Proposals for Reform of TRIPS
Edited by Annette Kur
Chapter 8: Enough is Enough – The Notion of Binding Ceilings in International Intellectual Property Protection
Annette Kur and Henning Grosse Ruse-Khan INTRODUCTION 1. This chapter discusses the concept of “ceiling rules”, “maximum standards” or “substantive maxima” in international intellectual property (IP) regulation,1 thereby addressing the appropriateness and possible scope of mandatory limitations to the level of protection for IP. For the purposes of this chapter, the concept of “limitations” is understood in a broad sense, meaning that it will not necessarily be in the form of “defence-type” exceptions to exclusive rights.2 The concept includes binding obligations – inside or outside the IP framework – to give effect to interests distinct from those of IP right holders and their exploitation of protected subject matter (such as competitive markets, dissemination of technology, access to information, protection of the environment, public health, cultural selfdetermination, to name a few). The chapter proceeds as follows: in section 2, the context and rationales for ceiling rules are described and appreciated in regard to their positive potential as well as concerning possible drawbacks. Section 3 moves on to assess TRIPS and other international IP treaties for potential maximum standards or ceilings de lege lata, as well as proposals for maximum rules currently debated in various international fora. Section 4 considers the intersection between ceiling rules and (domestic or international) norms granting more extensive protection. Finally, section 5 briefly summarises 1 For the term “substantive maxima” see Dreyfuss (2004) at 27, Dinwoodie (2006) at 214; for the terms “ceilings” and “maximum standards” see Kur (2009) and Grosse Ruse-Khan (2009). 2 I.e., the term is...
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