TIME FOR A PARADIGM SHIFT? EXPLORING MAXIMUM STANDARDS IN INTERNATIONAL INTELLECTUAL PROPERTY PROTECTION *

Abstract

International intellectual property (IP) protection is at the heart of controversies over the impact of economic interests on social or environmental concerns. Some see IP rights as unduly encroaching upon human rights and societal interests, others argue for stronger enforcement and additional exclusivity to incentivize new innovations and creations. Underlying these debates is the perception that international IP treaties set out minimum standards of protection - which presumably allow for additional protection with only the sky being the limit. This article challenges this view and explores the idea of maximum standards or ceilings within the existing body of international IP law. It looks at the relation between IP treaties and subsequent agreements or national laws which offer stronger protection. In particular, within the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an important qualification may serve as a door opener for ceilings: While additional IP protection may not go beyond mandatory limits within TRIPS, the qualification not to “contravene” TRIPS is unlikely to safeguard TRIPS flexibilities against TRIPS-plus norms. The article further identifies and examines the rationales for maximum standards in international IP protection as: (1) Legal security and predictability about the boundaries of protection; (2) the global protection of users’ rights; and (3) the free movement of goods, services and information. Examples of mandatory limits in the existing IP treaties and in ongoing initiatives can implement these. However, most of the relevant treaty norms are optional. The article concludes with some observations on the need for more comprehensive and precise maximum standards