Research Handbook on Intellectual Property Exhaustion and Parallel Imports
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Research Handbook on Intellectual Property Exhaustion and Parallel Imports

Edited by Irene Calboli and Edward Lee

From the Americas to the European Union, Asia-Pacific and Africa, countries around the world are facing increased pressure to clarify the application of intellectual property exhaustion. This wide-ranging Research Handbook explores the questions that pose themselves as a result. Should exhaustion apply at the national, regional, or international level? Should parallel imports be considered lawful imports? Should copyright, patent, and trademark laws follow the same regime? Should countries attempt to harmonize their approaches? To what extent should living matters and self-replicating technologies be subject to the principle of exhaustion? To what extent have the rise of digital goods and the “Internet of things” redefined the concept of exhaustion in cyberspace? The Handbook offers insights to the challenges surrounding these questions and highlights how one answer does not fit all.
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Chapter 11: Parallel imports and the principle of exhaustion of rights in Latin America

Carlos M. Correa and Juan I. Correa


Based on the principle of exhaustion of rights in Article 6 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),1 members of the World Trade Organization (WTO) may admit parallel imports of products legitimately put on the market in a foreign market, thereby allowing consumers to get access to products protected under national intellectual property rights at prices lower than the products that are distributed locally by the right owners or licensees. Such imports may also be important when the local market is not adequately supplied by the right owners, for instance, when the quantity of the protected product is insufficient to meet the demand. The very general provision of Article 6 of TRIPS, as examined elsewhere in this book,2 leaves WTO members considerable policy space to define the geographical origin and source of parallel imports for all categories of intellectual property, as defined in Article 1.2 of TRIPS.3 WTO members may determine whether such imports are admissible on an international basis, or only when originating from a country belonging to a particular grouping of countries, such as a regional common market, as in the case of the European Union (EU). In addition, national laws may decide whether the legality of parallel imports is conditional upon the right holder having consented to the commercialization of the protected products in the exporting country, or whether products commercialized without such consent by a person otherwise authorized (for instance, a compulsory licensee) may also be admissible under the principle of exhaustion. 4 Finally, parallel imports may be admitted for certain categories of intellectual property rights and not for others.

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