Thomas Cottier, ‘Embedding Intellectual Property in International Law’, in: Peter Roffe, Xavier Seuba (eds.), Current Alliances in International Intellectual Property Law-Making, 15-44 (ICTSD/CEIPI Geneva 2017).
Cottier – Embedding Intellectual Property in International Law
Background
Intellectual property law emerged within a closed epistemic legal community mainly consisting of practitioners and academics focusing on intellectual property, private and corporate law interested in strengthening intellectual property rights. It was not part of the community of public international law and trade law until the advent of the TRIPS Agreement in 1995. Subsequent case law firmly established the field in international trade regulation, and an IP community in public international law began to form. Since then, scholars have been working to achieve a proper balance between enhanced intellectual property protection and other policy goals pursued and also protected under Articles 7 and 8 of the TRIPS Agreement, as well as disciplines on fair use and compulsory licensing. The 2001 Declaration on the TRIPS Agreement and Public Health addressing the HIV pandemic was a major event triggering the debate. The impact of human rights and now of the 2015 Sustainable Development Goals are under discussion. Climate change mitigation and adaptation are giving rise to new needs, particularly in the area of technology transfer. Intellectual property protection is thus increasingly considered part of the overall regulating of international trade and foreign direct investment. It is increasingly embedded in international law, thus exposing the field to countervailing rights and obligations which are beneficial in bringing about an overall balance of rights and obligations. Swiss scholars have been vigorously involved in the debate, shifting the focus away from private and corporate law towards a perspective fully integrating intellectual property rights within the body of public international law. Gradually, such integration is finding its way into the realm of policy making and international negotiations, with governments, industry and non-governmental organizations contributing to an overall balanced system for the protection of intellectual property rights.
Summary
The paper, published in 2017, elaborates on the relationship between intellectual property and other areas of public international law as well as domestic law, seeking to provide an overall survey. The authors start by outlining the quest for overall balance between rights and obligations with a view to producing optimal welfare effects. Such balance is in part sought and found within intellectual property agreements, although so-called TRIPS plus obligations in preferential trade and cooperation agreements and recourse to bilateral investment protection have increasingly unsettled the balance achieved in 1995, which the international law in its currently fragmented state is unable to properly neutralize. The paper explores the implications of general principles of law, such as equity, good faith and proportionality in particular, and addresses the impact of human rights, both substantive and procedural. It discusses the implications of the Sustainable Development Goals. Integrating intellectual property into the WTO trading system and principles of non-discrimination is not a formality as it affects the scope of rights and obligations, particularly in regulating parallel trading in lawfully marketed products.The paper then addresses the relationship between intellectual property and competition law and policy, which have largely remained a matter of domestic law and extraterritorial effects. Managing the risk of abusing of the dominant positions that exclusive rights afford requires the introduction of ceilings, and thus of maximum standards of protection. The current approach in harmonization of setting out minimum standards is no longer fully appropriate. The paper next look at the potential of unfair competition rules, which are integrated into the multilateral system due to Article 10bis of the Paris Convention and offer foundations for addressing novel forms of protection, such as traditional knowledge and the enforcement of corporate social responsibility (CRS) in particular. The complex relationship between intellectual property and investment protection is discussed, regarding fair and equitable treatment in particular as well as ring-fencing and compulsory licensing. The paper concludes by revisting the idea of graduation as a response to the divergent social and economic needs of countries commensurate with their level of development. Future agreements should refer to economic thresholds in determining whether certain obligations apply and kick in, such as the obligation to protect pharmaceutical inventions (thus returning to issues unresolved ever since the seminal work of Penrose discussed at the outset of this cluster of the Anthology).