intellectual Property Law and Practice, 5.7 (2010), 531-540,
‘Sustainable development in world trade law’, EUR LAW J, 14.3 (2008), 387-388,
‘Delivering drugs to the poor: will the TRIPS Amendment help?’, Am J Law Med, 34.2-3 (2008), 107-124,
‘Global biopiracy: Patents, plants and indigenous knowledge’, LAW SOC REV, 41.3 (2007), 746-748,
‘DNA patenting: implications for public health research’, Bull World Health Organ, 84.5 (2006), 388-392,
I weigh the arguments for and against the patenting of functional DNA sequences including genes, and find the objections to be compelling. Is an outright ban on DNA patenting the right policy response? Not necessarily. Governments may wish to consider options ranging from patent law reforms to the creation of new rights. There are alternative ways to protect DNA sequences that industry may choose if DNA patenting is restricted or banned. Some of these alternatives may be more harmful than patents. Such unintended consequences of patent bans mean that we should think hard before concluding that prohibition is the only response to legitimate concerns about the appropriateness of patents in the field of human genomics.
‘Patent Systems as Regulatory Institutions’, Indian Economic Journal, 54.1 (2006), 62-90,
‘Piracy as Terrorism, Copying as Theft: The New Intellectual Property Fundamentalism in International Law and Politics’, None 2006, 1361-4169,
‘Turning knowledge into power: intellectual property and the world trade system’, AUST J INT AFF, 59.4 (2005), 533-547,
‘Dangerous harvest: Drug plants and the transformation of indigenous landscapes’, GEOGR J, 171 (2005), 179-180,
‘Mind sharing’, Foreign Policy 2005, 84-85,
‘Harmonisation or differentiation in intellectual property protection? The lessons of history’, Prometheus (United Kingdom), 23.2 (2005), 131-147,
Developing countries find themselves pressured to harmonise their intellectual property (IP) standards so that they match those of the United States, Europe and Japan. This article provides historical evidence to support the authors' claim that when developed countries demand that the rest of the world adopt their current IP regulations, developed countries are preventing other countries from adopting appropriate patent and copyright standards for their levels of development. Developed countries thereby deny a freedom to others that they themselves enjoyed when they were developing. © 2005 Taylor & Francis Group Ltd.
‘The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity’, Circulation Research, 1.4 (2004), 379-421,
patent and copyright law
‘Regulating access and benefit sharing’, BIOTECHNOL DEV MONIT 2002, 2-7,
‘TRIPS-Related Aspects of Traditional Knowledge’, Case Western Reserve Journal of International Law, 33.2 (2001), 233-275,
‘The Limits of Substantive Patent Law Harmonization’, in Patent Law in Global Perspective, ed. by Okediji RL and Bagley MA (Oxford Universiry Press, 2014),
Patent law harmonization at the level of principles, rules, and institutional structures is a highly ambitious goal. Its practical intent is to facilitate secure patent coverage on a global scale and for the longest period possible, and to accelerate and cheapen the process of attaining it. Economically the stakes are very high, not just for businesses but also for nations. Generally speaking, harmonization based on high protection standards benefits leading innovator countries and large businesses already enjoying strong market power assisted by their ownership of sizeable intellectual property portfolios. Follower nations and businesses seeking to enhance their innovation levels prefer, understandably, to maintain a greater freedom to copy than such harmonization would allow. This chapter reviews recent harmonization efforts at the international level and explains their lack of success despite the apparent economic and political dominance of advocates and the relative weakness of opponents.
‘Traditional knowledge, intellectual property and pharmaceutical innovation: What’s left to discuss?’, in The SAGE Handbook of Intellectual Property ([n.pub.], 2014), 649-664,
‘Geographical indications and agricultural community development: Is the European model appropriate for developing countries?’, in The Intellectual Property and Food Project: From Rewarding Innovation and Creation to Feeding the World ([n.pub.], 2014), 175-200,
‘Geographical indications and agricultural community development: Is the European model appropriate for developing countries?’, in The Intellectual Property and Food Project: From Rewarding Innovation and Creation to Feeding the World, ed. by Lawson C and Sanderson J (Ashgate Publishing Ltd, 2013), 175-200,
‘Patent law, the emerging biotechnologies and the role of language in subject-matter expansionism’, in Intellectual Property and Emerging Technologies: The New Biology ([n.pub.], 2012), 117-130,
‘From traditional medicines to modern drugs’, in Genetic Resources and Traditional Knowledge: Case Studies and Conflicting Interests ([n.pub.], 2012), 93-107,
‘Plant intellectual property, food security and human development: Institutional and legal considerations, and the need for reform’, in Research Handbook on the WTO Agriculture Agreement: New and Emerging Issues in International Agricultural Trade Law ([n.pub.], 2012), 133-395,
‘Exploring the flexibilities of TRIPS to promote biotechnology in developing countries1’, in Research Handbook on the Protection of Intellectual Property under WTO Rules ([n.pub.], 2010), 1, 540-588,
‘Protecting the rights of indigenous peoples: Can prior informed consent help?’, in Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San-Hoodia Case ([n.pub.], 2009), 53-67,
This chapter assesses the meaning, origins and uses of prior informed consent and the assumptions underlying its application to traditional knowledge and biological resource transactions. It also deals with the complexities that need to be overcome before it can become a workable policy tool. Using a case study approach, the chapter shows why applying prior informed consent requirements in very diverse and extremely different cultural settings, and in very tense political contexts, can be immensely challenging. Even with the best intentions and the most carefully drawn up plans, things go wrong. It also shows that the concept may in many cases be inapplicable because a great deal of knowledge and resources is already in free circulation and can no longer be attributed to a single originator community or country. This should not, however, lead us to conclude that there can be no moral obligations even in the absence of legal ones. As a consequence of the manifold and complicated linkages between drug discovery and marketing, obtaining prior informed consent may do little to resolve biopiracy in its broadest sense. However, this is not to suggest that it is a useless concept. Indigenous peoples have a right to expect bioprospectors to request their consent formally. Still, obtaining prior informed consent is not a substitute for respect of basic human rights. Prior informed consent should be seen as a necessary but not a sufficient requirement for the establishment of more equitable bioprospecting arrangements - but only if it is acquired according to procedures that are effective, culturally appropriate, transparent and flexible. © 2009 Springer Netherlands.
