Intellectual Property Ordering beyond Borders

Cover
Half-title
Title page
Copyright information
Contents
List of Contributors
Preface
Part I The Broad Environment for Intellectual Property Protection beyond Borders
1 The International Intellectual Property System from an Economist's Perspective
Abstract
Abstract
A. Introduction
B. Comments on IP Reforms, Innovation, and Economic Growth
I. Growth Regressions
II. Innovation
III. Summary
C. New Research in IP Protection and International Trade
I. TRIPS, PTAs, and IP Reforms Increase High-Technology Exports in High-Income and Middle-Income Countries
II. IP Protection Correlates with Export Quality and Sophistication
III. High-Technology Exports from Developing Countries May Be Impeded by IP Rights in Rich Countries
IV. IP Protection Shrinks Effective Distance within Production Networks
V. The Specifics of Patent Protection Matter for Trade Flows
VI. Patent Rights and Global Innovation Networks
D. Concluding Remarks
References
2 Cast into the Stones of International Law: A Critique of the UPOV Standards in the Light of Scientific Insights and Policy Shifts toward Agroecology and Natural Farming
Abstract
Abstract
A. Introduction
I. Research Questions
II. Arrangement of the Paper
B. Assumptions Underlying UPOV
I. (Botanical) Varieties versus (Legal) Varieties
II. The Scientific (Ir)rationale of the DUS Requirement
C. Assumption Underlying the Convention on Biological Diversity (CBD) and the Seed Treaty
I. The Scope and Importance of 'Diversity' and 'Traditional Knowledge'
II. The Relevance of Landraces and Genetic Variability
III. Seed-Soil Interactions, Nutrition and Environmental Sustainability
D. Traditional Ecological Knowledge and Agrobiodiversity: Lessons from the Natural Farming Movement in India
I. Traditional Ecological Knowledge and Agrobiodiversity
II. TEK and the Natural Farming Movement in India
III. Seed Biodiversity in TEK and Natural Farming
IV. Soil Biodiversity in TEK and Natural Farming
E. Conclusions and Recommendations
I. Trends in Europe
II. Reviving Agrobiodiversity and Local Food Cultures
III. Rethinking the DUS Test
3 Economic Nationalism in Intellectual Property Policy and Law
Abstract
Abstract
A. Introduction
B. Inbound IP Policies
I. IP First Movers
II. Discrimination against Foreigners
III. Weak IP Catch-up Policies
C. Outbound IP Policies
I. Sanction Foreign Pirates
II. Unilateral Reciprocity Requirements
III. International IP Treaties
1. General Function of IP Treaties
2. The Berne and Paris IP Unions
3. Decolonization
4. The TRIPS Agreement
5. IP Treaty Making in the Twenty-First Century
6. Art. 31bis TRIPS and the Marrakesh VIP Treaty
D. Conclusion
I. A Dialectic Virtuous Circle
II. The Economic Nationalist DNA of IP
4 Hybrid International Intellectual Property Protection: Coherence, Governance and Balance
Abstract
Abstract
A. Introduction
B. Mapping a Hybrid World of International Agreements on IP
I. The International Core of IP Protection and Its Multilateral and Regional Levels
II. The ''Trade Turn''
III. The Bilateral Turn: Preferential Trade Agreements
IV. A Hybrid System
C. Dealing with Complexity
I. Coherence and Effectivity
1. Coherence After an Unfriendly Takeover: The WIPO-WTO Relationship
2. The Multilateral TRIPS Agreement and Patent Term Adjustment: Conflict or Harmony?
3. Potential Conflicts among Different PTAs
4. Conclusion
II. The Governance Dimension
1. The Trade Turn as a Governance Problem
a. The Trade Linkage: A Strange Additional ''Ratchet'' Effect
b. Talking to Trade People
c. The WIPO System: Regulatory Competition?
2. The Bilateral Turn: Pros and Cons
a. Bargaining Power and Fairness in Negotiations
b. Restricted Number of Parties: Exclusivity
c. The Lack of Transparency and Participation
d. A Pioneering Function
e. Conclusion
III. Balancing
1. Balancing in IP: How It Works at National Level
2. Balancing as an Objective of the TRIPS Agreement
3. The Protection of IP Rights as an International Concern
4. The Public Interest: Primarily a National Concern
5. Policy Spaces and Treaty-making
6. Public Interest: Support by Other International Law Rules
D. Conclusion
Part II Intellectual Property Protection within Its General International (Economic) Law Context
