Forthcoming in H Ullrich, R Hilty, M Lamping, J Drexl, TRIPS plus 20 – From Trade Rules to Market Principles, Springer (2015) Max Planck Institute for Innovation & Competition Research Paper No. 15-05.
Abstract: In the 1980s, significant differences in the levels of intellectual property (IP) protection around the globe triggered unilateral responses of the US as the key demandeur for stronger IP rights. Aspects of this IP unilateralism in turn served as a trade barrier for the importation of goods from other countries into the US. Some of these US measures were successfully challenged as a breach of international trade rules under GATT. The WTO TRIPS Agreement then created common standards for IP protection and enforcement, including some binding rules on IP as a barrier to trade that were motivated by the pre-TRIPS experiences. Against this background, this paper questions whether the rules in TRIPS and GATT are still adequate to deal with today’s reality of IP protection and enforcement in and beyond the trade context. This reality is increasingly framed by unilateral, bilateral and regional standards of IP rule-making that go beyond the multilateral norms found in TRIPS and create an increasingly fragmented system of “TRIPS-plus” protection and enforcement of IP rights around the globe.
My core argument is that the uncoordinated expansion of TRIPS-plus rules increasingly serves as a barrier to global trade. This in turn begs the question whether the WTO rules on IP (TRIPS) and those on trade in goods (GATT) are still fit to operate in such a changed environment and can provide for adequate safeguards against trade barriers based on uncoordinated expansion of IP protection and enforcement. My proposed answer is that for TRIPS and GATT to fulfil this function, they have to be applied in a way which facilitates harmonized, global maximum standards or ceilings for IP protection and enforcement as a necessary counterpart to the familiar minimum standards. These ceilings do exist in GATT and TRIPS, but have been under-used in the first 20 years of the WTO. I suggest that there are indications and good reasons for relying on them more extensively in an effort to mitigate the trade barriers resulting from uncoordinated expansion of TRIPS-plus rules in the last 15 or so years. In addition, in an ideal world, we would be aiming to introduce multilaterally agreed, more specific ceilings ensuring that reasonable limits to IP rights are available on a global scale.
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