Enough is Enough - The Notion of Binding Ceilings in International Intellectual Property Protection

Abstract

Traditionally, international agreements on IP rights are built on the concept of minimum protection which members must implement in their national laws. The concept implies that members are free to provide more extensive protection. However, that observation needs to be qualified in certain regards. First some agreements do contain provisions which seem to impose ceilings, i.e. maximum rights, or mandatory limitations. Examples for this are the express anchoring of the idea/expression dichotomy in TRIPS and the WCT, and the citation right to be found in Art.10 (2) Berne Convention. Furthermore, pursuant to TRIPS Art.1:1, more extensive protection may only be granted "provided that such protection does not contravene the provisions of this Agreement". In spite of that, the general perception in international IP regulation so far has been that above the prescribed minimum standards there is no ceiling or limit other than the sky. This construction results in a spiral movement - driven by bilateral agreements - towards ever-increasing levels of protection, and reducing the flexibilities and policy space left open under the TRIPS Agreement. In this situation, the concept of maximum rights or "ceiling rules" which provide for a binding maximum amount of IP protection WTO Members can offer in their national laws gains in importance: It might offer a way to ensure and maintain a balanced approach towards IP protection, and to protect members states' autonomy in preserving public policy goals vis-a-vis pressure exerted against them in bilateral trade negotiations. However, as appealing as the concept may be, it also has potential drawbacks that must be thoroughly explored. This concerns substantive issues - such as the risk that to espouse the principle of maximum rules might reduce instead of enhance member states' flexibilities - as well as institutional and procedural questions - in particular, how this would fit with the current WTO/TRIPS system. The paper will address those issues. In addition, the meaning and possible impact of existing maximum rules will be set forth, and initiatives will be presented which may give the concept of ceilings a broader range of application than to-date.