For several years, research at the Max Planck Institute for Intellectual Property and Competition Law (MPI) - in collaboration with experts from all over the world - has examined the trend of bilateral and regional agreements that include provisions on the protection and enforcement of intellectual property (IP) rights. By building on this research, the following principles – express core concerns regarding the use of IP provisions as a bargaining chip in international trade negotiations, the increasing comprehensiveness of international IP rules and the lack of transparency and inclusiveness in the negotiating process; and – recommend international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international IP. These principles emanate from several consultations within the MPI and especially from a workshop that was held with external experts in October 2012 in Munich, Germany. They represent the views of those first signatories and are open to signature by scholars who share the objectives of the Principles

This chapter turns to the various approaches for addressing overlaps and resolving conflicts previously summarized. A range of specific conflict rules, the general conflict of norm principles referred to in the ILC Fragmentation Report, as well as alternatives such as conflict-of-laws concepts and the substantive law method are explored and applied to the rule relations assessed throughout prior chapters. The chapter then offers a birds-eye perspective on the relations within the international intellectual property (IP) system, those to alternative systems for protecting IP assets in international law, and to other global legal orders that interface the protection of IP. This perspective cannot claim to be objective and of course does not offer any sort of absolute truth. However, the chapter attempts to present this perspective as one that goes beyond the traditional realm of ‘international intellectual property law’ and truly engages with other rule systems in international law.

This book examines intellectual property (IP) protection in the broader context of international law. Against the background of the debate about norm relations within and between different rule systems in international law, it constructs a holistic view of international IP law as an integral part of the international legal system. The first part considers norm relations within the international IP law system. It analyses the relationship of the two main unilateral IP conventions to the World Trade Organisation (WTO) Agreement on Trade Related Aspects of International Property Rights (TRIPS), as well as the relationship between TRIPS and subsequent Free Trade Agreements (FTAs). The second part discusses alternative rule systems for the protection of IP. The third part identifies important intersections and links between the traditional system of IP protection and other areas of international law related to environmental, social, and economic concerns. These include free trade in goods; biological diversity, genetic resources, and traditional knowledge; multilateral environmental agreements (MEAs) on climate change; and access to medicines and food. This analysis provides significant insights into the nature and quality of international law as a legal system. The fourth part identifies appropriate norms within the international IP system that can respond to these complexities and linkages.

This article discusses atypical acts of the European Union (EU) concerning intellectual property (IP) protection within the EU's internal legal order and its external relations. Internally, atypical acts are used in IP for flexible pre-and post-regulation purposes or for soft guidance and steering. Yet in IP and elsewhere, those flexibilities come at the cost of deficits in democratic legitimacy, legality, and legal certainty. Atypical acts are also common in the external trade relations of the EU. Like more formal conduct of trade relations by means of international agreements, they focus on the enforcement of IP rights. The less formal (and legal) character of these acts often allows them to be more policy-driven and so makes it easier to address key political concerns relevant for EU external trade relations in a more flexible and current manner. Some of these policies are subsequently turned into 'hard' lawfor example in the course of the negotiations over the controversial Anti-Counterfeiting Trade Agreement (ACTA). Based on the comparative analysis of the role of atypical acts in the EU's internal legislation for IP vis-à-vis their role in external action, this article explores possibilities of limiting the drawbacks while preserving the benefits of a use of atypical acts in external policies.

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International intellectual property (IP) law has shifted focus after the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) set out comprehensive global standards about 20 years ago: since the mid-nineties, most international rule-making to protect and enforce IP rights comes in form of bilateral or regional agreements, here generally referred to as Free Trade Agreements (FTAs). As multilateral solutions have been increasingly difficult to agree upon, the world has witnessed an unprecedented proliferation of these FTAs. The wide range of issues covered by FTAs allow countries which are otherwise reluctant to agree to increases in IP protection to accept them because of trade-offs-such as obtaining (or avoid losing) preferential access to the markets of their FTA partners. Because of these trade-offs, most FTAs with IP provisions contain obligations on the protection and enforcement of IP that set significantly higher standards than those of the TRIPS Agreement, commonly referred to as 'TRIPS-plus' standards. Most commentators lament this development since TRIPS-plus IP obligations frequently undermine the ability of WTO Members to rely on the policy space and flexibilities TRIPS leaves to design national IP laws in light of domestic needs. UN human rights organs have considered such flexibilities critical for access to medicines and other essential goods. In this article, I will make a case for the continued relevance of the TRIPS Agreement as an overarching, multilateral framework for TRIPS-plus FTAs. My argument is based on the utilitarian objectives of IP protection that WTO Members have agreed to in Article 7 TRIPS. For the purpose of treaty law, these objectives form, together with the public interest principles expressed in Article 8 TRIPS, the agreement's object and purpose. In the 2001 Doha Declaration on TRIPS and Public Health, all WTO Members highlighted the principal role of these norms for interpreting and implementing TRIPS in a way that allows to give effect to public interests, such as access to medicines. The role of Articles 7 and 8 however goes beyond treaty interpretation and implementation: I argue that these norms are of integral character-such that provisions essential for giving effect to TRIPS' object and purpose cannot, as a matter of treaty law, be derogated from in bilateral or regional agreements amongst WTO Members. The article intends to show this with reference to the negotiation history of Articles 7 and 8, the utilitarian objectives and public interest principles for IP protection they set out, and the recognition a common object and purpose warrants under general international law principles on inter-se modifications of multilateral treaties. For TRIPS-plus obligations in FTAs, this means that they need to respect TRIPS provisions which are essential to give effect to the objectives and principles expressed in Articles 7 and 8. However, because these objectives and principles leave significant freedom to WTO Members in deciding on how to protect publi...

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