Henning Grosse Ruse-Khan

EU bilateral trade agreements and intellectual property : for better or worse?

Intellectual Property Protection in Economic Partnership- and Free trade Agreements.- Going Beyond TRIPS: Impact on International Law and Policy.- Emerging Elements for Reforming the International IP System.- Implementation of IP Provisions in EU Trade Agreements.

Policy Space for Domestic Public Interest Measures under TRIPS

This paper examines the scope of policy space available to integrate economic, social and environmental concerns under the World Trade Organization’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Protection (TRIPS). It does this by comparing the amount of discretion available for domestic public interest measures in two other core areas of WTO regulation: trade in goods and services. The paper concludes that the notion of general exceptions under the General Agreement on Tariffs and Trade (GATT) and under the General Agreement on Services (GATS) finds no equivalence in TRIPS. Still, an equivalent amount of policy space can be achieved by taking the TRIPS balancing objective and the WTO sustainable development objective seriously within the process of TRIPS interpretation and implementation. This opens significant room to integrate economic, social and environmental concerns in Intellectual Property (IP) regulation and decision-making. It is an approach which all WTO Members agreed to in para. 4, 5 a) of the Doha Declaration on TRIPS and Public Health.

Access to Knowledge under the International Copyright Regime, the WIPO Development Agenda and the European Communities’ New External Trade and IP Policy

The rise of digital technologies, their ability of creating infinite and identical clones as well as global communication networks allowing unlimited dissemination of digital content are providing new opportunities for access to information. Individuals are able to access, reproduce and distribute data, ideas, concepts and any other electronic material more widely and at almost no cost. In relation to the concept of access to knowledge, this paper examines the current status and newly evolving trends in international IP protection as well as Europe’s external trade and IP agenda. The concept is crucial not only for a societies’ ability to engage in learning and offer education. It relates further to scientific research and forms the basis for technological advancement. Taking agricultural, bio-chemical or medical research and technology as examples, access to knowledge can improve or safe lives. Knowledge in form of information, ideas and concepts also enables and facilitates the development of new, innovative products or services with an added value or distinctive character. It finally serves as important input for the cultural life of a society. In the context of international copyright law, access to knowledge addresses not only the question which subject matter may or may not ‘benefit’ from copyright protection but a range of issues across the board of (international) copyright law. Attempts to secure access to (and the following transfer of) knowledge can equally relate to a wide range of copyright policy choices including a robust public domain, well defined exclusive rights and schemes for statutory or compulsory licensing as well as exceptions and limitations which (if necessary) override contractual extensions of protection and technological protection measures. This paper provides an overview on the current ‘minimum standards’ in international copyright protection and how they impact upon access to and dissemination of knowledge. This status quo is juxtaposed against (1) the recent and potential future trends in copyright norm setting which might flow from an implementation of the proposals for a ‘WIPO Development Agenda’; and (2) conversely the current external trade and IP policy of the European Communities.

IP and Trade in a Post-TRIPS Environment

In the 1980s, significant differences in the levels of IP protection around the globe triggered unilateral responses of the US as the key demandeur for stronger IP rights. Aspects of this 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 contribution 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.

Overlaps and Conflict Norms in Human Rights Law: Approaches of European Courts to Address Intersections with Intellectual Property Rights

The relationship between the protection of intellectual property (IP) and human rights has been examined in a growing number of publications. Most focus on the substantive law overlaps, interfaces, tensions and maybe even conflicts between the two areas of law – be it on the national, regional (e.g. European) or international plane. This contribution does not purport to advance this debate on substantive intersections – such as access to medicines under the right to health versus patent protection for pharmaceutical products. Instead, it focuses on the legal mechanisms and approaches to address some of these intersections between the two systems. In that way, it builds on the discourses concerning fragmentation, regime interaction and global legal pluralism that offer different narratives on how specific areas of international law view, define and delineate their relations to another.Within this context, the contribution focuses on the direct and indirect conflict avoidance and resolution approaches adopted by the two main European Courts which have been increasingly asked to rule on cases where intellectual property (IP) protection and human rights are intersecting. The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) are both charged with examining the consistency of national laws and measures with human rights protection for IP. Both courts are equally confronted with cases where national IP protection and enforcement measures are argued to interfere and conflict with other human rights, such as freedom of expression and information, the right to privacy or to conduct one’s own business. In reviewing the decisions of the two courts in these areas, this contribution highlights the range of tools and approaches available for human right law to deal with its various interfaces with IP protection.

