The Protection of Intellectual Property in International Law

ISBN : 9780199663392

Henning Grosse Ruse-Kahn
504 ページ
156 x 234 mm

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 construes a holistic view of international IP law as an integral part of the international legal system. The first part sets out the theoretical foundation for such a holistic view by offering several methodological frameworks for the analysis of norm relations in international law. As a toolbox, these frameworks allow for different ways to conceptualise the linkages amongst international IP rules and those to other areas of international law. Part two then considers norm relations within the international IP system. It analyses the relationship of the two main 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 Free Trade Agreements (FTAs). The third part discusses alternative rule systems for the protection of IP in international law. The intellectual creations element of IP is captured by the concept of creator's rights in international human rights law; while the property aspect of IP is protected by international investment agreements and European human rights treaties. Part Four focuses on three core intersections between the international IP system and other areas of international law related to environmental, social and economic concerns. The areas examined concern international law on trade, biological diversity and climate change. As in part three, the perspective taken is that of the 'other' area and how it perceives its relations with international IP norms. In part five finally, the focus shifts back to the international IP system and the mechanisms it provides for taking into account the interests protected in other areas of international law.


Part I: Introduction
Chapter 1: Linkages in International Law affecting Intellectual Property (IP)
Chapter 2: The Systematic Character of International Law
1 The ILC Approach
2 Is International Law a (Legal) System?
3 Societal Differentiation and Systems-Theory
4 A Functional Approach
Chapter 3: Approaches for Analysing Norm Relationships
1 'Conflict of Norms' Principles
2 Conflict-of-Laws Principles
3 Substantive Law Integration
4 The Toolbox

Part II: Norm Relations Within the International IP System
Chapter 4: Norm Relations amongst Multilateral Treaties
1 Revisions of- and Special Agreements to the Berne- and Paris Conventions
2 WTO/TRIPS Relations with the Main Pre-Existing IP Treaties
Chapter 5: The Relationship between TRIPS and Later Inter-Se Agreements
1 FTA IP Obligations and TRIPS flexibilities
2 Conflict Resolution Norms in TRIPS and under General International Law
3 Conflict Clauses in FTAs
4 Conflict Resolution via Harmonious Interpretation and Priority in Application: The Limits of FTAs Shaping TRIPS Interpretation
Chapter 6: The Legal Relationships within the International IP System: From Continuity to Resilience

Part III: Alternative Rule Systems for the Protection of Intellectual Property
Chapter 7: Intellectual Property under International Investment Agreements
1 The Scope for IP Protection under IIAs
2 Non-Discrimination Standards in IIAs
3 Absolute Standards of Treatment for Foreign Investments
4 International IP Obligations in Investor State Arbitration
Chapter 8: The Protection of Intellectual Property in International Human Rights Law
1 The Scope for Protection for Creators Rights under Art.27 UDHR and Art.15 (1) c) ICESCR
2 The Right to (Intellectual) Property
3 Overlaps and Conflict Norms in the Human Rights System
Chapter 9: Investment and human rights perspectives: increasing cross-fertilization with the international IP System

Part IV: Intellectual Property and Other Rule Systems in International Law
Chapter 10: The Perspective of World Trade Law on IP Rights
1 IP Protection and Enforcement a Barrier to or Facilitator of International Trade?
2 IP Rights under GATT - the Pre-TRIPS Cases
3 TRIPS-plus protection and enforcement as barrier to trade
4 Art.XX d) GATT as Conflict Norm in the Trade IP Relationship
5 Safeguarding a common core of IP protection the role of TRIPS
Chapter 11: IP Rights in International Environmental Law
1 The foundation for biological resource and technology transfer rules in international law
2 Access and Benefit-Sharing regarding GRs and associated TK
3 Transfer of technology resulting from the utilization of GRs and associated TK
4 Transfer of technology to protect the environment
5 Conflict Clauses in international environmental agreements

Part V: Integration and Conflict Norms in International IP Law
Chapter 12: Conflict Rules and Specific Integration Tools in the International IP System
1 Formal conflict rules
2 Specific tools of accommodation - an overview
3 Exceptions and limitations subject to the three step test
Chapter 13: General Principles for Integration
1 Public interest principles under Art.8 TRIPS
2 The balancing objectives in Art.7 TRIPS
3 Art.7 and 8 TRIPS in WTO dispute settlement: 20 years of neglect
Chapter 14: The Protection of Intellectual Property in International Law: Fragmentation, Alternatives and the Limits of Integration
1 Resilience, cross-fertilisation and external concerns
2 Treaty interpretation, ceilings and a general exception clause


Henning Grosse Ruse-Khan is a University Lecturer in Intellectual Property Law at the University of Cambridge and a Fellow of Kings College. In Cambridge, Henning is a Fellow at the Lauterpacht Centre for International Law and the Centre for Intellectual Property and Information Law. He also holds positions at the Max Planck Institute for Innovation and Competition in Munich (Germany) and the Centre for International Sustainable Development Law (McGill University, Montreal). For 2016, Henning has been elected as Distinguished Senior Fellow at Hanken School of Economics, Helsinki (Finland).; Henning teaches IP and WTO Law at the University of Cambridge and further at the Centre for International Intellectual Property Studies (CEIPI, Strasbourg), the Munich Intellectual Property Law Centre (MIPLC), the University of Berlin and the Hanken School of Economics in Helsinki. He is member of the editorial board of the International Review of Intellectual Property and Competition Law (IIC) and co-founder of the international IP network at the Society of International Economic Law (SIEL). He has advised international organisations, NGOs as well as developing- and developed country governments on international IP, WTO and investment law issues and has worked as a legal expert for the World Intellectual Property Organization (WIPO) on IP and development on several occasions.