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ISBN: 9781552213537-04

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The Precautionary Principle and Its Application in the Intellectual Property Context

From: Intellectual Property for the 21st Century

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This chapter considers whether the precautionary principle —a central element of contemporary environmental law and policy — can be usefully applied in the intellectual property context as a means through which the public domain can be protected. Assuming the importance of the public domain, and arguing that expansions in intellectual property protection risk harming the public domain, this chapter contends that it is appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain; suggests several ways in which a precautionary principle (or a precautionary approach) could be applied in the intellectual property context; and considers one possible instantiation of the precautionary principle in the context of intellectual property reform, namely in the form of a Public Domain Impact Assessment (PDIA). Modelled on the Canadian Environmental Assessment Act, the PDIA is envisioned as a process through which proposals for intellectual property reform, prior to their enactment, are evaluated by an independent review panel in order to determine their potential impact on the public domain.

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Graham J Reynolds

Graham J Reynolds is an Assistant Professor at the University of British Columbia, Faculty of Law. He teaches and researches in the areas of copyright law, intellectual property law, property law, and intellectual property and human rights. Prior to joining the UBC Faculty of Law in 2013, Graham was an Assistant Professor at the Schulich School of Law at Dalhousie University, where he was the Co-Editor in Chief of the Canadian Journal of Law and Technology and a member of Dalhousie University’s Law and Technology Institute. The recipient of an award for excellence in teaching, Graham has completed graduate studies at the University of Oxford, where he studied on a Rhodes Scholarship, and has served as the judicial law clerk to the Honourable Chief Justice Finch of the British Columbia Court of Appeal. Graham is currently completing doctoral studies in law at the University of Oxford. The Social Sciences and Humanities Research Council of Canada and the Pierre Elliott Trudeau Foundation supported his doctoral work, which focuses on the intersection of freedom of expression and copyright in Canada.