International Intellectual Property (IIP) lectures

INTERNETIONAL INTELLECTUAL PROPERTY

HOORCOLLEGES


WEEK 1 IIP LAW: FIELDS AND PRINCIPLES

Intellectual property:
 Traditional approach: two main branches:
1. Copyright and neighboring rights.
2. Industrial property.

Copyright and neighboring rights:
 Cultural inspiration: protection of literary and artistic works.
 Books, writings, plays;
 Musical compositions;
 Choreography;
 Drawings, paintings;
 Sculptures, architecture;
 Cinematographic works;
 Photography.

Industrial property:
 Technical innovation: protection of products and processes.
 Inventions;
 Layout-designs of integrated circuits.
 Aesthetic innovation: protection of product appearance.
 Industrial designs;
 Works of applied art.
 Market transparency: protection of distinctive signs.
 Trademarks;
 Trade names;
 Geographical indications.

Overview of the protection system:




International treaties:
 Principle of territoriality.

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,  National intellectual property rights.
 Cross-national objects of protection.
 Solution I: bilateral agreements.
 Based on reciprocity (wederkerigheid).
 Solution II: international IP treaties.
 Copyright and neighboring rights.
o Berne Convention.
 Industrial property.
o Paris Convention.

World Intellectual Property Organization (WIPO):
 Berne Convention for the Protection of Literary and Artistic Works (1886/1967);
 Paris Convention for the Protection of Industrial Property (1883/1967)
 Additional treaties, such as:
 The Patent Cooperation Treaty (PCT); and
 The Madrid Agreement and Protocol (Madrid System).

Establishment of Unions (oprichting van vakbonden):
 Art. 1 of the Berne Convention:
 ‘The countries to which this Convention applies constitute a Union for the
protection of the rights of authors in their literary and artistic works.’
 Art. 1(1) of the Paris Convention:
 ‘The countries to which this Convention applies constitute a Union for the
protection of industrial property.’

Minimum standards:
 National treatment and minimum rights:
 Art. 5(1) of the Berne Convention:
o ‘Authors shall enjoy, in respect of works for which they are protected
under this Convention, in countries of the Union other than the country
of origin, the rights which their respective laws do now or may
hereafter grant to their nationals, as well as the rights specially granted
by this Convention.’
 Art. 2(1) of the Paris Convention:
o ‘Nationals of any country of the Union shall, as regards the protection
of industrial property enjoy in all the other countries of the Union the
advantages that their respective laws now grant, or may hereafter grant,
to nationals; all without prejudice to the rights specially provided for by
this Convention.’

World Trade Organization (WTO):
 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994);
 Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization
(GATT 1994);
 Inclusion of the intellectual property system in global trade regulations.

Most-favored-nation treatment:
 Art. 4 of the TRIPS Agreement:
 ‘With regard to the protection of intellectual property, any advantage, favor,
privilege or immunity granted by a Member to the nationals of any other

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, country shall be accorded immediately and unconditionally to the nationals of
all other Members.’

Renaissance of bilateral agreements:
 Variety of trade-related instruments;
 Free Trade Agreements (FTAs);
 EU Association Agreements;
 Bilateral Investment Treaties (BITs);
 Investment includes intellectual property rights.
 Bilateral IP Treaties (BIPs).
  Is in many cases TRIPS-plus approach.

Controversy:
 Yu: TRIPS Objectives and Principles:
 ‘In recent years, less-developed countries, including both developing and least-
developed countries, have expressed their deep dissatisfaction with the way the
TRIPS Agreement has been interpreted and implemented. They are also
frustrated by the ongoing demands by developed countries for protections that
are in excess of what they promised during the TRIPS negotiations, often
through new bilateral and regional trade and investment agreements...’
o ‘In de afgelopen jaren hebben minder ontwikkelde landen, waaronder
zowel ontwikkelingslanden als minst ontwikkelde landen, hun diepe
ontevredenheid uitgesproken over de manier waarop de TRIPS-
overeenkomst is geïnterpreteerd en geïmplementeerd. Ze zijn ook
gefrustreerd door de voortdurende vraag van ontwikkelde landen naar
bescherming die verder gaat dan wat ze beloofden tijdens de TRIPS-
onderhandelingen, vaak door nieuwe bilaterale en regionale handels- en
investeringsovereenkomsten...’).
 ‘...As they claim, the Agreement as interpreted by their developed trading
partners and the additional TRIPS-plus demands “ignore their local needs,
national interests, technological capabilities, institutional capacities, and public
health conditions”.’





 Need for a balance:
 ‘As a reaction, more than a dozen developing countries proposed another
“legal” text, much more limited in scope, with few specific normative aspects.
They insisted on the need to maintain flexibility to implement economic and
social development objectives. In retrospect, some developing countries may

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, feel that the Uruguay Round Secretariat did them a disservice by preparing a
“composite” text,...’
 ‘...which melded all industrialized countries’ proposals into what became the
“A” proposal, while the developing countries’ text became the “B” text. The
final Agreement mirrored the “A” text. As such, it essentially embodied norms
that had been accepted by industrialized countries. The concerns of developing
countries were reflected in large part in two provisions – Articles 7 and 8.’

Art. 7 TRIPS:
 ‘The protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic welfare, and to a
balance of rights and obligations.’
 Incentive for creativity and innovation:
 Stimulation of investment;
 Enhanced possibility of amortization.





 Further rationales (redenen):
 Reward for creative work (beloning voor creatief werk);
 Publication of knowledge/dissemination of information (publicatie van kennis/
erspreiding van informatie);
 Market transparency;
 Fair competition (eerlijke concurrentie).
 Economic Growth Dimension:
 Grant of protection stimulates investment in innovative products.
 But may also frustrate follow-on innovation.





Art. 8 TRIPS:
 ‘Members may, in formulating or amending their laws and regulations, adopt
measures necessary to protect public health and nutrition, and to promote the public
interest in sectors of vital importance to their socio-economic and technological
development, provided that such measures are consistent with the provisions of this
Agreement.’

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