Self-execution is a matter of national rather than international law. While some countries regard international agreements as having direct effect, most do not consider international intellectual property agreements to be self-executing. This means that negotiators cannot assume that national law will be implemented in a manner that is entirely consistent with agreements as drafted. For intellectual property law, this situation is particularly problematic because the globalization of information, production, and manufacturing suggests that a high degree of integration is desirable. Nonetheless, there are many good reasons to preserve states’ sovereign authority in this arena. Intellectual property law involves balancing proprietary interests against public concerns. Because countries differ dramatically along the lines of culture, economics, technological capacity, and fundamental principles, it would be difficult to strike the same balance everywhere. Thus, consensus can often be achieved only through the use of “constructive ambiguities”– language that is unsuitable to direct application by judges but which allows for legislative tailoring to local needs, capabilities, and values. In addition, technologies and needs change over time. International lawmaking is too prone to capture, too shortsighted, and too cumbersome to deal effectively with such problems. In contrast, legislative intervention creates a degree of accountability to the public.

Parallel importation and reimportation amount to the most important and unresolved classical problem of intellectual property protection within the multilateral trading system of the World Trade Organization (WTO). The welfare effects of restricting trade due to national or regional exhaustion of intellectual property rights are controversially discussed, and empirical evidence is not conclusive. Facts differ in different sectors of the global economy. The law is unsettled in squaring the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and in particular the General Agreement on Tariffs and Trade (GATT 1994). This chapter explores the relationship between these agreements in international law. It concludes that WTO law undermines the operation of national and regional exhaustion. These two doctrines are overbroad and cannot apply across the board. Other less intrusive trade policy instruments are available to address legitimate concerns raised in the context of parallel importation and reimportation of original products. The multilateral trading system in result is simply and essentially based upon exhaustion while allowing for sectorial control and limitations of parallel trading by other means.

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by the TRIPS and WCT exclusion of protection for ideas, methods and processes, should promote the free cross-border availability of facts and ideas, as well as of exercise of the Berne Convention mandatory exception for the making of “quotations” from publicly-disclosed works. Individual Berne countries of origin may protect excluded subject matter or preclude mandatory exceptions in their own works of authorship, but not in foreign Berne works. Nonetheless, Member States might be able to elude Conventional maxima by resort to copyright-adjacent sui generis rights, such as the Digital Single Market Directive’s new press publisher’s right. This Comment considers the extent to which Conventional maxima may nonetheless have a preclusive effect on such maneuvers.

The globalized system of protection for intellectual property rights continues to evolve, from the TRIPS Agreement and WIPO treaties to modern regulation-based preferential trade agreements. All these mechanisms require substantive strengthening of intellectual property (IP) rights, particularly in emerging and developing countries. This chapter surveys evidence on how these policy reforms have affected key economic variables, ranging from early studies of growth, research and development, and innovation to new research on trade, foreign investment, and production and knowledge networks. The evidence regarding growth and innovation does not paint a clear picture, largely due to difficulties in measurement and estimation. Considerably more research, especially at the microeconomic levels, is needed to understand the channels through which innovation is encouraged or discouraged. Recent work on how detailed trade flows and firms react to rigorous and globalized protection has unearthed numerous subtleties in the microeconomics of IP, trade, and technology transfer. This research is becoming highly granular. For example, the status of patent rules in importing countries affects the decisions of foreign firms to patent and export to those locations. Another point is that preferential trade agreements with “TRIPS-Plus” IP standards tend to expand the export of detailed, patent-sensitive goods to external countries. Patent laws also influence the development of global innovation networks.

Most commentators see IP as a prime example of globalization. The article challenges this view on several levels. In a nutshell, it claims that economic nationalist concerns about domestic industries and economic development lie at the heart of the global IP system. To support this argument, the article summarizes and categorizes IP policies adopted by selected European countries, the European Union, and the USA.presents three types of inbound IP policies that aim to foster local economic development and innovation.adds three versions of outbound IP policies that, in contrast, target foreign countries and markets. Concludingtraces a dialectic virtuous circle of economic nationalist motives leading to global legal structures. This process has been at work throughout the history of modern IP, with the recent past posing no exception. The article furthermore shows that current EU and US international IP policies strongly resemble each other, casting doubt on the two players’ seemingly contrasting attitudes toward globalization. The article provides a far more nuanced description than what is often described as a simplistic nationalist–globalist dichotomy. Finally, the article identifies the basic function and legal structure of IP as the reason for the resilience and even dominance of economic nationalist motives in international IP politics. Intellectual property concerns exclusive private rights that are territorially limited creatures of (supra-)national statutes. These legal structures make up the economic nationalist “DNA” of IP.

This paper considers the role of customary international law for the protection of intellectual property (IP) beyond borders. As an area where standards of protection are primarily, if not exclusively, governed by treaty law, there seems to be little role left for custom. The analysis shows that this point holds true for principles or rules that commit states to a particular form of protecting the rights of foreign IP owners. However, the interpretation, application and enforcement of these rules are informed by other areas of public international law, including those governed by custom. After reviewing this often neglected role of customary international law for IP protection in general, the paper focuses on the customary right to regulate and its role in neighbouring areas of international economic law, – in particular the protection of foreign investments. Exploring the contours and limits of this right, the main research question then is whether – and if so, how – this right applies to treaty commitments in relation to the protection of IP rights. I conclude that despite a complex web of treaty-based rules, there is usually no specific evidence that the state parties intended to ‘contract out’ of the right to regulate. That aspect is further confined by reference to this right in the Doha Declaration on TRIPS and Public Health. A broader point is to emphasise custom as a necessary contextual factor of the environment within which international IP law operates: it is a relevant element simply because coordinating protection beyond borders often relies on the functionality and tools of international law.

