Parallel importation: A framework for a Canadian position on exhaustion of intellectual property rights
Bibliographic record
Abstract
The Trade-related Aspects of Intellectual Property Rights Agreement (the Agreement) negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) resulted in an 'agreement to disagree' on the issue of exhaustion of intellectual property rights. Article 6 provides that nothing in the Agreement shall be used to address the issue of exhaustion of intellectual property rights, thereby leaving each Member free to establish its own regime for exhaustion. Canada has not exercised its discretion to establish a regime for exhaustion. As well, Canada's highest court ignored this important issue in its decision in Euro-Excellence Inc. v. Kraft Canada Inc. 1 where four separate and conflicting judgements considered whether copyright could be used to prevent parallel importation. This thesis adopts a multidisciplinary approach, drawing on methodologies developed through international economic law, political science and business strategy to argue that Canada ought to proceed with a national and global welfare analysis of alternative regimes for exhaustion. This thesis contributes to this analysis by arguing that reduced incentives to innovate and free rider problems that may flow from allowing parallel imports do not provide sufficient justification for the use of Canada's intellectual property regime to control parallel importation. This leads to the conclusion that domestic intellectual property rights should not protect vertical distribution arrangements that facilitate territorial price discrimination. The debate over exhaustion policy is critical to resolve problems of access to essential medicines in developing countries. Article 31 bis, the only amendment to a core World Trade Organization Agreement, and Canada's Bill C-9, the Jean Chretien Pledge to Africa, are designed to enhance access to essential medicines, while controlling diversion. This thesis concludes that a policy of national exhaustion is not necessary to prevent diversion of essential medicines from developing countries to developed countries and recommends that Canada's competition policy, trade policy and intellectual property regime ought to adopt a unified approach towards parallel importation by endorsing a policy of international exhaustion of intellectual property rights. 1Euro-Excellence Inc. v. Kraft Canada Inc. [2007] S.C.C. 37; Kraft Canada Inc. v. Euro-Excellence Inc., [2006] 3 F.C.R. 91 (F.C.A.); [2004] 4 F.C.R. 410 (F.C.) [Kraft Canada].
Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.
How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.011 | 0.010 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.007 | 0.006 |
| Science and technology studies | 0.024 | 0.060 |
| Scholarly communication | 0.020 | 0.011 |
| Open science | 0.006 | 0.009 |
| Research integrity | 0.012 | 0.012 |
| Insufficient payload (model declined to judge) | 0.010 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".