‘Knowledge diplomacy and thenew intellectual property fundamentalism’, in Interpreting and Implementing the TRIPS Agreement ([n.pub.], 2008), 31-45,
‘The pharmaceutical industry, the evolution of patent law and the public interest: A brief history’, in Emerging Issues in Intellectual Property: Trade, Technology and Market Freedom: Essays in Honour of Herchel Smith ([n.pub.], 2007), 109-159,
This chapter traces the historical development of the modern pharmaceutical industry and shows how the development of this industry and of patent law were tightly linked. As the chapter indicates, patent regulation has never been solely an economic issue or just a technical matter. Politics and international relations are essential elements as well. The way that the industry has helped to shape the development of patent law requires us to consider the extent to which the public interest has been accommodated. © The Editor and Contributors Severally 2007. All rights reserved.
‘Utility models and other alternatives to patents’, in Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World ([n.pub.], 2007), 18-63,
‘Should we regulate biotechnology through the patent system? The case of terminator technology’, in The Regulatory Challenge of Biotechnology: Human Genetics, Food and Patents ([n.pub.], 2007), 203-213,
‘Innovation and development’, in Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World ([n.pub.], 2007), 3-12,
‘A rights-free world - is it workable, and what is the point?’, in Intellectual Property: The Many Faces of the Public Domain ([n.pub.], 2007), 211-225,
‘Japan and South Korea’, in Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World ([n.pub.], 2007), 142-151,
‘Conclusions and recommendations’, in Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World ([n.pub.], 2007), 195-200,
‘Innovation and the law of intellectual property’, in Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World ([n.pub.], 2007), 13-17,
‘Social and economic consequences of genetic use restriction technologies in developing countries’, in Agricultural Biotechnology and Intellectual Property: Seeds of Change ([n.pub.], 2007), 293-303,
Seed companies now have the capability to genetically engineer seed to protect their intellectual property rights (IPRs) by inhibiting genes that lead to reproduction in self-pollinating crops. While this 'terminator technology' may be essential for encouraging further innovation in seed technology, it has also elicited a great deal of controversy. This chapter explores the economic implications of the technology on developing countries. Terminator technology has the genuine potential to seriously disrupt agricultural systems that support the livelihood of hundreds of millions of people in the developing world. This chapter provides two proposals concerning Genetic Use Restriction Technologies (GURTs) that would benefit both seed companies and farmers in developing countries. First, adequate competition must be maintained to provide farmers with a real choice between terminator seed and non-terminator treated seed. Second, governments must support public-sector research in agriculture, because GURTs may lead to an excessive corporate concentration in agricultural research. © CAB International 2007.
‘Legal and Economic Aspects of Traditional Knowledge’, in International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime, ed. by Reichman and Maskus (Cambridge University Press, 2005), 495-520,
‘The genetic code is 3.6 billion years old: it’s time for a rewrite’: Questioning the metaphors and analogies of synthetic biology and life science patenting’, in New Frontiers in the Philosophy of Intellectual Property (Cambridge: Cambridge University Press, [n.d.]), 172-202,
‘Intellectual property rights and gene-based technologies for animal production and health - Issues for developing countries’ Conference on Applications of Gene-Based Technologies for Improving Animal Production and Health in Developing Countries,
Intellectual property rights (IPR) are legal and institutional devices to protect creations of the mind. With respect to gene-based innovation, the most significant IPR is patents. Appropriate patent regimes have the potential to foster innovation in animal biotechnology and the transfer of gene-based technologies. Inappropriate patent systems may be counter-productive. Indeed, many critics are doubtful that the current international patent standards, based as they are on a combination of the United States of America' and European regimes, can help countries that lack the capacity to do much life science and biotechnology research to become more innovative or contribute to the acquisition, absorption and, where desirable, the adaptation of new gene-based technologies from outside. Present legislation in Europe, North America and internationally is considered, together with the controversies and important policy questions for developing countries, and the choices facing countries seeking to enhance their scientific and technological capacities in these areas.
‘New forms of sui generis protection’, in International Expert Workshop on Access to Genetic Resources and Benefit Sharing, Record of Discussion, ed. by BellotRojas M and Bernier S ([n.pub.], 2004), 196-198,
‘What is biopiracy?’, in International Expert Workshop on Access to Genetic Resources and Benefit Sharing, Record of Discussion, ed. by BellotRojas M and Bernier S ([n.pub.], 2004), 89-92,
‘Protecting traditional knowledge and folklore’, in MOLENGRAFICA SERIES 2002: INTELLECTUAL PROPERTY LAW, ARTICLES ON THE LEGAL PROTECTION OF CULTURAL EXPRESSIONS AND INDIGENOUS KNOWLEDGE, ed. by Grosheide FW and Brinkhof JJ ([n.pub.], 2002), 63-99,