5 The Role of Customary International Law for Intellectual Property Protection beyond Borders
Abstract
Abstract
A. Introduction: Rationalising the Treaty Origins of International IP Law
B. Difficulties in Identifying Custom in International IP Law
C. The State's Right to Regulate as a Rule of Customary International Law
D. Should International IP Treaties Recognise an Inherent Right to Regulate?
I. What Is the Operational Scope of a Right to Regulate in the Context of International IP Protection?
II. Have States Contracted Out of Their Police Powers by Agreeing to International IP Treaties?
III. The Contours of WTO Members' Police Powers in Light of TRIPS
E. Conclusions
6 Interpretation of IP Treaties in Accordance with Articles 31-33 VCLT: A Case Study on the Practice of the European Patent Office
Abstract
Abstract
A. Introduction
B. Articles 31-33 VCLT: Overview of Principles Relevant for EPC Interpretation
I. Ordinary Meaning (of Multiple Languages)
II. Context
III. Object and Purpose
IV. Preparatory Materials
V. Other Criteria for Interpretation of Treaties
C. Current Practice at EPO
I. Data Set Used for the Systematic Analysis of EPO Case Law
II. Applicability of the VCLT to the Interpretation of the EPC
III. VCLT Interpretation Criteria Applied by EPO (EBoA and BoA)
1. Ordinary Meaning
2. Context
3. Purpose and Teleological Arguments
4. Preparatory Materials
5. Other Criteria of Interpretation
IV. A Controversial Example: Conflict over 'Native Traits' at EPO
1. Background of the Legal, Social and Economic Conflict over 'Native Traits'
2. The Controversy over Article 53(b) EPC at a Glance
3. Function of VCLT Criteria Reflected in the Conflict Over Native Traits
a. G 2/07, G 1/08 'Tomatoes/Broccoli I': Emphasis on Legislative History
b. G 2/12, G 2/13 'Tomatoes/Broccoli II': Judicial Self-Restraint
c. T 1063/18, G 3/19 'Pepper': Dynamic Interpretation
D. Conclusions
7 Parallel Trade and Exhaustion of Intellectual Property in WTO Law Revisited
Abstract
Abstract
A. Introduction
B. The Impact of WTO Law
C. The TRIPS Agreement
I. Exhaustion (Article 6)
II. Trademark Rights Conferred (Article 16)
III. Patent Rights Conferred (Article 28)
IV. Compulsory Licensing (Articles 31 and 31bis)
V. Control of Anti-competitive Practices (Article 40)
D. The General Agreement on Tariffs and Trade (GATT 1994)
I. Quantitative Restrictions and National Treatment (Articles XI and III:4)
II. Protection of Intellectual Property Rights (Article XX(d))
1. Laws and Regulations Not Inconsistent with the Agreement
2. Not Incapable to Secure Compliance with Laws and Regulations
3. Necessary to Secure Compliance with Laws and Regulations
4. Less Intrusive Policy Options and Instruments
a. Import and Export Tariffs
b. Labelling
c. Import Authorisation and Licensing
d. Price Controls
e. Implied Licensing
f. Restrictions of Supply
g. Product Differentiation
5. Chapeau of Article XX GATT
III. National Security Exceptions (Article XXI)
E. The General Agreement on Trade in Services
F. Preferential Trade Agreements
G. Conclusions
Part III The Scope and Mechanisms of International Intellectual Property Treaties
8 Universalism in International Copyright Law as Seen through the Lens of Marrakesh
Abstract
Abstract
A. Introduction
B. Universalism in International Copyright Law
C. Mechanisms of Universalism
D. Marrakesh as Inflection Point ... (but on Universality)?
I. Exceptions and Users' Rights
II. Mandatory Exceptions
III. Human Rights
IV. Scope of Application: Domestic Copyright Law
V. Cross-border Exchange
E. Conclusion
9 Measuring the Scope of Obligations under International Treaties: (To What Extent) Are IP Conventions Binding on Paris or TRIPS-Plus Legislation?
Abstract
Abstract
A. Introduction
B. Qualification of Subject Matter as Intellectual Property Rights
I. Supplementary Protection Certificates
II. Non-original Databases and Press Publishers' Rights
1. Background
2. Are the Database Makers' and Press Publishers' Rights a Form of IP?
a. What About Copyright?
b. A (New) Kind of Industrial Property?
