The Proportionality Principle in the TRIPS Agreement

Abstract

This paper analyses whether the TRIPS Agreement contains a proportionality principle, what content it might have and how such a principle could affect the debate about intellectual property rights on an international level. It first briefly explains the conflicting interpretations of the Agreement as a framework in which the proportionality principle might be applied. In the second section the explicit and implicit sources, especially with regard to Articles 7 and 8 TRIPS, of such a principle are identified. Explaining the history, nature and normative content of these two provisions, the paper sheds light on the different functions of Articles 7 and 8 TRIPS and how the proportionality principle ties them together. Then, different facets of a proportionality principle are explained, including its use as a “midlevel principle”, its occurrence in WTO law and its dimension for human rights. The paper concludes that, while there is no uniform definition applicable to the TRIPS Agreement, many factors argue in favor of reading Articles 7 and 8 as expressing the principle of proportionality. If Articles 7 and 8 were read in this light, member states would benefit from an increased flexibility for designing national intellectual property laws and from a consolidation of a common ground in the international intellectual property discourse.