The Concept of Sustainable Development in International IP Law - New Approaches from EU Economic Partnership Agreements?

In international law, the concept of sustainable development has an ambiguous meaning and several distinct connotations. Amongst those, the principle of integration and reconciliation of economic, social and environmental aspects functions as its core element. This principle finds support in several general (as well as IP related) provisions of the first comprehensive Economic Partnership Agreement (EPA), signed in October 2008 between the European Community and its member states and the CARIFORUM group of Caribbean Countries. This agreement may serve as a template: not only for EPA-negotiations with other regional groups of African- Caribbean and Pacific (ACP) countries; but equally for other free trade agreements (FTAs) Europe is currently pursuing with India, South Korea, ASEAN countries and states in South- and Central America. Given the continuous malfunctioning of multilateral negotiations under the WTO Doha Round, the standards set by FTAs are the most important benchmarks which are likely to be ‘multilateralised’ later on. Against this background, the agenda pursued and the provisions accepted by one of the most important trading blocs are particularly relevant. In the IP context, they not only consist of the obvious ‘TRIPS-plus’ standards to be expected from North-South FTAs, but also several interesting norms which address and are affected by the concept of sustainable development discussed in this paper. In a nutshell, the sustainable development objective indicates the development dimension of the EU – ACP relationship. Examining its operation in the IP context therefore might deliver interesting results.

From TRIPS to FTAs and Back: Re-Conceptualising the Role of a Multilateral IP Framework in a TRIPS-Plus World

International intellectual property (IP) protection is increasingly governed by a network of bilateral and regional treaties. Most of these contain obligations on the protection and enforcement of IP that set significantly higher standards than those of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), commonly referred to as ‘TRIPS-plus’. Human rights bodies, non-governmental organisations (NGOs), and academic commentators often criticise these standards for undermining flexibilities available under TRIPS. Such policy space, however, is critical to design national IP laws in accordance with domestic needs. This chapter makes a case for the continued relevance of the TRIPS Agreement as an overarching, multilateral framework. My argument is based on the role treaty law affords to the object and purpose expressed in Articles 7 and 8 TRIPS. They have not only been recognised as essential for promoting access to medicines in the Doha Declaration on TRIPS and Public Health. As integral objectives and principles of TRIPS, Articles 7 and 8 limit the ability of World Trade Organization (WTO) Members to modify their IP-related treaty obligations inter se. Based on their negotiation history and common understandings expressed by WTO Members, I argue for an enhanced role of TRIPS’ object and purpose as a loose constitutional frame for IP commitments in bilateral and regional treaties.

A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between Intellectual Property, Trade, Investment and Health

The idea of employing conflict-of-laws principles to address competing rationalities in international law is unorthodox, but not new. Research focuses on inter-systemic conflicts between different areas of international law – but has stopped short of proposing conflict rules. This article goes a step further and reviews the wealth of private international law approaches and how they can contribute to applying rules of another, ‘foreign’ system. Against the background global intellectual property rules and their interfaces with trade, investment, health and human rights, the dispute over plain packaging of tobacco products serves as test case for conflict-of-laws principles. It shows how these principles allow a forum to apply external rules – beyond interpretative concepts such as systemic integration.

A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between IP, Trade, Investment and Health

The idea of employing conflict-of-laws principles to address competing rationalities in international law is unorthodox, but not new. Research focuses on inter-systemic conflicts between different areas of international law – but has stopped short of proposing conflict rules. This article goes a step further and reviews the wealth of private international law approaches and how they can contribute to applying rules of another, ‘foreign’ system. Against the background global intellectual property rules and their interfaces with trade, investment, health and human rights, the dispute over plain packaging of tobacco products serves as test case for conflict-of-laws principles. It shows how these principles allow a forum to apply external rules – beyond interpretative concepts such as systemic integration.