3. Carte Blanche for Discrimination Based on Nationality?
C. Limits for TRIPS-Plus Content in IP Rights: Does the Greater Include the Lesser?
I. Background
II. What - If Any - Impact of Art. 1(1) 2nd Half-sentence TRIPS?
III. Inherent Qualifications of 'The Greater Includes the Lesser'
IV. The Need for Further Research
D. Conclusions and Summary
10 Floors and Ceilings in International Copyright Treaties: Berne, TRIPS, WCT Minima and Maxima
Abstract
Abstract
A. The Two Pillars of International Copyright Treaties
I. Meaning of ''Minima'' and ''Maxima''
II. Policy Underlying Berne ''Maxima'' and Its Preclusive Effect
B. Berne/TRIPS/WCT Maxima Applied: The Case of the DSM Directive Art. 15 Press Publishers' Right
I. Why Create a Press Publishers' Right?
II. Does Art. 15 DSM Bestow Copyright Protection on Berne-Excluded Subject Matter?
III. May the EU Protect Berne-Adjacent Subject Matter through Sui Generis Systems?
IV. Even Were a Sui Generis Right in Berne-Excluded Subject Matter Permissible, Must Exceptions to That Right Be Interpreted Co-extensively with the Berne Art. 10(1) Quotation Right?
C. Conclusion
Part IV Implementing International IP Provisions
11 Self-Executing International Intellectual Property Obligations?
Abstract
Abstract
A. Introduction
B. Self-Execution
I. Overview
II. The Mixed Approach
C. The Status of Intellectual Property Agreements
I. The TRIPS Agreement
II. The Paris Convention
III. The Berne Convention
IV. Free Trade Agreements
D. Normative Assessment
E. Alternative Approaches
F. Conclusion
12 Technical Assistance as a Tool for Implementing and Expanding Intellectual Property Treaty Obligations
Abstract
Abstract
A. Introduction
B. The Roots of IP Technical Assistance and Third-World Approaches to International Law
C. WIPO's Technical Assistance and the Complex and Fragmented Regime of IP Laws in Africa
I. The Formation of OAPI
II. The Formation of ARIPO and the Reception of International Norms
III. The Continental (African Union) Level
D. The Plant Variety Regime in Africa
I. WIPO's Agreement with UPOV: An Uptick in Plant Variety Protection
II. The Protection of Plant Variety under OAPI
III. Plant Variety Protection under ARIPO and Others
E. Conclusion
13 How External Factors Shaped Domestic Intellectual Property Law in Latin America
Abstract
Abstract
A. Introduction
B. Adoption of National Legislation for TRIPS Agreement Implementation
C. Multilateral and Bilateral Factors in Domestic Implementation
I. Analysis of Domestic Legislation under WTO Rules
II. IP Provisions in FTAs
III. Trends in the Most Recent FTAs Involving Latin American Countries
1. The USMCA Free Trade Agreement
2. The EU-MERCOSUR FTA
D. Strengthening and Expansion of IP Protection beyond FTAs
I. Domestic Implementation Process
II. Special Section 301
III. EU Report on the Protection and Enforcement of Intellectual Property Rights in Third Countries
E. Direct Applicability of International IP Rules
F. Conclusion
14 Creating Statutory Remuneration Rights in Copyright Law: What Policy Options under the International Legal Framework?
Abstract
Abstract
A. Introduction
B. Remuneration Rights Per Se
I. Remuneration Rights Created outside the Scope of Exclusive Rights Provided by the International Treaties
1. Remuneration Rights Provided by the International Treaties outside the Scope of Exclusive Rights
a. Rights to an Equitable Remuneration for Broadcasting and Communication to the Public
b. Resale Right (Droit De Suite)
c. Rights to an Equitable Remuneration for Rental
2. Remuneration Rights Created outside the Scope of the International Treaties
a. Remuneration for Use of Works of Expressions of Folklore
b. Remuneration for Use of Public Domain Works (Domaine Public Payant)
II. Remuneration Rights Coexisting and Overlapping with Exclusive Rights Provided by the International Treaties
C. Limitation-Based Remuneration Rights
I. Limitation-Based Remuneration Rights Created within the Scope of Exceptions and Limitations Provided by the International Treaties
1. Limitation-Based Remuneration Rights Provided by the International Treaties
2. Limitation-Based Remuneration Rights Created within the Scope of Unremunerated Exceptions and Limitations Provided by the International Treaties
II. Limitation-Based Remuneration Rights Created Only under the Flexibility of the Three-Step Test
1. The Three-Step Test and Its Room to Manoeuvre to Create Remuneration Rights
2. Two Examples of Limitation-Based Remuneration Rights Created under the Flexibility of the Test: Private Copying and Reprography
a. Private Copying
b. Reprography
D. Conclusions