Embedding Intellectual Property in International Law

Abstract

The advent of TRIPS-plus provisions in preferential trade agreements (PTAs) and mega-regional agreements further reinforces the position of holders of exclusive rights, changing the balance of rights and obligations initially negotiated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Paris and Berne Conventions as incorporated into the law of the World Trade Organization (WTO). Preferential trade agreements largely fail to right the balance, because of successful lobbying by industries of industrialised countries and a willingness of developing countries to envisage higher levels of protection in return for other market access rights and opportunities under the preferential agreement. This evolution reinforces the call to explore the implications of principles and rules outside specific intellectual property (IP) instruments in other parts of public international law, and WTO law in particular. Embedding protection for intellectual property rights (IPRs) in the overall body of international law, and related fields in domestic law, allows some rebalancing of recent developments in treaty law. It is not an easy task, however, in light of a long tradition of fragmentation and isolation of intellectual property within public international law.