Programme Expert Workshop Tilburg University, 28/10/2016 Global Property Law? TRIPS Illusion Prof. Martin Senftleben Vrije Universiteit Amsterdam Bird & Bird, The Hague
Intellectual property
Really global?
Principle of territoriality …national intellectual property rights …cross-national objects of protection
International treaties
World Intellectual Property Organization (WIPO) Berne Convention for the Protection of Literary and Artistic Works (1886/1967) Paris Convention for the Protection of Industrial Property (1883/1967) many further treaties, such as the Patent Cooperation Treaty (PCT) and the Madrid Agreement and Protocol (Madrid System)
Example: Paris Union
National treatment and minimum rights Art. 2(1) of the Paris Convention: ‘Nationals of any country of the Union shall, as regards the protection of industrial property enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention.’
National treatment and minimum rights Art. 5(1) of the Berne Convention: ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.’
National treatment and minimum rights international minimum standard country A country B
World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994) Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization (GATT 1994) inclusion of the intellectual property system in global trade regulations
Controversy and Opt-Out I: Overprotection
Development Dimension copyright: information products patents: technical know-how distinctive signs: product marketing, goodwill
Health issues
Health issues
Information issues
Information issues
Information issues
Flexibility – departure from global norms? Article 9(2) BC TRIPS Agreement Article 13 (Copyright) Article 17 (Trademarks) Article 26(2) (Industrial Designs) Article 30 (Patents)
Article 13 TRIPS: “Three-Step Test” “Members shall confine limitations or exceptions to exclusive rights to… certain special cases (1) which do not conflict with a normal exploitation of the work (2) and do not unreasonably prejudice the legitimate interests of the rights holder (3).”
Global lawmaking incapable of keeping pace with technological development? Continuous expansion of protection standards Insufficient room for competing values?
Controversy and Opt-Out II: Underprotection
Most-favored-nation treatment Art. 4 of the TRIPS Agreement: ‘With regard to the protection of intellectual property, any advantage, favor, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.’
Renaissance of bilateral agreements variety of trade-related instruments Free Trade Agreements (FTAs) EU Association Agreements Bilateral Investment Treaties (BITs) ‘investment’ includes intellectual property rights Bilateral IP Treaties (BIPs) = in many cases TRIPS-plus approach broader and broader territorial scope (TPP)
Cyclic Evolution of Global Norms?
Back to the future Revision of IP treaties in 20-year intervals = TRIPS revision in the near future? bilaterals IP treaties
contact: m.r.f.senftleben@vu.nl The end. Thank you! contact: m.r.f.senftleben@vu.nl