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  Ways Out of the Trap of Article 1(1) TRIPS

Hilty, R. M. (2016). Ways Out of the Trap of Article 1(1) TRIPS. In H. Ullrich, R. M. Hilty, M. Lamping, & J. Drexl (Eds.), TRIPS plus 20 - From Trade Rules to Market Principles (pp. 185-210). Heidelberg; Berlin: Springer.

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Genre: Contribution to Collected Edition

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 Creators:
Hilty, Reto M.1, Author           
Affiliations:
1MPI for Innovation and Competition, Max Planck Society, ou_2035291              

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 Abstract: Article 1, paragraph 1, of TRIPS puts into effect a minimal-protection approach: In their domestic laws, Member States may provide more extensive IP protection, but they may not undermine the required level of protection. Although this required level is not carved in stone, lowering it would require a unanimous agreement of all Member States. Such an agreement seems highly unlikely since it is only the less industrialized countries that perceive the high level of IP protection as an impediment to their own socio-economic development. These, however, may not undercut the TRIPS standard independently, nor may groups of countries with similar interests jointly agree on lowering it. Most of the countries concerned fell into that trap of TRIPS because they either underestimated the relevance of overly extensive IP protection when they joined the WTO system, or they wanted to benefit from the free trade amongst Member States provided by GATT, in particular by gaining access to global markets for their domestic products. To achieve this, they accepted the trade-off of a potentially inappropriate level of IP protection. Today, however, the WTO system seems to be even less of a concern compared to the fast increasing number of regional trade agreements that limit the freedom to consider domestic needs to a larger extent than TRIPS. On the other hand, even countries with further developed economies are beginning to understand that inappropriate IP protection might be a serious concern. A forward-looking information society policy, for instance, may suggest substantial limitations of copyright protection. Such attempts, however, risk conflicting with Article 1, paragraph 1, of TRIPS as well. In other words, the trap is of a general nature; it may concern any Member State of the WTO. This chapter shows how potentially negative impacts of this given legal setting may nevertheless be reduced, based on the one hand on flexibilities outside the WTO system, and on the other on the leeway provided by TRIPS. It also explains why the maximum use of such avenues is justifiable.

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Language(s): eng - English
 Dates: 2016
 Publication Status: Issued
 Pages: -
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 Rev. Type: -
 Identifiers: DOI: 10.1007/978-3-662-48107-3_6
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Title: TRIPS plus 20 - From Trade Rules to Market Principles
Source Genre: Collected Edition
 Creator(s):
Ullrich, Hanns1, Editor           
Hilty, Reto M.1, Editor           
Lamping, Matthias1, Editor           
Drexl, Josef1, Editor           
Affiliations:
1 MPI for Innovation and Competition, Max Planck Society, ou_2035291            
Publ. Info: Heidelberg; Berlin : Springer
Pages: - Volume / Issue: - Sequence Number: - Start / End Page: 185 - 210 Identifier: ISBN: 978-3-662-48106-6

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Title: MPI Studies on Intellectual Property and Competition Law
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Pages: - Volume / Issue: 25 Sequence Number: - Start / End Page: - Identifier: -