The chapter offers a first systematic analysis of the seventy-six decisions and opinions of the European Patent Office (EPO) Enlarged Board of Appeal and Board of Appeals that make explicit reference to the interpretation criteria of the Vienna Convention of the Law of Treaties (VCLT). It explores whether the use of those criteria by EPO boards is congruent with the current teachings of public international law experts on the VCLT. The EPO boards make extensive use of Articles 31–33 VCLT and discuss the various criteria enshrined in the VCLT in detail. The paper concludes that the EPO boards use the VCLT criteria to justify their textual and historical approach to interpretation. By contrast, the EPO boards do not exhaust the potential of a purpose-oriented interpretation.

Remuneration rights have the potential to realise the delicate balance between access to and protection of copyrighted works, while at the same time potentially safeguarding the interests of all parties involved in the process of cultural production. The creation of statutory remuneration rights also has some constraints as they need to comply with obligations resulting from international copyright law. Therefore, it is crucial that legislators know exactly what their room for manoeuvre is when using this tool to regulate copyright law. Surprisingly, this policy space remains quite blurry to date. This article attempts to bring clarity to the discussion: it analyses possible ways of creating remuneration rights in the light of international treaty obligations and maps all the options. It argues that international copyright law provides far more policy space than often assumed to create statutory remuneration rights, offers a classification of remuneration rights based on their relationship with the exclusive rights, and invites legislators in the future for better usage of the full range of possibilities when reforming their copyright laws in order to reach more balanced solutions and to enhance the acceptance of the system among citizens.

This contribution critically considers how assumptions underlying international treaties on intellectual property (IP) reflect, and impact upon, realities. International IP treaties and international agreements that set minimum standards and so harmonize and co-ordinate norm-setting among and within states, frequently codify underlying assumptions about the social, economic, cultural or environmental utility of the standards they aim to globalize. While these assumptions may be correct in particular territorial, historical and socio-economic contexts, once they are engrained in standards that are cast into the stones of international treaty law, they become global norms that are at best difficult, and at times factually impossible to implement, amend or adapt. In worst case scenarios, the habitual implementation of such laws can lead to significant socio-economic, cultural and environmental deterioration. Whenever an implementation of such standards does not materialize the underlying assumptions, the global norms ultimately become redundant, which more broadly challenges their legitimacy. Using the international protection of plant varieties as an example, this contribution critically reviews the assumptions built into the UPOV treaty regime and whether they are supported by science and empirical research on biodiversity, food security, nutrition and seed sovereignty. Contrary to expectations, this redundancy may extend beyond the context of biodiversity-rich countries of the Global South into countries of the Global North that are also struggling with (agro)biodiversity losses and climate change.

At international level, the protection of intellectual property rights is subjected to a hybrid array of international regimes and agreements. Traditionally, this has been the realm of WIPO and its conventions. Since the establishment of the WTO and the entry into force of its TRIPS Agreement in 1995, the multilateral trade system has also assumed regulatory power in this field. In addition, recent “regional,” “preferential,” and “free” trade agreements increasingly engage in setting standards in regard to intellectual property rights as well. The resulting complexity raises questions as to coherence, effectivity and legitimacy. This paper will assess the coherence and effectivity of this hybrid system and discuss its implications for governance. In addition and more specifically, the balancing of the individual rights and interests of right holders with the public interest will be seen. This balancing is a key challenge of the protection of intellectual property rights. The paper concludes that the “hybrid” international regimes still see such public interest as a matter of concern for the national level and widely fail to properly take into consideration the manifold international principles and rules at hand, including, for instance human rights and multilateral environmental agreements.

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled mandates exceptions in national copyright laws to ensure access to special-format copies of books for people who are blind and visually impaired; it also establishes mechanisms to facilitate cross-border access to those formats. The treaty was heralded by a wide range of commentators as a step in a new direction in international copyright law. This chapter assesses the treaty’s significance through the lens of a consideration that has long been part of international copyright debates, namely, the push for a universal copyright law. I explore the ways in which the Marrakesh Treaty might alter our understanding of the notion (and mechanisms) of universalism in international copyright law. The chapter considers the universalist aspiration in the development of international copyright law and examines the range of mechanisms through which universalism might now be being pursued. Furthermore, I explain the conceptual features of Marrakesh that might signal a change in the international copyright landscape, because this treaty was a milestone in international copyright law. However, its importance might lie in several aspects that are not commonly discussed.

This chapter aims to examine how diverse external factors have influenced the implementation of intellectual property (IP) standards in Latin America. To this end, it first refers to adopting TRIPS-consistent legislation in the region during the transition period granted to developing countries. Second, it examines the influence of the interpretation of domestic IP legislation under the WTO Dispute Settlement Understanding and provides an overview of TRIPS-plus provisions included in some of the free trade agreements signed in the region, among them the most recent ones, the USMCA and the Agreement between the European Union and MERCOSUR (which is not yet in force). Third, it analyzes other external factors which also affect the implementation of national IP regulations, such as the reports regarding the enforcement of IP provisions produced by the United States or the European Union. Fourth, it analyzes situations in which IP rules are deemed directly applicable by national courts – following the constitutional provisions and practices – thereby reducing the room for maneuver to shape domestic legislation. This analysis shows how the recent evolution of IP policy and legislation in Latin America can only be understood based on the external factors that influenced or determined them.