Chapter 5: International IP laws and the moral dimension of design
The international legal framework for IP laws is a critical constraint for the arguments and suggestions that have been developed heretofore. Though IP laws are made by national legislatures and operate within the territorial jurisdiction of each legal system separately, the major international IP instruments such as the Paris Convention, the Berne Convention, the Rome Convention and, most important of all, the WTO TRIPS Agreement set constraints on each country’s freedom of manoeuvre. They impose restrictions, such as reciprocity or national treatment and, most crucially, provide for mandatory minimum levels of IP protection intended to hedge in the member states’ options as to the design and development of their IP laws. The relevance of these arguments and suggestions, then, depends on the degree to which this international framework either reflects such a justificatory theory or, at least, allows the implications of such a theory to be worked out in the national systems. This will have to be explored. This chapter will focus on the moral principles underpinning the TRIPS Agreement and the scope of play given to the justificatory theory by the exceptions and limitations provisions, especially the so-called ‘three-step’ tests. These are critical because TRIPS, as seen in the previous chapter, contains the overarching requirements of mandatory minima protection, incorporating and adding to those of prior international conventions, on conditions and in terms that are in large part couched in plain descriptive or technical terms.
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